Charles Chipote v The State

### Preamble
1
HH 114-21
CA 208/08
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CHARLES CHIPOTE

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHATUKUTA & KWENDA JJ

HARARE, 27 June 2019 & 17 March 2021

CRIMINAL APPEAL

T Mpofu, for appellant

E Makoto, for respondent

KWENDA J: The appellant appeared before the magistrate court sitting at Mbare charged with Culpable Homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that he unlawfully piloted a boat negligently thereby causing a fatal accident which killed Balisto Joel Sengeredo. The accident involved the boat driven by the appellant and another piloted by Norman Cholela. The particulars of negligence are that the appellant had driven a boat at a speed which was excessive in the circumstances or that he failed to stop or act reasonably when an accident or collision seemed imminent or that he failed to keep a proper lookout. The facts are that on 6 October 2007 at about 17:00 hours the appellant was among the people at Wingate Power Boating club, Lake Chivero, when he piloted a boat towards the shore at a high speed and crashed into a stationery boat under the control of Normna Cholela. Norman Cholela stopped his boat to avoid an imminent collision but the appellant’s boat smashed into the right side of Cholela’s boat, flew over the stationery boat, hitting the now deceased who was in the other boat. The accident caused extensive damage to the stationary boat and serious injuries to the deceased who died on admission at hospital. A post mortem done on 7 October 2007 confirmed that the deceased had died from injuries sustained during the boat accident. The appellant taken to Norton Police Station where he was arrested.  Inspector Masenda made certain observations on the appellant which led him to conclude that the appellant was drunk. Inspector Masenda ordered the appellant to attend at Norton hospital and submit blood samples to ascertain his state of sobriety. The appellant refused.

The appellant pleaded not guilty. His defence was that he had just executed a turn and was accelerating when the speedboat piloted by Norman Cholela appeared in front of him travelling at an excessive speed and cutting across his line of travel. Norman Cholela negligently failed to give way to the appellant who was approaching from the right side. The appellant tried to avoid a collision by swerving to the left without success and ended up smashing into Cholela’s boat on the driver’s side in a side swipe. The appellant’s boat flew over the other boat hitting the now deceased who was seated just in front of Cholela, causing injuries which killed him. The accident was caused solely by Cholela who was negligent in one or more of the following ways: -

He did not give way to the appellant who was approaching from the right.

He cut in front of the appellant’s boat.

He drove at an excessive speed in the circumstances.

He failed to act reasonably when an accident or collision seemed imminent

He failed to keep a proper lookout.

The matter proceeded to trial and the appellant was convicted. He was sentenced to imprisonment for 30 months of which 6 months were suspended for five years on condition of good behaviour.

The appellant appealed against both conviction and sentence. The thrust of the appellant’s appeal against conviction was that: -

The trial court erred in finding that the defence witness and his witnesses were drunk at the time of the accident in the absence of scientific evidence confirming that.

The trial court erred in finding that the appellant was grossly negligent in failing to see the other boat and take evasive action yet the appellant had right of way.

The trial court erred in accepting the State case that the appellant was over speeding yet he could not have been over speeding since he had just executed a U-turn.

The trial court erred in failing to find that the accident was caused solely by the other party who stopped and switched off the engine of his boat in appellant’s way. By stopping and switching off the engine of his boat, the other party thereby created a hazard and was unable to take evasive action. The appellant could not do anything to avoid the collision which ensued.

The trial court erred in finding that the appellant drove at an excessive speed when there was no evidence proving that.

As against sentence the appellant submitted that the trial court erred: -

in failing to accord due consideration to factors of mitigation and overemphasising the seriousness of the crime and that life was regrettable lost.

by placing undue weight on the fallacious conclusion that that the appellant had not shown contrition and remorse simply because he had not attended the deceased’s funeral, overlooking the fact that he had received threats of bodily harm and his legal practitioner had attended the funeral on his behalf.

in overemphasising general deterrence at the expense of the appellant’s peculiar personal circumstances.

in failing to realise that jurisprudentially imprisonment does not serve the interests of society.

in failing to consider in mitigation that the other party stopped and switched off his boat in front of appellant’s boat thereby creating a hazard and disabling himself from taking evasive action.

in failing to place due weight on the fact that the appellant had been incarcerated before trial for nine days.

