The Sunday Mail
Tichawana Nyahuma
ACCORDING to the law, every person who kills another, whether deliberately or accidentally, is liable to be prosecuted for committing a criminal offence.
Where the death is caused deliberately or intentionally, it is what the law calls murder, but only if the prosecution proves the case beyond reasonable doubt. This is so because it is possible for a person to intentionally kill another and still be acquitted of murder. An acquittal will normally ensue in a case where the accused person would have raised a defence that is acceptable at law.
This may be extreme provocation or self-defence. Lawfulness may also be a defence to a charge of murder, for instance, where a police officer shoots and kills a prisoner who is trying to flee from lawful custody.
On the other hand, culpable homicide is the unlawful and negligent killing of a person. It excludes the element of intention. This occurs in cases of unlawful assault after the court is satisfied that there was absolutely no intention to cause death, otherwise the perpetrator may be guilty of murder with constructive intent, which is a rung lower than murder with actual intent.
Clear culpable homicide is found in deaths that arise from road traffic accidents, which is the pith of this discussion and to which I now turn.
Culpable homicide as a criminal charge standing on its own is incomplete. It has to be coupled with negligence. In other words, it is not sufficient for the police or the prosecution to lay a charge of culpable homicide on a person without also in the same breath, alleging that, that person was negligent. If this occurs, the charge would be malnourished, which will likely result in the accused person being set free by the court.
So, negligence is an essential component of the culpable homicide offence. But the matter does not end there. The negligence must also be particularised and by this, it means the prosecution must give a description of how the accused person was negligent. It is inadequate to merely allege that the accused person was negligent without making it crystal clear how they were negligent.
It is said that there can be no negligence without fault. So, the whole idea is to try and prove that the accused person was at fault or was to blame for the accident that then resulted in the death of the deceased. Prosecutors have come to use the “but for” theory which means that “had the accused person not conducted himself in the manner he did, the deceased would not have met his death”. Put differently and simply, it means the accused is to blame for the accident that resulted in the death in question.
Universally, it is accepted that deaths that occur where motor vehicles are involved are accidental. Unless a person deliberately uses his motor vehicle as a weapon to cause death, he would be guilty of culpable homicide. The practice in our country is that in every case where a death results from a road traffic accident and the driver of the motor vehicle in question survives, he is charged with culpable homicide.
The police prefer to leave it to the courts to determine the verdict. Once the driver is charged with culpable homicide, the police must allege negligence and how he was negligent. The “how” part refers to the said particulars of the negligence, which may be that the driver failed to keep his motor vehicle under proper control or that he did not keep a proper lookout or that he drove at an excessive speed in the circumstances or that he failed to apply brakes or stop or otherwise act reasonably when the accident seemed imminent and so on. The list is almost endless. Depending on the circumstances of the accident, the police are at large to rely on all or any one or more of the particulars of the negligence and they do not have to prove all of them in order for a conviction to be made.
But what is the benchmark that the court uses to assess, for example, that the driver “failed to stop or act reasonably when the accident seemed imminent”? The court has invented a fictitious person called “the reasonable man”. A process known as “the reasonable man test” entails that the court will literally place itself, being the so-called reasonable man, in the position of the driver at the time of the accident and decide whether he exercised the care that a reasonable person in the jacket of that driver would have exercised.
The other factor that the court will consider is whether the accident was foreseeable; that is to say, would a reasonable man have foreseen the reasonable possibility of his conduct causing injury or death to another person and would have taken reasonable steps to guard against that occurrence but failed to do so?
If, according to the judgement of the court, the reasonable driver would have foreseen and taken measures to prevent the loss of life, then the accused is guilty. The opposite will naturally be true. As it does so, the court will attempt to be as realistic as possible, always bearing in mind that it is easy to take the so-called armchair approach, which it must avoid.
In a sudden emergency situation, a driver is nevertheless expected to act reasonably, but whatever action he takes in a bid to avoid the accident, he is not held liable if that action fails to obviate the collision. But there is a caveat. The accused driver must not be the one who created that sudden emergency situation in the first place as, for example, he attempts to overtake at a blind curve only to find himself face to face with oncoming traffic and with nowhere to hide. In other words, the sudden emergency situation must be extraneous to the driver.
A South African court, in an antiquated but still useful judgment in the case of South African Railways vs Symington 1935 AD 37 at 45, said the following in respect of a driver confronted by an sudden emergency circumstance:
“It is undoubtedly the duty of every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of judgement he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa.”
There are various other defences available to a person accused of culpable homicide. These include contributory negligence by the deceased or the driver of the other vehicle, mechanical defect of the motor vehicle, etcetera. Otherwise, once the court is satisfied that the accused was negligent in the manner he drove the vehicle that then resulted in death, it will embark on another inquiry, which is the assessment of the degree of negligence.
The levels of negligence range, in ascending order, from ordinary to gross and then recklessness. This is done for purposes of arriving at the appropriate punishment for the offending driver. By logical reasoning, the punishment that is meted out on a person convicted of the offence under discussion has to be congruent with the level of negligence found by the court to be the proper one. Variances will occur after the court takes into account any extenuating circumstances pleaded by the driver and in that respect, contributory negligence tends to work in favour of the convicted driver. Contributory negligence is simply that although the driver was negligent, there were other players and circumstances beyond the driver’s control that were also to blame for the death of the deceased.
Finally, the writer could not resist the temptation to comment on Harare’s major intersections in the CBD that have been turned into vending stalls by certain persons that sell various wares to motorists, right in the middle of the roads. There are also some visually impaired persons who are usually accompanied by young children asking for handouts from the same motorists.
Needless to say, these “vendrepreneurs” are operating illegally and have, at the same time, placed themselves in harm’s way. Firstly, the Harare City Council by-laws do not designate road intersections as vending sites and secondly the dangers for operating there are apparent, particularly for the said visually handicapped. In fact, for the blind, there is double jeopardy where the adult blind person will be under the supervision and or direction of a child, sometimes as young as four years old.
However, the fact that these persons will be on the road illegally does not excuse a driver in the event of an accident occurring, resulting in the victim’s death or injury. The law still expects a driver approaching any intersection to be reasonable by keeping a proper look out and exercising due care and attention. The illegality of the vendors may only come to the aid of the guilty driver as mitigation at the conclusion of the trial.
Are you a reasonable driver? Always watch your manner of driving, particularly during this festive season, otherwise you might find yourself in the dock answering to a charge of culpable homicide.
Tichawana Nyahuma is a lawyer and he writes in his personal capacity. He can be contacted on [email protected]
