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[2018] ZANCHC 97
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Matthys v S (CA&R 7/2018) [2018] ZANCHC 97 (18 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
CA&R 7/2018
DATE
HEARD:
7 MAY2018
DATE
DELIVERED:
18 MAY 2018
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
In
the matter between:
MATTHYS,
RUSSEL
Appellant
and
THE
STATE
Respondent
Coram:
Williams ADJP
et
Olivier J
JUDGMENT
Olivier
J:
[1.]
The
appellant,
Mr
Russel
Matthys,
stood
trial
in
the
Magistrates'
Court
in Upington
on
charges
of
culpable
homicide,
alternatively
a
contravention
of section
63(1)
[1]
of the
National
Road Traffic Act
[2]
(Count
1) and a contravention of the provisions of subsections (a), (b) and
(d) of section 61(1) of the Act (Count 2)
[3]
.
The appellant pleaded not guilty to all charges and gave no plea
explanation.
He was
convicted on both count 1 (on the main charge of culpable homicide)
and count 2.
The
convictions were taken together for purposes of sentence and the
appellant was sentenced to 8 years imprisonment.
The
appellant was subsequently granted leave
to appeal
against both convictions
and
the
sentence.
[2.]
The following aspects were either common cause or never seriously in
dispute:
2.1
On Friday to Saturday 27 to 28 February 2010, at around midnight to
01:00, Mr J R McDonald was
the driver of an Uno motor vehicle that
was travelling from Brandvlei in the direction of Kenhardt.
2.2
The surface of the road was tarred and the distance between Brandvlei
and Kenhardt was approximately
140km. The passengers in the Uno were
Mrs M M McDonald (the wife of Mr McDonald), his daughter Ms Sue
McDonald and his sons Mr
Keenan McDonald and Mr Wendell McDonald. For
the sake of convenience I will in what follows refer to Mr McDonald's
children by
their names.
2.3
That same night the appellant was the driver of a maroon coloured
Toyota Corolla motor vehicle.
His brother, Mr Andre Matthys was a
passenger in the Toyota. According to both of them their brother, Mr
Xenopher Matthys was also
a passenger in the vehicle. The appellant's
version was that there were no other passengers in the vehicle, while
on the evidence
of Mr McDonald and Sue there were four or five
persons in the Toyota.
2.4
Somewhere between Brandvlei and Kenhardt, and in the dark of night,
the Toyota caught up with
the Uno and for some distance thereafter
the two vehicles overtook one another repeatedly. Why that happened,
and exactly how,
were in dispute and will be reverted to.
2.5
Approximately 10 km from Kenhardt the Uno left the road and
overturned. The wife of Mr McDonald
sustained fatal injuries, and
both Mr McDonald and his daughter Sue sustained very serious
injuries.
2.6
Whether the appellant had at that stage brought the Toyota to a
standstill at all, is in dispute.
According to the appellant he did
not, and instead drove to Kenhardt, where he made a report, to which
I will in due course revert,
at the police station. The evidence of
Keenan was that the Toyota did indeed stop at the scene where the Uno
left the road and
overturned, that the occupants of the Toyota then
shouted remarks at them, that the Toyota then reversed and then took
off in the
direction of Kenhardt, with its tyres spinning on the
surface of the road. What is common cause, however, is that the
appellant
did not take any steps to
"ascertain the nature and
extent of any injury"
that may have been sustained by the
occupants of the Uno or to
"ascertain the
nature
and extent of any damage sustained"
by that vehicle.
2.7
At the time of these events there were no other vehicles on that
road, or at least in proximity
of the Uno and the Toyota.
[3.]
The main issues were the following:
3.1
On the evidence of Mr McDonald, Sue and Keenan the appellant had
intimidated and terrorised them by
repeatedly driving up to the Uno
from behind with flashing headlights, then overtaking it and then
slowing down - and even braking,
to such an extent that Mr McDonald
had no other choice but to overtake the Toyota. The appellant's
version, on the other hand,
was that there had been nothing
intimidating or reckless about the way that he overtook the Uno, that
he had never braked or slowed
down to the extent described by the
State witnesses and that the repeated overtaking of each other by the
two vehicles had actually
taken place on the basis of a tacit
agreement between the two drivers that they would drive
"in
tandem"
in order to keep one another awake.
3.2
What exactly had eventually led to the Uno leaving the road and
overturning was also in dispute. The
case for the prosecution, as set
out in count 1, was that the appellant had caused the accident by
causing his vehicle to collide
with the Uno. The appellant's version,
on the other hand, was that his vehicle had never made contact with
the Uno and that the
Uno had left the road when Mr McDonald was busy
overtaking the Toyota and apparently lost control of the Uno.