In its judgment, the trial court accepted the following evidence adduced at the trial in front

of him, at an excessive speed. Both the appellant and the other party were not licenced to pilot boats. When the parties attended at the Police station, the appellant was very talkative and his speech was slurred leading to one Assistant Inspector Masenda to infer that the appellant was drunk. The Assistant Inspector attempted to have blood sample taken from the appellant at Norton Hospital for blood-alcohol level analysis but the hospital did not have the necessary equipment. The appellant refused to go to Parirenyatwa insisting that the other party had to go undergo similar tests. The trail court accepted that it had been proved that the appellant was drunk notwithstanding that Assistant Inspector Masenda did not complete the necessary Police form recording the observations made on a driver suspected of driving whilst drunk after failing to find the requisite form. The trial court accepted the evidence of the Assistant Inspector Masenda and the corroboration from other State witnesses on the appellant state of drunkeness.

The trial court noted the evidence of state witness, Clever Mutsunguma, who worked at the boating club as a gardener. The witness observed the appellant’s boat over speeding from west to east. It then made a u turn to face where it was coming from. At the same time, he observed another boat piloted by Norman Cholela going from west to east at a normal speed. About 100 metres from the shore, the appellant’s boat hit the boat driven by Cholela and flew over it. The court found the witness credible after reasoning that he had no reason to lie because he had no links with either of the parties involved in the accident. The court also found the witness reliable because he had a clear view of what happened as nothing hindered his vision.

The court also noted the evidence of Norman Cholela who was piloting the boat carrying the now deceased. Norman Cholela had piloted boats for 8 years and had more experience than the appellant. He was driving for west to east when he saw the appellant’s boat approaching from his right at a high speed. Realising that a collision was imminent, he stopped his boat and switched off the engine hoping that would avoid the collision. The appellant did not stop his boat but crashed into his from the right and his boat flew over his. The collision forced his stationary boat to turn and face north and the appellant’s boat to stop facing west. The witness blamed the appellant for causing the accident because he drove at a high speed and executed a u- turn clockwise against the current of the water which was turns anticlockwise. The court found the witness credible.

One, Owen Mangoya also testified for the State. He was a barman at the club. He was chatting with patrons when he witnessed the accident. There were only two boats left on the water. The appellant’s boat was coming from Postal house and Norman Cholela’s boat was coming from Wingate. He observed their boat travelling towards the shore at the same time. The appellant was piloting his boat at a speed which the witness described as ‘too much”. The witness said his attention was attracted by the excessive speed at which the appellant’s boat was travelling. When he saw the appellant’s boat speeding towards Norman’s boat he expected him to swerve. As the boats approached the bar, Norman reduced the speed of his boat but the appellant’s boat smashed into Norman’s boat from the propeller side and went over Norman’s boat. The appellant drove off. The witness went to Norman’s boat and observed that the now deceased was bleeding. The witness had earlier observed the appellant drinking beer and whisky because he had served him with the alcohol. He also observed broken glasses of whisky in the boat after the accident which to him meant that the appellant had been drinking alcohol in the boat. The trial court accepted the evidence of this witness adding that he was unshaken under cross examination.

Another witness to testify for the State was Edith Tsamba who observed the accident from the gazebo at the shore. She saw the appellant’ boat approaching Norman’s boat at a very high speed causing people who were looking to stand up and scream. The appellant’s boat went straight into Norman’s boat, hitting it. Someone, fell off the appellant’s boat. That person rescued the child in Norman Cholela’s boat, who is now the deceased. She went to the appellant to ask him what had happened but he was very arrogant, drunk and boastful about his $40 billion boat which had been damaged. He refused to identify himself. The witness was assisted by some four men to take the appellant to the Police Station. She admitted punching the appellant because she did not like the way he was boasting. The court believed the witness.

