FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

Transcription

1 FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT Case Number: CA & R 236/2008 High Court: Grahamstown DATE HEARD: 12 August 2009 DATE DELIVERED: 26 August 2009 PARTIES: JUDGE(S): Nepgen and Chetty JJ LEGAL REPRESENTATIVES Appearances: for the Applicant(s): Adv Price for the Respondent(s): Adv Obermeyer Instructing attorneys: Applicant(s): Respondent(s): CASE INFORMATION - Nature of proceedings: Appeal Topic: Key Words: Culpable Homicide Driver cutting in front of motorcyclist Death of motorcyclist ensuing Highly dangerous manoeuvre Gross negligence Drunken driving Appellant highly inebriated Appellant a magistrate attempting to flee scene after collision Prevented from so doing On arrival of police falsely alleging his wife to be the driver False defence persisted with throughout inquest and subsequent trial Regional Court imposing sentence in terms of s 276 (1) (i) No interference with sentence warranted Appeal dismissed Sentence confirmed.

2 2 REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE GRAHAMSTOWN) Case No: CA & R 236/08 In the matter between: MALINGU MAPIPA Appellant and THE STATE Respondent Coram: Nepgen and Chetty JJ Date Heard: 12 August 2009 Date Delivered: 26 August 2009 Summary: Culpable Homicide Driver cutting in front of motorcyclist Death of motorcyclist ensuing Highly dangerous manoeuvre Gross negligence Drunken driving Appellant highly inebriated Appellant a magistrate attempting to flee scene after collision Prevented from so doing On arrival of police falsely alleging his wife to be the driver False defence persisted with throughout inquest and subsequent trial Regional Court imposing sentence in terms of s 276 (1) (i) No interference with sentence warranted Appeal dismissed Sentence confirmed. JUDGMENT CHETTY, J [1] This is an appeal against a sentence of four years imprisonment imposed on the appellant subject to the provisions of s 276 (1) (i) of the

3 3 Criminal Procedure Act 1 following his conviction on charges of culpable homicide and driving under the influence of liquor in contravention of s 65 (1) (a) of the National Road Traffic Act 2. [2] It is apposite at the outset to set out the conventional approach adopted by our courts in road accident death related cases. In S v Nxumalo 3 Corbett, JA, in the course of his judgment in a similar matter said the following 4 - Now, there is no doubt that the Court, when assessing the punishment to be meted out to a person convicted of an offence arising from the negligent driving of a motor vehicle on a public highway cannot, and should not, ignore the consequences of such negligent driving, especially where one of the consequences is the death of another person and the conviction is of culpable homicide. As it was put by SCHREINER JA in R v Barnardo 1960 (3) SA 552 (A) at 557D - E: 'Culpable homicide may often seem to operate hardly upon a person who has caused another's death since no greater moral blameworthiness arises from the fact that the negligent act caused death. Nevertheless the sanctity of human life requires to be emphasised whenever a person is unlawfully killed, and drivers of motor vehicles must again and again be reminded that they are in control of an instrument that takes a dreadful toll of life on our highways.' (See also R v Bredell 1960 (3) SA 558 (A) at 562H - 563A.) In S v Ngcobo 1962 (2) SA 333 (N), however, MILLER J (as he then was), commenting on these two decisions, stated (at 336H - 337A): 'I do not understand the learned Judges of Appeal to have meant or intended, however, that the magnitude of the tragedy resulting from negligence should ever be allowed to obscure the true nature of the accused's crime or culpability. Whatever the result of the negligent act or omission, the fact remains that what the accused person in such a case is guilty of is negligence - the failure to take reasonable and proper care in given circumstances. His negligence may be slight and yet may have the most calamitous consequences, or it may be gross and yet be almost providentially harmless in the result. I venture to suggest that the basic measure for determining fit punishment for a negligent motorist must be the degree of his culpability or blameworthiness. In terms of the judgment to which I have referred, the fact that a death or deaths resulted from such negligence is a factor which may and should be taken into account by the court for purposes of sentence, not so much for its purely punitive effect on the culprit, who may not deserve severe punishment, but for its deterrent effect in emphasising 'the sanctity of human life' and in warning motorists that negligence on the highways may well result in the death of innocent persons and in severe penalties being imposed upon those responsible therefor.' 1 Act No 51 of Act No 93 of (3) SA 856 (AD) 4 At 861A-G

