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[2015] ZAWCHC 180
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Ninaber v S; In re: Ninaber v Claasen N.O and Another (A409/13; A185/14, 9834/14) [2015] ZAWCHC 180 (1 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
In
the matter between:
CASE
NO. A409/13; A185/14
DATE:
01 DECEMBER 2015
JUAN
NINABER
...............................................................................................................
APPELLANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
CASE
NO. 9834/14
JUAN
PEET
NINABER
.....................................................................................................
APPLICANT
AND
MAGISTRATE
JT CLAASEN
N.O
.................................................................
FIRST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
WESTERN
CAPE
.........................................................................................
SECOND
RESPONDENT
JUDGMENT:
1 DECEMBER 2015
LE
GRANGE, J
[1]
There are two matters before us emanating from the same incident. I
will deal with both in one judgment.
[2]
The appellant was convicted on a charge of
culpable homicide on 31 May 2012 and on 12 June 2013 sentenced to a
term of five (5)
years imprisonment in accordance with the provisions
of
section 276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
.
[3]
On 13 June 2013 the magistrate granted the
appellant leave to appeal against his conviction and sentence. The
appellant’s
bail was extended pending the outcome of the
appeal.
[4]
Thereafter, and almost a year after his
conviction and sentence, the appellant launched an application in
this Court for the proceedings
before the first respondent (“the
magistrate”) to be reviewed and set aside. The magistrate
opposed the review application.
The second respondent, the Director
of Public Prosecutions Western Cape, has filed a notice abiding by
the decision of this Court.
For ease of reference, I will refer to
the appellant as such in both the appeal and the review application.
[5]
The delay in this matter is regrettable but
is largely as a result of the appellant’s own doing. On 2
October 2014 the State
notified the appellant and his erstwhile
attorney in writing, of the State’s intention to apply to this
Court on 5 December
2014 for the appeal to be struck from the roll as
the appellant failed to comply with this Court’s Rule to file
its heads
of argument timeously on 12 September 2014. On 5 December
2014 the appellant indicated his intention to proceed with the
appeal.
By agreement between the parties, the appeal hearing was
postponed to 6 March 2015 with an Order of Court as to the further
conduct
of the matter in relation to the filing of an application for
condonation and heads of argument.
[6]
The appeal hearing on 6 March 2015 was
again postponed to 23 March 2015. This was to allow the review
application and the appeal
to be heard before us, as the review
application had been set down for hearing before a different judge on
a different date. The
hearing of the two closely related
matters concerning the trial proceedings by differently composed
benches was inconvenient and
undesirable.
[7]
At the hearing on 23 March 2015, counsel
for the appellant, Mr. van der Westhuizen, announced for the first
time that the appeal
record was incomplete. According to him, crucial
evidence by some of the witnesses who had testified during sentence
proceedings
had not been transcribed.
[8]
Counsel for the appellant indicated he had
indeed given instructions to the appellant’s attorneys at the
time (Adéle
Smit, from Krüger Smit Attorneys, who is also
the appellant’s sister and a witness in the trial) to file a
complete
record. According to him, it was only when he prepared for
the matter over the weekend preceding the postponed hearing that he
discovered that the record was incomplete. He explained that he
had previously prepared his heads of argument from certain
notes and
portions of the record without noticing what had been missing. This
unsatisfactory state of events required the appeal
to be postponed
again to 26 March 2015.
[9]
The review application was argued, however,
as the alleged irregularities on which it was founded occurred
outside the record. This
court also requested Ms Smit to file an
affidavit explaining
inter alia
why the missing portions of the appeal record had not been detected
earlier and why the missing portions of the record were considered
to
be material for the adjudication of the appeal.
[10]
Ms Smit filed a comprehensive affidavit.
She requested
inter alia
that the matter be postponed to attempt a reconstruction of the
proceedings that had not been recorded. She also alluded to the
appellant’s right to a fair hearing that may be compromised
without the complete record. The appeal hearing was again postponed
to 21 August 2015 with clear directives from this Court as to the
further conduct of the matter. Instructions were also given to
ensure
the reconstruction of the record and for the appellant to file such
missing portions of the record timeously with the judges’
registrars.
