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[2014] ZASCA 31
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Ndlanzi v S (318/2013) [2014] ZASCA 31; [2014] 3 All SA 43 (SCA); 2014 (2) SACR 256 (SCA) (28 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 318/2013
Reportable
In
the matter between
THUTHUKANI
NDLANZI
.......................................................................
APPELLANT
and
THE
STATE
...........................................................................................
RESPONDENT
Neutral
citation:
Ndlanzi v The State
(318/13)
[2014] ZASCA 31
(28 March
2014)
Coram:
Mhlantla, Bosielo and Petse JJA and
Swain and Mathopo AJJA
Heard:
27 February 2014
Delivered:
28 March 2014
Summary
:
Criminal appeal – against conviction – whether the
appellant had a fair trial – appellant’s counsel adopting
a trial strategy contrary to the appellant’s warning statement
– whether the evidence supported a conviction of murder
by
dolus eventualis
or culpable homicide – appeal against sentence – whether
a sentence of imprisonment for 15 years appropriate in the
circumstances.
ORDER
On
appeal from:
The South Gauteng High
Court, Johannesburg (Willis J and Bashall AJ sitting as a court of
appeal):
1. The appeal
against the conviction in count 1 (murder) is upheld.
2. The conviction of
murder is set aside and replaced with a conviction of culpable
homicide.
3.
The sentence imposed by the court below in respect of the count of
murder is set aside and replaced with the following:
‘
The
accused is sentenced to imprisonment for five years, two years of
which is suspended for five years on condition that the appellant
is
not convicted of culpable homicide arising from the driving of a
motor vehicle during the period of suspension’.
4. The convictions
and sentences in respect of counts 2, 3, 4 and 5 are confirmed. The
sentences are and ordered to run concurrently
with the sentence in
respect of count 1.
5.
The order cancelling the appellant’s drivers’ licence
issued under licence number 2[…] is confirmed.
JUDGMENT
Bosielo
JA (Mhlantla and Petse JJA and Swain and Mathopo AJJA concurring):
[1]
The appellant was charged in the regional court, Johannesburg on
multiple charges including one count of murder, read with the
provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
;
reckless or negligent driving of a motor vehicle; failure to stop his
vehicle after an accident; failure to ascertain the nature
of the
injury sustained by any person(s) and failure to render such
assistance to the injured person(s); as he was capable of rendering.
[2]
The appellant was convicted on all the counts and sentenced as
follows:
(a) Ad Count 1
(murder) – fifteen years’ imprisonment;
(b) Ad Count 2
(negligent driving) – twelve months’ imprisonment,
(c) Ad Count 3
(failure to stop the vehicle after a collision)
(d) Ad Count 4
(failure to ascertain the nature and extent of the injuries sustained
by a person after the collision);
(e) Ad Count 5
(failure to render assistance to an injured person after the
collision).
Counts
3, 4 and 5 were taken as one for purposes of sentence and the
appellant was sentenced to imprisonment for three years. The
sentences imposed on counts 2, 3, 4 and 5 were ordered to run
concurrently with the fifteen years’ imprisonment imposed for
count 1. The effective sentence is therefore 15 years’
imprisonment. Furthermore, an order was made cancelling the
appellant’s
driver’s licence under licence number 2[…].
[3]
Aggrieved by the convictions and the sentences imposed on him by the
regional magistrate, the appellant appealed to the South
Gauteng High
Court (Willis J and Bashal AJ). His appeal was dismissed and the
convictions and sentences were confirmed. The court
below having
refused him leave to appeal, this appeal is with the special leave
granted by
this court.
[4]
The background facts to this case are to a large extent common cause.
The State called four witnesses. Three of these witnesses
are the
eye-witnesses whilst the fourth is a sergeant in the Johannesburg
Metropolitan Police who took down the appellant’s
warning
statement.
[5]
The picture which emerges from the combined evidence of all these
witnesses is as follows: On the afternoon of 18 April 2005,
Ms Lulu
Macala, complainant in count 2 (Lulu) accompanied by Ms Princess
Ndlela, her friend (Princess) stood at the corner of Bree
and Sauer
streets, Johannesburg intending to cross Sauer Street en route to a
nearby taxi rank. As the robot was green, she proceeded
to cross.
Princess was following her. Whilst in the middle of the street, a
taxi came from around the corner and hit her. She fell
to the ground.
Princess helped her to stand up.
