The appellant appeals against his
conviction for negligent driving in contravention of section 52(2) of the Road
Traffic Act [Chapter 13:11].
The following facts were common
cause.
The appellant, on the day in
question, drove due east along Natal Road, Avondale, Harare. He then turned
right into Bath Road and continued down that road, but, after a short distance,
he decided to go back to Natal Road and executed a “U”-turn. Upon getting to
the “T”- junction into Natal Road, he turned left to go west along Natal Road.
The complainant, who was driving due west along Natal Road realised the
appellant's manoeuvres too late. He hit into the rear end of the appellant's
motor vehicle. There is a “give-way” sign facing Bath Road controlling traffic
entering into Natal Road. The accident occurred in broad daylight when visibility
was good.
The appellant raised six grounds of
appeal. These are that the magistrate erred in one or more of the following
ways:
1. In finding the appellant guilty
of negligent driving;
2. In finding that the appellant was
the cause of the accident;
3. In finding that the appellant
failed to give way to on-coming traffic and failed to keep a proper look-out;
4. In finding that it mattered not
the distance the appellant had travelled up Natal Road;
5. In failing to find that the
collision was caused by the complainant in that :-
(a) He failed to keep a proper
look-out;
(b) He failed to take action and
care to avoid an accident that was imminent;
(c) He ought to have adjusted his
speed and adjusted his driving upon approaching the junction and particularly
when he saw the appellant entering or about to enter into Natal Road and that
he should not have accelerated and accordingly was travelling at a speed that
was excessive in the circumstances.
(d) That in all probability the
complainant was distracted or not paying sufficient attention and thus failed
to reasonably to anticipate that the appellant would turn into Natal Road;
6. In failing to find that the
appellant's contention that he had travelled sufficiently up Natal Road so as
not to have been the cause of the accident or be negligent and that there was
no evidence to the contrary.
In his judgment, the learned trial
magistrate preferred the evidence given by the complainant to that given by the
appellant.
His assessment of where the
probabilities in the matter lay cannot reasonably be faulted if regard is had
to the evidence on the record. The learned trial magistrate believed the
complainant who testified that he saw the appellant drive towards him from the
opposite direction on Natal Road. The appellant turned right into Bath Road.
The appellant then drove down that road before he made a “U”-turn to come back
towards Natal Road. On approaching the “give way” controlled “T”-junction of
these two roads, the appellant did not stop but proceeded to execute a left
turn and drive on. The complainant applied brakes to avoid the imminent
accident whilst at the same time he swerved slightly to his right. There was an
on-coming vehicle which hindered a full swing to the right. As a result he
collided with the rear right side of the complainant's motor vehicle.
On these findings, the court a quo convicted the appellant.
In my view, the appellant's grounds
of appeal are a serialised version of a single ground of appeal. This ground of
appeal amounts to the following: the court a quo erred in finding that the appellant failed to give way to
the complainant when he entered back into Natal Road in the face of a “give
way” sign on Bath Road. This in summary captures the thrust of the attack on
the complainant's conviction. Put differently, one may ask the hypothetical
question: was the appellant negligent in executing a manoeuvre involving a
right turn; a “U”-turn; and proceeding without giving way to traffic enjoying
the right of precedence?
In R v Oldfield 1969 (2) RLR 233,
the court stated that the inquiry was whether a reasonable man in the
particular circumstances in which the appellant was placed ought to have
foreseen as a reasonable possibility that “there might be persons in or
adjacent to the road who might be endangered by his driving.”
In his judgment, the trial
magistrate noted that the appellant noticed the complainant's presence on Natal
Road but decided to get into that road as he thought that he had enough time to
proceed without incident.
Herein lies the decisive aspect in
the case.
In my view, by executing such a
manoeuvre the appellant took a chance that was fraught with high risk. He was
controlled by a “give-way” sign. The fact that he decided to proceed in spite
of the fact that he had noticed the complainant on the road on his right speaks
to his poor judgment. Not only did he flout the admonition in the rules of the
road to give precedence to traffic approaching from the right, he drove against
a clear sign which enjoined him to give precedence to traffic on Natal Road. He
was expected to defer to traffic on this major road. He did not. Ordinarily,
drivers expect other drivers to obey these simple rules of the road. He did
not. I am unable to accept counsel for the appellant's contention regarding the
complainant's duty to avoid this accident. He did all he could. He cannot be
blamed for it but the appellant must be blamed. In my view, and, by any test,
the appellant acted negligently in executing a manoeuvre which was eminently
fraught with danger. Whatever his reasons for it, he ought to have been more
careful, considering that he was re-entering a major road, as signified by the
presence of a “give way” sign. He ignored the warning to his detriment. He was
properly convicted. I find no merit in the several grounds raised on appeal.
The appeal therefore is dismissed in its
entirety.