3.3
Whether or not the appellant's vehicle had been involved in the
accident, or had contributed to it,
as envisaged in section 61(1) of
the
National Road Traffic Act,
was obviously also in dispute.
[4.]
It is trite
that a court of appeal will not readily interfere with the
credibility and factual findings of a trial court.
This is
because of
"the
advantages enjoyed by the trial court which was steeped in the
atmosphere of the trial and had the opportunity of observing
the
demeanour of witnesses"
[4]
.
What is
of importance here
is
whether
the
court
a
quo,
in
evaluating
the
evidence,
followed
the
approach
enunciated
as
follows
in
paragraph
[15]
of
the
judgment
in
S
v
Chabalala
[5]
:
"The trial
court's approach to the case was, however, holistic and in this it
was undoubtedly right
...
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused's guilt.
The
result may prove that one scrap of evidence or one defect in the case
for either party
...
was
decisive but that can only be an ex post facto determination and a
trial court
...
should
avoid the temptation to latch onto one (apparently) obviously aspect
without assessing it in the context of the full picture
presented in
evidence...
"
[6]
.
[5.]
I have already referred to the evidence of Mr McDonald and Sue about
the circumstances surrounding the repeated overtaking.
Their evidence
was that the manner in which the appellant drove his vehicle caused
the occupants of the Uno to be terrified and
the atmosphere in that
vehicle to be tense. They both testified that, at one stage, a
passenger in the Toyota made hand gestures
through an open window of
the Toyota. Their evidence was furthermore that Mr McDonald had asked
Wendell to phone the police and
that he also requested that the
registration number of the Toyota be taken down, which Sue did. Both
of them testified that the
Uno had left the road when the appellant
caused his Toyota to collide or make contact with it at its left rear
side.
5.1
There were differences in the evidence of Mr McDonald
and his
daughter regarding whether the appellant had applied the brakes of
the Toyota, what the following distance between the
Toyota and the
Uno was when the Toyota was behind the Uno, whether the Toyota had at
one stage disappeared behind the Uno and had
possibly stopped for a
while, what exactly the nature of the hand gestures was, whether it
was accompanied by shouting by the occupants
of the Toyota, what
precisely the position of the Uno was on the road when the Toyota
made contact with it, whether the Toyota
bumped or pushed the Uno,
whether that happened more than once and where exactly on the Uno the
point of impact or contact with
the Toyota was.
5.2
There is no
doubt that some of these inconsistencies were material.
The court
a
quo
in
my view had proper regard to
these
"shortcomings",
but
correctly viewed them as part of the whole of the evidence that was
presented, as well as the
probabilities.
It must be
kept in mind that
"Contradictions
per
se
do not lead to the rejection of a witness' evidence.
....,
they may
simply be indicative of
an
error not every error made by a witness affects his credibility; in
each case the
trier
of
fact
has to make
an
evaluation;
taking
into
account
such
matters
as
the
nature
of
the contradictions, their number and importance, and their bearing on
other
parts
of the
witness'
evidence"
[7]
.
It
must also
be kept in mind that Sue
was a
passenger
and was
sitting in the
back
of
the
Uno
vehicle, on the left hand side of it.
The
vehicles were never stationary during these events.
Everything
occurred in the dark of night.
In my view
one would not necessarily have expected Sue to
observe and
experience everything exactly as Mr
McDonald
did, especially not if their vehicle was swerving to avoid being hit
by the Toyota.
In fact,
Keenan did not even see the Toyota at the moment of the accident,
while it is common cause that it was indeed right there.
Also it
must be kept in mind that all of these witnesses testified some five
to six years after the incident.
5.3
What is in my view of considerable importance is
that both Sue
and Keenan corroborated Mr McDonald on how all of them experienced
the appellant's actions before the accident actually
happened, about
Mr McDonald's request that the police be contacted and about his
request that the registration number of the Toyota
be taken down.
[6.]
Keenan did, as already mentioned, not see the Toyota at the moment
that the accident occurred. This is, however, of no consequence
at
all, as it is common cause that the Toyota was present at the scene
when the Uno left the road and overturned. It also appears
that
Keenan had been asleep until shortly before the Uno left the road and
overturned, and the fact that he did not according to
him feel the
Toyota colliding or making contact with the Uno or pushing it off the
road, must be seen in this light. If Keenan
did not even see the
Toyota, it is understandable that he may not have realised that it
was forcing the Uno off the road. It must
furthermore be kept in mind
that, when regard is had to the contents of the police statement of
this witness, he must have been
only about 15 years old at the time
of the events.