[6]
After Princess had helped Lulu to her feet, they walked to a nearby
police station to report the incident but found it closed.
Princess
told Lulu that she had written down the registration number of the
taxi that hit her, but she could not identify its driver.
[7]
After some time, Lulu was alerted to an article which had appeared in
the Daily Sun newspaper which carried a report about the
accident and
which apparently had the details of a police officer called Owen who
could be contacted. Armed with this information,
she, accompanied by
Princess, went to Johannesburg Central Police Station where the
matter was reported.
[8]
Princess testified. To a large extent, she corroborated Lulu in all
material aspects of her evidence. Crucially, she testified
that after
the accident, she went after this vehicle and recorded its
registration number in her mobile phone. Princess testified
further
that she gave Owen the registration number of the vehicle that was
involved in the collision, which is R[…].
[9]
The State then called sergeant Joseph David du Plessis, who is the
officer from the Johannesburg Metropolitan Police who attended
the
scene of the accident on the same day. He handed into court the
accident investigation report which contains some photographs
of the
scene and the taxi involved in the accident as well as a sketch-plan
with some measurements as an exhibit. When the State
sought to
introduce the appellant’s warning statement made to sergeant du
Plessis, the appellant’s counsel raised an
objection on
admissibility. As a result, a trial-within-a trial was held to
determine if the statement was made by the appellant
freely and
voluntarily and without any undue influence. Suffice to state that
the warning statement was admitted after the regional
magistrate had
found
that it was made by the appellant freely and voluntarily and without
any undue influence. Aggrieved by this adverse finding,
counsel for
the appellant, Mr Bishop, indicated that he had instructions to take
the decision to admit the warning statement into
evidence on review.
In order to afford Mr Bishop the opportunity to prepare his review
application, the cross-examination of du
Plessis was reserved whilst
the trial continued.
[10]
The next witness was Mr Harry Schoolboy Dlamini (Dlamini), a security
officer employed at the main entrance of the Bree Street
taxi rank.
Whilst on duty on this ill-fated day controlling taxis at the
entrance to the Bree Street taxi rank, he heard a loud
noise. When he
looked up he saw a white taxi colliding with a newspaper stall, then
a dustbin and then a female pedestrian who
was walking on the
pavement next to the entrance to the taxi rank. This vehicle
continued to move on until it hit a stop sign.
It then reversed and
drove over the female pedestrian who had fallen to the ground. As the
vehicle did not stop, he wrote its registration
number in his pocket
book. These are R[…]. He then called his senior to whom he
reported the incident. According to Dlamini
he was virtually in front
of this taxi. However, Dlamini conceded in cross-examination that he
cannot say with certainty that the
appellant was the driver of the
taxi on the ill-fated day. He further conceded that it could have
been another person as he never
had a good look at him. This is
notwithstanding the fact that in his statement to the police he had
said that he would be able
to identify the driver if he were to see
him again. Crucially, Dlamini had pointed a wrong person out at an
identification parade
arranged by the police.
[11]
I pause to observe that a very important incident occurred when the
trial resumed. In the interim the appellant had terminated
the
mandate of his lawyers, namely Mr Nkwashu and Mr Bishop, and had
appointed a new lawyer, Mr Krause, to represent him. Without
enquiring from the appellant’s attorney about the reasons why
his mandate was terminated, the regional magistrate excused
him from
the trial and allowed Mr Krause to take over. It emerged from Mr
Krause’s address to the court that the main reason
why the
appellant terminated the mandate of his previous team of legal
representatives was essentially that he was dissatisfied
with the
manner in which Mr Bishop conducted his defence. Essentially he
averred that Mr Bishop had not conducted his trial in
accordance with
his instructions. In fact, the allegation is that instead of
admitting that he was the driver of the taxi involved
in the
collision in issue in this case as he had disclosed in his warning
statement, Mr Bishop cross-examined the State witnesses
in a manner
which suggested that the appellant had denied that he was the driver.
[12]
With the appellant’s consent, Mr Krause introduced into the
record as exhibits, written admissions in terms of s 220
of the
Criminal Procedure Act 51 of 1977 (the Act). In this statement, the
appellant admitted all the essential allegations against
him, his
only defence being that he did not stop after the two accidents
because of fear for his life as the people around the
scene
threatened to attack him.
