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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2019] ZAKZPHC 24
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Moodley v S (AR 477/14) [2019] ZAKZPHC 24 (3 May 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITBURG
CASE NUMBER: AR 477/14
In the
matter between:
KRIESEN
MOODLEY
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
VAN ZÿL, J. (OLSEN, J concurring)
[1] This is an appeal from the Regional
Court, Durban, with leave of the court
a quo
, against the
appellant’s convictions and sentences on three counts of
culpable homicide (counts 1, 2 and 3), one count of
driving under the
influence of liquor (count 4) and one count of reckless or negligent
driving (count 5). In respect of these offences
the appellant was
sentenced to 5 years’ imprisonment on each of counts 1, 2 and
3, to 3 years’ imprisonment on count
4 and to 2 years’
imprisonment on count 5. The effective period totaled 20 years’
imprisonment. In addition the appellant’s
drivers licence was
cancelled in terms of
s34
of the
National Road Traffic Act 93 of 1996
and a direction issued which disqualified him from obtaining a
further licence within 5 years from 10 July 2017, being the date
upon
which sentence was passed.
[2] The charges against the appellant
arose from a motor vehicle collision which occurred during
the early
hours of the morning of 28 March 2015 along Link Road between the M1
and the Ridgeview Shopping Centre adjacent to Chatsworth
within the
Durban Metropolitan area. It was common cause that at the time of the
collision the appellant was the driver of a 2007
white BMW 335i 6
speed automatic convertible with the roof down (the BMW) and that his
passenger was one Akshay Ramsaroop, then
a 15 year old young man.
[3] The second vehicle involved was a
2007 Blue Toyota Yaris 5 seater manual sedan (the Yaris) driven
by
the late Mr Delon Gurriah (count 1) who died on the scene together
with Mr Koveshan (Byron) Pillay (count 2) who had occupied
the left
front passenger seat and Mr Denalin (Preston) Naicker (count 3) who
had been seated in the left rear passenger seat. The
surviving
passengers were Mr Denver Naidoo, the rear middle passenger and Mr
Deon Bujram (Budram), the right rear passenger.
[4] At the time of the collision the
BMW had been travelling in a southerly direction and the Yaris
in a
northerly direction along Link Road when they were involved in what
may colloquially be referred to as a head-on collision.
According to
Mr Denver Naidoo, who was called as the second state witness he and
the other occupants of the Yaris were all friends
who attended “gym”
together and were returning after supper in Durban. The witness, a
police official, had been seriously
injured in the collision and had
been unconscious for 12 to 13 days in the intensive care unit at
hospital, was only told about
the collision after 14 days and was
only told of the death of his friends 27 days after the event. He had
no recollection of the
collision but recalled meeting at the
residence of Mr Deon Bujram at about 20h00 during the evening of
March 27
th
, from where they travelled to Florida Road in
Durban, but he had no memory of where they actually had supper. Asked
in cross examination
whether they had consumed alcohol during the
course of the evening the witness said that he never consumes alcohol
and he had no
recollection of whether any other members of the party
may have taken alcohol. The other surviving passenger Mr Bujram was
also
called, but his loss of memory due to injuries sustained was
even more marked and he was only aware from some photographs
subsequently
shown to him that their group of friends had shared
supper. He had no recollection of the events of that evening.
[5] According to the appellant, who
lived with his parents in their family residence, there was a
social
gathering at their home the evening of March 27
th
where an
estimated 15 to 20 guests had gathered playing cards and consuming
alcohol. These gatherings were a regular occurrence.
Apart from
himself, the appellant said that only one of his friends, one
Troilin, was sober. The appellant said that he was observing
his
Saturday religious fast, as a result of which the consumption of
alcohol and meat was not permissible. At about 01h30 some
of the
guests were hungry and he left to purchase hamburgers for them. The
vehicle he used was the BMW which belonged to his friend
Mr Thaveshan
Moodley, one of the guests and which was parked in the driveway. He
explained that because of their close relationship
they drove each
other’s vehicles, so that there was no need first to request
permission from the owner who was in the toilet
when the appellant
left.
[6] It is convenient at this stage to
deal with the two driving counts (counts 4 and 5). With regard
to the
charge of reckless/negligent driving (count 5) counsel for the
appellant contended and counsel for the respondent conceded
that it
amounted to an impermissible duplication of convictions and should be
set aside, so that there is no need to give further
consideration
thereto.