[7.]
I have already referred to the evidence of Keenan about the Toyota
stopping at the scene of the accident, reversing and about
the
shouting of remarks. According to him the word
"varke"
(pigs) was shouted at them. Keenan was confronted with the fact
that his police statement made no mention of this, and that his
father and sister knew nothing about it.
7.1
The police
statement comprises of barely two pages.
Police
statements are renowned for,
inter
alia,
being
incomplete and sketchy and for
their lack
of particularity and
"omissions
from police statements, regarding aspects on which the
witness
expands in court"
will
not without more be held against a witness
[8]
.
In
S
v Bruiners en 'n Ander
[9]
it
was held
that it would be far-fetched to expect a police statement to include
everything that the witness will later testify.
In any
event, the contents of Keenan's police statement can by no stretch of
the imagination be said to
be of such
a nature as to
not
leave room
for this evidence.
7.2 What is
significant in this regard is the presence of the black marks that
are visible on the surface of the road
in especially photo 2 of
exhibit "D". They are situated on the right side of the
road in the direction of Kenhardt. It
seems to have been common cause
that those marks were caused by the tyres of a vehicle.
7.2
It was put to Mr K McDonald that the Uno had left the road where
those marks are visible. This,
however, would be irreconcilable with
the position of point 'B' in the same photograph, which according to
the key to the photographs
is the place where the Uno had left the
road. It would also be irreconcilable with the position of point 'C',
where according to
the key the Uno had first landed after having left
the surface of the tarred road. The contents of the key were never in
dispute
and this would mean that the Uno could therefore not have
been on the road, at the point where the skid marks are visible,
before
leaving the road and overturning.
7.3
The presence of the skid marks would, however, be completely
consistent with the evidence of Keenan
about the spinning of the
tyres of the Toyota when it eventually left the scene. They may also
have been caused by the Toyota drastically
braking after the Uno had
left the road, as surmised by Mr McDonald.
7.4
The fact that Mr McDonald and Sue were not aware of the Toyota
stopping, or of the shouting of
remarks and the spinning of its tyres
when it took off again, must be seen in the light of the fact that
both of them were unconscious
immediately after the accident. Mr
McDonald was stuck in the vehicle, and Sue had been flung from it.
[8.]
This brings me to the evidence of Sergeant SJ Khantse, the last
witness called by the prosecution. After having been informed
of the
accident he went to the scene. According to him Mr McDonald informed
him that a maroon coloured Toyota had been involved
in the accident
and he was given the registration number of the vehicle. After having
determined that the vehicle belonged to the
appellant he was not able
to find and inspect the Toyota during that Saturday or Sunday. It was
in fact only on the Tuesday that
he came across the vehicle, being
driven by the appellant. Upon inspection he observed scratch marks on
the right side of the Toyota.
According to Sergeant Khantse the marks
were consistent with the vehicle having brushed or scraped against
another vehicle. Khantse,
who was a colleague of the appellant and
worked with him at the same police station, testified that he had
seen the Toyota every
day and that he had never before observed the
scratch marks.
[9.]
It was never disputed that the registration number of the appellant's
vehicle had been taken down at the request of Mr McDonald,
and that
it had immediately after the accident, and in fact at the scene of
the accident, been given to Sergeant Khantse on the
basis that the
Toyota had been
"involved"
in the incident. Why
would that have happened on the appellant's version? It fits in
perfectly, however, with the scenario painted
by Mr McDonald and Sue,
and even with Keenan's evidence about the events preceding the fatal
accident and immediately thereafter.
[10.]
It was put to Mr McDonald and his children that they had concocted a
false version in order to protect Mr McDonald from being
blamed by
the family for the death of his wife. This makes absolutely no sense.
How would the concocted story have protected Mr
McDonald from the
reproach of Sue and Keenan, and even Wendell, all of whom would have
known if Mr McDonald had in fact been responsible
for their mother's
death?
[11.]
It
was
also put
to
them
that
the
inconsistencies
in
their
evidence
indicated
that their
version was
fabricated in
order
to
substantiate
a damages
claim that
had been instituted against
the Road
Accident
Fund.
It
is in
my
view
far-fetched that Mr McDonald and his two
children
(one of whom
would have
been very young at that stage) fabricated a completely false version,
and indeed one who falsely implicated a completely
innocent person,
for
this
purpose.
It
is in any event not even
clear
on
the
evidence
whether
that
claim
had
been
instituted
at
the
time when
these witnesses
deposed to
their
police
statements.