[11]
According to Counsel (by this stage Mr
Scholzel had replaced Mr van der Westhuizen due to the latter having
become indisposed),
and the appellant’s new attorneys of
record, Mathewson Gess Inc, the missing portions of the record were
located by the clerk
of the court and transcribed, although certain
statements in terms of
s 212
(7) of the
Criminal Procedure Act, 51 of
1977
, which were read into the record and accepted as exhibits, were
still outstanding. It needs to be mentioned that these statements
were related to the handling of the deceased’s body for post
mortem and identification purposes and had not been materially
in
dispute at the trial. In the event we were satisfied that the
appeal would be argued on a substantively complete record
of
proceedings in the court below.
[12]
Turning to the review. After the review
application was argued, the following order was made on 23 March
2015:
“
The
application for the review and setting aside of the proceedings
before the first respondent under case no. C 1421/2009, held
at
Mossel Bay magistrate’s court, in which the first respondent
convicted the applicant of culpable homicide and sentenced
him to a
term of five (5) years imprisonment in terms of
s 276(1)(i)
of
the
Criminal Procedure Act, 51 of 1977
, is dismissed.”
[13]
The reasons for that order now follow. The
appellant in his founding affidavit essentially relied on two grounds
of purported misconduct
on the part of the first respondent, which
occurred off record and before the sentencing of the appellant. The
first concerned
an alleged conversation on 5 April 2013 between the
appellant’s erstwhile attorney Mr Dercksen of Dercksen
Incorporated in
Knysna who represented the appellant in the
magistrate’s court, during which the first respondent allegedly
informed Dercksen
that he was not considering imposing a sentence of
direct imprisonment on appellant. The second was the allegation that
the first
respondent had made telephonic contact with Nicolizé
Pienaar, the clinical psychologist who had assessed the appellant, to
discuss her qualifications, her opinion about the accident and
appellant’s behaviour at the time, as well as an alleged
vendetta by the prosecutor against the appellant.
[13] According to
the appellant the alleged misconduct of the first respondent amounted
to a gross irregularity, which resulted
in the entire proceedings
before the first respondent having not been in accordance with
justice. Supporting affidavits were filed
by the appellant’s
parents, his brother, his girlfriend, Dercksen and his aforementioned
sister, Ms Smit. An affidavit
filed by Ms Pienaar was
attached to the supporting affidavit of the appellant’s father.
[14]
The appellant in paragraphs 9, 11 and 12 of
his affidavit records the following:
“
9.
On the 5
th
April 2013, prior to my testifying in mitigation of sentence, I was
informed by my attorney Mr. Derecksen, that the magistrate,
the first
respondent herein, has informed him that he is not inclined to
consider imposing direct imprisonment.
11.
On the morning of 12 June 2013, at court, but before the sentence
proceedings commenced, my attorney, Daan Derecksen, informed
me that
Nicolizé Pienaar had informed him that she received a
telephone call from the presiding magistrate, magistrate JT
Claasen,
wherein he discussed certain aspects of the case with her.
12.
I was not present at any stage where Nicolizé Pienaar
discussed the mentioned telephone conversation, and do I rely on
the
supporting affidavits deposed.”
[15]
The first respondent denied in his
answering affidavit that he phoned Ms Pienaar, as alleged.
He also denied and rejected
the claim that, in the absence of the
prosecutor, he had met and discussed the issue of sentence with the
appellant’s attorney
outside of the court. The prosecutor made
an affidavit confirming that he had been present on the occasions
that the appellant’s
attorney had visited the first
respondent’s office in connection with the trial. The first
instance had been when he came
to introduce himself and on the second
had been when the probation officer’s report had been discussed
with the first respondent.
According to the prosecutor, at no stage
during these meetings did the first respondent express his intention
regarding sentence.
[16] Ms Pienaar
in her affidavit does not positively support the hearsay claims made
by the appellant. She averred as follows:
1.
I presumed that it was the court that phoned me at Bayview Hospital,
while I was consulting a paediatric patient.
The person did not
identify himself therefore I cannot confirm it was Magistrate
Claasen
. I was asked to give a definition for the concept
“remorse”. I responded that a specific definition could
not be given
for this concept. The individual thanked me. This was
the end of the call.
2.
I gave evidence in mitigation in court.
3.
The next morning I, together with Adele (the Accused’s sister),
his father and the defence attorney were waiting outside
the court
and the following conversations took place:
3.1
The attorney said that the magistrate spoke to him in rooms the
previous day alluding and or assuring the attorney that he was
considering not to send the Accused to jail, but rather sentence the
Accused to correctional supervision.
