Evans Kabwe v The People (HP/135/2000) [2001] ZMHC 2 (11 October 2001)

IN THE HIGH COURT FOR ZAMBIA HP/135/2000 AT THE PRINCIPAL REGISTRY AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: EVANSKABWE Plaintiff AND THE PEOPLE Defendant BEFORE THE HONOURABLE MR. nJSTICE PETER CHITENGI IN OPEN COURT AT LUSAKA ON THE 11TH DAY OF OCTOBER, 2001. For the People: For the Accused: Chibwe State Advocate Ndhlovu H. H. Messrs Ndhlovu & Company JUDGMENT The accused is charged with three counts of Causing Death by Dangerous driving contrary to Section 199 of the Roads and Roads Traffic Act Cap 464 of the Laws of Zambia. In the first count it is alleged that Evans Kabwe, on the 1st day of February, 2000 at Lusaka in the Lusaka District of Lusaka Province of the Republic of Zambia did cause the death of Nyambe Kalaluka by driving a motor vehicle namely Volvo bus B7 Registration Number AAR 2013 on a public road, namely Great North Road South near Mapepe Village, in a manner which was dangerous to the public, regard being had to all the circumstances of the case, including the nature, conditions and use of the road and the amount of traffic which was actually there at the time on the road or which might reasonably have been expected to be on the said road. The particular in the second and third counts are the same except that the deceased are Honourine Kunda Chalwe and Priscilla Matakala Siloka respectively. The prosecution called eight witnesses but the sum and substance of the prosecution case is that the accused was driving a Volvo bus Registration Number AAR 2013 on the Great North Road between Lusaka and Kafue going in the Southern direction. In the bus were a lot of Zesco workers returning to Kafue Gorge. At a place called Mapepe the accused overtook three long trucks and when the accused returned to the left side of the road, he lost control of the bus and the bus overturned. According to PWI and PW3 the accused was driving fast when overtaking. But according to PW2 the speed was minimum. It was not very speedy. It was raining at the time. At the place where the accident happened the road is straight but after the drainage there was a slope. The accused overtook on the part of the road where there was a white continuous line (see sketch plan exhibit "P2"). In a warn and caution statement which was taken from him the accused explained the accident on bad tyres and that at the particular time it was showering. The accused said he tried his best to control the vehicle but it still slided off the road and rolled into the drainage. Motor Vehicle Examiner from the Road Traffic Commission who examined the bus discovered that the steering system was defective in that it was misaligned and that three tyres were defective. According to the Motor Vehicle Examiner's opinion the accident could have been caused by the misalignment which made the bus go to the left side and the three defective tyres which can cause poor braking in wet weather. The three deceased persons lost their lives in this tragic accident. However there is only one post mortem report in respect of the deceased Priscilla Matakala Siloka. Be that as it may, the cause of death of these two other deceased persons is not disputed in this case. The accused was formally charged and arrested for the offences by Sergeant Banda (PW8). The accused gave evidence on oath but called no witnesses. According to the accused he was driving back to Kafue Gorge on 1st February, 2000. When he reached Chilanga there were two trucks and one mini bus in front of him. As they approached Mapepe area there were three lanes going in the same direction and one going in the opposite direction. He got into the middle lane and overtook all the three vehicles in front of him. After overtaking he went back to the outer lane. After a short distance at a slope the bus started swerving behind. He tried to control the bus but he failed and it fell into the ditch. The vehicles he overtook were going slowly. The trucks were carrying loads. The sketch plan shows that a person from Lusaka can overtake. The sketch plan does not show where he started overtaking. He was driving at 80 kilometers per hour. The tyres of the bus were worn out and he had reported to the authorities but the problem was not attended to by the authorities without explanation. He has been driving for 17 years. He was not supposed to drive a bus with defective tyres. At the material time it was showering and the road was somehow wet. After overtaking the three motor vehicles he continued driving at 80 kilometres per hour. He was not driving at very high speed. Counsel indicated that they would file written submission but todate only Mr. Ndhlovu, learned Counsel has for the accused, has filed his written submissions. As I can not delay the judgment any longer I have written the judgment without submissions from the prosecution. The sum and substance of Mr Ndhlovu's submissions is that the accused was not driving at high speed. PW2 testified to that. All the witnesses said that the accused overtook the other vehicles as he was going up a small hill. Therefore, Mr. Ndhlovu submitted, the