Reserve Bank of Zimbabwe (2) Joram Makonde v Tiran Transport (Private) Limited

### Preamble
Judgment No. SC 75/19
1
Civil Appeal No. SC 895/17
DISTRIBUTABLE
(71)
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DISTRIBUTABLE	(71)

RESERVE     BANK     OF     ZIMBABWE     (2)     JORAM     MAKONDE

v

TIRAN     TRANSPORT     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, GARWE JA & MAKARAU JA

HARARE, MARCH 16, 2018 & SEPTEMBER, 26 2019

T Magwaliba, for the appellants

T Mpofu, for the respondent

MAKARAU JA:  This is an appeal against the whole judgment of the High Court handed down on 12 October 2016. In the judgment, the High Court found the appellants liable to the respondent in the sum of US$33 552.50 as damages arising out of a motor vehicle accident.

Background

On 27 August 2008 and at the 28 kilometer peg along the Harare-Masvingo Road, a vehicle belonging to the first appellant was involved in an accident with a vehicle belonging to the respondent. The accident occurred in the correct lane of travel of the respondent’s vehicle.  At the time of the accident, the second appellant was driving the first appellant’s vehicle.

Alleging negligence on the part of the second appellant in the court a quo, the respondent sued the first appellant vicariously and the second appellant directly, for the damages suffered. In particular, the respondent alleged that the second appellant drove at an excessive speed, failed to exercise due care and attention and failed to control his vehicle when an accident seemed imminent.

In defending the claim, the appellants denied the alleged negligence on the part of the second appellant. They averred instead, that the second appellant was faced with a sudden emergency in that a tyre on the vehicle burst resulting in him losing control of the vehicle which collided with the respondent’s vehicle. The appellants also averred that the respondent’s driver did not take any evasive action when the accident appeared imminent. They did not however file a counterclaim alleging contributory negligence on the part of the respondent’s driver.

At the trial of the matter, the parties agreed on the quantum of damages payable. As a result, the sole issue before the court a quo was whether or not the accident occurred as a result of the second appellant’s alleged negligence.

The respondent called two witnesses. These were the driver of the vehicle and one other person who was a passenger in the vehicle. The appellants called three witnesses. These were the second appellant, a passenger in the car and the first appellant’s transport manager.

Believing the evidence of its two witnesses, the court a quo found for the respondent. In particular, the court a quo believed the evidence of the two witnesses that there was a second passenger in the first appellants’ vehicle in addition to the one who was called as a witness. This second passenger, a policeman, was heard immediately after the accident saying that the second appellant had been sleeping whilst driving.

The policeman was not called as a witness. His details were not captured by the police who attended the scene of the accident. He was unidentified and remains not only unknown but unidentifiable.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court, raising four grounds of appeal. In the first and second grounds, the appellants raised three challenges. Firstly, they challenged the finding by the court a quo that a policeman did indeed ride in the first appellant’s car on the day. Secondly, they challenged the finding that the policeman made the utterances attributed to him and, finally, they maintained that such utterances could not form the sole basis of the court’s decision finding the appellants liable. In the third ground of appeal, the appellants contended that the court a quo erred in failing to find that the proximate cause of the accident was the burst tyre as alleged by the second appellant. In the last ground of appeal, the appellants contended that the court erred in placing the onus on the appellants to produce a forensic report proving that the tyre of the first appellant’s vehicle burst prior to the impact.

Analysis

This is a matter that largely turns on the nature and quality of the evidence that was led before the court a quo. In particular, the appeal turns on whether or not the court a quo had sufficient evidence before it, upon which it could find for the respondent.  Thus, in broad terms, the appeal raises the following issues:

Whether or not a policeman rode in the appellants’ motor vehicle on the day of the accident and made certain remarks concerning the manner of the second appellant’s driving,

Whether the remarks by the unidentified policeman constituted sufficient evidence upon which solely the court a quo could base its decision and,

Whether, in the circumstances, the respondents proved that the proximate cause of the accident was the alleged negligence of the second appellant.

As indicated above, the appellants challenged the finding by the court a quo that there was a policeman who disembarked from the appellant’s vehicle after the accident and made certain utterances concerning the manner of the second appellant’s driving.

The presence of the unidentified policeman was denied by the appellant’s witnesses. The court a quo disbelieved the appellant’s witnesses in this regard and found that there was indeed a policeman who was riding in the first appellant’s vehicle immediately before the accident. In making this finding, the court a quo relied on the evidence of the respondent’s two witnesses whom it found credible.

The conclusion that a policeman rode in the appellants’ vehicle is a finding of fact. It was a finding made on the basis of direct evidence from the respondent’s witnesses. Thus, unless the finding of the court a quo that the respondent’s witnesses were credible is set aside, there is no basis upon which I can interfere with this finding.

In arguing that the court a quo erred in finding that there was a policeman who rode with the second appellant in addition to the passenger who testified, Mr Magwaliba submitted that apart from the testimonies of the two witnesses, there was no other independent evidence corroborating the presence of the unidentified policeman.  I am unaware of a law that requires corroboration of direct evidence from two competent witnesses in an accident damages claim. Mr Magwaliba did not point to any.

No valid basis having been raised and sustained for setting aside the finding of the court a quo on the credibility of the respondent’s witnesses, the finding that there was a policeman who was also a passenger in the first appellant’s vehicle before the accident, cannot be impugned.

Again, evidence of what the policeman allegedly said about the manner of the second appellant’ driving, was given by the two witnesses for the respondent. Having found the witnesses credible, the court a quo accepted their respective evidence regarding the statement made by the unidentified policeman. The court a quo’s finding that the policeman made a statement regarding the manner of the second appellant’s driving cannot be impugned.

The court a quo admitted the statement by the unidentified policeman as secondary hearsay evidence. In this regard, it relied on the provisions of s 27 of the Civil Evidence Act [Chapter 8.01]. This section provides that evidence of a statement made by a person whether orally or otherwise shall be admissible in civil proceedings as evidence of any fact mentioned or described in the statement if direct oral evidence by that person, of that fact, would be admissible in those proceedings.

The issue that immediately presents itself in the circumstances of this matter is whether or not the provisions of s27 of the Act apply. The maker of the statement, although identified as a policeman who was a passenger in the appellants’ vehicle, is to all intents and purposes unknown and cannot be identified. Thus, in practical terms, the maker of the statement could not have testified in the proceedings a quo at all as he remained unknown and unidentifiable.

I raise this issue at this stage because the position at law appears to be that for the statement to be admitted as secondary hearsay evidence, the maker of the statement must be sufficiently identified. The issue that then falls to be determined in casu, is whether the identification of the maker of the statement in casu, is sufficient for the purposes of law.

In Hiltumen v Hiltumen 2008 (2) ZLR 296 (H), it was held that for first hand hearsay evidence to be admissible under the Act, the person who made the statement must be identified. This is what the court had to say:

“For first hand evidence to be admissible under the Act, the evidence must be about a statement made orally or in writing by another person. The person who made the statement must be identified and it must also appear from the nature of the evidence that the contents of the statement would have been admissible from the mouth of that person were he or she present and testifying.”

The same consideration appears to have weighed with the court in Church of the Province of Central Africa v Jakazi & Others HH70/10 where UCHENA J ( as he then was), in useful obiter,  expressed the view that since the source of the statement tendered before him was not properly disclosed, the statement would have been inadmissible on that basis.

This is what the court had to say:

“In this case, the source of the statement is not properly disclosed. He is merely referred to as a member of the public. This means the evidence of the caller’s statement is inadmissible hearsay. Such hearsay evidence is only admissible if the source of the information is disclosed.”

I however withhold passing a definitive finding on this issue as this appeal can be disposed of on another basis.

Assuming that the court a quo correctly admitted the statement made by the unidentified policeman as evidence before it, the issue that has to be determined is whether or not it was correct in relying solely upon such evidence to find the appellants liable as it did. Expressed differently, was the evidence of the statement alone sufficiently cogent to found liability.

As indicated above, s 27 of the Civil Evidence Act merely provides for the admissibility of secondary hearsay evidence in limited circumstances. It does not change the nature of the evidence so admitted, which remains hearsay evidence.

The evidence admitted under the section remains evidence whose trustworthiness is very low as it is not tested by cross-examination. It remains evidence whose admissibility relies solely on the credibility, not of the maker of the statement, but of the witness who heard the statement. It remains afflicted by all the deficiencies and maladies that led to the adoption of the rule against the admissibility of hearsay evidence. (See Bearmans, Ltd v Metropolitan Police District Receiver [1961] 1 All ER 384 for a discussion of the deficiencies of hearsay evidence. Thus, such evidence, whilst admissible, remains inherently weak in quality and probative value. Accordingly, a court admitting hearsay evidence under the Act remains duty bound to assess such evidence as primarily hearsay evidence and to accord it the appropriate probative value if any. It cannot and should not command the same probative value as direct evidence.

Recognizing the inherent weaknesses of hearsay evidence, the Act in s 27 (4), provides that in assessing the weight if any, that is to be accorded to secondary hearsay evidence, the court must have regard to all the circumstances affecting its accuracy or otherwise. In particular, the court shall have regard to whether or not the statement was made at a time when the facts contained in it were, or may reasonably be, supposed to have been fresh in the mind of the person who made the statement; and whether or not the person who made the statement had any incentive, or might have been affected by the circumstances, to conceal or misrepresent any fact.

Whilst it is not in dispute that the statement was made contemporaneously with the accident, this is all that can be said in favour of the statement.

There was no evidence before the court a quo to prove that the policeman had no incentive or might have been affected by the circumstances of the accident to conceal or misrepresent any fact.

The court a quo fell into grave error in making a specific finding that there was no motive for the policeman to lie. In making this finding, the court a quo took the somewhat simplistic view that because the unidentified policeman had been given a ride to Harare in the appellant’s vehicle, he had no motive to lie against a driver who had given him transport to Harare. The unsubstantiated assumption implicit in this finding, is that the unidentified policeman had been voluntarily given a free ride to Harare, for which he was grateful. Consequently, the court a quo presumed that he could not lie against his benefactor.

The respondent’s witnesses did not testify on the circumstances under which the unidentified policeman was a passenger in the appellant’s vehicle. They simply testified as to what the policeman said. There was thus no evidence before the court upon which it could make its finding that the unidentified policeman had been given transport to Harare and for which he was grateful.

One of the witnesses for the respondent testified that the unidentified policeman had been injured as a result of the accident. The court a quo was not in a position to assess the effect these injuries might have had on the policeman on the basis of the terse and scanty evidence that was before it. Similarly, the amity and/or the congeniality amongst the persons riding in the appellant’s vehicle were not assessed as there was no evidence upon which such an assessment could be made. That these factors could have had an effect on the trustworthiness of the statement attributed to the unidentified policeman is beyond dispute.

It is therefore my finding that there was no evidence before the court a quo to enable it to make a finding whether or not the unidentified policeman had a motive or incentive to misrepresent any of the facts contained in the statement attributed to him.

Accordingly, and in the absence of such evidence, the court a quo ought to have been wary of attaching any weight to the statement of the unidentified policeman. More importantly, it should not have based its decision solely on this statement as evidence of the alleged negligence of the second appellant. It presents a frightful picture of the law of evidence if courts of law were to place such heavy reliance on the statements of unidentified and unidentifiable persons to make binding decisions.

Further, whilst s 27 (4) provides for the specific factors that a court admitting secondary hearsay evidence must take into account in weighing such evidence, these factors cannot be regarded as exhaustive. Issues such as errors of perception including opportunity and ability to see the occurrence, which factors the court assesses in respect of direct evidence led before it, are still relevant factors for it to consider before relying on secondary hearsay evidence.

In casu, the evidence that was before the court a quo could not have enabled it to investigate and discount errors of perception on the part of the policeman. Similarly, the evidence could not have enabled the court to confirm his ability and opportunity to see the manner of the second appellant’s driving. For instance, his position in the car and his ability to see the driver were not established by the terse evidence led from the respondent’s witnesses.

Thus, the accuracy of the statement by the policeman that the second appellant was sleeping whist driving was not competently and adequately established. It could not therefore be solely relied upon to find the second appellant negligent. It was woefully insufficient.

From the record, it is clear that the court a quo relied solely on this unsafe and insufficient evidence to find the appellants liable. This is what it had to say in finding for the respondent:

“Negligence in the form of culpa has been defined as failure to exercise due care that a reasonable person would have exercised in the circumstances. ….

The second defendant failed to exercise such due care. He should have parked his vehicle and slept. Continuing to drive whilst constantly falling asleep on the wheel was an act of negligence by the second respondent. A reasonable person would pull off the road and rest for a while. I am thus satisfied that the plaintiff has shown that the accident was solely caused by the second defendant’s negligence.”

It is therefore my finding that there was no evidence before the court a quo upon which it could find the second appellant negligent. Put differently, the respondents did not prove the allegations of negligence that they had leveled against the second appellant.

Regarding costs, an appropriate order is for these to follow the cause.

In the result, I make the following order:

The appeal is allowed with costs.

The judgment of the court a quo is set aside and is substituted with the following:

“The plaintiff’s claim is dismissed with costs.”

GWAUNZA JA		:			I agree

GARWE JA		:			I agree