The State v Nixon Biza

On 2 October 2016, the accused was driving a commuter omnibus (registration ABZ 2324) along Chitungwiza road when he approached a police roadblock. The deceased, Police Officer Tapera Cleopas, was in uniform standing on the inner lane close to the dotted white line, facing oncoming traffic and attempting to stop vehicles. The accused, who knew there were police at the spot, changed lanes from the outer lane to the inner lane and increased speed. He struck the deceased with the left corner of his vehicle, causing the deceased to hit the windscreen and fall to the ground. The deceased sustained fatal head injuries and died from the impact. The accused stopped approximately 100 meters from the point of impact. The incident occurred at midday on a Sunday with little traffic and good visibility. The roadblock was a blitz operation with no advance warning signs.

• Whether the accused was travelling at high speed at the material time
• Whether the accused intended to kill the deceased (murder) or caused death through negligence (culpable homicide)
• The appropriate degree of negligence to be attributed to the accused's conduct
• Whether a custodial sentence was warranted for culpable homicide arising from negligent driving
• Whether the accused should be prohibited from driving under s 64 of the Road Traffic Act

The accused was found not guilty of murder in terms of s 47 of the Criminal Law (Codification and Reform) Act but guilty of culpable homicide in contravention of s 49(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sentence: 30 months imprisonment, of which 18 months suspended for five years on condition that the accused does not commit an offence involving negligence during that period for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 12 months imprisonment. No prohibition from driving was imposed.

A driver who knowingly passes through a police roadblock area at high speed with the intention of avoiding being stopped, and who fails to keep a proper lookout, is guilty of gross negligence amounting to culpable homicide if a death results. The driver need not have foreseen the precise manner in which harm occurred, provided the manner was within the range of ordinary human experience (applying S v Duri 1989(3) ZLR 111 (SC)). A custodial sentence without the option of a fine is appropriate for culpable homicide arising from negligent driving where the driver has been reckless or grossly negligent (applying S v Lusenge C AD-138-81). However, contributory negligence by police in operating unmarked roadblocks and suddenly emerging onto roads can constitute special circumstances justifying the court's discretion not to impose a prohibition from driving under s 64 of the Road Traffic Act, notwithstanding that such prohibition would generally be imposed for negligent driving involving public service vehicles.

The court made several non-binding observations: (1) that it is common practice for commuter omnibus drivers to attempt to avoid police and to engage in speeding and reckless driving, which cannot be ignored in sentencing; (2) that the police practice of suddenly springing onto the road is clearly undesirable and dangerous not only to police themselves but to members of the public travelling in vehicles they attempt to stop; (3) that memory of witnesses naturally decays over time and variations in estimates of distance are to be expected, particularly in anxiety-producing events like accidents, with witnesses on each side exposed to post-accident information that may influence their recollections; (4) that overestimates or underestimates of where a vehicle stopped are to be expected depending on whose side the evidence is given; and (5) that it would be unrealistic to pretend that kombi drivers do not loathe being stopped by police, suggesting the accused's true intention was to avoid being stopped when he increased speed.

This case is significant in Zimbabwean criminal law for: (1) illustrating the distinction between murder and culpable homicide in road traffic fatalities, particularly the importance of proving intention to kill versus gross negligence; (2) establishing that drivers who knowingly increase speed while passing through police roadblocks, thereby failing to keep proper lookout, can be found grossly negligent; (3) confirming that custodial sentences are generally appropriate for culpable homicide involving gross negligence or reckless driving, particularly for public service vehicle drivers; (4) recognizing that contributory negligence by police (unmarked roadblocks, suddenly emerging onto roads) can constitute special circumstances justifying deviation from the usual penalty of prohibition from driving under s 64 of the Road Traffic Act; and (5) addressing the broader public safety concern regarding the dangerous driving practices of commuter omnibus operators and the need for deterrent sentencing.