THE State V Nixon BIZA

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                                                                               CRB NO. 81/17

THE STATE
versus
NIXON BIZA


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 23, 24, 25, October, 2, 22 November 13 December 2017
         and 23 February 2018


Assessors:     1.      Mr Mhandu
               2.      Mr Mtambira




Criminal Trial


N Mazvimbakupa, for the state
N Mugiya, for the accused



         TSANGA J: The accused faced a charge of murder arising from the death of a
policeman he was said to have run over at a police stop with his commuter omnibus
registration ABZ 2324 on the 2nd of October 2016. The deceased officer, Tapera Cleopas, was
said to have been standing in the inner lane close to the dotted white line whilst facing
oncoming traffic which he was trying to stop. As the accused approached the spot where the
deceased was, he was said to have changed lanes from the outer lane to the inner lane and
accelerated speed. He had hit the deceased with the left corner of his vehicle resulting in the
deceased hitting the wind screen and falling to the ground. It was the State case that the
accused had then stopped about 100 m from the point of impact, a fact they attributed to his
speed.

         The accused pleaded not guilty. He acknowledged knowing that they were police at
the spot and indeed noticing them, although equally observing that they were none stopping
traffic in the middle of the road at that material time.

The state’s evidence
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       The State's chief witness was Patience Chipakanwa a vendor who had been selling
drinks on the opposite side of the road. She had earlier on had a conversation with the
deceased about the sale of a drink and when that conversation ended she had continued to
observe his activities. From her vantage point, she told the court that at the material point the
deceased had been hit, he had been standing in the middle of the road trying to signal the
accused’s vehicle to stop. Whist the deceased had indeed attended to a vehicle at the side of
the road, according to this witness, he was, however, in the middle of the road at the crucial
time as he had finished with that other vehicle.
       The accused's vehicle, whilst coming from the direction of town along the
Chitungwiza road, had at the spot where the police were stationed, moved from the inner lane
to outer lane at high speed and had hit the deceased. She emphasized that the accused had
been speeding and pointed to the fact that he had only finally stopped at a considerable
distance from the point of impact, a fact which she attributed to his speed. At the inspection
in loco she estimated his stopping point of approximately 68m from the point of impact. She
had not heard any hooter. The accident happened at about midday on a Sunday when there
was little traffic. The policeman was in uniform and had reflectors.
       The second witness was Kudzayi Nyangombe, a police constable with Chitungwiza
Traffic. He was at the scene on that day and he too reiterated that the accused was traveling at
high speed and the fact that he had changed lanes. According to him, when he changed lanes
he was already near the police officer standing on the white line who was signalling him to
stop. He had increased speed and had hit him with the left side of his vehicle. He said the
accused’s speed had drawn his attention and he further told the court that a normal person can
discern when a car is speeding. He told court that the speed limit in that area is 80 km but that
he did not know what actual speed the accused was driving at, at that time. He further
corroborated the first witness that the deceased had stopped a vehicle but was through dealing
with it at the time of the accident. Since he was through with that vehicle, as far as this
witness was concerned, there was no other vehicle at the time. His estimate of the distance
where the accused’s car had stopped after the impact was about 70 to 100m. He
acknowledged that the road block was a blitz and therefore there was no “police ahead” sign
or drums.
       The third state witness was Chiedza Mapuranga, also a police officer who was at the
scene on that day. She told the court that the deceased was standing behind her that day
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stopping cars. She also repeated that the accused’s vehicle had moved from the outer lane to
the inner lane whilst increasing speed and that the deceased had been hit whilst standing in
the middle of the road. She too told the court that the accused was indeed speeding and that
she had wondered how he would manage to stop given his speed. She also told the court that
the accused had intentionally struck the deceased because he did not want to be stopped. She
emphasized that since the accused knew there was a roadblock, he should have exercised
heightened caution when passing through there.
       In summary, all three of the state witnesses said the accused was speeding although
they could not state his actual speed. No velocity expert was called. All three said he had
moved over from outer lane to the inner lane. The distance recorded where he had stopped at
the time of the accident was put by the police at 101 meters. The post mortem report showed
that the deceased had died as a result of head injury arising from the road traffic accident.
The accused’s evidence

