Leonard Gwata v The State

The appellant was driving a bus along the Harare-Beitbridge highway at the 90 kilometre peg. Richard Chimaire was driving a Honda Fit vehicle ahead of the appellant. Chimaire signalled to turn right at a sign post written "Nhungure Housing", having signalled from about 100 metres before the sign post. He slowed down and moved to the far right side of the left lane. While Chimaire was preparing to turn right, the appellant attempted to overtake the Honda Fit, resulting in the two vehicles side-swiping. A witness, Gladys Mukanyangangi, testified that the Honda Fit had properly signalled and that the bus was speeding. The point of impact was confirmed to be in the right lane. The bus knocked down a give way sign and stopped some 200-330 metres from the point of impact. The appellant claimed he hooted as he started to overtake and that Chimaire only signalled when he was already overtaking. The accident evaluator concluded that the appellant should not have overtaken and that Chimaire should have checked his blind side.

• Whether the trial court erred in convicting the appellant of negligent driving in the absence of proof of particulars of negligence
• Whether the trial court erred in convicting the appellant where state witnesses contradicted each other
• Whether it was safe for the appellant to overtake at the particular time
• Whether the other driver (Chimaire) was negligent and contributed to the accident
• Whether the trial court erred in ordering cancellation of the appellant's driving licence
• Whether the trial court adequately considered special circumstances before prohibiting the appellant from driving
• Whether the contributory negligence of the other driver constituted special circumstances justifying non-prohibition from driving

The appeal against both conviction and sentence was dismissed in its entirety. The conviction for negligent driving was upheld. The sentence of a $500 fine (or 5 months imprisonment in default) was upheld. The prohibition from driving all classes of motor vehicles for 24 months and cancellation of the appellant's licence were also upheld.

A driver who overtakes other road traffic must satisfy himself that it is safe to do so at the particular time, regardless of whether overtaking is generally permitted by road markings. The duty of care requires assessment of actual safety conditions including the intentions of the vehicle being overtaken (such as signalling to turn) and other road conditions (such as presence of vendors). Under s 52(4) of the Road Traffic Act, "special circumstances" that may justify declining to prohibit a person from driving must be special circumstances surrounding the commission of the offence itself, and do not include circumstances peculiar to the offender. Alleged contributory negligence by another driver does not constitute special circumstances unless adequately explained and proven. An appellate court will not interfere with a trial court's findings on credibility of witnesses in the absence of misdirection in the assessment of credibility.

The court observed that the right side of a vehicle (in right-hand traffic) cannot be described as a "blind side" for purposes of assessing whether a driver should check before turning. The court noted that the presence of vendors in the vicinity of the accident scene was a relevant factor in assessing whether it was safe to overtake, though this was not essential to the decision. The court made passing reference to the South African authority Cooper and Bamford – South African Motor Law in support of the general principle that a driver overtaking must satisfy himself that it is safe to do so, though the court did not elaborate on this authority or its application.

This case clarifies the application of the duty of care in overtaking manoeuvres under Zimbabwean road traffic law. It establishes that even where overtaking is generally permitted (indicated by broken lines), a driver must assess whether it is safe to overtake at the particular time and in the particular circumstances. The case also provides important guidance on the interpretation of "special circumstances" under s 52(4) of the Road Traffic Act, confirming that special circumstances must relate to the commission of the offence itself and not to the personal circumstances of the offender. The case reinforces that contributory negligence by another party does not automatically constitute special circumstances justifying a departure from mandatory prohibition from driving, particularly where the appellant cannot adequately explain how the other party contributed to the accident. The case demonstrates the appellate court's deference to trial court findings on credibility of witnesses in the absence of misdirection.