The court conducted an inspection at the scene where it observed the boats involved. Norman’s boat had damages on the right side.

The State then closed its case.

The appellant testified in defence. He adopted his defence outline as part of his evidence under oath. He said he has experience in piloting boats. He added on the day in question he arrived at Wingate where he met friends who were merry making and drinking alcohol. They waited for his turn to launch his boat on the lake. After 30 minutes he went on a cruise alone trying to get fish and was on the water for up to 45 minutes. He was not drinking beer. He said when the accident occurred he was just taking off after executing a U-turn on the water. As a general rule, when a boat starts off, the nose gets up and goes down as the pilot starts accelerating. With the nose of his boat up he could not to see Norman’s boat. He said Norman’s boat was travelling at a high speed. Boats are required to keep right and give way to traffic approaching from the right. When turning, boats are steered anticlockwise. Norman was at fault because he failed to give way to appellant’s his boat as it approached from the right. When he observed Norman’s boat he tried to avoid Norman’s it by swerving to the left hoping that Norman would remain in motion and they would miss each other. The accident would not be avoided due to Norman’s decision to stop his boat yet it was close. After the accident he went to help the now deceased. He disputed Edith Tsamba’s evidence. He countered that she was the one who was aggressive and appeared drunk and would not listen to him. He said he did not drink on the boat and if there were any glasses, seen on his bought they must have been brought by the girls who joined him on his boat during the cruise. He said he could not submit blood samples on Norton Hospital because the machines were not working.  When it was put to the appellant under cross examination, that Norman gave him way by stopping, he said Norman was not stationery but was in motion.

The appellant called two defence witnesses. The first to testify was Solomon Gumbo. He said the appellant and he went into the water in order to fish. He does not drink beer and the appellant was not drinking. One, Simba joined them and they were three passengers on the boat. He did not see how the accident occurred because he was seated facing backwards and away from the pilot. He confirmed that he had to persuade the appellant to render assistance.

The second defence witness was Solomon Taurayi Gumbo. He had known the appellant for six months prior to the accident. He knew him as someone who drank beer. On the day in question they met at the lake. The appellant was drinking beer. He was on the appellant’s boat when the accident occurred. He said he saw Norman’s boat before they made a U-turn approaching from the left.

The trial court defined negligent driving as failure to exercise that care or skill which should be observed by a diligent paterfamilias when driving a vehicle in order to prevent harm that may ensue as a result of one’s acts or omissions. Culpable Homicide is committed when the negligent driving causes death to another. The trial court then dismissed the appellant’s assertion that the accident was a side swipe. It found that the appellant’s boat had smashed into Norman’s boat on the right side, flying over it and hitting the windscreen, seat, the deceased and engine. It rejected the appellant’s defence that he swerved to the left because if that was the case, his boat would not have flown over Norman’s boat.  The trial court found that the appellant failed to keep a proper look out because he failed to see Norman who was driving within the vicinity yet the appellant’s passenger saw it. He failed to keep a proper lookout by steering his boat without full view of his line of travel and the vicinity. He travelled for a distance of 40 metres without seeing what was in front and continued to accelerate. The trial court also concluded that the appellant was negligent in failing to maintain his speed within the level where he could stop. On the other hand, Norman who had seen the appellant approaching, making a U-turn and speeding towards him took evasive action.  Having found the state witnesses credible and with no motive to be against the appellant the court believed their evidence that the appellant piloted his boat at a high speed and had failed to stop when the collision seemed imminent. The appellant’s speed was confirmed by the extent of the damages that ensued.

