The State v Daniel Njoloma

### Preamble
1
HH 292-13
CRB MT 338/13
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THE STATE

versus

DANIEL NJOLOMA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 18 September 2013

Criminal Review

MATHONSI J: The accused is a 39 year old foreigner cherishing his domicile in Blantyre Malawi. On the night of 30 June 2013 he was driving a Volvo BUSSCAR bus registration number BS 358 which was towing a trailer registration number BR 9065 with 51 passengers on board, headed for Harare. At about 20.30 hours (both the charge sheet and the State outline are silent on the time of the day whether by design or oversight), at the 220 km peg he hit a black cow which had invaded the road from the right side and was in the middle of his lane.

The accused person had dimmed his headlights in consideration of oncoming traffic, a Mercedes Benz Sprinter minibus registration number ACL 3700 which was also towing a trailer registration number ACE 3153 headed for Nyamapanda with 23 passengers on board. The accused had also reduced his speed to about 55 km per hour when he hit the black beast which was attempting to cross the road.

As a result of the collision with the beast, the accused lost control of the bus which veered off to the right lane where there was the oncoming sprinter minibus. His bus collided with the minibus as a result of which 6 people in the minibus, including the driver, perished  while 17 other passengers were injured.

The accused was arraigned before a provincial magistrate in Mutoko facing 6 counts of culpable homicide in contravention of s 49 (a) of the Criminal Law (Codification and Reform) Act [Cap 9:23}. He pleaded guilty to the offence and was, upon conviction, sentenced to 4 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition of future good behaviour. In addition, he was prohibited from driving for life.

Having gone through the record of proceedings thoroughly I am of the firm view that both the conviction and sentence of the accused person cannot be sustained at all especially as the particulars of negligence are not supported by the facts relied upon by the State and specifically admitted by the accused person. The facts of the matter as set out in the State outline are that:-

“01.	DANIEL NJOLOMA a male adult aged 39 years residing at Box 300196, Blantyre, Malawi hereinafter called the accused person employed by MKHUNZI BUS COMPANY as a driver,

02.	The complainant is the State.

03.	On the 30th day of June 2013 the accused was driving a VOLVO BUSSCAR bus with a trailer registration numbers BS 358, BR 9065 respectively with 51 passengers on board hearding (sic) towards Harare.

04.	On approaching the 220 kilometre peg along the Harare-Nyamapanda road the accused person hit a beast which was on the road, due to his excessive speed the accused person failed to stop his vehicle, moved his vehicle to the right side encroaching (onto) the lane of the now deceased GRAHAM MACHIRI who was driving a Mercedes Benz Sprinter with a trailer registration number ACL 3700, ACE, 3153 respectively which was hearding (sic) towards Nyamapanda with 23 passengers on board.

05.	The now deceased GRAHAM MACHIRI sensed danger and moved his vehicle off the road to the far left and the accused person went on to hit the now deceased’s vehicle on the driver’s door with his vehicle’s front part killing six people on the sport including the driver and injuring seventeen passengers who were all boarding (sic) the Mercedes Benz minibus.

06	All the injured were ferried to Kotwa Hospital where ten of them were transferred to Parirenyatwa Hospital were (sic) they are still detained.

07.	The Mercedes Benz Sprinter minibus sustained serious frontal damages and the accused’s bus sustained moderate frontal damages.

08.	The accident occurred on a wide tarred straight road and it was during the night.

09.	The State will allerge (sic) that the accused person was negligent in one or more of the following particulars of negligence –

- failing to keep vehicle under proper control

- travelling at an excessive speed under the circumstances.

- failing to act reasonably when accident seemed imminent.

- failure to keep a proper look out”.

After the accused had pleaded guilty to the charge, the following is the dialogue that took place between the trial magistrate and him on essential elements:-

“Q.	Correct that on 30/6/13 you drove a motor vehicle namely a Volvo Busscar bus reg BS 358; BR 9065 along Harare – Nyamapanda road heading towards Harare

Yes

Q.	At or near the 220 km peg you hit a beast which was on the road

A.	Yes

Q.	On which part of the road did you hit the said beast

A.	On my left hand side

Q.	Was it on the midst of the left lane

A.	To the left of the road

Q.	Correct that after hitting the beast you failed to keep the bus you were driving under proper control

A.	Yes

Q.	As a result the bus swerved to the right thereby causing collision with an oncoming vehicle

A.	Yes

Q.	At what speed were you travelling at (sic)

A.	About 85 km per hour

Q.	At what distance did you see the beast

A.	I never saw the beast

Q.	But it was on the road

A.	Yes, it was crossing from the right to the left

Q.	With which part of the bus did you hit the beast

A.	The middle front of the bus

Q.	Had you seen the oncoming vehicle before

A.	Yes I had seen it from a distance and I dimmed the lights of my vehicle

Q.	What did you do when you perceived the oncoming vehicle

A.	That’s when I reduced the speed I was travelling at to about 75 km per hour

Q.	What action did you take when the accident seemed imminent

A.	I further reduced the speed to 55 km per hour from about 75 km per hour and the beast was crossing the road

Q.	Confirm you did not keep a proper look out in the circumstances

A	Yes I should have seen the beast as it came from right to left

Q.	Confirm that it is the manner in which you drove the vehicle which caused the collision with a vehicle off the road causing the death of six passengers in the oncoming vehicle