one truck which was in front of him and loaded was travelling really slow and as such when the accused overtook he was not speeding or driving dangerously. There is nothing in the evidence to show any form of reckless or negligent driving or indeed any driving on the part of the accused, which was dangerous to the passengers and any other road users. It was Mr Ndhlovu's submission that because the sketch plan was not drawn to scale it was of no assistance to Court because distances can not be ascertained. The mere fact that there was an accident in which people died does not mean that the accused was driving in a dangerous matter. Further, Mr. Ndhlovu submitted that although there is evidence suggesting that the skidding of the motor vehicle could have been caused by three bad rear tyres there is unchallenged evidence from the accused that the motor vehicle had just come out of the garage and as such the workshop must have found that the motor vehicle was fit for the journey. Finally Mr. Ndhlovu submitted that the prosecution have failed to prove charge. I have carefully considered the evidence before me and the submissions of Counsel. There is no dispute that on the day in question the accused drove the bus in question on the Great North Road and that after overtaking three motor vehicles which were in front of him the bus overturned when the accused came to the left lane of the road and that as a result of this accident three persons who were passengers in the bus lost their lives. Accordingly, I find these facts proved as undisputed facts. Although there is no evidence adduced to the effect that the Great North Road is a public road, it is a notorious fact that the Great North Road is a public place and I take judicial notice of this fact, and find that the Great North Road is a public road. The critical issue in this case is whether the accused drove in a manner that was dangerous to the public. The accused in his evidence denied ever driving in a dangerous manner. Mr Ndhlovu, learned Counsel for the accused, in his submissions said that there was no evidence of dangerous driving. But on the evidence, I have no slightest doubt in my mind to find that the accused drove in a manner that was dangerous to the public. The accused himself admitted that the bus he was driving had defective tyres. The accused also admitted in his evidence that at the material time it was showering. The road was wet. Mr Ndhlovu submitted that there is undisputed evidence that the bus went into the garage before the journey and that the garage released the bus for use. According to Mr. Ndhlovu, that meant that the bus was certified fit for the journey. This submission is untenable because it is in the teeth of the evidence of the accused himself. The prosecution and defence evidence is agreed that the bus had, at the material time, defective tyres. The Motor Vehicle Examiner who went to the scene and examined the bus opined that incorrect alignment and the three worn out tyres which could cause poor braking in wet weather contributed to the accident. To overtake three trucks in a row is in itself dangerous driving, in any circumstances. In this case the accused was driving a bus carrying a lot of passengers. The bus had three bad tyres and the road was wet because it was showering. The accused was overtaking three trucks in a row. The manoeure the accused executed was fraught with danger. Indeed when the accused came back to his lane after executing the dangerous manoeure the bus overturned tragically killing three of the passenger, The accused said he felt the bus skidding. Of course with bad tyres in wet conditions the brakes will not quickly hold. The accused said in his evidence that he was not moving fast and Mr Ndhlovu in his submissions said the accused could not have been driving fast because there is evidence that the accused overtook as he was going up a small hill. According to Mr. Ndhlovu all the witnesses who were in the bus were agreed on this. Firstly, I am not all too sure whether there is such evidence. Secondly, even PW2 who, for whatever reasons, wanted to be favourable to the accused, gave evidence that the bus was not very speedy. I understand this to mean that the bus was speedy which is what PWl and PW4 said. PWl and PW4, said that the bus was fast. This accords common sense. One cannot overtake moving three trucks without one moving faster than the three trucks. The accused moved fast for him to overtake the three trucks in front of him and it is this speed which, in wet conditions, contributed to the bad tyres not gripping the road. Indeed the extensive damages to the motor vehicle show that before the crush the bus had been moving at high speed. All in all it cannot be seriously contended on the evidence that the accused did not drive in a manner that was dangerous to the public as alleged. I am satisfied that the prosecution have proved their case beyond all reasonable doubt. Consequently, I find the accused guilty on each count as charged and I convict him accordingly. DELIVERED IN OPEN COURT AT LUSAKA THIS 11th DAY OF OCTOBER, 2001. PETER~ JUDGE 6