[13]
Without expressly requesting the regional magistrate to recuse
himself, Mr Krause sought to persuade the regional magistrate
to
mero
motu
recuse himself as he feared that
his continued presiding over the trial, given appellant’s new
version which was contradictory
to what Mr Bishop had conveyed to the
court, would make it difficult for him to remain impartial as it was
likely that his judgment
could have been clouded by the conflicting
versions adduced by the appellant. He contended that this was likely
to infringe the
appellant’s right to a fair trial.
[14]
The regional magistrate refused to recuse himself. Instead he acceded
to the appellant’s request to have the State witnesses
who had
already testified recalled so that Mr Krause could have the
opportunity to cross-examine them further, presumably on the
appellant’s new version and to put the appellant’s
version to them. Suffice to state that, notwithstanding some valiant
efforts by the investigating officer, these witnesses were never
procured.
[15]
Mr Krause applied for the discharge of the appellant in terms of s
174 of the Act. When this failed, he called the appellant
to testify.
[16]
The appellant confirmed what he had disclosed in his s 220
admissions. Regarding why he never stopped after the two collisions,
he explained that this was due to the fear for his life induced by a
mob which threatened to attack him at the scene. His evidence
was
further that the same fear persisted at the second set of robots
because whilst stopping there for the robots to turn green
for him,
he heard the noise of that murderous mob coming from behind. He then
drove his vehicle over the pavement in an attempt
to flee from this
mob. He maintained that at no stage did he see the deceased. He only
saw the concrete block and the newspaper
stall on the pavement but
thought that he could manoeuvre himself around them. Unfortunately,
in his confused state he collided
into them.
[17]
He then reversed to extricate himself and drove away to the
Johannesburg Central Police Station where he had intended to report
the incident. As he alighted there he saw a vehicle which looked
similar to the one he had seen earlier at the scene. Suspecting
that
it might be part of the mob that threatened to kill him at the scene,
he abandoned his vehicle and fled on foot. He later
contacted his
employer telephonically and reported what had happened. Arrangements
were then made for him to hand himself over
to the police the next
day which he did. With the help of Mr Nkwashu, his attorney, he made
a warning statement which was admitted
as exhibit H. I interpose to
state that this evidence is the same as his warning statement.
[18]
The appellant was cross-examined at length on what appeared to be a
volte face
.
He explained that he never instructed his counsel to deny that he was
the driver of the taxi which caused the accident as he had
admitted
this in his warning statement. Although he agreed that he understood
the evidence in court, he explained that he was taken
aback when Mr
Bishop told him to plead not guilty. This is the main reason why he
later terminated his mandate. On being asked
why he had waited until
after all the State witnesses had testified, he explained that it was
because he had trust in his counsel.
He thought that it was perhaps
because his counsel knew the law, suggesting that he must have known
what he was doing.
[19]
Before us, counsel for the appellant launched a two-pronged attack
against his conviction. The main attack was based on the
allegation
that the appellant did not receive a fair trial as envisaged by s
35(3)(
g
)
of the Constitution because of the manner in which his defence was
conducted. The second attack was against the finding of murder
based
on
dolus eventualis.
[20]
The main thrust of the appellant’s argument is that his counsel
adopted a trial strategy inconsistent with his instructions.
It was
contended that based on his warning statement which he made on 19
April 2005, ie one day after the collision, the appellant
would never
and had never instructed his lawyers to deny that he was the driver
of the offending vehicle. Crucially, the appellant
contended that
this trial strategy was never discussed with him, the suggestion
being that he would not have approved it as it
conflicted with his
warning statement.
[21]
It is clear from the cross-examination of all the State witnesses
that primarily because of the trial strategy adopted, counsel
was not
able to cross-examine the witnesses effectively on what actually
occurred. Furthermore, counsel failed to put the appellant’s
defence of necessity or emergency to the State witnesses. As a result
of this failure the court never had an opportunity to hear
and see
how the State witnesses reacted to the appellant’s version of
the events and to assess its cogency. At face value
and absent any
explanation, this might lead to the conclusion that the appellant’s
right to a fair trial was subverted. (
S
v P
1974 (1) SA 581
(RA) at 582E;
S
v Mafu & others
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W) para 24.)
[22]
The right to a fair trial for every accused is constitutionally
protected by s 35(3) of the Constitution. Integral to this
right,
amongst others, is the right to legal representation. The importance
of the right to legal representation is underscored
by s 35(3)(
g
)
which demands that, in the event that substantial injustice might
redound to an accused who cannot afford private legal representative,
the State is obliged to assign a legal representation to such an
accused at State expense. This is the
raison
d’ être
for the existence
of the Legal Aid Board, the primary mandate of which is to ensure
that people who are indigent and can therefore
not afford legal
representation are not compelled to defend themselves in our courts.
This is particularly important in our criminal
justice system which
is adversorial. A failure to accord an accused legal representation
without any good reason might, in appropriate
circumstances render
his or her trial unfair.
S v Halgryn
2002 (2) SACR 211
(SCA) para 14.
[23]
However, the appellant’s position is different as he had
private legal representation by counsel and an instructing attorney.
His complaint is not that he did not have legal representation but
that his lawyers deviated from his instructions without his
consent.
This resulted in his true version being withheld from the court.
[24]
Undoubtedly, the appellant’s allegations, albeit unsupported by
evidence, are very serious and warrant serious consideration
because,
if proved to be true, they might justify the conclusion that the
appellant did not receive a fair trial, bearing in mind
the manner in
which the state witnesses were cross-examined, in particular, the
failure by his counsel to put the appellant’s
version to the
State witnesses. (
S v Majola
1982 (1) SA 125
(AD) at 133D-G.)
[25]
I interpose to state that no evidence was put before the regional
magistrate in support of these allegations, other than the
say-so of
the appellant through his counsel. Of even greater significance is
the fact that neither Mr Bishop nor Mr Nkwashu were
given an
opportunity to respond to these allegations. The appellant offered no
explanation for this default. Predictably the appellant
was
cross-examined pertinently on why, if he did not agree to this trial
strategy, he permitted his counsel to pursue it up to
the close of
the State’s case without demur. The appellant was not able to
proffer any explanation. However, I regard the
following exchange
which took place between the prosecutor and the appellant to be
revealing:
‘
Now
when you decided to allow Mr Bishop and the instructing attorney to
conduct the defence on your behalf was it your expectation
that there
was a possibility that you would be found not guilty, acquitted? –
The motive for me or behind everything is that
I explained the
counsel or Mr Bishop that I was the driver of the taxi so I was now
taken aback when I was told that I must tender
a plea of not guilty.
That is why I had to terminate their mandate and go to (intervenes).
To seek other legal
assistance? –Yes. Now there were many witnesses called. Mr
Bishop at length cross-examined them and specifically
about the point
whether you were the driver or not. The proceedings went further that
at the stage when you handed yourself over
admitting the fact that
you were the driver we had to go into more deeper proceedings,
trial-within-a trial where this aspect was
fought for days. Do you
recall that? – Ja I still recall.
Why do you wait so
long to then seek alternative counsel or advice, legal advice? Why go
through all of that? Why not in court stand
up and, or stop Mr Bishop
and say whoa, this is not what I wanted?
I did explain to Mr
Bishop, counsel that I admit that I had knocked a person down but now
he, I had trust in him but now I do not
know, maybe he knows the law.
Maybe he might have seen a loophole, I do not know.
When it was ruled
that the fact that you admitted you were the driver, it was ruled now
admissible, it could be considered as evidence
did you realise you
were now in trouble, that you could be convicted of not necessarily
what was murder or whatever but that you
could be convicted of
something now, that you faced this possibility? – Yes I had
foreseen that. Another thing that I was
very bitter of myself that I
had knocked somebody down. I would not beat about the bush, I would
not lie again.’
To
my mind this has exposed the fallacy in the appellant’s belated
complaint.
[26]
A fact which exacerbates the position further is that du Plessis, the
police officer who took down the statement, was cross-examined
at
length in the presence of the appellant. After he had testified and
the warning statement was admitted, the matter was postponed
for some
time. In a rather lengthy exchange with the regional magistrate, Mr
Bishop indicated that he had instructions to take
the ruling on
review. In the interim, the State led the evidence of Dlamini. It was
only when the case resumed that all of a sudden
the appellant
expressed some unhappiness with his counsel’s trial strategy.
It is clear that the appellant had more than
enough time during the
trial to raise any objection to the manner in which his trial was
conducted if he had any. Quite inexplicably
he failed to do that.
[27]
It is easy to understand the trial strategy. Having studied the
docket, the appellant’s counsel must have become aware
that
none of the State’s eye-witnesses could identify the appellant
as the driver. The reasoning must have been that, if
his warning
statement was not admitted as evidence, the State would not have been
able to identify him as the driver. The trial
strategy therefore was
to not admit that he was the driver and see if the State could prove
it. The probabilities are overwhelming
that the appellant was made
aware of these defects in the State’s case which, incidentally
became apparent when the witnesses
testified. It was then agreed with
his lawyers that rather than for him to admit that he was the driver
and take a risk with his
defence, disclosed only when he testified
which might not succeed, he would rather exercise his constitutional
right to remain
silent. It is not surprising that when the warning
statement was admitted, against his expectation, that the appellant
then realized
that he had met his Waterloo and the only escape route
was to put the blame on his counsel. Hence this belated
volte
face
.
[28]
An important fact which weighs heavily against accepting appellant’s
belated
volte face
is that, given the strict ethics governing
the lawyers’ profession, a presumption of regularity operates
in favour of accepting
that the lawyers acted in terms of their
mandate from the appellant. There has to be some cogent evidence to
displace this presumption.
A court cannot afford to accept any
criticism by a litigant against his or her lawyer. Such an approach
has the potential to open
floodgates of spurious complaints by
disgruntled litigants. (
Strikland v Washington
466 U.S. 688
(1984).) It is trite that ordinarily counsel acts on a brief from an
attorney who in turn acts on instructions from the client.
Absent any
instructions from the appellant, both Mr Bishop and Mr Nkwashu would
be guilty of very serious professional misconduct
which could have
led to disciplinary proceedings by their professional bodies
concomitant with serious consequences for them. One
cannot, on the
mere say-so of the appellant and without more conclude that both Mr
Bishop and Mr Nkwashu could have taken such
a serious risk. Based on
the above-stated facts, I am constrained to conclude that the
appellant had consented to the trial strategy,
alternatively that he
acquiesced in it. (
S v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(A) at 125E-J.) It
follows that there is no merit in this ground of appeal.
[29]
However, this is not the end of the matter. A more vexing legal
question is whether or not the proven evidence establishes
dolus
eventualis
. The appellant testified that when he drove onto the
pavement he never saw the deceased. He only saw a newspaper stall and
a concrete
pole. He was not even aware that he had collided with the
deceased. This was never disputed.
[30]
The legal question to be answered is whether, given these
circumstances, it can be found that the appellant subjectively
foresaw
the possibility of colliding with the deceased and causing
her death, and further, whether notwithstanding that realization, he
proceeded to drive in the manner he did.
[31]
The correct legal approach to this vexed legal question was
enunciated as follows in
S v Sigwahla
1967 (4) SA 566
(A) at
570B-E:
‘
That,
however, does not conclude the enquiry because the following
propositions are well settled in this country.
(1) The expression
“intention to kill” does not, in law, necessarily require
that the accused should have applied his
will to compassing the death
of the deceased. It is sufficient if the accused subjectively foresaw
the possibility of his act causing
death and was reckless of such
result. This form of intention is known as
dolus eventualis
as
distinct from
dolus directus
.
(2) The fact that
objectively the accused ought reasonably have foreseen such
possibility is not sufficient. The distinction must
be observed
between what actually went on in the mind of the accused and what
would have gone on in the mind of a
bonus paterfamilias
in the
position of the accused. In other words, the distinction between
subjective foresight and objective foreseeability must
not become
blurred. The
factum probandum
is
dolus
, not
culpa
.
These two different concepts never coincide.
(3) Subjective
foresight, like any other factual issue, may be proved by inference.
To constitute proof beyond reasonable doubt
the inference must be the
only one which can reasonably by drawn.’
Recently this
approach was refined by
this court
in
S v Humphreys
2013 (2) SACR 1
(SCA) by Brand JA at 8a-b as follows:
‘
In
accordance with trite principles, the test for
dolus
eventualis
is twofold:
(a) Did the
appellant subjectively foresee the possibility of the death of his
passengers ensuing from his conduct; and
(b) did he reconcile
himself with that possibility (see eg
S v De Oliveira
1993 (2)
SACR 59
(A) at 65i-j)?
Sometimes
the element in (b) is described as “recklessness” as to
whether or not the subjectively foreseen possibility
ensues (see eg
S
v Sigwahla
1967 (4) SA 566
(A) at
570B-E’.
[32]
It is clear that the requisite subjective foresight may be proved by
inferential reasoning based on the premise that ‘…
in
accordance with common human experience, the possibility of the
consequences that ensued would have been obvious to any person
of
normal intelligence’, see
Humphreys
at 8e.
[33]
Thereafter, ‘the next logical step would then be to ask
whether, in the light of all the facts and circumstances of this
case, there is any reason to think that the appellant would not have
shared this foresight, derived from common human experience,
with
other members of the general population.’ See
Humphreys
at 8f.
[34]
The appellant conceded that it was peak hour traffic and there were
many pedestrians. They were rushing to catch taxis and
were on the
pavement and in the road. The appellant maintained, however, that the
pedestrians on the pavement were at a distance
moving away from him.
When he drove onto the pavement he saw the newspaper stand and the
other objects in his vehicles path but
be believed he would
‘overcome’ them but collided with them. He maintained
that he never saw the deceased because he
‘was looking back and
sideways’.
[35]
Any person with a modicum of intelligence would have appreciated that
driving a motor vehicle onto the pavement in the prevailing
circumstances of this case, raised the possibility that a collision
with a pedestrian would occur with fatal consequences. Any
right-minded person would have foreseen the possibility of the death
of a pedestrian.
[36]
On the evidence there is no basis for concluding that the appellant
did not possess the requisite subjective intent in accordance
with
this standard.
[37]
The second element of
dolus eventualis
requires proof that the
appellant reconciled himself with the foreseen possibility of the
death of a pedestrian. As pointed out
by Brand JA in
Humphreys
at 9i-j:
‘
The
true enquiry under this rubric is whether the appellant took the
consequences that he foresaw into the bargain; whether it can
be
inferred that it was immaterial to him whether these consequences
would flow from his action. Conversely stated, the principle
is that
if it can reasonably be inferred that the appellant may have thought
that the possible collision he subjectively foresaw
would not
actually occur, the second element of
dolus
eventualis
would not have been
established.’
[38]
In this regard, the appellant stated that when he drove onto the
pavement his vehicle was in first gear travelling at between
10 to 15
kilometres per hour. Dlamini confirmed that the vehicle was not
travelling at a high speed. The appellant maintained that
the
pedestrians he saw were on the other side of the objects his vehicle
collided with near the taxi rank. The appellant stated
that he
therefor turned back onto the road to avoid colliding with them. He
said he could not swerve to the left to avoid colliding
with these
objects, because he would then have collided with the pedestrians.
[39]
On this evidence, the appellant believed he would be able to avoid
colliding with the pedestrians on the pavement by turning
to the
right back onto the road. Consequently it cannot be inferred that it
was immaterial to the appellant whether he collided
with a pedestrian
on the pavement. It can also reasonably be inferred that he may have
thought that a collision with a pedestrian,
which he subjectively
foresaw, would not actually occur. In other words, the appellant
‘took a risk which he thought would
not materialise’, see
Humphreys at 10D. The second element of
dolus eventualis
was
accordingly not established on the evidence.
[40]
However, it is clear from the conduct of the appellant that he did
not act like a reasonable driver. Notwithstanding the fact
that he
was frightened, his driving of his vehicle into the pavement which is
reserved for pedestrians at peak hour, near a taxi
rank and at a time
when the place was teeming with pedestrians, was clearly negligent.
As this negligence led to the death of the
deceased in count 1, it
follows that the appellant is guilty of culpable homicide.
[41]
Having altered the conviction in count 1 from murder to culpable
homicide, it follows that a sentence of imprisonment for 15
years
cannot stand as it is undoubtedly shocking.
This
court
is at large to reconsider it
afresh. Counsel for the appellant submitted that, given the reports
by the various experts on sentence,
a sentence in terms of
s 276(1)(
i
)
of the Act would be appropriate. On the other hand, counsel for the
respondent contended that the overall behaviour of the appellant
was
seriously reprehensible, more so that a person lost her most precious
possession, life. She suggested a custodial sentence
of between seven
and ten years.
[42]
In determining an appropriate sentence, it is important for the court
to maintain the delicate balance between the triad, difficult
as the
task might be. Friedman J expounds the approach as follows in
S v
Banda & others
1991 (2) SA 352
(BGD) at 355A-B:
‘
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at
the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating whereof
satisfies the
requirements. What is necessary is that the court shall consider, and
try to balance evenly, the nature and circumstances
of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community, its welfare
and concern. This
conception as expounded by the courts is sound and is incompatible
with anything less.’