A.	Yes

Q.	Any right

A.	None

Q.	Any defence to the manner you drove the motor vehicle

A.	None”.

Now this was an unrepresented accused person and the court had a duty to assist him especially in light of the fact that this is a technical offence of culpable homicide arising out of a motor vehicle accident which involves the degree of negligence, sudden emergency and the nexus to the death which occurred. In such a case, the particulars of negligence should be put by the court to the accused person in a simple manner which solicits fair answers.

It occurs to me that the accused did not appreciate the questions put across to him and it is difficult to accept that the particulars of negligence are sustained by the facts I have alluded to above. Clearly the accused only failed to keep the vehicle under control after hitting the beast which itself was black in colour and emerged from the side of the road crossing.

It is disappointing to note that the State makes no reference in both the charge sheet and the State outline to the time when the accident occurred. One is only able to appreciate that the accident occurred at night upon reference to the sketch diagram of the accident which was produced by consent. Therefore it is not apparent from the record that the trial magistrate ever applied his mind to the fact that the accident occurred at night after the accused had hit a black cow which was not even stationary on the road but emerged from the side attempting to cross the road at a time when the accused’s vision had been impaired by the dimming of his headlights on approaching oncoming traffic.

Indeed the speed at which the accused was travelling, 55 km per hour immediately before hitting the cow, cannot be said to have been excessive in the circumstances. That speed was not challenged by the State. Regarding the issue of whether he failed to act reasonably when the accident seemed imminent, the accused explained that he tried to avoid the accident but this was a sudden emergency.

In view of the facts and the dialogue between the court and the accused, it should have dawned upon the magistrate that the accused possibly had a defence. As stated by KORSAH JA in S v Mauwa 1990(1) ZLR 235(S) 241B:

“Where a person or third party is placed in danger by the wrongful act of another, that person is not negligent if, in the agony of the moment, he exercises such care as may be reasonably expected of him in the reasonable apprehension of the danger in which he is so placed. He is not to blame if he does not do quite the right thing in the circumstances”.

The doctrine of sudden emergency was formulated by the Supreme Court in Chikosa  v Wright 1996 (2) ZLR 607(S) 608G where the Appeal Court stated:-

“A man who, by another’s want of care, finds himself in a position of imminent danger, cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger”.

See also S v Drummond HB 68/11 at p4.

Our roads have become extremely hazardous owing to owners of livestock neglecting to control their movement and allowing them to roam around even at night where they cross roads unattended thereby making driving at night a real nightmare. This is exactly what created the sudden emergency the accused found himself in. Having collided with a stray cow which he had not seen completely owing to a number of factors including its colour, darkness of the night, dimming of lights and its sudden appearance crossing the road, the accused lost control of the vehicle leading to the second collision which was fatal.

Just how the accused was expected to keep the vehicle under control after that collision, how he was expected to act reasonably in order to avoid the second collision and where he came short, is a matter of evidence which the State bore the onus of proving and not taking advantage of an unrepresented accused.

The proper course of action would have been for the trial magistrate to enter a plea of not guilty and leave the State to prove its case. The conviction is therefore improper.

Even if it was proper, the sentence that was imposed induces a sense of shock. This was a technical case of culpable homicide arising out of a traffic accident which only occurred because of the sudden emergency caused by a stray cow. There can be no justification whatsoever for the imposition of a custodial sentence, least of all a heavy one as was imposed. For the court to come up with a term of incarceration for such an offence, the degree of negligence should be gross or bordering on recklessness or he accused should have been intoxicated.

It is becoming fashionable for magistrates to come up with custodial sentences for such offences where clearly a sentence of a fine would be appropriate. This should be discouraged.

The magistrate’s reasoning must have been blinded by the tragic loss of many lives, to an extent that he lost sight completely of the circumstances of the offence. This is injudicious, illogical and betrays a closed mind. He adopted an instinctive approach to sentencing which is influenced by emotion. Magistrates should arm themselves with enough information in order to assess sentence as humanely as possible and reach a sentence based on fairness: S v Sibanda HB 65/11; S v Ngulube HH 48/02.

The mitigating circumstances, in particular the factors surrounding the commission of the offence, weighed heavily in favour of the accused. A hefty fine would have met the justice of the case even as 6 lives were tragically lost.

With the thankful concurrence of my brother MAWADZE J I make the following order, that:-

The conviction and sentence imposed by the trial court are hereby set aside.

The proceedings before the provincial magistrate for Mutoko are hereby quashed.

The matter is hereby remitted to the magistrates court for a trial de novo before a different magistrate.

The State is directed to expedite the retrial of the accused person owing to the fact that he is a foreigner.

MAWADZE J: agrees …………………………………..