[7] Count 4, the charge of driving
under the influence of intoxicating liquor, however remained in
dispute. The evidence relating to this charge comprised the two
police witnesses, constables Phiri and Mbozana, who were on patrol
and happened to come upon the scene of the collision shortly after it
occurred. Their evidence was to the effect that the appellant
was
still in the driver’s seat of the BMW, they spoke to him and
suspected that he might be under the influence of alcohol.
As a
result he was dispatched by ambulance to hospital accompanied by
constable Mbozana who said that she was present when the
doctor took
a blood sample from the appellant, duly sealed the container,
replaced it in the evidence kit which was also sealed
and of which
she then took possession. She left the appellant at the hospital for
treatment, returned to the police station and
subsequently entered
the sealed evidence kit containing the blood sample into the SAP13
register, a copy of which was received
as exhibit “D”.
[8] Warrant Officer S. Govender gave
evidence that he was the charge office commander and received
the
evidence kit from Constable Mbozana, checked that it was properly
sealed and placed it in the safe. It appears that the sample
was
subsequently collected by one Carol Hlope, who was a clerk at the
police station and conveyed to the State Forensic Laboratory
where it
was received and examined by Mr T Mtshali, a forensic analyst in the
employ of the National Department of Health. According
to his
evidence, when he opened the sealed kit, it contained no blood sample
at all. He was unable to account for how this could
have come about.
In the result there was no blood sample to analyse and no proof
that there had been any alcohol in the system
of the appellant at the
relevant time.
[9] The state called as a witness Mr
Thaveshan Moodley, the owner of the BMW. It was alleged that
he had
made a statement to Warrant Officer Snodgrass, the police accident
investigating specialist who had earlier given evidence.
The apparent
object of calling this witness was to lead evidence to the effect
that he had not given the appellant permission to
take the BMW while
he, the witness, was in the toilet and to establish that the witness
had observed the appellant consuming alcoholic
liquor before he had
departed in the BMW. However, the witness deviated from his statement
and was declared a hostile witness upon
the application of the
prosecutor. In evidence he claimed still to have been under the
influence of intoxicating liquor when he
made his police statement
and that the person he intended referring to therein was in fact the
appellant’s brother “
Krishan
” and not the
appellant himself. Although he had attended at the scene of the
collision before the appellant was removed to
hospital and spoke to
him, he said that the appellant did not appear to him to have been
under the influence of alcohol at that
time and that he had not
noticed whether the appellant consumed alcohol during the course of
the preceding evening. Warrant Officer
Snodgrass was not recalled to
deal with the evidence thus given by Mr Moodley.
[10] The only other evidence relevant to
intoxication was that of constables Phiri and Mbozana. Under cross
examination they both admitted that they were unable to say that the
symptoms they observed relevant to the appellant at the scene
of the
collision, namely slurred speech, bloodshot eyes and an unsteady
gait, could not have resulted from the appellant’s
involvement
in the collision, nor could they dispute that the appellant had in
the process suffered a cracked pelvis for which
he was subsequently
hospitalized. It was conceded that such injury could have affected
his gait. Both were however adamant that
they smelled alcohol on the
person of the appellant.
[11]
On behalf of the appellant it was submitted, with reference to
S
v Mzimba
2012 (2) SACR 233
(KZN) at
235, that the state was required to establish beyond a reasonable
doubt that the driving ability of the appellant had
been impaired by
his consumption of alcohol and that there had been no evidence before
the Magistrate to that effect. In
S
v Edley
1970
(2) SA 223
(N)
Miller J (as he then
was) at 226B held that
‘
..
the
question which is before us now is whether, on the evidence I have
briefly summarised, the State succeeded in discharging the onus which
rested upon it to prove, not only that the appellant had taken
alcohol and was under the influence of alcohol, but that, as
a
result of the consumption of alcohol, his judgment or skill in the
sense explained in Rex v Spicer,
1945 AD 433
, was affected by
the alcohol consumed by him.
”
The
court concluded that “
it
seems to me to be a matter of impossibility to infer with the
necessary degree of certitude that the alcohol which he undoubtedly
consumed, to judge by the smell of alcohol on his breath, had
affected him to the requisite degree
’
(at
226H -227A).