3.2
I responded to this, by saying, that I also received a telephone call
from the court the previous day after my testimony and
someone
enquired about the definition for the concept of “remorse”
that was the end of the conversation.
[16]
It is well established that motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues
based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual
issues because they are
not designed to determine probabilities. It
is trite that a final order can only be granted in motion proceedings
where disputes
of fact arise on the affidavits, if the facts averred
in the appellant’s affidavits, which have been admitted by the
first
respondent, together with the facts alleged by the latter,
justify such order. It may be different only if the respondent’s
version consists of bald denials that are not creditworthy, raises
fictitious disputes of fact, is palpably implausible, far-fetched
or
so clearly untenable that the court is justified in rejecting them
merely on the papers. In this regard see
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at paragraph [25] and, of course,
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C.
[17]
In the present instance, the denials by the
first respondent of the purported misconduct complained about are not
far-fetched or
palpably implausible. Mr. Van der Westhuizen
during argument correctly conceded that the appellant’s case is
entirely
based upon hearsay. There is no supporting evidence, whether
direct or circumstantial, that it was the first respondent who
purportedly
made telephonic contact with Pienaar.
[18]
Mr van der Westhuizen did not persist in
argument with the complaint of the alleged conversation in chambers
between the first respondent
and Dercksen, and in my view correctly
so.
[19]
It has not been explained why Dercksen, who
appears to be an experienced attorney, did not immediately before
sentencing and or
immediately thereafter put on record the alleged
misconduct of the first respondent, which the appellant now finds
offensive. In
fact the appellant waited almost a year before
launching these review proceedings.
[20]
In view of the above, it is unnecessary to
deal with the complaint by the first respondent about the
unreasonable delay that attended
the institution of the review
application.
[21]
On the papers filed of record, the
appellant failed to establish any misconduct on the part of the first
respondent that justified
interference by this Court on review.
[22]
I now turn to deal with the appeal.
[23]
The appellant’s appeal against
conviction was initially premised on three main grounds. Firstly,
that the magistrate erred
in accepting the evidence of the three
passengers in the vehicle that the appellant drove his vehicle in a
reckless and or negligent
manner which resulted in the accident.
Secondly, the magistrate erred in finding that the State proved
beyond a reasonable doubt
that there was a casual link between the
death of the deceased and the multiple injuries she sustained in the
accident. And thirdly,
the magistrate misdirected himself in
rejecting the appellant’s defence of sudden emergency.
[24]
The attack against sentence is that the
magistrate over-emphasized the seriousness of the offence as well as
the interests of society,
at the expense of the appellant’s
personal circumstances. It was submitted that the magistrate failed
to properly consider
the evidence and reports filed by the
professional witnesses that were called in mitigation of sentence for
the appellant.
It was further contended that the sentence
imposed is also shockingly inappropriate and excessive under the
prevailing circumstances.
[25]
Mr Scholzel indicated at the outset that he
would not persist with the ground of appeal against the finding by
the magistrate that
the death of the deceased was caused by multiple
injuries sustained in the collision. This concession was correctly
made. The medical
evidence clearly demonstrates that the cause of
death was the multiple injuries to the body of the deceased, the most
probable
being the skull base fracture that the deceased suffered
during the accident.
[26]
The principal contention on behalf of the
appellant was that the magistrate erred in finding that the available
facts proved the
appellant’s guilt beyond reasonable doubt. It
was argued that the three eyewitnesses called by the State
contradicted each
other in material respects. It was also suggested
that these witnesses may have colluded and tailored their evidence
against the
appellant. Their evidence, so it was argued, was
therefore unreliable and untrustworthy and should have been rejected
by the magistrate.
Furthermore, so it was submitted, the
evidence of Colonel Poolman, regarding the reconstruction of the
accident and calculation
of the speed of the vehicle at the time of
the collision was unsubstantiated and unreliable. Accordingly his
evidence that the
appellant had been travelling at an estimated
minimum speed of 83km/h when he lost control of the vehicle, was mere
opinion and
not admissible expert evidence.
[27]
It was also contended that appellant’s
version that he had lost control of the vehicle in reacting to a
sudden emergency had
been reasonably possibly true.
[28]
The state called 13 witnesses in its case
against the appellant. The appellant testified in his own defence.