4 4 In similar vein are the following remarks of WESSELS JA in S v Hougaard 1972 (3) 748 (A) at 758F: 'Appellant se growwe nalatigheid het afgryslike gevolge gehad. Wat dít betref, meen ek dat onthou moet word dat die oorledene se uitermatige spoed aansienlik daartoe bygedra het. Selfs 'n ligte graad van nalatigheid kan afgryslike gevolge hê waar uitermatige spoed 'n G bydraende faktor is. Growwe nalatigheid kan soms heel onbenullige gevolge hê. Die gevolge van nalatigheid behoort dus nie by straftoemeting oorbeklemtoon te word nie.' before concluding 5 (that) it seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of the accused's negligence. At the same time the actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed. (emphasis added) [3] The evidence adduced in the court below concerning the circumstances in which the collision occurred was tendered by a single witness, Mr M. Bezuidenhout (Bezuidenhout), who fortuitously happened to be standing on the corner of Rundell road where it intersects with Sutton road 5 At 861H

5 5 in Sidwell, Port Elizabeth. Sutton road runs from east to west. It is a fairly wide road dissected by a traffic island throughout its length, vehicular traffic proceeding eastwards being confined to the northern section and those westwards to the southern section. Although the centre traffic island runs throughout the length of Sutton road, there are various breaks along its course where side roads from the north and south form T-junctions with it. At the T-junction intersection with Rundell road which joins it from the north there is a stop street sign. Vehicles proceedings westwards along Sutton road and intending to turn into Rundell road are thus required to yield to vehicles travelling eastwards on the northern section of Sutton road at the break in the centre island. [4] Bezuidenhout was standing on the western corner of Rundell road in conversation with his daughter. The entire eastern side of Sutton road was in his line of vision. The deep drone of a motorcycle engine attracted his attention and when he looked up in curiosity he observed a motorcycle proceeding along Sutton road from east to west and nearing the intersection. Almost simultaneously he noticed a sedan motor vehicle overtaking the motorcycle on its left and when the motorcycle reached the intersection the sedan suddenly and without any indication turned to its right in front of the motorcycle s line of travel. This sudden, unexpected and dangerous manoeuvre on the part of the driver of the sedan caused the motorcycle to crash into the right side of the sedan. It is obvious that the motorcyclist must have tried to avoid the collision by turning to his right because its left side came into contact with the sedan. The motorcycle s momentum however

6 6 propelled it forwards into the kerb on the centre island s western course as a result of which it capsized dislodging the motorcyclist and the passenger, both of whom came to rest on the centre island. The sedan momentarily stopped in the intersection after the impact but the driver nonetheless nonchalantly proceeded into Rundell road away from the scene. Bezuidenhout screamed at the driver in an attempt to stop him but to no avail. An onlooker in the corner apartment likewise shouted at the driver to stop and their combined effort, which attracted much attention, eventually caused the driver to stop which he did some distance away. Whilst Bezuidenhout made a telephone call on his cell phone to summon aid, he noticed two male persons alighting from the front passenger door and a female exiting from the rear left door. [5] Bezuidenhout rushed to the centre island to render assistance to the motorcyclist and his passenger and when he looked back noticed the two males proceeding away from the scene in a northerly direction. The collision had by then attracted a horde of spectators, many of them having exited from a bar situated next to the apartment at the corner of Rundell road. Bezuidenhout shouted at them that they apprehend the driver whom he identified as the person with the striped shirt. It is not in issue that this person was the appellant. His exhortation had the desired effect, the appellant returned to the scene of the collision joining the female passenger alongside the sedan. It is common cause that she is the appellant s wife. The other male however proceeded along Rundell road and disappeared from sight. At the trial Bezuidenhout identified the appellant as the driver of the sedan.

