Munyimi Osborn Tapera and Mukodzani Onias and Chaniwa Milton Amos v The State

### Preamble
1
HH 372-12
CA 446/11
CRB 6296-98/10
MUNYIMI OSBORN TAPERA
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MUNYIMI OSBORN TAPERA
and
MUKODZANI ONIAS
and
CHANIWA MILTON AMOS
Versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWE & MAVANGIRA JJ
HARARE, 22 May & 26 September 2012

Criminal Appeal

R F Mushoriwa, for the appellant
Ms F Kachidza, for the respondent

HUNGWE J: The appellants were convicted of three counts of culpable homicide as defined in s 49 of the Criminal Law (Codification & Reform) Act, [Cap 9:23]. They were sentenced to 15 months imprisonment of which 5 months were suspended on conditions of good behaviour and a further 10 months were suspended on condition that the appellants performed 350 hours of community service. Aggrieved by their conviction and sentence, they now appeal to this court against both.

The appellants were convicted of culpable homicide on the following general facts. On 5 August 2007 the appellants intercepted a bus along Robert Mugabe road. Acting in concert, the appellants forced the driver to reverse the bus for considerable distance in order to go back to Rhodesville police station. The appellants were acting on the belief that inside the bus was a suspect whom the complainant in a case of assault would identify at the station. The third appellant was driving a vehicle parallel to the reversing bus with his headlights on full beam facing the direction towards which the bus was reversing. As a result of this, a motor vehicle travelling in the same lane as the reversing bus and coming from the city centre came upon the scene and rammed into the back of the bus killing the driver and two other passengers.

In a three page judgment, the learned trial magistrate made the following findings of fact. He found that the driver of the bus was forced to reverse the bus for the distance of 400 metres when visibility was dark. He also found that the appellants failed to warn other motorists of the danger which had been created by the reversing bus. Further, he found that third appellant drove parallel to the bus thereby creating a dark spot to oncoming traffic. He concluded that the deceased collided into the reversing bus due to poor visibility and reasoned that the appellants, acting in concert and with common purpose, had created the danger on the road and therefore found them guilty of culpable homicide.

Out of the twelve “grounds of appeal”, only two grounds meet the requirements of rule 22(1) of Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979 requiring an appellant to set out such grounds “clearly and specifically”. Where the grounds of appeal are so generalised that it cannot be said that they complied with the rules, an appellant risks his “notice of appeal” being a nullity. See R v Emerson 1957 R & N 743; 1958(1) SA 442; S v Jack 1990 (2) ZLR 166 (SC); S v Ncube 1990 (2) ZLR 303.

The first of the only two grounds which I consider relevant to the determination of this appeal is ground four. The appellants, in that ground, state that the learned trial magistrate erred in fact and in law in finding that the third appellant drove parallel to the bus towards the direction of the city whilst flashing his vehicle headlights thereby impairing the vision of drivers of oncoming traffic. The second main ground of appeal states that the learned trial magistrate erred in fact and in law in finding that the deceased crashed into the bus as a result of poor visibility when evidence led at the trial was that one of their passengers inside the deceased driver’s vehicle managed to see the bus from a considerable distance.

In his heads of argument and at the hearing of the appeal, Mr Mushoriwa raised two points in limine. The first was that the record failed to reflect correctly the proceedings in the court a quo in that the closing submissions by counsel were not part of the appeal record. Relying on S v Ndebele 1988 (2) ZLR 249 (HC), he argued that where the record does not speak for itself and cannot be relied upon for the proper processing of an appeal, the conviction must be set aside. He also pointed out to the obviously contradictory entries by the magistrate indicating a verdict of “Not Guilty” having been endorsed on the charge sheet yet the same magistrate proceeded to sentence the appellants. He referred me to S v Jongwe 1987 (2) ZLR 12 (HC) for the proposition that once the magistrate made a ruling, he was *functus officio*. No doubt *Mr Mushoriwa* is correct in the argument he makes, but only to a point. First, an appellant who has signed a certificate of inspection of an appeal record cannot turn around and complain that the record does not sufficiently reflect what transpired during trial when he has affixed his signature to such a certificate unless he is pointing to the tempering with the record after the certificate was signed. I did not hear *Mr Mushoriwa* to say this. In any event he personally affixed his hand to the certificate signifying his satisfaction with the same. Second, and in any event, such irregularities as he relies upon in his points *in limine* are good grounds of review rather than grounds of appeal. I therefore dismiss the points in limine.