The witnesses of the
State can essentially be placed in three
categories. The first is the three friends of the appellant at the
time, who were with
him in the motor vehicle when the accident
occurred. The second is comprised of the police officers who were at
some point involved
in the matter after the accident. These included
Colonel Poolman, who compiled a report regarding the estimated
minimum speed of
the appellant’s vehicle before its collision
with a lamppost. The third category is the medical personnel who
testified in
respect of the injuries and the resultant death of the
deceased.
[29]
It is not in dispute that on the day in
question , Ivan Mentz, his mother (the deceased), Clinton
Engelbrecht, Ryno Bosman and the
appellant attended a live show at
the Barnyard theatre in Mossel Bay. They all travelled in the
appellant’s sports car from
Dana Bay to the venue on the night
in question. On the return journey the appellant’s vehicle
veered off the road in Flora
Road, Dana Bay, and collided with a
lamppost. The deceased suffered multiple injuries in the accident and
died a few hours later.
The appellant does not deny he lost control
of his vehicle. He claimed that an animal had appeared in the
road, creating
a sudden emergency. He had tried to avoid it and
maintained that in the circumstances he could not be blamed for the
accident and
resultant death of the deceased.
[30]
It is not an issue that there is a slight
bend in the road in the vicinity of the accident. According to the
photographs taken at
the scene, a speed bump sign, with the speed
limit indicated as 40 km per hour, is visible on the side of the road
a few metres
away from where the vehicle collided with the lamppost.
The appellant who resided in Dana Bay would have been familiar
with
the character of the road.
[31]
The evidence of the three surviving
passengers Mentz, Engelbrecht and Bosman stands in stark
contradiction with that of the appellant.
I shall review the
evidence each of them in turn.
[32]
Mentz testified that the appellant,
Engelbrecht, Bosman and he were all friends. He had known the
appellant for approximately 10
years at the time of the accident.
They attended the same school, visited each other regularly and
frequently socialized over weekends.
On the day in question his late
mother decided to accompany the four young men to the Barnyard
Theatre in Mossel Bay. They travelled
in the appellant’s
Hyundai Tiburon sports car. His mother sat in the front passenger
seat. He and the other two were sitting
on the back seat. According
to Mentz, he had cautioned the appellant to drive carefully as his
mother would be travelling with
them to the theatre. He did this
because he knew that the appellant had a tendency to speed. According
to Mentz, on their return
journey from the theatre, the appellant was
speeding on the N2. He testified that the appellant had even
mentioned that they were
travelling at a speed of approximately
200km/hr at one stage. At the Dana Bay turnoff the appellant
reduced his speed. When
the vehicle was approaching the first bend in
the road Mentz felt the car move off the tar road onto the gravel
shoulder. He requested
the appellant to reduce his speed. This
request was ignored and the appellant instead increased the volume of
the music in his
car. He said the appellant continued to drive
too fast as they approached a four-way stop sign and did not reduce
speed.
He became uncomfortable and realized that the appellant would
not be able to come to a halt at the stop sign. He started to scream
at the appellant to stop. The appellant failed to stop and continued
to drive at what the witness considered to be an excessive
speed.
There was a slight bend in the road. Owing to the speed at which it
was travelling, the rear side of the vehicle started
to slide to one
side. The appellant tried to counter steer, but lost control of the
vehicle and as a result collided with the lamppost.
Mentz’s
mother was still alive after the impact, but severely injured.
Engelbrecht and Bosman left the scene to search for
help at a nearby
garage. Mentz testified that the appellant was standing next to the
car and had enquired of him whether he was
injured. He replied in the
negative and requested the appellant for help to extricate his mother
from the wrecked vehicle. The
appellant replied that he could not
remain at the scene and suddenly took off into the nearby bushes.
Mentz then called the police
for assistance on his cellphone. The
police and other emergency vehicles arrived on the scene soon
thereafter. Mentz further testified
that whilst he, Engelbrecht,
Bosman were sitting in the ambulance, the appellant’s mother
arrived at the scene. He said that
the appellant’s mother
suggested to them that they should fabricate a story that a buck was
in the road and that the appellant
tried to avoid it and as a result
lost control of the vehicle. Mentz testified that all three of them
told her they could not do
so as it was not the truth. Thereafter,
the appellant’s mother decided to pray at the scene. According
to Mentz, the appellant
apologized to him, Engelbrecht and Bosman at
the Hospital. He was informed by the hospital staff early the
following morning that
his mother had passed away. The appellant
called to return certain items to him later the same morning.