[12] So too in the present matter is it impossible
to infer upon the available evidence and even if it were accepted
that the appellant was found with alcohol on his breath after the
collision, that his driving ability had been impaired by the
consumption of alcohol prior to the collision. In my view the state
had failed to discharge the onus of proof which rested upon
it and
the appellant’s appeal against his conviction on count 4 must
succeed.
[13] The primary issue regarding the conviction of
the appellant on the culpable homicide counts is whether the
state
managed to prove beyond reasonable doubt the negligent killing of the
three deceased. To answer that question requires
a
determination of how the collision occurred. This in turn involved
the determination in particular of where in relation to Link
Road the
point of impact occurred. The state relied on circumstantial evidence
and its main witness in this regard was warrant
officer F Snodgrass.
[14] In the first instance the expertise of the
witness was attacked by the defence. It was submitted that he
lacked
the necessary expertise and qualifications to arrive at any
authoritative conclusions as to the cause of the collision and
more
particularly as to the point or area of impact between the two
vehicles involved. In his report (Exh B) the witness set out
on oath
an abbreviated
curriculum vitae
in which he indicated that he
had been a member of the South African Police since 1991 and joined
its Accident Combatting Unit
during October 1994. During his service
he successfully completed various training courses relevant to
vehicle accident attendance
and investigation which he listed. In the
process he stated that he had attended more than 2000 minor and more
than 500 serious
(involving fatalities) motor vehicle collision
scenes. As such his duties involved the investigation and
reconstruction of “
accident crash scenes
”.
It is evident that at the time of the present investigation the
witness had more than 20 years’ experience
in the investigation
of motor vehicle collisions.
[15] Mr Van Heerden who appeared for the respondent
submitted on the strength of
A A Onderlinge Assuransie-Assosiasie
Bpk v De Beer
1982 (2) SA 603
(AD) that even if Mr Snodgrass were
held not to qualify as an expert witness, then and in any event the
opinion of an experienced
policeman as to the point of collision was
usually allowed as
prima facie
proof, which becomes conclusive
if not challenged.
[16] During the course of a long and at times
somewhat acrimonious cross examination of Mr Snodgrass, there was
no
concerted attack made upon his qualifications and experience in
collision matters. Cross examination amounted more to disagreeing
with his statements or conclusions, often based upon speculative
possibilities. A great portion of the evidence of the witness
was
taken up with irrelevant matter, for instance flowing from his
references in his report to alleged insobriety on the part of
the
appellant. It was, however, quite clear that the witness had no
personal knowledge on the subject and had responded to hearsay
information imparted to him by the police witnesses and the owner of
the BMW Mr T Moodley, whose police statement the witness had
taken.
These irrelevancies may be safely disregarded whilst giving attention
to the nub of his evidence, namely what he found and
recorded at the
scene of the collision upon his arrival some 2 hours after the event.
[17]
The correct approach to the assessment of the value of expert
evidence requires that
questions
of reasonableness and negligence are for the court to determine on
the basis of the expert’s opinions as presented.
This generally
requires consideration, not of credibility but rather of the opinions
and an analysis of their essential reasoning,
to enable the court to
reach its own conclusion on the issues involved (
Michael
v Linksfield Park Clinic (Pty) Ltd
2001
(3) SA 1188 (SCA)
at
para 34).
[18] The circumstances of the collision were
briefly as follows. The route of the BMW brought it through a curve
where the southbound lane changed to a double lane, while northbound
was a single lane approaching the curve and was relatively
straight,
as demonstrated in image 3 of exhibit B. After the collision the two
vehicles came to rest in positions as reflected
in the sketch plan
and key thereto forming the last three pages of exhibit B. Two
photographs in particular demonstrating the positioning
of the
vehicles are photos 37 and 38. The witness said that the point of
impact was at or near the point which he marked “X”
(on
photo 38). Cross examined as to the “point” the witness
said that it was merely intended to indicate the immediate
vicinity
of the area of impact. As has become common, reference to the point
of impact is used for convenience to describe the
immediate area or
locality of the impact and not to denote a particular point with
absolute accuracy. It is also used herein on
that basis.
