FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION
JUDGMENT
PARTIES:
•
Case Number:
CA & R 236/2008
•
High Court:
Grahamstown
•
DATE HEARD:
12 August 2009
DATE DELIVERED:
26 August 2009
JUDGE(S):
Nepgen and Chetty JJ
LEGAL REPRESENTATIVES –
Appearances:
• for the Applicant(s):
• for the Respondent(s):
Adv Price
Adv Obermeyer
Instructing attorneys:
• Applicant(s):
• Respondent(s):
CASE INFORMATION • Nature of proceedings:
• Topic:
Key Words:
Appeal
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
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
Criminal Procedure Act1 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 Act2.
[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 Nxumalo3
Corbett, JA, in the course of his judgment in a similar matter said the
following4 -
“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 1977
Act No 93 of 1996
3
1982 (3) SA 856 (AD)
4
At 861A-G
2
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 concluding5
“(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.”
[3]
The
evidence
adduced
in
the
(emphasis added)
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
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
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
[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
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
“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
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
the judgment of Conradie, JA, in S v Nyathi6 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 19year-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)
6
2005 (2) SACR 273
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
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
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