       He told the court that at the material time that he got to the spot where the police
were, he was traveling at 50 km an hour. He told the court that he had slowed down to 15 km
an hour even though he had not been slowed down as police were attending to other vehicles.
Just as he was about to go past a vehicle that had been stopped and was on the outer left lane,
the now deceased policeman had emerged and rushed onto to the road in front of the his
Commuter Omnibus. He had swerved to the right and said he had hooted but that it had been
too late and the policeman had been caught by the left mirror. He said he had stopped the car
after about 30m from the point of impact and had dashed to assist. His explanation was that
he had stopped where he had because that was the safe place to do so and not because he was
speeding. He said the accident occurred because the deceased had not checked the road and
he surmised that he was in fact trying to cross the road. Whilst accused in his defence outline
said he never changed lanes, the fact that he had was a point all three of the state witness
were in agreement with.
       Material to his evidence was that he told the court in cross examination that he had
seen the police at that spot as it was common for them to be there. He had also seen them on
the other side of the road as well on his way into town earlier that day. His primary defence
therefore was simply that at the point in time when he drove through, they had been no police
on the road to stop him. He had increased speed because he assumed that he was not being
stopped.
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       As was put to him in cross examination:

Q:      You indicated you were travelling at 50km an hour and reduced speed. To what?

A:     To around 15-20 km.

Q:     Now do you confirm that when you approached the bus stop you noticed the police.

A:     Yes.

Q:     After you reduced speed did you increase again?

A:     Yes, on the road there were no police, so I increased.

Q:     To what?

A:     To about 40kms

Q:     So when you hit deceased is it your evidence you were travelling at 40km?

A:     Maybe 40 or a bit below.

       He told court that when he hit the deceased he had in fact stopped about 10m but that
due to safety issues as there were cars behind him he had proceeded to stop where it was
safety do so, on the outer lane. He also surmised that if the deceased had been facing him,
then he would have sustained facial injuries instead of being hit at the back of his head. He
denied travelling at a speed that threw the deceased into the air.

Tatenda Chigocha who was also in the vehicle with the accused gave evidence. He was a
conductor on the vehicle. He had not seen the deceased being struck but had merely heard a
thud. The driver had applied brakes and had stopped where safe to do so. Materially he could
not tell the court how the deceased was struck because he had not seen this himself.

Teddy Shoniwa also gave evidence. He was in the front passenger seat when the accident
occurred. His evidence did not add much to the factual matrix other than that he was the one
who had shouted out that there was a person on the road just before he was struck. He too
said that there was a car on the left and that is why the driver may not have seen him emerge.
He too merely surmised that he may have been crossing the road. He said the driver had
stopped the car about 10m before they told him to park where safe. He had not noticed the
police himself but had seen them there immediately after the accident.
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Analysis

       The crucial issue in this trial is whether accused was traveling at a high speed at all
and if so whether he did so with the intention of killing the policeman. We deal firstly with
the issue of speed. Whilst no evidence was before this court as to the actual speed he was
traveling at, this court believed the witnesses who said he was traveling at high speed. This is
because the acquisition of that memory was closely linked to the happening of the event. It
would have been retained by the witnesses as a material aspect of their evidence of the cause
of the accident. We do not believe that the witnesses were distorting memory when they said
the accused was speeding. Also, if the accused was travelling at the low speed which he
claimed to have been travelling, which he claimed was 40km an hour or lower, he would
have been able to effectively apply his brakes and to stop.
       Furthermore, the accused himself conceded that he had seen the police. This is
crucial. The accident did not happen because the accused person was totally oblivious of the
police presence. In his own words, he had seen the police, and his point, to re-emphasise, was
simply that they were not in the middle of the road at the time. Whilst he denied changing
lanes the evidence from all State witnesses was that he had done so. We believed the
witnesses on this score as it tallies with his own admission that he had increased speed
because they were no police on the road. There was no reason for them to lie. If, as we do,
accept the evidence that there was a car that was on the outer left lane, then all the more
reason why he would have moved to the inner lane as that is generally the faster lane.
       As stated in S v Chitepo HMA 3 /17, “it is now trite that in a charge and conviction of
culpable homicide arising out of a driving offence, it is essential that the trial court should
first make a precise finding on the degree of negligence before assessing the appropriate
sentence.
       Now in casu, the accused knowing as he did that the police were present at the spot
for the sole purpose of stopping cars, it makes no sense that he would have increased his
speed unless his intention in doing so was to avoid being stopped. To increase speed when
going through a police check point was highly culpable. He also failed to keep a proper look
out and the accident also happened during the day when visibility was very good. Because of
his speed he had clearly been unable to stop when the accident was imminent.