[33]
Mentz was extensively cross-examined. His
evidence was substantially unaffected by the cross-examination.
He did, however,
testify that he had noticed from the vehicle’s
license disc that it was licenced to transport a maximum of four
people. This
portion of his evidence was later shown to be incorrect
whereupon he conceded that he had not looked at the licence disc, but
had
obtained the information from a police officer who had checked
the disc on the vehicle’s windscreen.
[34]
Engelbrecht testified that he had been 18
years of age and in his matric year at school at the time of the
accident. He was a friend
of the appellant, Mentz, and Bosman. On the
way home from the theatre he was seated in the back of the vehicle
with Mentz and Bosman.
He testified that upon entering Dana Bay from
the N2 the appellant had accelerated and increased his speed after
the set of traffic
lights. At a bend in the road the vehicle had
veered off the tar onto the gravel shoulder of the road and then
moved back onto
the tarred surface. Mentz had asked the appellant to
slow down but the latter took no notice and instead turned up the
music playing
in the vehicle. Engelbrecht said that he had been
anxious and somewhat scared when the vehicle went off the road. He
added that
the appellant had ignored the stop sign and crossed the
intersection at the four-way stop at speed despite being reminded of
the
stop sign and asked to slow down. He said that after the
intersection, where the road made a slight bend, the vehicle’s
rear
had started to slide to one side. The appellant lost control of
the vehicle and it collided with the lamppost. He said that he and
Bosman were thrown out of the back window and landed in the bushes,
whilst the vehicle landed on its roof. He did not suffer any
injuries
and was only in a state of shock. He and Bosman then ran to the
nearby garage for help, whilst the appellant and Mentz
remained at
the scene. Later he was put into the ambulance together with Mentz
and Bosman while the emergency services were still
busy trying to
retrieve Mrs Mentz from the wreck. He said that he had seen the
appellant’s parents while he was in the ambulance,
but neither
of them had spoken to him.
[35]
In cross-examination Engelbrecht’s
perception of speed was debated. He said that did not hear the
appellant mention that they
were travelling at 200km/h on the N2. He
also conceded that he could not say whether the appellant was driving
recklessly, or at
what speed he was travelling before the accident.
He had not observed an animal in the road, but acknowledged that he
could not
dispute the appellant’s version of having seen the
reflection of light from an animal’s eyes in the road just
before
the accident.
[36]
Bosman also confirmed that he had been a
friend of the appellant, Mentz and Engelbrecht. He said that on the
return journey from
the theatre, and near the robot-controlled
intersection on the road off the N2 to Dana Bay, he had felt
uncomfortable at the speed
the appellant was driving. He confirmed
that Mentz at one stage warned the appellant to reduce speed when the
vehicle slightly
veered off the tar road and onto gravel shoulder as
a stop sign was ahead. The appellant had ignored Mentz. The appellant
had paid
no heed to the stop sign and continued to drive at a high
speed. There was a slight bend in the road. As a result of the bend
and
speed, the rear of the vehicle broke away. He noticed how the
appellant tried to counter-steer the vehicle, but in the wrong
direction.
He described that the vehicle had started to slide out of
control and crashed into the lamppost. After the impact, he and
Engelbrecht
had crawled through the rear window and landed in the
bushes. The two of them had walked to the nearby garage to get help.
[37]
Bosman was also subjected to lengthy
cross-examination. He was adamant that he had not seen an animal in
the road or any reflection
from an animal’s eye. He recalled
that he had looked downwards when the vehicle had started to slide
out of control. Bosman
readily acknowledged that he had discussed the
matter with the other witnesses after the event. It would have
been unnatural
for him not to have done so.
[38]
Colonel Poolman testified that he was the
Head of the Engineering Unit of Pretoria Forensic Science Laboratory
at the time. He has
considerable experience in traffic collision
reconstruction and is often called upon to testify in matters of this
nature. In this
instance he had been requested by the prosecution to
determine at what speed the appellant’s vehicle had been
travelling
before the collision. He obtained various photographs of
the scene and of the appellant’s vehicle. These photographs had
been taken by the police photographers soon after the accident. The
measurements of the tyre marks on the scene were provided to
him by
police officer Van Meyeren, who is a qualified vehicle collision
analyst. Poolman also visited the scene after compiling
his draft
report. He said that the tyre marks visible on the photos were
consistent with “yaw marks”. Such yaw marks
are caused
when the tyres of a vehicle rotate while the vehicle is severely
steered to one direction. Furthermore, the lateral
friction limit
between the tyres and the tarmac is then exceeded which causes the
vehicle to swerve out of control. Poolman stated
that the
photographed tyre marks clearly illustrated that the driver of the
vehicle swerved towards the right side of the road
moments before the
accident. He further testified that the tyre marks had a core of 10
metres and an arch of 0.15 metres. By making
use of the critical
speed formula and assuming a friction coefficient between the tyres
and the tarmac surface of 0.65, Poolman
calculated the
minimum
speed of the vehicle before the impact to have been 83 km per hour.
Poolman also observed that the damage to the vehicle was severe.
[39]
In the cross-examination of Poolman there
was much debate about the critical speed formula used by Poolman in
his calculations and
the friction coefficient of 0.65 that had been
applied. Poolman was adamant that the 0.65 friction coefficient was
the absolute
minimum that one could assume as this would entail
assuming that the tar road surface was virtually smooth and that
there had been
no or very little thread on the tyres. Poolman said
that if he had taken the actual condition of the road surface and the
thread
on the appellant’s tyres into account the friction
coefficient should realistically have been at least 0.70. Had
he
used those quantities, instead of the ones more favourable to the
appellant that he had applied in his calculations, they would
have
given a much higher speed than the calculated 83 kph before the
impact. Hence his estimation that 83 km per hour
had been the
minimum
speed at which the appellant must have been driving immediately
before the accident.
[40]
The appellant’s evidence in summary
was that he had been driving at a reasonable speed. He conceded he
did not stop at the
stop-sign in Dana Bay, but claimed to have
reduced his speed and changed to lower gears. He said he had entered
the intersection
at a speed of approximately 60 kph. The car
lights were on bright and he had a kept a proper look out. After the
stop sign
he saw what he assumed to be a buck to the left of his path
of travel as he exited the curve in the road. He could not drive
straight
ahead without a collision. He had not braked, but merely
sought to drive around the animal. When he turned the steering wheel
to
pass safely, the vehicle had begun to skid and he was unable to
regain control of it. He could not explain what had caused the car
to
skid. He had not observed sand on the road, although he suspected
that it had been the cause because he had heard so from some-one
else.
[41]
In cross-examination the appellant’s
version of seeing a reflection or glint of an animal’s eye
developed into him giving
a description of the height and colour of
an animal with the features like a buck standing in the road.
[42]
The magistrate relied heavily on the
evidence of Mentz, Engelbrecht, Bosman and Colonel Poolman to come
for his finding that the
appellant had been travelling at an
excessive speed in the circumstances and consequently lost control of
the vehicle causing the
accident and the resultant fatal injuries to
the deceased. He also found that even on the appellant’s own
dubious version
he had failed to keep a proper lookout and had driven
his vehicle without the necessary care and skill reasonably expected
from
a person knowing that animals may cross the road in that area at
night.
[43]
In order to assess whether the conclusion
reached by the magistrate was correct, it is important to view the
evidence in its totality.
Having read the record and taking into
account the arguments advanced on behalf of the appellant, I am of
the view that the magistrate’s
evaluation of the evidence
cannot be faulted. He gave a well-reasoned and detailed judgment. The
evidence of the three passengers
in the vehicle was fairly and
accurately summarized. Moreover, the magistrate evaluated the
witnesses’ evidence in the context
of the entire body of
evidence taking into account the inherent probabilities and
improbabilities and assigned appropriate weight
to them. Where
caution was called for it was exercised.
[44]
There are indeed certain discrepancies in
the evidence of Mentz, Engelbrecht and Bosman regarding their
individual accounts of events
that night. Bosman was also criticized
because his
viva voce
evidence differed to an extent from a previous statement given to the
police. Some of the inconsistencies of the witnesses relate
to the
speed the appellant was travelling and the manner in which he was
driving on the N2 and in Flora Road moments before the
collision;
Mentz’ evidence relating to his observation of the licence disc
on the windscreen was also wanting; the evidence
of Mentz that the
appellant’s mother suggested to the three of them to tell a
fabricated version that an animal was in the
road whilst sitting in
the ambulance was not corroborated by Engelbrecht and Bosman.