7 7 [6] Bezuidenhout further narrated that while he was rendering whatever assistance he could to the motorcyclist and his passenger, the police arrived on the scene and almost simultaneously, persons whom Bezuidenhout described as independent collision investigators. Bezuidenhout noticed the appellant talking to the police in what he considered to be the Xhosa language and when he (i.e. the appellant) attempted to light a cigarette, Bezuidenhout remonstrated with the police that they should not allow him to do so until the appellant had been taken for a blood test. I interpolate to say that Bezuidenhout acted as he did in the belief that smoking could possibly affect the blood alcohol test results. [7] Bezuidenhout told the police that the appellant had driven the vehicle and that he was highly inebriated. Their response flummoxed him, their retort being that the appellant s wife and not he was the driver. Bezuidenhout had observed that the appellant was to an appreciable degree unsteady on his feet and noticeably under the influence of liquor. The unwillingness on the part of the police to have the appellant taken for a blood test resulted in a heated exchange between Bezuidenhout and them, the police and the private investigators remaining steadfast in their resolve not to have the appellant sent for a blood test. In order to convince them that the appellant was in fact the driver, Bezuidenhout remonstrated with them to the point that he beseeched them to accompany him to the vehicle and to look at the position of the driver s seat which suggested, quite unequivocally, given the physical attributes of the appellant and his wife respectively, that it was inconceivable that the appellant s wife could have been the driver. The intimation by

8 8 another of the bystanders that the appellant was in fact the driver seemed to break the impasse and eventually propelled the police to agree to have the appellant sent for a blood test. [8] Evidence relating to whether the appellant s blood was drawn and tested to establish its concentration of alcohol is conspicuously absent from the transcript of the proceedings. Whether the appellant was in fact taken for the purpose of his blood sample being drawn remains a mystery but it would appear that it was not. Bezuidenhout s evidence however conclusively established that the appellant was heavily under the influence of alcohol. [9] During Bezuidenhout s cross-examination his veracity was sought to be impugned. It was put to him that the appellant was not the driver of the vehicle and that he had falsely implicated him. Bezuidenhout s testimony remained unshaken and consistent. What emerged from the cross-examination was to prove revealing viz. the appellant s regular patronage of the Pub and Grub where he habitually imbibed; his occupation as a magistrate was shown to be public knowledge and his persistence in driving under the influence of intoxicating liquor a matter frequently commented upon by the other regular patrons. [10] Bezuidenhout had seen the appellant earlier that day drinking at the Pub and Grub. He described the appellant s condition as follows

9 9 Dit was n groot besprekingspunt toevallig die middag ook dat n landdros onder sulke toestande bestuur. Almal in die kroeg het gepraat daarvan. Het hulle him hoegenaamd probeer stop toe hy in sy voertuig wou klim en so dronk was? --- Nee, ek het nie. Hoekom nie? --- Ek meng my nie in met dinge wat my nie bemoei nie. Daar is wel gepraat. Die mense het gesê om die Verkeersdepartement te bel maar daar is toe ook gesê dat hy bly in die omgewing, by tyd wat die Verkeersdepartement daar aankom sal hy al by sy huis wees of weg wees. So julle het n bespreking gehad oor hierdie ou wat nou so dronk sy kar gaan bestuur. --- Dit was nie iets wat vir tien minute lank gepraat was nie. Daar was net gesê kyk in watter toestand loop n landdros en kyk in watter toestand bestuur hy die voertuig, dis n skande. Dit is wat genoem was. Ek het maar toe weer aan beweeg om by my kinders uit te kom. Maar daar was oorweging geskenk om hom te stop? --- Nee, ek dink nie enigiemand het gesê hulle gaan hom stop nie. Of om die polisie te bel? --- Ja, dit was wel genoem, hoekom bel ons nie die Verkeersdepartement nie en een van die persone wat daar gestaan het het gesê maar dit gaan nie help nie, by die tyd as hulle kom is hy lankal by sy huis. [11] I have hitherto detailed the events as they unfolded and testified to by Bezuidenhout. What is conspicuously absent from this narrative is any reference to the appellant attempting to render any assistance to the motorcyclist and his passenger. I adverted to the fact that initially the appellant attempted to flee the scene. Bezuidenhout sought to render assistance to the injured persons on the centre kerb. The appellant,