       To quote from S v Duri 1989(3) ZLR 111 (SC):
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       "To be liable a driver need not have foreseen the precise manner in which his
       conduct led to the occurrence which caused the complainant harm. Provided the
       manner in which the harm occurred was 'within the range of ordinary human
       experience' the defendant is liable."
       Having in fact seen the police his action in increasing speed within that police area
was in fact grossly negligent if not bordering on being reckless as he should have realised the
delicate nature of the zone he was travelling through and the real possibility of knocking
someone within that area. Indeed he had a duty to slow down precisely because of that very
real possibility of the police emerging to stop him in that zone. It made absolutely no sense to
increase speed. If he was initially travelling at 50 km/hr as he claimed and then slowed down
to 15 km/hr only to peak at 40 km/hr or below, it seems unlikely that the accused would have
been unable to stop his vehicle or even that the deceased policeman would have sustained the
fatal injuries that he did. The post mortem report which was produced in court as an exhibit
No.1 showed that the accused had as a result sustained multiple bruises and a fracture and
had died of head injury due to the road traffic accident. The windscreen had been shattered,
the rear view mirror broken whilst the car had also been dented in front as a result of the
impact. The accused though told the court that a dent to the front of the car was already there
before the accident.
       It is our view that he was grossly negligent in driving through the area at high speed
well knowing the police were present. We do accept that the deceased policeman may have
just completed dealing with another vehicle at the time that he tried to stop the accused. What
is clear is that at the material time that he was hit he was indeed on the demarcated white line
in the middle of the two lanes. We do not believe that he was trying to cross the road without
looking. That is mere conjecture and if the accused and his witnesses had seen that it was
indeed what he was trying to do, there would have an opportunity to take corrective action if
the accused was driving at the low speed he claimed to have been driving. The whole purpose
of reducing speed is to enable a car to stop suddenly if need be. It would be unrealistic to
pretend that Kombi drivers do not loath being stopped by the police and that his intention was
all probability to avoid being stopped when he increased speed within that zone.
       It is not surprising that the witnesses on both sides varied on estimation of distance in
particular how far the car had stopped and also on how many cars were in fact at the scene on
the that day. Memory decays over time and on both sides there would have been exposure to
post accident information. The accident was anxiety producing and overestimates or
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underestimates of where the car had stopped are to be expected depending on whose side the
evidence is given. However from the witness statements and the state case, what we accept is
that the car had stopped at least a maximum distance of 100 meters from the point of impact.
       We are however not convinced that he intended to kill in the sense of committing a
murder. In the result against the backdrop of the facts we find the accused not guilty of
murder in terms of s 47 but guilty of culpable homicide in contravention of section 49 (1) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentence

       The accused is 46 years old, married with three children. He is said to be the sole
breadwinner. In mitigation, his cooperation with the police was highlighted including his
assistance to the deceased’s family for funeral expenses. He has been out on bail and has
attended court without fail. In sentencing him the court was urged to take all these factors
into account. In aggravation he was said to have been driving a public service vehicle and had
passengers in the vehicle when he sped through the police point which he knew was there.
       As regards when a term of imprisonment is appropriate in cases of culpable homicide
resulting from negligent driving, courts will normally impose a sentence of imprisonment
without the option of a fine where the driver has been reckless or grossly negligent or was
under the influence of liquor or drugs. See S v Lusenge C AD-138-81. A custodial sentence is
appropriate in this case because there is clearly a need for the police to be respected at all
times. In passing sentence this court takes cognisance of the tendency of Commuter Omnibus
drivers to try and avoid the police and the common practice of speeding and of reckless
manner of driving by such drivers. This cannot be ignored. His behaviour clearly put the lives
of many at risk.
       Culpable homicide arising from a road traffic accident is also referenced to the Road
Traffic Act when it comes to sentencing in that prohibition from driving may also be included
in addition to any other penalty imposed. See s 64 of Road Traffic [Chapter 13:11] S v Goto
and S v Sibanda HB-88-15. The accused was a first offender. Negligent driving which
involves a Commuter Omnibus would generally attract the additional penalty of prohibition
from driving unless there are special circumstances. Whilst the accused clearly drove highly
negligently if not bordering on recklessness in passing through an area where he knew they
were police at high speed and failing to keep a proper lookout, there was an element of
contributory negligence on the part of the police. Besides being an unmarked road block, the
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practice by the police of suddenly springing onto the road is clearly undesirable and
dangerous not only to the police themselves but to members of the public who may be
travelling in the vehicle they will be attempting to stop. In the courts view, these were the
special circumstances in this matter which permit the court to refrain in this instance from
prohibiting him from driving. Whilst cancellation of the licence and prohibition from driving
will not be passed in this instance, the case calls for a custodial sentence in that by increasing
speed in an area where they were police officers in order to avoid being stopped, the accused
then failed to keep a proper look out. As a result, there was a needless loss of life.
       Accordingly the following sentence is imposed:
       30 months imprisonment of which 18 months is suspended for five years on condition
       the accused does not during that time commit an offence involving negligence to
       which he is sentenced to a term of imprisonment without the option of fine. Effective
       sentence: 12 months.



National Prosecuting Authority, State’s legal practitioners
Mugiya & Macharaga Law Chambers, accused’s legal practitioners