S v CHIKWENYERE 1988 (2) ZLR 231 (SC)

Flynote

Criminal law — traffic cases — negligent driving — allegation that accused D proceeded against red traffic light — effect of such allegation — conviction possible if accused shown to have driven through amber light — duties of drivers at robot-controlled intersections — traffic lights — presumption as to working of.

Headnote

The appellant was charged with negligent driving, following a collision at arobot-controlled intersection. The only particular of negligence supplied was that he had driven through a red robot. No conclusive evidence was led to show that the light was red against the appellant when he went through it. No evidence was led as to the width of the intersection or the length of the phases of the traffic lights. The appellant, though denying that the light was red, admitted that it was amber when he went through. He also admitted that that set of lights had a phase when the lights showed red in all directions. It was accepted by the trial court that the complainant, who had been stationary because the lights were red against her, moved into the intersection when they changed to green.

Held, that if the only question to be decided was whether the appellant was proved to have crossed the stop-line when the light was red, he would have to be acquitted. However, that was not the end of the matter: particularity supplied was sufficient to cover the lesser alternative allegation that the appellant entered the intersection when the light was amber in circumstances which endangered intersecting traffic and that he did not take due precautions. Proof of this is not proof of a new or different particular of negligence; it is more accurate to see it as proof of part of the negligence alleged, or a lesser degree thereof.

Held, further, that given the situation in which he eventually found himself, the appellant was called upon to give an exculpatory explanation which was reasonably possibly true in answer to both of these questions:

• (1) why, if he lawfully crossed on the amber light, was he still in the intersection when the complainant moved forward on the green light?
• (2) why, in the light of his duty in that situation to take all precautions, did he not attempt to warn or to avoid the complainant when she moved into the intersection?

The appellant failed completely even to suggest an answer to these questions.

Held, further, that there is a rebuttable presumption that when traffic lights are green in one direction they are red facing the other direction.

Quaere, whether the complainant was contributorily negligent, there being no inflexible rule that a driver who has a green signal in his favour is never required to look to the right or left as he proceeds through the intersection.