10 10 completely unfazed at what had occurred remained in the vicinity of his vehicle and blatantly lied to the police upon their arrival. Throughout the inquest and his trial he persisted with his false defence and at no stage did he ever express remorse for his conduct. [12] In the written argument presented to us, Mr Price submitted that the trial magistrate s failure to have called for a correctional supervision report justified the drawing of an inference that he did not consider the suitability of a non-custodial sentence as provided for in s 276 (1) (h). A careful reading of the judgment however shows that the magistrate considered various sentencing options before concluding that some form of a custodial sentence was imperatively called for. The sentence which he imposed is to my mind one which certainly does not warrant interference. If the magistrate did err, he did so on the side of leniency perhaps on account of maudlin sympathy for the appellant. [13] In Nxumalo (supra), the sentence of four years imprisonment was reduced on appeal to an effective term of imprisonment of 18 months. The distinguishing factor in the present matter is the fact that the appellant was highly under the influence of liquor. That factor should properly be considered to be an aggravating circumstance and so too his conduct after the fatal collision. [14] The considerations which should guide a court of law in determining an appropriate sentence in matters such as this are comprehensively set out in

11 11 the judgment of Conradie, JA, in S v Nyathi 6 where the learned judge, with reference to a number of decided cases, said the following [13] Road accidents with calamitous consequences are frequently caused by inadvertence, often momentary. Overtaking on a double barrier line is not inadvertence. It is a conscious decision to execute a manoeuvre that involves taking a fearfully high risk. [14] In S v Nxumalo 1982 (3) SA 856 (SCA) the Court approved a passage from R v Barnardo 1960 (3) SA 552 (A) (at 557D - E) where the Court held that although no greater moral blameworthiness arises from the fact that a negligent act caused death, the punishment should acknowledge the sanctity of human life. It affirmed the dicta of Miller J who 20 years earlier in S v Ngcobo 1962 (2) SA 333 (N) at 336H - 337B had set out the approach to road death cases. At 861H Corbett JA said: 'It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of the accused's negligence. At the same time the actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed.' [15] More severe yes, but how much more severe? In translating degrees of negligence into years in custody, it is useful to have regard in a general sort of way to sentences imposed by this and other courts. [16] The best starting point is sentences for culpable homicide in serious road accident cases confirmed or imposed by this Court in the last ten years. In S v Greyling 1990 (1) SACR 49 (A) a 19- year-old who took a corner too fast collided with a concrete wall, killing four of five young women who were being conveyed on the back of his pick-up. His sentence of five years' imprisonment of which one year was suspended was on appeal changed to one of 12 months' imprisonment. The Court reaffirmed the approach that in cases of gross negligence imprisonment even for a first offender may be indicated. The accused in S v Keulder 1994 (1) SACR 91 (A) was an alcoholic who was convicted of culpable homicide committed while driving in a heavily intoxicated condition. His sentence of two years' imprisonment was set aside and the matter remitted to the trial court to consider the imposition of a sentence of correctional supervision. Having regard to the fact the appellant had two previous convictions for road related alcohol offences his personal circumstances obviously weighed heavily with the Appeal Court. [17] The appellant in S v Cunningham 1996 (1) SACR 631 (A) (2) SACR 273

