Godfrey Chiwara v The State

### Preamble
1
HH 655-18
CA 106/17
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GODFREY CHIWARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 13 September 2018

Criminal Appeal

R Jambo, for the Appellant

F I Nyahunzvi, for the Respondent

HUNGWE J:	The appellant was convicted for driving without due care and attention as defined in section 51 (1) of the Road Traffic Act [Chapter 13:11].  He was sentenced to pay a fine.  He was unhappy about his conviction and appealed.

In his grounds of appeal the appellant alleged bias on the part of the witnesses for the state, inconsistences and incoherence, (whatever that meant).

He alleged that the court erred by concluding that the damage to the complainant’s motor vehicle were caused by the appellant’s motor vehicle as the latter attempted to overtake.

He also claims that the court erred in its approach to the evidence tendered by the appellant which approach required the appellant to prove his case.

The facts upon which the conviction was based can be summarized as follows:

Complainant was driving due south along the Harare-Masvingo road.  On approaching the 68 km peg a heavy vehicle attempting to overtake him collided into his motor vehicle causing it to spin off the road.

In his evidence the complainant says that his motor vehicle ended off the road to the left after it spun twice before coming to a stop.  He claimed that the appellant was traveling at an excessive speed.  As the appellant attempted to overtake him, he collided with the rear right side of his vehicle.  This collision caused his motor vehicle to spin twice before coming to rest on the left side of the road.  The appellant’s vehicle continued for another 200 to 300 meters before he brought it to a stop.

The court a quo heard the version tendered by the appellant.  It was this.

He was driving behind the complainant who was much slower than him. He indicated his intention to overtake. He then proceeded to do so by moving into the overtaking lane. As he was doing so, the complainant suddenly and without warning switched lanes and started driving in front of him. This resulted in the collision inside the overtaking lane. He claimed that he was not driving too closely behind the complainant. He stated that the collision occurred as result of the reckless, unreasonable and dangerous conduct of the complainant who unreasonably changed lanes when it was not safe to do so in front of an overtaking vehicle. He alleges that the complainant failed to keep a proper look out or stop or act reasonably when an accident appeared imminent.

The police officer who attended the scene testified. He noted the respective final positions of both motor vehicles. He observed the point of impact as lying on a point he marked X on the sketch map. He concluded that the appellant had misjudged the distance between his vehicle and complainant’s as he was overtaking thereby colliding into the vehicle in front of him.

In his judgment the learned trial magistrate found the evidence of the attending detail corroborative of the contention by the complainant that it was the appellant who collided into the complainant’s motor vehicle. He reasoned that there was no basis for the claim that it was the complainant who veered into the path of an overtaking vehicle. His finding appears to be consistent with the objective facts which suggest that the point of collision is directly opposite a shop. There was no reason to go into the oncoming lane as complainant was not about to execute a right turn or an overtaking procedure. In fact if the evidence of the Police Officer is anything to go by, the collision occurred in the complainant’s lane as appellant tried to overtake. He hit the right rear side of the complainant’s motor vehicle.

Colliding with the rear side of a motor vehicle ahead, everything else being equal, suggests that the driver of the vehicle behind either failed to keep a proper look out or failed to keep his motor vehicle under proper control or both. In the present case the facts show that the appellant was driving a heavy vehicle. He saw the complainant’s motor vehicle ahead of him. He decided to overtake it. In doing so, he hit into it. His explanation that it was the complainant who suddenly swerved into his lane was rejected. In our assessment the magistrate was correct in rejecting the explanation as false. The basis for upholding this finding, additional to what the learned magistrate found, is that the fact that the complainant’s vehicle spun out of the road to the left is consistent with being hit from behind by an overtaking vehicle. In our view, the explanation given by the appellant of how he collided with complainant would have resulted in the complainant’s vehicle continuing straight on rather than out of the road to the left. His speed could have been a result of the decision to overtake. Consequently, his negligence arises out of his failure to successfully execute the overtaking procedure resulting in the accident.

In S v Ndanga 1995 (2) ZLR 258 (SC) the court stated that

“To lose control of your vehicle at relatively high speed on a main road on which other vehicles are present is, to my mind, at least moderate negligence.”

In the present case, the trial court found that since the appellant was attempting to overtake but failed to do so safely, he drove without due care and attention. He must have been driving too closely to the complainant such that he misjudged his distance from the vehicle ahead before changing lane leading to the collision. The court a quo was alive to the lack of a signed witness statement from both parties to the accident and other independent witnesses. It rested its findings and conclusions on the objective facts and the reasonable inferences which excluded the version given by the appellant.

I share the view that, as found by the trial court, had the appellant kept a safe distance between his vehicle and that of the complainant, on his own version, had complainant behaved in the erratic manner of suddenly veering into the opposite lane where he was already, he had the last opportunity to avoid the accident. He failed to do so because either he was travelling at an excessive speed in the circumstances or he failed to act reasonably when an accident seemed imminent. His tyre marks, as testified to by the Police Officer, (although not indicated on the sketch plan) indicate that he applied brakes. Appellant told the court that if he had suddenly swerved to the right he would have rammed into the shops.  This tends to show that he was speeding as any swerve would have had catastrophic consequences for his heavy vehicle. But as I have demonstrated, his speed could not at the same time constitute an element of negligence since he was overtaking. It is his failure to safely overtake which forms the basis of the finding of negligence. On his own version, he realised the presence of the complainant when it was too late for him to avoid colliding into him. If he tried to take evasive action, he would have crushed into the buildings to his right. When driving behind another vehicle the law requires one to leave sufficient space for one to be able, in the event that something happens, to avoid hitting into such a vehicle. The rationale behind the rule appears to us to be that the driver at the rear has the last opportunity to avoid such an eventuality as he is in control of the only vehicle posing a danger to the one ahead. In the unlikely event of a sudden swerve to the right, as appellant claims, then in that event such the driver who drives in such a manner would be at fault.  In the present case, the court accepted the complainant’s version of events which is, in our view supported by the objective facts on the ground. He took the safer risk to hit into the vehicle ahead of him rather than risk the unpalatable consequences of a sudden right swerve to avoid the collision.

Consequently, I am of the view therefore that the conviction is proper and therefore confirmed.

The appeal against conviction is dismissed in its entirety.

WAMAMBO J agrees …………………..

Jambo Legal Practice, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners