Bulawayo City Council v The State

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                                                                                    HB 179.19
                                                                                    HCA 38/18




BULAWAYO CITY COUNCIL


Versus

THE STATE


IN THE HIGH COURT OF ZIMBABWE
MAKONESE J & TAKUVA JJ
BULAWAYO 28 OCTOBER 2019 & 28 NOVEMBER 2019

Criminal Appeal

Advocate Hashiti, for the appellant
Mr K Ndlovu, for the Respondent


         MAKONESE J:          The appellant appeared in the Magistrate Court sitting at
Western Commonage, Bulawayo on an alleged breach of section 49 (1) (b) of the Criminal
Law Codification and Reform Act (Chapter 9:23), that is culpable homicide. The specific
allegation being that on the 4th of January 2017 and at the Bulawayo City Council’s landfill
site adjacent to Entembeni Road, Pumula South, the appellant caused the death of one
Tinashe Chiparamura by digging up gravel pits and leaving them open, thereby trapping
water in which the deceased drowned. In so, doing the state alleged, the appellant realised
or ought to have foreseen that its conduct could result in the death of the deceased and acted
negligently in failing to guard against that possibility. The pits had been dug up in 1995 for
the purposes of extracting gravel for road construction. The pits have over the years collected
water during the rainy season. The appellant pleaded not guilty to the charge. After a full
trial, appellant was found guilty and convicted of the offence charged and sentenced to pay a
fine of $600. Aggrieved by the conviction and sentence, the appellant has noted an appeal to
this court.

Factual background

         Some two decades ago the appellant abstracted gravel at Pumula South for road
repairs and maintenance. After extracting the gravel the appellant did not fill up the pits.
Rain water collects in these gravel pits every rainy season to depths of up to 5 metres. On 4 th
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January 2017 and at around 1310 hours the 15 year old deceased slipped and fell into one of
these pits whilst washing his hands. The juvenile drowned and died, despite efforts to rescue
him by his brother. The trial magistrate in the court a quo made a finding that the pits were
left open by the appellant since 1995 and that there was no perimeter fence to prevent people
from walking close to the pits. The court a quo made a further finding that at the time the
deceased died there was no sign prohibiting members of the public from passing close to
these pits. The trial Magistrate reasoned that in digging the pits the appellant had created a
harzadous situation and that it was reasonably foreseeable that children, in their immaturity
could decide to play in the water. The court concluded that the deceased was 15 years old at
the time of his death, and that his judgment was still impaired by immaturity when he slipped
and fell into the pit and drowned. The court held that the appellant was negligent in causing
the death of the deceased.

       The appellant raised three principal grounds of appeal as follows:

       “
       1.      The court a quo grossly erred and misdirected itself in finding that the
               appellant was negligent in causing the death of the deceased, when, in the
               circumstances of the matter negligence, both factual and legal causation was
               not proven.

       2.      The court a quo further erred and misdirected itself in finding that the
               deceased’s judgment was impaired by immaturity.

       3.      The court a quo further erred and misdirected itself in finding that the
               appellant did not put prohibition signs to prevent members of the public from
               getting near the pits in question.

               Wherefore appellant prays that the appeal succeeds and that the conviction and
               sentence be set aside and substituted with the following;

               The appellant be and is hereby found not guilty of culpable homicide.”

       In his response to the notice of appeal, the trial Magistrate commented that it was
proved that the negligence of the appellant was the legal cause of the death of the deceased.

The Essential Elements of the Offence

       Our criminal law, in section 49 (1) (b) of the Criminal Law Codification and Reform
Act (Chapter 9:23) criminalises the negligent killing of another in circumstances where the
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accused realises that death is a possibility and fails to guard against harm occurring or death
ensuing. The test applied in assessing negligence is an objective one. For the state to secure
a conviction it must be shown beyond reasonable doubt that the accused culpably committed
the actus reus of the offence charged. In this regard, it must be proved that the accused
caused the unlawful act with the requisite mental element. It must be shown that the accused
is both the factual and legal cause as provided in Section 11 of the Criminal Code.