[19] Mr Snodgrass indicated in both his report and
in his evidence that the point marked “X” (photo
38) and
reflected as point “C” in the sketch plan to exhibit B
represented, in his opinion, the point of impact as
being well within
the northbound lane of travel of the Yaris. It was essentially this
conclusion which was at the target of the
attack by the appellant
upon the evidence of the witness. Mr Samuels, who appeared in the
appeal for the appellant but who did
not conduct the trial, fairly
conceded that if the point of impact was correctly determined by the
witness, then the appeal against
the convictions for culpable
homicide cannot succeed.
[20] Mr Snodgrass during the course of his evidence
explained that on the northbound single lane he found fresh
gouge and
scrape marks on the road surface which extended in a line diagonally
across to the double southbound lanes, past the
position of the BMW
and up to the position of the Yaris. The distance from where the
makings commenced up to the BMW was measured
at 14,6 meters and to
the Yaris at 32.4 meters. From his evidence it appeared that when two
vehicles impact with each other the
bodywork and mechanisms deform
and the force of the impact can drive portions of the bodywork or
mechanisms onto the road surface
causing indentations. Where a
vehicle in its deformed state is propelled for any distance across
the road surface by its momentum,
or the force of the impact, scrapes
and gouge marks result along its course. In this instance the scrape
and gouge markings clearly
marked the lines of movement of the two
vehicles from where the markings commenced up to where the wreck of
each vehicle came to
rest. He was therefore confident that the point
or area of impact was where the markings commenced, as indicated in
photos 37 and
38.
[21] The witness pointed out that the angle of
impact upon the Yaris centered at its left frontal area and that
the
vehicle had rolled or overturned after impact. This conclusion was
consistent with the state of the wreck after the collision.
The side
panel damage is apparent from photos 44 and 45 and the crush damage
from photos 63 and 64. According to the report the
standard length of
the Yaris was 3,75 meters and post collision it measured in at 3,18
meters on the right side and 2,56 meters
on the left. By contrast the
standard length of the BMW was 4,58 meters and post collision it
measured in at 3,79 meters.
[22] The witness postulated that the point of
impact was in the lane of travel of the Yaris and that the BMW
coming
out of the curve had drifted outwards into the lane reserved for
oncoming traffic before colliding with the Yaris. According
to him
statistically drivers of right hand steering vehicles, faced with
imminent collision, instinctively take avoiding action
by swerving to
the right and those of left hand steering vehicles to the left. That,
according to the witness would account for
the more extensive crush
damage to the left front of the Yaris. He also suggested that the
post collision position of the BMW towards
the middle of the road was
due to its driver trying to steer towards his left at the time of
impact.
[23] Mr Snodgrass was of the opinion that the BMW
had upon impact propelled the Yaris backwards with sufficient
force
not only to instantly reverse its line of travel, but to carry it
32,4 meters before coming to a halt. The BMW continued
moving
forwards despite the impact for a further 14,6 meters. Even allowing
for the fact that the BMW was the heavier vehicle of
the two, the
witness suggested that the greater impact on the Yaris resulted from
excessive speed on the part of the BMW. Certainly
upon their
respective specifications the BMW was by far the more powerful
vehicle. It was fitted with a 3000cc turbo charged engine
and a 6
speed automatic gearbox whilst the Yaris had a 5 speed manual gearbox
with a 998cc capacity engine. Based also upon the
catastrophic
damage, particularly to the Yaris, the witness was of the opinion
that at the time of impact the BMW must have been
traveling at a
speed well in excess of 120 kph.
[24] The defence version was to the effect that the
appellant, coming out of the curve and driving at 60 to 70
kph in the
middle lane, observed the lights of the approaching Yaris as well as
sparks coming from its left frontal area. The Yaris
then changed
course and veered across the roadway in the direction of the BMW. As
a result the appellant took evasive action by
swinging towards his
left and estimated that about one half of the BMW had crossed over to
the far left lane while the other half
was still in the middle lane
when impact occurred. Based upon his observations it was submitted
that the probable explanation for
the sparks was that the Yaris had
hit the curbside on its left, lost control as a result and veered
over into the lane of travel
of the BMW where the impact then
occurred.
[25] In this regard the defence drew attention to
the defective condition of the Yaris as identified in the report
of
Mr Snodgrass. These related to the rear brake linings that were worn
and the exposed steel beading on the left front tire (the
second
photo 68). The witness said that, as indicated in his report, the
brakes of the Yaris would have functioned normally and
the remaining
tread face on the left front tire was sufficient so that the defects
as identified could have had no causal connection
with the collision.
