Norman Bvekwa v The State

The applicant was convicted by a Magistrate in Harare on 9 March 2018 for negligent driving under s 52(2) of the Road Traffic Act [Chapter 13:11] and sentenced to pay a fine of $400.00 or 4 months imprisonment in default. The conviction arose from a vehicle collision on Enterprise Road, Harare on 20 May 2021 around 2330 hours. The applicant was driving a Chevrolet Blazer and the complainant a Nissan Sylphy from opposite directions. The collision occurred as the applicant drove out of a curve and the complainant was about to enter the same curve. Both vehicles sustained extreme frontal damage and the complainant suffered fractures on both legs requiring 14 days hospitalization. The applicant appealed against conviction and sentence to the High Court, which dismissed the appeal in its entirety on 19 October 2020 (HH651/20). The applicant then sought leave to appeal to the Supreme Court via chamber application, which was heard on 15 September 2021 before CHITAPI J.

• Whether the applicant demonstrated reasonable prospects of success on appeal to warrant granting leave to appeal to the Supreme Court
• Whether the applicant's grounds of appeal were valid, clear and concise as required by law
• Whether the trial court erred in finding that the applicant was negligent in his driving
• Whether the trial court erred in finding that the applicant encroached onto the complainant's lane of travel
• Whether the defence of sudden emergency (being dazzled by the complainant's headlights) was available to the applicant
• Whether the sentence imposed was appropriate given the finding of negligence
• Whether special circumstances existed to justify a written application for leave to appeal rather than an oral application

The application for leave to appeal against both conviction and sentence was dismissed.

Leave to appeal to the Supreme Court will only be granted where the applicant demonstrates reasonable prospects of success on appeal - not merely an arguable case. Grounds of appeal must be clear, concise and specific, identifying the particular evidence or findings challenged; vague and generalised grounds that merely assert errors without particularity are invalid. Factual findings of trial courts, including findings as to the point of impact in vehicle collision cases, will be presumed correct and only overturned if shown to be vitiated by material misdirection or clearly wrong on the evidence. A driver who relies on a defence of being dazzled by oncoming headlights must do more than merely allege the dazzlement - there must be evidence of reasonable avoiding action taken in response to the sudden emergency, failing which a finding of negligence is warranted. Physical evidence from the accident scene (such as debris location) is the best evidence for determining point of impact and liability in vehicle collision cases.

CHITAPI J made important observations about the unsatisfactory nature of Rule 262 requiring oral applications for leave to appeal immediately after dismissal of an appeal, when appeal courts typically only read out the operative order and make full reasons available later for a fee. The judge noted this places a convict in an impossible position of having to apply for leave to appeal without knowing the reasons for the decision. The judge welcomed the new High Court Rules SI 202/2021, particularly Rule 94(9), which provides that applications for leave to appeal should be heard by the same judges who determined the appeal if available, rather than a single different judge. The judge expressed the view that it was "unsatisfactory" and placed a judge in an "invidious position" to have to express an opinion against an appeal judgment rendered by other judges or a panel on which they did not sit. The judge also noted that for the maximum fine to serve its purpose of punishment, it must result in "a sting upon the offender" and "a dent on his pocket", which varies depending on the financial circumstances of the offender.

This case is significant for: (1) clarifying the test and requirements for granting leave to appeal to the Supreme Court in criminal matters, particularly the requirement that grounds of appeal must be clear, concise and specific rather than vague and generalised; (2) reaffirming the principle that appellate courts will not interfere with factual findings of lower courts unless material misdirection is shown; (3) clarifying the duties of a driver who claims to have been dazzled by oncoming headlights - that mere assertion of dazzlement is insufficient without evidence of reasonable avoiding action taken; (4) highlighting procedural issues with the practice of only reading out operative orders rather than full judgments in appeals, and the challenges this creates for oral applications for leave to appeal under Rule 262; and (5) noting (obiter) that the new High Court Rules SI 202/2021 provide that leave to appeal applications should be heard by the same judges who determined the appeal if available, addressing the anomaly of a single judge reviewing the decision of an appeal panel.