Factual Causation


       Section 11 of the Criminal Code provides that an accused can only be liable where he
has caused or substantially contributed to the impugned result. The test for factual causation
is the but- for test. The question to ask is – but for X ’s conduct or actions would the
unlawful consequence have occurred when it did? If it would not have occurred X’s conduct
is the factual cause of the unlawful consequence.       However if it would have occurred
anyway, X’s conduct is not the condition sine qua non of the unlawful consequence and X
cannot be held liable: see State v Milos Moyo HB 85-10. Factual causation is concerned with
the condition or factor antecedent without which the criminal result would not have
materialized. It seeks to test and establish whether or not there was a causal link between the
conduct of the accused and the unlawful consequence: see: State v Mukwambuwe 2014 (2)
ZLR 115 (H)


       The test for legal causation entails that one must among all conditions or factors
which qualify as factual causes of the prohibited result look for one factor which was most
operative, decesive, undespensable and most effective in bringing about the unlawful
consequence. The test is provided in section 53 of the Criminal Code. Under this leg of the
inquiry, the court investigates and determines whether or not, on a common sense basis, ipso
facto looking at what occurred, it was reasonably foreseeable that the accused’s conduct
would lead to the impugned consequence.


Whether the appellant’s conduct was the factual and legal cause of death
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        The facts which are common cause are that the deceased was in the company of his
young brother on this fateful day. The deceased walked off the road towards the pits to wash
mud off his hands and feet. The deceased slipped and drowned in the water filled gravel pit.
The state argued that the appellant had been advised as far back as 2012 by the
Environmental Management Agency to rehabilitate the pits as there were hazardous to the
general public. It was the contention of the state that by digging up the pits and not
rehabilitating them, the water-filled pits became death traps. Had the appellant sufficiently
rehabilitated the site, water would not have collected in the pits and the deceased would not
have contemplated approaching the pits to wash mud off his feet and hands. The further
argument advanced by the state is that death was reasonably foreseeable by the appellant in
all the circumstances of the case.


        Advocate Hashiti, appearing for the appellant argued that in the context of the facts
and the evidence of the matter, it could not be said that appellant negligently failed to guard
against the possibility of the deceased’s death. Further, it could not be said that the appellant
realised the possibility of death occurring in the manner it did. Inspite of the trial court’s
conclusion that there were no prohibition signs at the site, the record reflects that there was a
clearly marked prohibition sign next to the pit in question. Another prohibition sign was
erected some 400 metres away from the incident pit. Witnesses confirmed that the signs had
been there at all material times. The undisputed evidence is that whether next to the pit or 400
metres away, there has always been a no trespassing sign forbidding members of the public
from straying to these pits. The appellant indicated that there has always been a sign at the
relevant pit, but that these signs were regularly vandalized by members of the public. This
piece of evidence remained unchallenged.


        The appellant’s contention is that the court a quo was wrong in finding and asserting
that:
        “At the time the deceased died there was no sign.”
        I tend to agree that this factual finding by the court a quo was wrong as there is
evidence awash in the record that there was a prohibition sign that has always been there in
the vicinity of the pits. The learned Magistrate in the court a quo came to a wrong factual
finding that there was no prohibition sign at or near the pits. The learned Magistrate clearly
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erred in finding the appellant negligent on the basis of an erroneous factual finding. A
reading of the learned Magistrate’s judgment seems to suggest that he was of the erroneous
view that the sign which was 400 metres away did not serve any useful purpose at the pit
where the incident occurred. Clearly this cannot be so. Both signs related to the same
network of pits. They bore the same message. The learned Magistrate made the following
conclusion;
       “A reasonable person would have secured the area either by doing the least
       expensive by putting a sign, fence or filling the pits.”

       Applying the same standard, the appellant placed prohibition signs in the vicinity of
the pits. From the evidence, the signs were at or near the site of the incident. See: State v
Majarira 2003(1) ZLR 606 at page 610 B, where CHINHENGO J stated as follows:
       “The concept of negligence in culpable homicide has two components – the issue of
       foresight that death would be a consequence of the conduct in question, because the
       accused’s blameworthiness arises from a failure to foresee the death in the
       circumstances where the reasonable man would have foreseen it. The second
       component requires an assessment of what should have been done in order to
       safeguard against the death occurring. To arrive at the conclusion that the accused
       negligently caused the death it must be determined what steps should reasonably have
       been taken to prevent the death and whether the accused in facttook those steps,
       because it is the accused’s failure to take those reasonable steps which determines
       that the accused was negligent in bringing about the death.”

       In my view, from the evidence on the record, the appellant did in fact adopt the least
expensive route of erecting prohibition signs. It cannot be correct therefore, to conclude that
the appellant failed to live up to the standard of reasonable man. It seems to me that the death
of the deceased was purely accidental. In the context of this matter, and on the basis of the
undisputed evidence, the court a quo was clearly wrong to make a finding that the appellant
caused the death of the deceased. There was no proof of causation in the slightest degree
which could be attributed to the appellant. Criminal liability can only be attributed to a
person where that person’s conduct or lack of conduct is deemed to have been causative of
that outcome.