He speculated that the damage to the left front tire may have
resulted during the course of the recovery of
the wreck and its
removal to storage, where he subsequently examined it.
[26] The witness scoffed at the manner in which the
defence suggested the collision had occurred. He pointed
out that the
defence version as put to him was entirely inconsistent with the
gouge and scrape markings he found at the scene.
According to the
witness the scrape markings on the road surface clearly indicated not
only the immediate vicinity where impact
occurred, but also the lines
of travel of each vehicle after the impact and until each vehicle
came to rest. In addition he said
that had the left front wheel of
the Yaris come into contact with the concrete curbside of the road as
suggested to him, then he
would inevitably have expected to find
scrape and scouring markings on the edge of the metal rim of the left
front wheel and there
were none. A post collision image of this wheel
appears in (the first) photo 68.
[27] The appellant himself in evidence was not a
convincing witness as to the point or area of impact. In his
evidence
in chief he claimed that between about 01h30 to 02h00 he was driving
at between 60 and 70 kph in the right hand or middle
lane as depicted
in photo 10. When he observed the Yaris veering in his direction he
swerved towards his left and about one half
of the BMW had crossed
into the left lane at the moment of impact. Under cross examination
he was asked how it was possible for
the point of impact to be where
the witness Mr Snodgrass had indicated in the light of the version
offered by the appellant. His
reply was that he was not sure. He then
insisted that the impact was on the right hand side of the BMW, a
claim not supported by
the subsequent damage to the vehicle.
[28] Pressed on why the point of impact was not on
the southbound (double) lanes, being the appellant’s
correct
direction of travel, the prosecutor put to him “
It happened
on the oncoming traffic
”, to which the appellant replied “
I
am not too sure if it happened on the oncoming traffic.
”
[29] Under re-examination by his own defence
attorney the appellant was asked “
Now, in photograph 38 the
prosecution asked you the question regarding the point of impact, in
other words, what he is putting to
you is that both cars met on the
Yaris’s path of travel so as to cause those marks, your
response?
”, to which the appellant replied that “
I
can’t remember hitting the Yaris on his lane so I don’t
know how the marks came …[indistinct]
”.
[30] In the end the Magistrate was left to deal
with the factual evidence of Mr Snodgrass, coupled with his reasoned
interpretation of the road markings, position of and damage to the
vehicles and his conclusion that the point of impact was as
indicated, namely within the lane of travel of the Yaris. Against
that was the unsubstantiated explanation of the appellant, initially
claiming that the impact point was on the southbound lanes, being his
correct lane of travel, but then becoming unsure and under
cross
examination conceding that “
I am not too sure if it happened
on the oncoming traffic.
”
[31] Objectively any claim that the point of impact
was situated on the southbound lanes is irreconcilable with
the facts
placed before the Magistrate. The only position for the point of
impact which accords with the facts is in the immediate
area as
indicated by Mr Snodgrass, namely in the correct lane of travel for
the Yaris. The probabilities strongly, even compellingly,
suggest
that the BMW must have been travelling at an excessive speed in order
to drift over into the lane of travel of the Yaris
and not being able
to steer clear of it when the danger of a collision became apparent.
To believe, as the appellant claimed in
evidence, that he was
travelling at between 60 and 70 kph is, in all the circumstances,
farfetched.
[32] In my view the Magistrate cannot be faulted in
rejecting the evidence of the appellant and in finding that
the state
had established the guilt of the appellant beyond a reasonable doubt.
The appeal against the convictions on counts 1,
2 and 3 should
therefore be dismissed.
[33] The appeal is also against the sentences
imposed by the Magistrate and more particularly the cumulative
effect
of those sentences. Even discounting the sentences passed in respect
of counts 4 and 5 where the appeal against the convictions
have
succeeded, the effective sentence remaining is still one of 15 years’
imprisonment.
[34]
In
S v
Naidoo
2003 (1)SACR 347 (SCA), Marais JA remarked that the sentences imposed
by the trial court were “
..
so far removed from what I consider to be an appropriate
sentence that they fall to be characterised as strikingly
inappropriate
and therefore to require amelioration by this Court. It
is therefore unnecessary to deal with the alleged misdirections of
which
the Court a quo was submitted to have been guilty by
counsel for the appellant. It suffices to say that the submissions
were not without some substance.