The case for the state was built around the allegation that the appellants created a dangerous situation which they failed to warn approaching motorists about resulting in the motor vehicle driven by the deceased crashing into the back of the bus. There were no particulars of negligence set out in the charge sheet so as to inform the appellants the case they had to meet. The state needed to set out these particulars clearly in the charge. However these particulars appear in the state outline where in paragraph eleven the following appears:

“11 The accused were negligent in that they disregarded the safety of the passengers in the bus by making it stop and making it reverse in the middle of a very busy road.

The accused persons failed to provide adequate warning to other motorists of the hazard they had created, considering the fact that this was at night and the portion of the road is unlit.

The three accused failed to consider the fact that the headlights of their vehicle would interfere with the vision of oncoming drivers and cause them to drive into the rear of the reversing bus, which was in the middle of the road.

It is a contravention of the law to permit a vehicle to stop or remain stationery in the middle of the road, obstructing the smooth passage of other road users, yet not regarding the statute, the accused made the bus stop in the middle of the road and even reverse for almost ½ km.

12 The three accused persons had no right to override the law and cause the deaths of three people and injuries to five people. They had no right to negligently cause the accident, which resulted in the death of Elton Kondo, Martha Kondo and Albert Samson......

The evidence led at trial contained apparent contradictions to the state outline. As an example, only one witness told the court that the bus reversed for a distance approximately 400 metres. The driver of the bus told the court that he had barely gone 100 metres when he was asked to reverse back to the police station. He told the court that traffic was not heavy and he reversed to the corner of Clyde road and Robert Mugabe road under the direction of one of the appellants. He was stationary when the other driver rammed behind his bus. He was in his lane of travel towards Mabvuku from town. A witness from the twin cab truck whose driver died on the spot, Angelina Kondo, told the court that she had seen the bus and alerted their driver of the presence of the bus but to no avail. He drove into the rear of the bus despite her shouts of imminent danger. It is doubtful that she could tell whether it was reversing or stationary since she had no way of telling this. The relevance of her evidence is that such evidence creates doubt as to whether the collision was not caused by the deceased driver’s failure to keep a proper look out. It also contrasts the claim in the state outline that the drivers of oncoming traffic were dazzled by the flashing headlights of third appellant’s vehicle. In any event, even if third appellant’s headlights were on full beam, the duty to keep a proper look out rested on the deceased driver since he was travelling behind the bus. As such whether the bus was stationary, as its driver says, or reversing, as claimed by state witnesses, such an occurrence is within ordinary human experience in our roads. Buses and old heavy duty trucks are known to breakdown on the most unsafe places along the road. It is up to all road-users, especially drivers; to keep a constant look out for such eventualities as would require them to take necessary avoiding action. Even more common is the incidence of careless drivers who do not dip their lights when meeting on-coming traffic at night. The duty of the conscientious driver upon such an eventuality is to slow down until one can negotiate safe passage or even pull off the road. See S v Ruzario


1990 (1) ZLR 359 (SC). Commenting on culpable homicide as defined in s 49 of the Code, Professor Geoff Feltoe: (2006) remarked thus:

“Previously in our law culpable homicide was only committed when X negligently failed to foresee and guard against death. The Code has added a further type of culpable homicide which may be referred to as advertent or conscious negligence. Advertent negligence applies where X appreciates that there is a risk of death but rather than taking a cautious risk which would mean that he or she would have intention to kill, X negligently fails to guard against the risk.”(Commentary on the Criminal Law (Codification and Reform) Act, 2004).

There is no question of the appellants appreciating that there would be a risk of death in requiring the bus driver to reverse back to station, therefore the old species of culpable homicide need to be examined further as that species apply.

The test for negligence in culpable homicide is objective. What ought to have been foreseen, whether what was foreseeable ought to have been guarded against, and the measures which ought to have been taken are adjudged by the standards of what the reasonable men would have done in the circumstances. PMA Hunt: South African Criminal Law and Procedure Volume 2 (1992).

On a charge of culpable homicide foreseeability is an essential element to be considered in deciding whether a causal connection exists between the unlawful act or omission and the death of the victim. Foreseeability of risk of bodily injury as opposed to risk of death is not sufficient. The test of foreseeability in the crime of culpable homicide is, however, an objective one and it is sufficient for legal responsibility to arise that the accused ought to have foreseen some risk of death.