The trial court rejected the appellant’s defence which it found to be ‘disjointed and unbelievable’. Norman’s boat could not possibly encroach into the appellant’s lane because boats turn anticlockwise. Sudden emergency was not available to the appellant as a defence because he created the hazard. When the accident became imminent he could have stopped his boat or move to the right to avoid the imminent collision. The appellant was shaken under cross examination recorded on three pages of the record. The Court found that the State had proved all the particulars of negligence put to the appellant in the State outline. He failed to keep a proper lookout, he had failed to act reasonably when an accident seemed imminent, he had failed to keep his boat under proper control and had driven the boat at an excessive speed and rejected his defence.

It is not the appellant’s case that the trial court took a wrong view of the law applicable to the case. In my view, the trial court’s findings on the facts as articulated in the judgment and summarised above, cannot be faulted. In addition to that the trial court made a correct statement of the law on negligence in culpable homicide cases. In the case of S v Majarira 2003(1) ZLR 606 at 610 A-D CHINHENGO J with MUNGWIRA J concurring stated as follows: -

“The concept of negligence in culpable homicide cases 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 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 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 fact took those steps, because it is the accused’s failure to take those reasonable steps which determines whether the accused was negligent in bringing about the death…...”

More recently in S v Machembo 2008 (1) ZLR (1) KUDYA J underscored the legal position that the test to be applied in culpable homicide cases is two pronged that is firstly, whether the accused was negligent and, if he was, secondly, whether the death was a direct result of the negligence. The Judgment of the court a quo clearly demonstrates that it was alive to the test to be applied.

The first ground of appeal is that the trial court erred in finding that the appellant and his witnesses were drunk at the time of the accident in the absence of scientific evidence confirming that. As stated above the trial court concluded that the appellant was drunk notwithstanding that there was no scientific evidence of the alcohol blood levels. It based its finding on the observations made by Inspector Masenda and the witness’ evidence of the appellant’s behaviour after the accident. He was argumentative, disorderly and boastful and he refused to go to the Police Station after the accident. He had to be forced into a car by three men. State witness, Owen Mangoya, testified that he had served the appellant with alcohol. The defence witness, Solomon Taurayi Gumbo, admitted that the appellant and he had partaken of alcohol. However, despite the specific finding on the appellant’s state of drunkenness, the trial court did not lose sight of the fact that it was dealing with a charge based on negligence. Having said that, it is however clear that the trial court based its conviction of the appellant on particulars of negligence which are clearly spelt out in the judgment. In other words, the appellant’s conviction was not based on his state of drunkenness. The trial court based the conviction on the proven negligence as particularised in its judgment. The first ground cannot succeed.

The second ground of appeal is that the trial court erred in finding that the appellant was grossly negligent in failing to see the other boat and take evasive action yet the appellant had right of way.

This ground is clumsily drafted. The ground means that the was not at fault simply because he failed to see the other boat or that he failed to take evasive action because he enjoyed right of way. The appellant admitted in his defence outline and evidence in chief that he did not see the other boat in time for him to avoid a collision. He explained his failure to see the other boat by saying that during acceleration, the bow of his boat was raised preventing him from seeing other traffic ahead. The same argument was maintained on appeal. What that means is that the appellant accepts that at some point he drove his boat without sight of what was ahead of him. I have doubts of the correctness of the assertion by the appellant because it defies logic that any vehicle can be designed in such a way that at some point in time a driver can propel it without a view of the way ahead. However, even assuming that what the appellant said is true, it is the more reason why the appellant had to make sure that the way was clear before commencing acceleration.  However, there is no reason why the appellant failed to see Norman Cholela’s boat because the defence witness Solomon Taurayi Gumbo, who was a passenger in appellant’s boat at the time of the collision saw it. The appellant’s failure to see Norman Cholela’s boat means that he failed to keep a proper lookout. From the evidence, the appellant did not take any evasive action. The appellant’s argument is that he had no obligation to see the other boat or take evasive action because he had right of way. I am not aware of any circumstance which absolves a driver of the duty to keep a proper lookout or take evasive action. The fact that the appellant had the legal right to proceed with precedence over others in the circumstances (usually referred to as the right of way) did not absolve him of the duty to keep a proper lookout or take evasive action where the situation demanded it.   As a prudent driver he was expected to keep a proper look out so that he became aware of traffic around him/her and where necessary, take evasive action to avoid accidents. The appellant was therefore negligent because his conduct fell below the standard expected of a reasonable driver. The trial court, therefore, did not misdirect itself as argued and the second ground of appeal cannot succeed.

