Online Reporter
Trust Maanda
Legal Position
IN every culpable homicide or negligent driving case in Zimbabwe, the charge sheet does not just say: “the accused drove negligently”.
It must list the particulars of negligence, detailing exactly how the accused was negligent.
The State must allege and prove how or what way the accused was negligent. Negligence does not arise merely from the fact of an accident. The conduct of the accused must have brought about the accident and the State has to show how that was negligent.
The particulars of negligence are the battleground.
The State must prove at least one of them. The State must show that the accused was negligent in or more of the ways which it should set out.
These particulars are set out as follows:
1. Travelling at a speed which was excessive under the circumstances
2. Failing to stop or act reasonably when an accident seems imminent
3. Failing to keep a proper lookout under the circumstances
4. Failure to take evasive action when the accident seems imminent
Travelling at an excessive speed is the most common particular.
Note the words: “excessive under the circumstances”. It does not just mean exceeding the speed limit. A driver can be doing 60km/h in a 60km zone and still be negligent if the circumstances demanded 20km/h.
What are “circumstances”? The circumstances include road condition, weather, visibility, traffic density, presence of pedestrians, and vehicle condition. If it is at night, the speed may be reduced because of visibility. The lighting conditions are not the same at night as they are during the day. If the weather is bad and foggy and the road slippery due to rain or other causes, the speed may be excessive in the circumstances, although it may be below the permissible limit. Circumstances dictate the acceptable speed.
The test is the reasonable driver test. Would a reasonable driver, in the same position, have foreseen that his speed could cause harm, and would he have slowed down? If yes, and the accused did not, he is negligent.
Driving at 70km/h past a school at 1pm when children are leaving school. Even if the limit is 80km/h, that speed is excessive under the circumstances.
Another particular of negligence is failing to stop or act reasonably when an accident seems imminent. The law expects a driver to stop or act reasonably in the face of an impending accident. This is about the driver’s reaction. The law does not expect perfection, but it expects reasonable action. When danger looms, a driver must do what a reasonable driver would do: brake, swerve safely, slow down, or stop. Doing nothing, or accelerating, is negligence.
A driver must not assume the road ahead is clear. If he or she sees a risk, he/she must act. If a driver sees danger and fails to brake, his/her failure is the cause of the accident.
The Court will ask: Was there time to act? How far was the pedestrian? What was the driver’s reaction time?
Expert evidence on braking distance is often led. A driver who sees a donkey cart 100 metres ahead, and continues at same speed, hoots at the last second, then hits it, is negligent.
The negligence is failing to slow down or stop when the accident was clearly imminent.
Another particular is failing to keep a proper lookout under the circumstances. This requires you to keep your eyes on the road. A driver must keep a proper lookout at all times. This does not mean staring straight ahead. It means scanning: mirrors, sides, ahead, and anticipating. This means you must not look at your phone, talk to passengers and not watching the road. Failure to see a stationary vehicle, pedestrian, or cyclist who was clearly visible shows failure to keep a proper lookout.
A driver who says: “I did not see the pedestrian” was negligent because a reasonable driver would have seen him.
There is a duty to exercise caution and care when approaching children. The law treats children differently.
Children are unpredictable. They do not understand danger. They can run, stop, turn. Therefore, a driver who sees children in or near the road must exercise a high degree of care, far higher than for adults.
When a motorist sees children in the road, he must anticipate that they may act foolishly. A driver who sees children must slow down to a crawl, be ready to stop instantly, and even stop completely if necessary.
If you are drunk and you hit children, the Court will treat it as an aggravated form of this failure.
The State will plead all particulars to cover itself. But it only needs to prove one to get a conviction for negligent driving. For culpable homicide, it must prove that one particular caused the death.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected].