After analysing the changes wrought forth by two important decisions regarding culpable homicide in both South Africa and in this jurisdiction FIELDSEND J (as he then was) in R v John 1969 (2) SA 561 at p 569 said:

“If the views expressed above regarding the state of law of culpable homicide in Rhodesia and South Africa prior to the decisions in van der Mescht's case and Bernardus' case are correct, the change brought about in the law of South Africa by these decisions is really one of approach. On the basis of the views expressed above, the effect of the decisions is not to introduce the element of foreseeability for the first time or to alter its essential nature as an element in the crime but simply to emphasise the importance of foreseeability as an objective element by stating that henceforth it must be treated as a separate and distinct element in the form of mens rea. But whether foreseeability is introduced as a separate element or not, it is of the greatest importance that the meaning of 'cause' should be clearly understood because a causal nexus still remains an essential and basic element of the offence.”

(S v Van der Mescht 1962 (1) SA 521 (AD); S v Bernardus 1965 (3) SA 287 (AD))

I understand the above analysis to require the court convicting an accused person of culpable homicide to find as fact the existence of a causal link between that person’s act or omission and the death of the deceased before liability can attach. It requires an answer to the question: what caused the death of the deceased? What this in practical effect means is that death must have been reasonably foreseeable as a consequence of the accused’s conduct for example; the manner of assault, or of driving in which the accused was engaged vis-avis the deceased. The reasoning that because accused was engaged in an unlawful act which somehow resulted in the death of the deceased implicitly imports the rejected doctrine of versari in re illicita wherein it followed, as a way of logic, that because X was involved in an illegal act which resulted in the deceased’s death he is liable for the death of the deceased, whether or not such death was reasonably foreseeable. The test for foreseeability in our criminal law, as in delict, is objective.

In our law of delict a person is held responsible for damage if he could have foreseen that damage could result from the act. It is not necessary that he in fact must foresee exactly what sort of damage the act can cause or what the extent of the damage will be. Due to the nature of human society it is assumed that if he can foresee damage he must also foresee that the damage can be of an unexpected and unusual nature. In my view the same attitude ought to be adopted in regard to the delict of homicide which is also a punishable delict.

In casu, it cannot be disputed that the appellant may have overstepped the call of duty regarding the execution of effecting an arrest. Their pursuit of suspect was however largely in the line of duty. They could hardly have foreseen that in requiring the driver to promptly get to station by reversing the bus someone else outside the bus could die when there was appropriate signalling by the blue beacon atop third appellant’s vehicle. There seems to have been, on the state evidence sufficient warning mounted for the sake of warning other road-users in the form of third appellant whose motor vehicle is said to have had a blue beacon and an officer on foot directing the bus driver.

I find that on the evidence led at trial, there was no nexus between the actions of the appellants and the death of the three deceased. Rather, the evidence points to the failure to keep a proper look out by the deceased driver, as the proximate cause of the fatal crash. As pointed out above, the fact of this matter is that the duty to drive carefully rested on the deceased driver who was travelling along a blocked lane. Whether the blockage was a result of a reversing bus guided by a beacon or a police officer on foot or a bus stationary in its lane, does not relieve the deceased driver of his duty to keep a proper lookout.

Unfortunately the judgment by the magistrate did not discuss who of the witnesses he believed or disbelieved. Such an approach must be deprecated where a sentence of imprisonment is imposed. It is an unhelpful approach to the appeal court as one must revert to a fresh assessment of the evidence on the record. Where it so happens that in the rush to complete a heavy backlog, the magistrate could not give detailed reasons for judgment, as here, the opportunity to address this failure should be used when the notice of appeal is served on the magistrate. He must then address all the grounds advanced in the notice and grounds of appeal as required by Statutory Instrument 504 of 1979.

In light of the fact that death was not reasonably foreseeable as a consequence of the act of requiring the bus driver to reverse his bus, I am unable to find that the state proved the charge of culpable homicide against the three appellants beyond a reasonable doubt.

In the result, the appeal against both conviction and sentence is allowed. The conviction is quashed and the sentence is set aside. In its place the following verdict is substituted:

“The accused are found not guilty and acquitted.”

MAVANGIRA J agrees


Mawere & Sibanda, appellants’ legal practitioners
Attorney-General’s Office, respondent’s legal practitioners
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