The third ground of appeal is that trial court erred in accepting the State case that the appellant was over speeding yet he could not have been over speeding since he had just executed a U-turn. It is related to the fifth ground which reads that the trial court erred in finding that the appellant drove at an excessive speed when there was no evidence proving that. The point made is that the trial court misdirected itself in concluding that the appellant was over speeding because there was no evidence of over speeding, if anything the evidence on record showed that the appellant could not have been over speeding because he had just executed a U-turn. In my view, contrary to the appellant’s assertion, the seriousness of the impact and the extensive damage speaks for itself. Such impact and damage could only have been caused by the appellant’s boat which was the only boat in motion. The other boat was stationary. The third ground cannot therefore succeed.

The fourth ground of appeal is that the trial court erred in failing to find that the accident was caused solely by the other party who stopped and switched off the engine of his boat in appellant’s way. By stopping and switching off the engine of his boat, the other party thereby created a hazard and was unable to take evasive action. The appellant could not do anything to avoid the collision which ensued. The argument that the other driver created a sudden emergency by stopping his boat in the path of the appellant’s boat cannot succeed. The law on sudden emergencies in negligent driving cases was discussed in the case of S v Thompson 2010 (1) ZLR 535 per kudya J with uchena J, as he then was and chatukuta J concurring at page 542

“… the court does not only look at the actions of the driver when the crisis occurred but also before it did.”

In that case the appellant had hit and fatally injured a schoolchild who died of wounds sustained in the accident. The child had suddenly appeared in front of him from very tall grass and very close to him to such an extent that the accident was unavoidable. This court, on appeal, accepted that at the precise moment of the collision there was nothing the appellant could have done to avoid the collision but his failure to keep a proper lookout beforehand and failure to see sign posts of a school ahead, the school and danger warning signs constituted negligent driving.  The failure by the appellant in that case to keep a proper lookout incapacitated him from taking evasive action when an emergency arose suddenly. Similarly, in this case what the appellant says was a sudden emergency was brought about by his own failure to keep a proper lookout. The appellant drove without seeing what was ahead of him and ended up smashing into the other party’s stationery boat. The appellant clearly had a duty to watch out for other boats on the lake. In any event the appellant contradicted his defence outline. His insistence on appeal with the right of way can only mean that he proceeded regardless of whether or not there was other traffic on the lake.

It is the appellant’s failure to keep a proper lookout which put him in the situation of a sudden emergency. He created the situation through his negligent piloting. The decision by the other driver to stop was made on the spur of the moment when a collision seemed imminent. It does not matter that another pilot put in the place of Norman Cholela would have reacted differently because the appellant may not rely on an emergency which came about as a result of his own negligence. In any event the decision by the other party to stop should have made it easier for the appellant to take evasive action which included stopping, swerving and reducing his speed. Therefore, the proximate cause of the accident was that the appellant drove his boat without paying attention to what was ahead of him. It was like driving with his eyes closed. The fourth ground cannot succeed.

I therefore find no misdirection as regards conviction.

The grounds of appeal against sentence are very wide. They were presented like a statement in

mitigation. The trial court gave very detailed reasons for sentence covering three papers. It took into amount all relevant factors even those stated in the notice of appeal. The trial court found that the appellant’s conduct in accelerating while vision was impaired constituted gross negligence.  A sentence of imprisonment is appropriate in this case where a person died as a result of the gross negligence of the accused person. See S v Chitepo HMA 03-17. The sentence of imprisonment imposed by the trial court is therefore not shocking.

In the result the appeal is dismissed in its entirety both against conviction and sentence.

CHATUKUTA J AGREES………………….

Kantor and Immerman, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners