Sekhokho v S (A495 /2008) [2010] ZAGPPHC 103 (25 August 2010)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Appeal — Conviction for negligent driving — Appellant convicted of reckless and negligent driving under the National Road Traffic Act — Appellant's vehicle collided with a stationary vehicle while transporting prisoners — Appellant claimed he was faced with a sudden emergency due to a taxi swerving in front of him — Trial court's findings upheld on negligent driving but conviction for reckless driving set aside — Appeal upheld, and conviction amended to negligent driving only.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal against conviction heard in the High Court of South Africa (North Gauteng High Court, Pretoria). The appellant, Mohau Jafta Sekhokho, appealed against his conviction in criminal proceedings instituted by the State.

In the court a quo, the appellant had been convicted of contravening section 63(1) read with other provisions of the National Road Traffic Act 93 of 1996, on a charge framed as “reckless and negligent driving”. The magistrate imposed a sentence of a fine of R3 000 or three months’ imprisonment, with half of the sentence conditionally suspended for three years on the ordinary conditions of suspension. The appellant was legally represented throughout the trial.

The appeal was directed only at the conviction (and not at sentence). The dispute concerned criminal liability arising from a rear-end collision involving a police vehicle driven by the appellant while transporting prisoners, and the question whether the appellant’s driving conduct amounted to recklessness and/or negligence, including whether the appellant could rely on the defence of a “sudden emergency.”

2. Material Facts

It was common cause that a collision occurred on the N2 road, which was a public road, and that the appellant’s vehicle (a police vehicle bearing registration BPR 607 B) collided with the minibus driven by the first State witness (registration BGL 756 MP). It was also not disputed that weather conditions were clear and that the road surface was dry at the relevant time.

On the State version, the first witness was driving a minibus transporting passengers, and he moved into a lane used by slow-moving vehicles. He testified that, after entering that lane, he saw a white kombi behind him at some distance. He indicated that he intended to turn, reduced speed, and then stopped while waiting for oncoming traffic to pass so that he could turn. He then heard a noise behind him; the white kombi passed him, and a van (later identified as the appellant’s police vehicle) collided with his minibus.

The second State witness, who was a passenger in the first witness’s vehicle, corroborated that they were waiting to turn and that a taxi-kombi was travelling behind them. That taxi passed their vehicle on the left, and the witness did not see the vehicle that had been travelling behind the taxi.

On the defence version, the appellant was a student constable transporting prisoners from Omaha Prison to court and was accompanied by Inspector Engelbrecht. The appellant testified that he was driving in the right-hand lane behind a white taxi at approximately 100 km/h. According to him, the taxi suddenly moved into the left lane without indicating and at high speed, whereafter the appellant saw the first State witness’s vehicle stationary in front of him, braked, and collided with it. The appellant’s witness (Engelbrecht) supported the account that the taxi swerved suddenly without indicating, precipitating the collision with the stationary vehicle ahead.

A further factual feature mentioned in the evidence was that, according to a sketch plan, the brake marks of the appellant’s vehicle were 32 feet in length.

3. Legal Issues

The central questions on appeal were whether the trial court was correct to convict the appellant of reckless and negligent driving, and whether the conviction could stand in light of the defence contention that the appellant had been confronted by a sudden emergency caused by the unexpected manoeuvre of the taxi in front of him.

The dispute primarily concerned the application of legal standards (recklessness, negligence, and the sudden-emergency doctrine) to the facts as accepted, together with the appellate court’s approach to interfering with factual findings and credibility-based conclusions reached by the trial court.

A further issue arose from the magistrate’s own observation (as recorded by the appellate court) that it was an error to convict the appellant on both reckless driving and negligent driving, which implicated the correctness of the form of conviction and the appropriate substituted outcome on appeal.

4. Court’s Reasoning

The court approached the appeal mindful of the limited scope for appellate interference with factual findings. Relying on S v Francis 1991 (1) SACR 198, it reiterated that, absent misdirection, a trial court’s factual conclusions and acceptance of witness evidence are presumed correct, and that an appellant must show on adequate grounds that the trial court was wrong; the mere existence of a reasonable doubt was said not to be sufficient to justify interference. The court also referred to inferential reasoning principles (as set out in Hiemstra’s Criminal Procedure), emphasising that an inference must be consistent with the proved facts and that proved facts must exclude other reasonable inferences if a particular inference is to be adopted.

