Judgment No. HB 104/06
Case No. HC 536/06
CRB W 383/05
THE STATE
Versus
VIOLA KAKONO
IN THE HIGH COURT OF ZIMBABWE
NDOU J
BULAWAYO 12 OCTOBER 2006
Criminal Review
NDOU J: The accused was charged of culpable homicide (arising from a road traffic accident) before a Hwange Magistrate. She pleaded not guilty and indicated that she did not believe that the road accident was the cause of death of the deceased. The issue raised by the accused could only be resolved by way of medical evidence. The state, however, produced part of the post morterm report by Dr S Pesanai. The doctor opined that the cause of death was:
“a) Massive pulmonary embolism
Compound fracture of right tibia and fibula
Road Traffic Accident
Diabetes Mellitus”
The doctor made reference to an attached report but it was not produced during the trial. There are no reasons given for the omission. The doctor was not called to testify. Instead, the prosecutor opted for the easy way out and accepted the lesser charge of negligent driving. The accused then accepted the essential elements of the lesser charge and she was convicted. She was sentenced to a fine of $300 000 or in default thereof 5 months imprisonment. This is a case were the doctor should have been called to explain whether the death arose from the road accident, i.e. the
HB 104/06
nexus between the accident and the death. The state, and indeed the court, should not lightly refrain on the ground of convenience from adducing medical evidence where the evidence may assist the court. In this case, a human life has been lost. The medical evidence was crucial in the determination of whether the accused’s negligent driving caused the death of deceased. The medical evidence should have been adduced – S v Melrose 1984(2) ZLR 217 (S); S v Mpofu & Anor HB-41-03; Ndlovu v S HB-59-06.
In the circumstances, I am unable to certify these proceedings as being in accordance with true and substantial justice. Accordingly, I withhold my certificate.