Headman Phiri v The State

On 4 November 2015 at around 3:30 p.m., the appellant was driving an Isuzu tipper truck laden with ten cubic metres of gravel along Oatlands Road coming from Lake Chivero direction. A nine-year-old deceased child disembarked from a commuter omnibus and ran from behind to cross the road without checking. Before the deceased finished crossing the road, he was struck by the truck the appellant was driving on the left side of the road. The deceased fell on the gravel verge on the left side. The appellant stopped and assisted in conveying the deceased to hospital. The deceased was initially taken to Suburban Clinic, then transferred to Parirenyatwa Hospital where he died from his injuries. The scene was a built-up residential area with a tuck shop nearby. There were no road markings. The truck had a minor crack on the left head lamp. An eyewitness confirmed the child ran across without checking and that the appellant was not speeding. The appellant claimed he was travelling at about 40 km per hour and only saw the child appear suddenly from behind the commuter omnibus.

• Whether the appellant was negligent in the driving of the motor vehicle resulting in the death of the child
• Whether the appellant failed to keep a proper lookout
• Whether the appellant failed to exercise a high degree of care when in the vicinity of children or potential hazards
• Whether the appellant failed to act reasonably when a collision seemed imminent
• Whether the appellant was travelling at an excessive speed under the circumstances
• Whether the sentence imposed was manifestly excessive
• Whether the trial court erred in ordering prohibition from driving when there were allegedly special circumstances against such prohibition

The appeal against both conviction and sentence was dismissed. The conviction for contravening s 49(1)(a) of the Criminal Law (Codification and Reform) Act (culpable homicide) was upheld. The sentence of a fine of $200 or in default 3 months' imprisonment, plus 2 months' imprisonment wholly suspended for 5 years on condition of good behaviour, and prohibition from driving class 2 vehicles for 2 years was confirmed.

The binding legal principles established are: (1) Under s 16(1)(a) of the Criminal Law (Codification and Reform) Act, negligence in driving is assessed objectively by whether a reasonable person in the same circumstances would have acted with the same care and skill; (2) A driver approaching objective hazards in a built-up area (such as parked commuter omnibus and tuck shop) must take adequate precautions including reducing speed and sounding the hooter; (3) Speed must be assessed relative to circumstances - maintaining speed without reduction when driving a heavily laden vehicle with reduced braking capacity in a built-up area constitutes excessive speed even if not exceeding general speed limits; (4) Failure to keep a proper lookout is established when a driver should have been able to observe a hazard if exercising due care; (5) For purposes of s 52(4) of the Road Traffic Act and avoiding mandatory prohibition from driving, special circumstances must be extraordinary factors arising from the commission of the offence or peculiar to the offender; good driving record and economic hardship from loss of livelihood are mitigating factors, not special circumstances as established in S v Mbewe and Others 1988 (1) ZLR 7.

The Court made several non-binding observations: (1) The trial court did not make a specific finding on the degree of negligence exhibited by the appellant as would ordinarily be considered in culpable homicide cases arising from motor vehicle accidents (referencing S v Mtizwa 1984 (1) ZLR 230), though this was not determinative for prohibition from driving purposes as s 52(4) is silent on that aspect; (2) The Court noted that slowing down considerably, moving to the centre or far side of the road, hooting and flashing lights are precautionary measures that can help avoid accidents involving children (drawing from S v Ball 1993 (2) ZLR 384); (3) The Court acknowledged that the special duty of care toward children is not absolute and negligence must be proved in each case; (4) The Court observed that children have a propensity for impulsive and irrational action and should not be credited with the same mature intelligence as adults, though this principle from S v Ferreira was noted to have been misapplied by the trial court in the present case as there was no evidence of other children in the vicinity.

This case is significant in Zimbabwean criminal and road traffic law for: (1) Clarifying the application of the objective test for negligence under s 16(1)(a) of the Criminal Law (Codification and Reform) Act in motor vehicle culpable homicide cases; (2) Demonstrating how courts assess the duty of care owed by drivers of heavy vehicles in built-up areas; (3) Clarifying that the special duty of care towards children articulated in S v Ferreira applies when children are known to be in the vicinity, but does not absolve drivers from taking adequate precautions in residential areas with objective risk factors; (4) Establishing that maintaining speed without reduction in circumstances involving parked vehicles, tuck shops, and heavy loads constitutes excessive speed relative to circumstances even if not speeding in absolute terms; (5) Reinforcing the distinction between mitigating factors and special circumstances for purposes of avoiding mandatory prohibition from driving under s 52(4) of the Road Traffic Act, confirming that good driving record and economic hardship are merely mitigatory and not special circumstances.