The court accepted as an important starting point that the collision itself was undisputed. It then addressed the defence contention of a sudden emergency, evaluating it against the objective circumstances accepted on the record. The court considered the clear weather and dry road surface as relevant to visibility and the opportunity for proper observation. It reasoned that, on those conditions, and in the absence of any suggestion of heavy traffic or obstructed visibility, it was consistent to conclude that the appellant should have had a sufficient opportunity to see what was ahead.

In dealing with the sudden-emergency doctrine, the court referred to the exposition in W E Cooper, Motor Law, including the underlying principle that allowance is made for the reality that drivers confronted with imminent danger may not have time to weigh alternatives. The court cited Union Government v Buur 1914 AD 273 for the proposition that conduct in a moment of crisis should not be judged as if there had been time for calm deliberation. It further adopted the qualification that, even in a sudden emergency, a driver is still required to exercise reasonable care and skill, consistent with the formulation drawn from SAR v Symington 1935 AD 37 (as quoted in Cooper), which emphasises the objective standard of the ordinary reasonable person and the need to avoid attributing fault merely because another driver might have reacted more promptly or chosen a better course ex post facto.

Applying these principles, the court’s evaluative conclusion was that the appellant could not successfully invoke the sudden-emergency defence on the facts as it understood them. It held that if the appellant had been driving at a reasonable speed, maintained a proper following distance behind the taxi, and kept a proper lookout, he would have been able to avoid the situation described as a sudden emergency. In effect, the court treated the appellant’s predicament as one that could have been avoided by the exercise of ordinary care, which undermined the claim that the emergency excused the ensuing collision.

Finally, the court addressed the correctness of the conviction as recorded by the magistrate. It noted that the magistrate had pointed out that there had been an error in convicting the appellant on both counts. On that basis, the court concluded that the conviction for reckless driving should be set aside and that the conviction for negligent driving should stand, with the conviction being substituted accordingly.

5. Outcome and Relief

The appeal was upheld to the extent that it related to the conviction recorded as “reckless and negligent driving.” The court set aside the conviction insofar as it included reckless driving and substituted it with a conviction of negligent driving only.

The judgment, as reported, did not make a separate order altering the sentence; it confined the substituted order expressly to the conviction. No distinct costs order was recorded in the judgment.

Cases Cited

S v Francis 1991 (1) SACR 198.

Union Government v Buur 1914 AD 273.

SAR v Symington 1935 AD 37.

Legislation Cited

National Road Traffic Act 93 of 1996, section 63(1) read with sections 1, 63(2), 63(3), 69, 73, 89(1) and 89(5).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, on the facts accepted, the appellant could not avoid liability by relying on a sudden emergency, because the emergency would have been avoidable had he driven at a reasonable speed, maintained a safe following distance, and kept a proper lookout.

It further held that the magistrate erred in convicting the appellant of both reckless and negligent driving. The conviction for reckless driving was set aside, and the conviction was substituted with a conviction of negligent driving only.

LEGAL PRINCIPLES

The appellate court applied the principle that a court of appeal has limited power to interfere with factual findings of a trial court in the absence of misdirection, and that the trial court’s acceptance of witness evidence is presumed correct unless shown to be wrong on adequate grounds, with due regard to the trial court’s advantage in observing witnesses.

It applied inferential reasoning principles requiring that any inference drawn must be consistent with proved facts and that proved facts must exclude other reasonable inferences if a particular inference is to be adopted.

The court applied the sudden-emergency doctrine as a qualified principle: while allowance is made for the pressures of decision-making in imminent danger, the driver remains obliged to exercise reasonable care and skill assessed objectively. The doctrine does not avail a driver where the emergency is one that would likely have been avoided through reasonable driving, including maintaining a proper lookout, travelling at a reasonable speed, and keeping a safe following distance.