[45]
The case law is replete with examples of
the correct juridical approach to contradictions between two
witnesses and differences
between a witness’s evidence and a
prior statement. The argument is often advanced, as it was in the
current matter, that,
because the witnesses’ accounts of
events disagree, they lack veracity. Nicholas JA in
Credibility
of Witnesses
in
(1985) SALJ 1985
32
stated the following at p. 35. ‘
In
most instances considerable time and effort is spent in establishing
and basing argument on, contradictions and discrepancies.
This
argument is fallacious
’. At p. 36
the learned Judge of Appeal continued:
“
It
follows that an argument based only on a list of contradictions
between witnesses leads nowhere so far as veracity is concerned.
The
argument must go further, and show that one of the witnesses is
lying. It may be that the court is unable to say where the
truth lies
as between contradictory statements, and that may affect the question
whether the onus of proof has been discharged:
but that has nothing
to do with the veracity of the witness.”
At
p. 41 he proceeded :
“
In
the light of experimental evidence, it is not surprising that
eyewitness accounts are often not an accurate representation of
reality, and that there are often profound differences in eyewitness
accounts of the same event, even when it is observed by the
witness
under the same external conditions. This shows the futility of the
exercise, frequently performed by cross-examiners, of
raking at
tedious length over the evidence of different eyewitnesses in order
to uncover contradictions, variances, omissions,
discrepancies,
differences and inconsistencies. For the most part it shows no more
than what is to be expected, namely that eyewitnesses
differ from one
another in their accounts and are liable to error.
”
[46]
The flynote to the report of the judgment
in
S v Mafaladiso en Andere
2003 (1) SACR 583
, which accurately captures the substance of the
Court’s judgment, sums up the applicable principles as follows:
“
Material
differences between witness's evidence and prior statement -
Juridical approach to contradictions between two witnesses
and
contradictions between versions of same witness is, in principle
identical - In neither case is aim to prove which version
is correct,
but to satisfy oneself that witness could err, either because of
defective recollection or because of dishonesty -
Court must
carefully determine what witnesses actually meant to say on each
occasion - In this regard adjudicator of fact must
keep in mind that
previous statement not taken down by means of cross-examination, that
there may be language and cultural differences
between witness and
the person taking down statement and that person giving statement is
seldom, if ever, asked by police officer
to explain statement in
detail - It must be kept in mind that not every error by witness and
not every contradiction or deviation
affects credibility of witness -
Non-material deviations not necessarily relevant - Contradictory
versions must be considered and
evaluated on holistic basis -
Circumstances under which versions made, proven reasons for
contradictions, actual effect of contradictions
with regard to
reliability and credibility of witness, question whether witness
given sufficient opportunity to explain the contradictions
and
connection between contradictions and rest of witness' evidence,
amongst other factors, to be taken into consideration and
weighed up
- Lastly, there is final task of trial Judge, namely to weigh up
previous statement against
viva voce
evidence, to consider all evidence and to decide whether it is
reliable or not and to decide whether truth told, despite any
shortcomings.”
Applying that
approach to the evidence in the current case as a whole, the argument
that the evidence of the three witnesses is
unreliable and lacks
veracity as a result of certain discrepancies is misplaced.
[47]
All three witnesses were good friends with
the appellant. Mentz, in particular, had often spent time over
weekends at the appellant’s
home. The fact that the
witnesses may have discussed the matter amongst each other does not
justify an inference that they
have conspired to provide false
evidence against the appellant. There were no credible indications to
remotely support such a conclusion.
All three witnesses testified
that at one or other stage during the trip home they had felt
uncomfortable in the vehicle as a result
of the speed at which it was
travelling. All three of them were adamant that the appellant had
been beseeched to reduce speed,
but he deliberately ignored the call.
The witnesses were also
ad idem
that the appellant entered the four-way stop at speed and as a result
of the slight bend in the road thereafter the rear wheels
of the car
had started to slide and the appellant had then tried to
counter-steer. It was only after these events that control
was lost
over the vehicle and the collision occurred.
[48]
The evidence of the eyewitnesses was
corroborated by Poolman to the effect that the appellant was speeding
at the time he lost control
of the vehicle. Poolman testified that
the damage to the vehicle was also consistent with the speed he had
estimated. Poolman visited
the scene after compiling his report and
confirmed his calculations and observations were in keeping with the
three eyewitnesses’
version that the appellant approached the
bend in the road at speed and lost control of the vehicle as a result
of counter-steering.