       Whilst on the face of it, it may be alleged that there was factual causation, a detailed
analysis of the facts leads to an entirely different conclusion. See: State v Chipinge Rural
District Council 1988 (2) ZLR 275.
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       The facts of this case are similar in several respects to the facts of the present matter.
In that case, the Supreme court held, that the failure to establish legal causation renders the
charge of culpable homicide fatal.        In that matter the accused Rural District Council
maintained a public swimming pool, which was patronized largely by children. The Council
had not provided a person to supervise the children when they were swimming. One day a 12
year old girl was found floating in the water, drowned. On the evidence the state had not
shown that the Council’s negligent failure to provide supervision at the swimming pool
caused the death of the child, since even if the supervisor had been present and performed his
duties in a responsible and efficient manner, he might not have noticed that the deceased was
in trouble until it was too late. It must be noted that, in that case the Supreme Court had
actually found that the Council had been negligent. However, it concluded that the Council’s
negligence was not and could not be deemed to have been the cause of death. In the present
case, the state did not prove anything that the appellant could have done that would have
prevent the trespassing of the deceased or any other member of the public leading to an
eventual fatality such as the present one. Even if the appellant were to be deemed negligent
the state failed to prove that such negligence in the context of the facts was causative of the
death of the deceased. That conclusion simply cannot be made on the basis of the evidence
on record which clearly showed that deceased’s own voluntary act of straying off the road to
wash his hands and feet at the pits led to his tragic death.


       Mr Ndlovu, appearing for the respondent’s main contention was that by digging up the
pits the appellant created a hazard and that had the pits been rehabilitated and filled up death
would not have ensued. That approach leads to an erroneous conclusion of the law. In the
Chipinge Rural District Council case, the swimming pool was meant for the children to go
there and swim. The present case is different in that there were prohibition signs warning
people not to go to these gravel pits. The victim in the present case is 15 years old. More
was expected of him. The following instructive remarks were made in the Chipinge Rural
District Council case at page 278 F-G as follows:-


       “But, as so graphically emphasized by HOLMES JA in State v Burger (supra) at 879 D-
       E:
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       “One does not expect of a diligens paterfimulias any extremes such as Solomonic
       wisdom, prophetic foresight, chameleonie caution, headlong haste, nervous timidity,
       or the trained reflexies of a racing driver. In short, a diligens paterfamilias treads
       life’s pathway with moderation and prudent common sense.”


Conclusion

       I am satisfied that in the present case, the appellant demonstrated its reasonableness
by putting up no trespassing signs. To have expected the accused to foresee the deceased’s
voluntary actions contrary to the prohibition signs, is to expect the extremes. In essence,
even if it were found that the appellant was negligent it cannot be established that death in the
circumstances was a direct result of the appellant’s negligence.          The deceased’s own
supervening actions were the cause of his own death. These acts by the deceased broke any
causal link with the appellant. The proximate cause of the death of the deceased in this
matter was his voluntary act of stepping into the water when it was not safe to do so. That
much cannot be disputed. The deceased’s own father told the court that he believed that his
son was responsible enough to have taken care of himself. The deceased at 15 years was
mature enough to realise that he was approaching danger when he walked towards the gravel
pit. To the extent that the court a quo made a finding of negligence on the basis that the
appellant failed to erect prohibition signs, that was a misdirection, and consequently the
subsequent conviction of the appellant was improper and cannot be allowed to stand.


       It is my observation though, that whilst this court does not consider that the
conviction is sustainable on the facts, there is need to comment on the dangers posed by these
gravel pits. It is clear from the record that for some years now the appellant has been warned
about the hazards these gravel pits create when water collects in these pits. The appellant’s
position seems to have been that the closure of these pits is beyond the financial capacity of
Council. I would point out though, that it is not good enough to put up the argument that the
cost of rehabilitating the pits is prohibitive. The appellant must in its own wisdom and
financial capability take urgent steps to rehabilitate the gravel pits. These treacherous water
filled pits are close to residential areas and the only safeguard to prevent further deaths
occurring is to immediately embark on a gradual and phased rehabilitation of the pits. Every
single life lost due to drowning is one too many.
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       I have already indicated that on the facts of this matter the state did not prove factual
and legal causation. It was not proved beyond reasonable doubt that the negligence of the
appellant was the proximate cause of the death of the victim.




       Accordingly, I would allow the appeal and set aside the conviction and sentence.




                               Takuva J agrees………………………..




Coghlan & Welsh, appellant’s legal practitioners
National Prosecuting Authority, Respondent’s legal practitioners