”
In the present matter
I propose to adopt a similar approach.
[35]
The general approach to matters of this nature was set out in
S
v Nxumalo
1982
(3) SA 856
(A) at 861G – H where the Court of Appeal held that:
‘
It seems to me
that in determining an appropriate sentence in such cases (being
matters of culpable homicide arising from traffic
accidents) 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. .
.’
[36]
That approach was followed in
S v
Humphreys
2013
(2) SACR 1 (SCA)
in para 22. I
respectfully propose to do the same in the present matter. In
Humphreys
a school bus driver entered a railway crossing at a time when it was
absolutely inopportune to do so, collided with a train as
a result of
which ten passengers lost their lives. The court remarked that his
behaviour represented
a most reprehensible degree of negligence, amounted to a blatant
deviation from what could be expected from
the reasonable driver and
a flagrant disregard for the safety of others.
Much
the same can be said of the conduct of the appellant in the present
matter.
[37]
The appellant is a young man born on 18 April 1993 and presently 26
yrs of age. He is matriculated, married
with a young child and
employed as an administration clerk. They live with his family where
he contributes to the household. He
is a first offender. But,
as Nugent, JA
remarked
in
S v Vilakazi
2009
(1) SACR 552
(SCA) at para 58:-
‘
In cases of
serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be ..
’
[38] The deceased were also
all men in the prime of their lives. Their deaths inevitably caused
heartbreak, financial
distress, a sense of loss and left a vacuum in
the lives of their families. The two surviving passengers in the
Toyota Yaris were
seriously injured and by all accounts permanently
scarred, both physically and psychologically. Given the state of the
wreck they
appear to have been fortunate to have survived at all.
[39] In
Naidoo
the effective sentence on 13
counts of culpable homicide was reduced upon appeal to an effective 9
years and 9 months’ imprisonment,
taking account of the fact
that the appellant had been in custody for 8 months prior to
conviction. In
Humphreys
the appellant’s effective
sentence was reduced upon appeal on 10 counts of culpable homicide to
8 years’ imprisonment.
[40] In the present matter likewise the offences
are by far too serious not to attract a substantial custodial
sentence. It follows that a sentence of correctional supervision as
contended for on behalf of the appellant is unsuitable in the
circumstances of the matter.
[41] The appellant has shown no serious remorse and
offered a vigorous and specious defence during the trial.
At the
conclusion of his evidence in chief he purported to offer an apology
to the families of the deceased whilst, in the same
breath,
protesting his innocence.
[42]
Having given serious consideration to all the multiple factors
affecting the determination of an appropriate
sentence and
endeavoring to balance them, I have come to the conclusion that the
sentence reflected in the order below will best
meet the needs to the
matter.
The
3 counts of culpable homicide all flow from the same sequence of
actions and I therefore regard it as appropriate that
they should be
taken together for purpose of sentencing.
[43] In the circumstances I
propose an order upon appeal, as follows:-
a.
The appeal
against the convictions on Counts 1, 2 and 3 fails and is dismissed.
b.
The appeal
against the convictions on Counts 4 and 5 succeeds, the convictions
and sentences are set aside and a verdict of “
Not
guilty and discharged.
”
is substituted on each of these counts.
c.
The appeal
against the sentences imposed in respect of counts 1, 2 and 3
succeeds and the sentences imposed by the Magistrate are
set aside
and the following sentence is substituted in their place, namely;
“
Counts 1, 2 and 3
are taken together for purposes of sentence and the accused is
sentenced to serve six(6) years’ imprisonment.
”
VAN ZÿL, J.
OLSEN, J.
JUDGMENT
RESERVED:
26 APRIL 2019
JUDGMENT HANDED
DOWN:
3 May 2019
COUNSEL FOR
APPELLANT:
Mr Attorney S Samuels
Instructed by Siven Samuel & Associates,
Chatsworth, Durban
Tel: 031 402 1237
Ref: VS/AP/M2129
c/o Anand Pillay & Associates
Pietermaritzburg 3201.
Tel: 033 345 1452/3
COUNSEL FOR FIRST RESPONDENT:
Adv F van Heerden
Instructed by The Director of Public
Prosecutions (KZN)
Pietermaritzburg 3201
Tel: 033 845 4400