[49]
The attack on Poolman’s scientific
approach and calculations to determine the speed at which the vehicle
travelled moments
before impact was contrived. He provided a cogent
step by step explanation as to how he arrived at his conclusion and
of the Critical
Speed Formula (“CSF”), he used. It is a
simple applied mathematical formula to calculate speed using the
dimensions
of curved tyre markings left by a vehicle on a tar road
and the friction coefficient between the particular road surface and
the
vehicles tyres. The magistrate cannot be faulted in my view
for accepting Poolman’s evidence.
[50]
The appellant testified he knew the area
and road very well. He acknowledged that it is not unusual for
animals like buck to cross
the roads in that area. A speed bump
and a speed sign of 40 km/h were clearly visible metres away from
where the collision
occurred. That clearly signified a reduction of
speed was required to safely negotiate the road. Despite being fully
aware of these
circumstances the appellant failed to stop at the
four-way stop sign. He claimed that he drove at an approximate speed
of 60km/h
where, by all accounts, the road leads into a residential
area. The weight of the evidence clearly demonstrated that the
appellant’s
conduct fell materially short of what was required
of a reasonable driver in the circumstances. Moreover, despite
warnings from
his passengers to reduce speed, he deliberately
maintained an excessive speed.
[51]
On a conspectus of all the evidence it is
evident that the state fully discharged its onus and the appellant’s
defence was
correctly rejected as not reasonably possibly true. It
follows that the appeal against conviction cannot succeed.
[52]
Returning to sentence. It is well
established that the determination of an appropriate sentence is
pre-eminently within the discretion
of the trial court. A
trial court has a wide discretion in deciding
which factors should be allowed to influence the court in determining
the measure
of punishment and in determining the value to attach to
each factor taken into account. A failure to take certain factors
into
account or an improper determination of the value of such
factors may amount to a misdirection, but only when the dictates of
justice
carry clear conviction that an error has been committed.
Furthermore, a mere misdirection is not by itself sufficient to
entitle
an appellate court to interfere. It must be of such a nature,
degree or seriousness that it shows, directly or inferentially, that
the court did not exercise its discretion at all, or exercised it
improperly or unreasonably, or that the imposed sentence induces
a
sense of shock. In this regard see
S
v Kibido
1998 (2) SACR 213
(SCA) at 216
G-J and the cases referred to there.
[53]
The considerations which should guide a
court of law in determining an appropriate sentence in matters such
as this are comprehensively
set out in the matter of
S
v Nyathi
2005 (2) SACR 273.
The basic
criterion to consider in cases of this nature 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.’
See in
this regard:
The State v Ngcobo
1962 (2) SA 333
(N) at 336H-337B;
S v
Nxumalo
1982 (3) SA 856
(A) at 861H and
S v Humphreys
2015 (1) SA 491
(SCA) at para 22.
[54]
In the present instance, the appellant
testified in mitigation of sentence. His personal circumstances were
further presented in
a detailed manner by the witnesses that were
called to testify in mitigation of sentence. This included the
evidence of two social
workers and a clinical psychologist. At the
time of the accident he was apparently 22 years of age and at
sentencing stage 26 years
of age. The appellant is not a first
offender. He has a previous conviction for speeding, where he
exceeded the speed limit by
driving at a speed of 207km/h. The
appellant was fined R 10 000 or six months imprisonment, which
was wholly suspended for
a period of five years on certain
conditions. He was further ordered to undergo 128 hours of community
service for that period.
His driver’s licence was also
suspended for a period of four months. The appellant at the time was
18 years old. He also
received counseling after the incident from a
clinical psychologist.
[55]
The offence of which the appellant was
convicted of is serious. He blatantly ignored warnings to reduce
speed and displayed in a
daring and arrogant manner a wilful
disregard for the safety of his passengers. The consequences were
fatal. The appellant has
shown little remorse for his conduct. The
magistrate took all the relevant factors into consideration in a
balanced way. The sentence
he imposed does not induce a sense of
shock. No misdirection by the magistrate has been demonstrated
that would permit this
Court to interfere with it.
[56]
It follows that the appeal against sentence
cannot succeed.
[57]
In the result the following order is made.
The
appeal against conviction and sentence is dismissed.
LE
GRANGE, J
I
agree.
BINNS-WARD,
J