12 12 who collided on his wrong side of the road with two cyclists in an intersection abandoned his appeal against his sentence of three years' correctional supervision in terms of s 276(1) (h) of the Criminal Procedure Act 51 of 1977 and two years' imprisonment suspended for four years. The Court remarked that he was correct in doing so (at 633 c ). The same year saw the decision in S v Naicker 1996 (2) SACR 557 (A), an appeal against sentence only. The regional magistrate's sentence of two years' imprisonment, confirmed by the Provincial Division, was set aside on appeal and the matter remitted to the trial court for it to consider the imposition of correctional supervision. This Appeal Court disagreed with the stigmatisation as gross negligence of the appellant's conduct in moving at high speed (he had been racing another vehicle) into the slow lane obstructed by a tanker although, the Court observed, he was clearly negligent in failing to keep a proper look-out before moving into the left- hand lane. [18] In S v Birkenfield 2000 (1) SACR 325 (SCA) the appellant rode his motor cycle very fast and without stopping at an intersection controlled by a stop sign, thereby killing a pedestrian as well as his pillion passenger. In confirming the sentence of five years' imprisonment subject to s 276(1) (i) of the Criminal Procedure Act 55 of 1977 the Court remarked that it was 'well within reasonable limits' (at 329 g ). [19] The only decision brought to my attention concerning a head-on collision caused by an appellant's negligent overtaking is S v Sikhakhane 1992 (1) SACR 783 (N). The appellant was found to have been reckless to a high degree. Two passengers in an approaching vehicle were killed and its driver and a motor cyclist seriously injured. A sentence of two years' imprisonment was confirmed on appeal. [20] S v Omar 1993 (2) SACR 5 (C) was a case where a driver strayed onto the wrong side of the road. Three passengers in the offending vehicle were killed. A sentence of two years' correctional supervision was confirmed on appeal. It appears to have been one of those cases where the driver lost concentration or fell asleep at the wheel. Another case of negligent driving that cost the lives of three people is S v De Bruin 1991 (2) SACR 158 (W). There the appellant was sentenced to four years' imprisonment by the trial court for having recklessly entered an intersection controlled by a traffic light when the light was red against him. He had consumed alcohol before driving and had three previous convictions for driving under the influence of liquor or for driving with a higher than permitted blood alcohol level. Apart from S v Birkenfield (where the sentence was subject to s 276(1) (i) of the Criminal Procedure Act) the sentence imposed on De Bruin was the most severe custodial sentence (even after it was reduced by the appeal Court to three years' imprisonment) that I know of for culpable homicide in a road accident context. It must be accepted that his previous convictions counted heavily against him. [21] Not much less severe was the sentence imposed on Mr Ngcobo in S v Ngcobo 1962 (2) SA 333 (N) for having run into a

13 13 crowd in a well-lit street, killing four and injuring 24 of them: on appeal one year of the three years' imprisonment was suspended. The gross negligence attributed to him consisted in having driven too fast while not keeping a proper look-out. [22] In none of the cases mentioned above has the negligence been as gross and the consequences at the same time as grave as the one we are considering. The appellant's culpability is seriously aggravated by his conscious assumption of the risk of a devastating collision. For that reason, and despite the appellant's favourable personal circumstances, I am not dismayed by the fact that the regional magistrate's sentence is arguably higher than that imposed in any of the above cases. Now that the National Road Traffic Act 93 of 1996 has increased the maximum imprisonment for negligent driving from one year to three and for reckless driving from three years to six it should surprise no one if there is an upward pressure on the custodial penalties imposed for road accident related culpable homicide offences. [15] I have reproduced this rather prolix extract from the judgment of Conradie JA, for its comparative analysis of the types of sentences imposed in similar matters. This case differs from Nyathi in one important respect. Although the appellant in Nyathi was charged in the further alternative with driving under the influence of intoxicating liquor, he was convicted only on the main count of culpable homicide. Factually the degree of blameworthiness and culpability of the appellant in Nyathi is not dissimilar to that of the appellant in casu. He cut across the motorcyclist s line of travel without any regard for the latter s safety. His conduct was deliberate and dangerous in the extreme. An aggravating feature is his drunkenness, his unconscionable conduct in seeking to apportion the blame for the collision onto his wife, his persistence in maintaining a false defence and his utter lack of remorse. [16] In my judgment there is no proper basis warranting interference with the sentence imposed and in the result the following order will issue

14 14 The appeal is dismissed. D. CHETTY JUDGE OF THE HIGH COURT Nepgen, J I agree. J.J NEPGEN JUDGE OF THE HIGH COURT Obo the Appellant: Adv Price Obo the Respondent: Adv Obermeyer