[43]
I find the following facts to be aggravating: The appellant is not an
ordinary driver. He is a taxi driver and therefore a
professional
driver. In order to qualify as a taxi driver, he is required to have
a public drivers’ permit which implies
that he is well trained
and qualified to drive public vehicles. He is involved in the
conveyance of people on a daily basis on
our public roads. This calls
for more care and caution from him. He failed to apply the care and
skills required of a reasonable
driver. Undoubtedly, the fact that a
person died from the appellant’s negligent conduct aggravates
the appellant’s
conduct. Such conduct warrants serious
condemnation and a severe sentence. See
S v Nxumalo
1982 (3)
SA 856
(A) at 861H.
[44]
I am of the view that, given the senseless carnage which occurs on
our roads daily, the appellant deserves a sentence which
will address
the legitimate concerns and the natural indignation of members of the
public. The failure by the court to impose appropriate
sentences for
such offences might lead to loss of confidence in the criminal
justice system by the public, who might take the law
into their
hands. Ironically, this is best illustrated by the instantaneous
behaviour of members of the public, who according to
the appellant
were baying for his blood after the collision.
[45]
However, a sentencing court should never allow the public interest to
eclipse the other considerations relevant to sentencing,
in
particular the appellant’s personal circumstances. The
circumstances surrounding these offences, show that the appellant
acted under some kind of emergency. It will be unrealistic if not
cynical to say that it was self-created. This would, to my mind,
be
akin to resuscitating the
versari in re
illicita
doctrine which was buried many
years ago. The reality is, however, that the appellant’s
negligent conduct led to the death
of the deceased.
[46]
The appellant was 35 years old; married with three children; and he
is now a taxi-owner with seven taxis. In addition to his
family which
he maintains, he has seven drivers who drive his taxis, who are his
responsibility. He is personally responsible for
the management of
his fleet of taxis. He has one relevant previous conviction which
happened in the year 2000. The appellant handed
himself over
voluntarily to the police a day after the incident. He expressed his
remorse at the turn of events.
[47]
That the appellant has been convicted of a very serious offence
admits of no doubt. Although the sentence to be imposed must
reflect
the seriousness of the appellant’s conduct, it must not be such
that it has the effect of destroying him on the alter
of general
deterrence or retribution.
This court
must guard against
pandering to the whims of the public at the expense of the appellant.
It is clear from the expert’s report
that over time the
appellant has improved himself from an ordinary driver to a taxi
owner with a fleet of seven taxis which creates
employment for at
least seven people. This is proof that the appellant is a productive
and useful member of society. It cannot
be said that he is not
amenable to rehabilitation. I am of the view that the sentence which
should be imposed should be such that
it does not destroy him, but
gives him hope and opportunity to be rehabilitated within a
reasonable time so that he can return
to society a rehabilitated and
better person, to play a useful role.
[48]
As I indicated earlier, the appellant was convicted on five counts.
However, all these counts emanate from one event. Although
the
appellant deserves to be sentenced for each count, I am of the view
that the cumulative effect of the separate sentences would
result in
a sentence which might be shockingly disproportionate to his
blameworthiness. It is for this reason that I will confirm
the order
by the regional magistrate that the sentences in respect of counts 2,
3, 4 and 5 should run concurrently with the sentence
in respect of
count 1.
[49]
In the result I make the following order:
1. The appeal
against the conviction in count 1 (murder) is upheld.
2. The conviction of
murder is set aside and replaced with a conviction of culpable
homicide.
3. The sentence
imposed by the court below in respect of the count of murder is set
aside and replaced with the following:
‘
The
accused is sentenced to imprisonment for five years, two years of
which is suspended for five years on condition that the appellant
is
not convicted of culpable homicide arising from the driving of a
motor vehicle during the period of suspension.’
4. The sentence in
respect of counts 2, 3, 4 and 5 as imposed by the regional magistrate
are confirmed. The sentences are ordered
to run concurrently with the
sentence imposed in respect of count 1.
5. The order
cancelling the appellant’s drivers’ licence issued under
licence number 2[…] is confirmed.
L.O.
BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant : PJ du Plessis
Instructed
by:
David H Botha, Du
Plessis & Kruger Inc. Johannesburg
Symington
& De Kok, Bloemfontein
For
Respondent : GE Market
Instructed
by:
Director
Public Prosecutions; Johannesburg
Director
Public Prosecutions, Bloemfontein