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[2018] ZAGPJHC 682
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Madikwe v S (A92/2018) [2018] ZAGPJHC 682 (27 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
A92/2018
In
the matter between:
KOMANE
MICHAEL
MADIKWE Appellant
And
THE
STATE
Respondent
JUDGMENT
FISHER
J, (MATSEMELA AJ CONCURRING):
INTRODUCTION
[1]
This
is an appeal against sentence, with the leave of this court. The
appellant pleaded guilty to 3 counts of culpable homicide
and to 1
count of driving a motor vehicle
while
the concentration of alcohol in his blood was not less than 0,05
grams per 100ml
(section 65(2)(a)
of the
National Road Traffic Act of
1996
)
.
[2]
The
appellant received a sentence of 11 years effective imprisonment
calculated as follows: the 3 three counts of culpable homicide
were
taken as one for the purpose of sentence and the appellant was
sentenced to 8 years in respect of these counts; in respect
of count
4 he was sentenced to 6 years imprisonment of which 3 were ordered to
run concurrently with the sentence imposed in respect
of counts 1 to
3.
FACTS LEADING TO CONVICTION
[3]
The
facts of the matter as they emerge from the plea explanation which
the appellant made in terms of section 112(2) of the Criminal
Procedure Act are the following; the appellant had attended a funeral
where he consumed a significant amount of alcohol. He gave
a lift
home to 4 people who had also attended the funeral. On the way home
the appellant drove at an excessive speed on a dangerous
road. As a
result of him driving in this dangerous manner, his vehicle
overturned. The tragic result was that three of the four
passengers
in the vehicle were killed. They were Thembi Martha Mpongoze, Ben
Johannes Banda, and Skumbuzo Eugene Nkosi. They
were apparently
unsuspecting as to whether his ability to drive competently had been
impaired by his consumption of alcohol.
FACTS RELEVANT TO SENTENCE
[4]
The
appellant served 9 months of his sentence before obtaining bail
pending appeal. He has no previous convictions.
[5]
By
the account set out in the report dealing with his suitability for
correctional supervision he was 45 years old at the time of
sentencing. He is married and resides in Vosloorus with his wife and
the two children born of their marriage who were 18 and 8
at the time
of sentence. He was employed as a supervisor and earned R16 000
per month. He started out as a warehouse packer
and it seems that he
was able to work his way up in the ranks of his employer. His wife
was employed as a domestic worker. He had
been employed by the same
company for some years. He has a code 10 driving licence which he has
had for a period of nine years.
[6]
He is
the firstborn of a family of 10 children. He has a good relationship
with all his siblings. He is in good physical and psychological
health. He stated that he consumed alcohol but that he did not use
other drugs.
[7]
The
official compiling the report was of the view that the appellant
would benefit from participating in therapeutic programmes
presented
by the Department of correctional services. He was of the view that a
sentence of correctional supervision was appropriate.
He stated that
it would enable the appellant to be more responsible and also to
enable him to be employed and maintain a healthy
relationship with
his family and community. He found that the accused did indeed
qualify as a candidate for correctional supervision
in terms of
section 276 (1)(h) of the Criminal Procedure Act. It was recommended
that the appellant be so sentenced.
[8]
The
appellant testified in mitigation of sentence. He stated that he was
very remorseful. He said that he was unable to sleep properly
as a
result he stated also that the incidents had affected his eating
habits and appetite.
[9]
He
stated that, if he were sentenced to imprisonment, his family would
suffer financially as he is their main provider.
THE MAGISTRATE’S APPROACH TO
SENTENCE
[10]
The
magistrate made the finding that the appellant was "totally
drunk". The magistrate found his blameworthiness to exist
in the
fact "…that he was driving whilst he was under the
influence of intoxicating liquor, and as a result collided
with these
human beings and killed three people ".
[11]
The
magistrate placed the emphasis on the effects of the negligent
conduct of the appellant. The fact that 3 deaths resulted from
the
negligent driving led him to the conclusion that the only sentence
which would be appropriate was a period of lengthy imprisonment.
For
the conviction on count 4, it appears that the consequence again
weighed heavily in his determination.
[12]
The
facts found were however not the facts of this case. Apart from the
finding by the magistrates that the deceased were killed
while
walking on the side of the road and having been collided with by the
appellant which was not the manner in which the accident
occurred,
the magistrates finding that the appellant was totally drunk is not
borne out by any evidence save the level of alcohol
in his blood. It
is thus not known the extent to which his drunkenness impacted on the
accident.
LEGAL
PRINCIPLES
[13]
The conventional
approach adopted by our courts in relation to culpability for road
accident deaths was succinctly stated in
S
v Nxumalo
1982
(3) SA 856
(AD) by
Corbett JA, who said the following
at 861A-G:
“
Now,
there is no doubt that the Court, when assessing the punishment to be
meted out to a person convicted of an offence arising
from the
negligent driving of a motor vehicle on a public highway cannot, and
should not, ignore the consequences of such negligent
driving,
especially where one of the consequences is the death of another
person and the conviction is of culpable homicide.”
[14]
The
basic
assessment that the Court must undertake is the degree of culpability
of the accused person. 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
must
be considered in this context
.
At
the same time the actual consequences of the accused's negligence
cannot be disregarded (see
S
v Hougaard
1972 (3)
748 (A) at 758F).
[15]
In
S
v Ngcobo
1962
(2) SA 333
(N)
Miller J, at 336H -
337A, made the following useful pronouncement as to the assessment
to be undertaken:
“
Whatever
the result of the negligent act or omission, the fact remains that
what the accused person in such a case is guilty of
is negligence -
the failure to take reasonable and proper care in given
circumstances. His negligence may be slight and yet may
have the most
calamitous consequences, or it may be gross and yet be almost
providentially harmless in the result. I venture to
suggest that the
basic measure for determining fit punishment for a negligent motorist
must be the degree of his culpability or
blameworthiness. In terms of
the judgment to which I have referred, the fact that a death or
deaths resulted from such negligence
is a factor which may and should
be taken into account by the court for purposes of sentence, not so
much for its purely punitive
effect on the culprit, who may not
deserve severe punishment, but for its deterrent effect in
emphasising 'the sanctity of human
life' and in warning motorists
that negligence on the highways may well result in the death of
innocent persons and in severe penalties
being imposed upon those
responsible therefor”
[16]
In
S v Nyathi
2005
(2) SACR 273
at
[13] Conradie JA, after having examined the facts and sentences
passed in a number of similar cases stated as follows with reference
to the facts in that case:
“
Road
accidents with calamitous consequences are frequently caused by
inadvertence, often momentary. Overtaking on a double barrier
line is
not inadvertence. It is a conscious decision to execute a manoeuvre
that involves taking a fearfully high risk.”
DISCUSSION
AND CONCLUSION
[17]
That
the magistrate passed sentence on a completely different set of facts
to those which actually occurred is of grave concern.
This is a
misdirection which goes to the very heart of the consideration
undertaken and vitiates the entire process.
[18]
The
appellant gave scant details of how the accident occurred. I would
urge judicial officers adjudicating on cases such as this
to insist
on detailed evidence being given with regard to the manner in which
the accident occurred. This is, after all, central
to considering the
blameworthiness of the accused. It strikes me that to plead guilty on
the basis that one merely acknowledges
guilt without dealing with the
level of culpability may even be regarded as a ploy to avoid a proper
consideration of matter.
[19]
I had
considered sending the matter back to the magistrate with a direction
to obtain evidence of the details of the accident.
However, I
ultimately determined that there was enough evidence on which
properly to consider the matter.
[20]
The
appellant drove at a speed which was higher than the limit of 100 km
per hour. He did this after having consumed a substantial
amount of
alcohol. He was driving on a road which was single carriage in
opposite directions. The chance that he would endanger
his passengers
was high in the circumstances. As it was, he lost control of the
vehicle and it overturned. This suggests a very
high degree of
culpability. The excessive consumption of alcohol is indeed an
aggravating factor. The fact that 3 people
were killed as a
result of his reckless driving cannot be under- estimated.
[21]
To my
mind however the magistrate over-emphasized the fact that the
negligence had resulted in the deaths of 3 people.
[22]
I
have taken into account that 9 months were spent in jail. I have also
considered the recommendations of the correctional supervision
report
and the evidence given in mitigation. To my mind these aspects
suggest an ability to be rehabilitated, to learn from the
experience
and to be deterred.
[23]
The 3
counts of culpable homicide are taken as one for the purposes of
sentence.
[24]
I may
make mention that, were it not for the time served in prison, I would
have been more inclined to impose a custodial sentence,
albeit for a
significantly shorter period than that imposed.
ORDER
[25]
I
thus make the following order:
a.
The
appeal succeeds.
b.
The
sentence handed down by the magistrate is set aside and replaced with
the following:
“
In
respect of counts 1- 3 (which are taken together): The accused is
sentenced to 3 years' correctional supervision in terms
of
s
276(1)
(h)
of
the
Criminal Procedure Act 51 of 1977
and, in addition,
to 2 years' imprisonment which is suspended, on condition that he is
not convicted of an offence of negligent
or reckless driving.
The following
conditions are imposed in terms of
section 52
of the
Correctional
Services Act 111of 1998
:
1.
The
accused must be placed under house detention for the full duration of
the correctional supervision;
2.
He
must have a fixed residential address;
3.
He
must be physically monitored at his place of residence by way of an
electronic monitoring device ;
4.
He
must perform such community service as shall be determined by
Boksburg Community Corrections for a minimum of 16 hours per month;
5.
He
must take part in the Life Skills Programme conducted by the Boksburg
Community Corrections or any similar programme as may be
recommended
by Boksburg Community Corrections;
6.
He
must refrain from using alcohol or illegal substances including
Marijuana;
7.
He
must not commit any criminal offence;
8.
He
must report to Boksburg Community Corrections once per week on a
Saturday.
In respect of count 4: The
accused is sentenced to 18 months’ imprisonment which is
suspended on condition that he is
not found guilty of any offence
under
section 65
of Act 93 0f 1996.”
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
______________________________________
AJ
ACTING
JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
06
November 2018.
Judgment
Delivered:
27
November 2018.
APPEARANCES:
For
the Appellant:
Mr I Van As
(Attorney).
Instructed
by:
Botha-Booyens & Van
Attorneys.
For
the Respondent:
Adv D Zinn.
Instructed
by:
NPA.