S v Kakono (HB 104 of 2006) [2006] ZWBHC 104 (11 October 2006)
The absence of full medical evidence and failure to call the doctor to testify meant the nexus between the accident and the death was not established, rendering the proceedings not in accordance with substantial justice.
Source-derived case information.
- Citation
- [2006] ZWBHC 104
- Parties
- Prosecution: The State; Accused: Viola Kakono
- Court
- Bulawayo High Court
- Jurisdiction
- Zimbabwe
- Case Number
- HB 104 of 2006
- Procedural Posture
- Criminal Review / Judgment
- Outcome
- certificate of substantial justice withheld
- Legal Topics
- Culpable Homicide, Negligent Driving, Admissibility of Medical Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Prosecution
Viola Kakono
Accused
Procedural Posture
Criminal Review / Judgment
Legal Issues
- 1 Whether the conviction for negligent driving was proper without full medical evidence establishing the cause of death
- 2 Whether the proceedings were in accordance with substantial justice
Ratio Decidendi
The absence of full medical evidence and failure to call the doctor to testify meant the nexus between the accident and the death was not established, rendering the proceedings not in accordance with substantial justice.
Court Disposition
certificate of substantial justice withheld
Full Case Text
Judgment text and source record
1 paragraphs
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 b) c) d) 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 HB4103; Ndlovu v S HB5906. In the circumstances, I am unable to certify these proceedings as being in accordance with true and substantial justice. Accordingly, I withhold my certificate.