In any
event,
"the
contradictions
in their evidence negate the suggestion. So far from supporting any
theory of deliberate fabrication and thus a conspiracy
between the
eyewitnesses, the discrepancies in their evidence point rather to
honest and independent observation
and
recollection
”
[10]
.
If
the
three
of
them
had
decided
to
fabricate
this version one would have expected Keenan to not only incriminate
the appellant on the events before and after the accident,
but also
to say that he saw the Toyota at the
time of the
accident and that it
bumped or
pushed the
Uno.
[12.]
The
prosecution witnesses were also confronted with differences between
their evidence and the contents of their police statements.
I have
already alluded to the danger of placing
too much
reliance on differences like these
[11]
.
[13.]
There were many discrepancies and inconsistencies in the evidence of
the appellant:
13.1 In
cross-examination of the McDonalds it was put to them that the reason
why the appellant had decided to drive
"in tandem"
with
the Uno was that, when the appellant initially caught up with the Uno
from behind, the Uno was
"drifting",
that the
appellant was worried that the driver of the Uno could be sleepy and
that he had therefore decided to drive
"in tandem"
to
keep the driver of the Uno awake. This version would of course in
itself raise the question why the appellant did not simply
stop the
Uno to find out why it was drifting. He was, after all, a police
officer. The statement was in any event contradicted
by the appellant
in his evidence, when he not only made no mention of
"drifting",
but in fact testified that the Uno had been driving normally and
that the reason why he had decided to drive
"in tandem"
with the Uno was to keep both of them awake on the long stretch
of road between Brandvlei and Kenhardt. When the appellant was
confronted
with what his attorney had put to the witnesses for the
prosecution, he promptly changed his version and said that he could
have
been wrong in his evidence and that the Uno vehicle may indeed
have drifted and that it could be that the Uno had travelled faster
and slower, and
"heen en weer oor die pad".
13.2 In
cross-examination of the prosecution witnesses it was put to them
that the appellant had, whenever he wanted Mr McDonald
to overtake
him, merely slowed down. It was never put to any witness that the
appellant had in fact applied the brakes of his vehicle,
which would
of course have fitted in perfectly with the version of Mr McDonald.
In his evidence, however, the appellant conceded
that he may have
applied the brakes of his vehicle, but suggested that it would have
been because there were wild animals on the
road. This was clearly a
new version, and was never put to Mr McDonald or any of the other
prosecution witnesses.
13.4 As
already indicated there would, on the appellant's version, have been
no reason at all for the occupants of the
Uno vehicle to have been
terrified, or for any of them to have seen the need to contact the
police and to take down the registration
number of the appellant's
vehicle.
13.5 The
appellant's evidence regarding the accident itself was that he had
caught up with the Uno from behind, after
having stopped for a short
while. According to him he then decided, when approaching the Uno
from behind, that he was near enough
to Kenhardt and that he would
head home. His version was that he then overtook the Uno and headed
home.
This would mean that the
appellant's vehicle had at that stage been travelling at a faster
speed than the Uno. On the appellant's
version that the accident
occurred while the Uno was in the process of overtaking his vehicle,
it would necessarily mean that Mr
McDonald had then, for some unknown
reason and contrary to what the two of them had according to the
appellant been doing before,
increased the speed of the Uno,
sufficiently to catch up with the Toyota and to be in a position to
overtake it. Why would Mr McDonald
have done that? It was also never
in cross-examination put to Mr McDonald that he had at any stage
attempted to overtake the appellant's
vehicle without it having first
slowed down.
13.6 It was
never put to any of the prosecution witnesses in cross
examination that the Uno had made contact with
the edge of the tarred
road or the gravel shoulder of the road and had then
"zig-zagged"
across the road before leaving it. This is what the appellant
testified he had observed. It was in fact put to Mr McDonald that the
appellant does not know what had caused Mr McDonald to lose control
of the Uno.
At a later stage in his
evidence the appellant denied having actually seen the Uno leaving
the road, but this is what he had on
his own version told the police
in Kenhardt when he went there to report the incident. It also
contradicted his earlier evidence
that he had indeed observed the Uno
leaving the road.
13.7 The
appellant's version was that he did not stop when the Uno left the
road (or at the very least when he suspected
that it may have left
the road) and that he instead drove to the police station in Kenhardt
and reported the incident. It was put
to the prosecution witnesses in
cross examination that the reason for this was that the
appellant had no airtime on his cell
phone and that he decided that
it would in the circumstances be better to report the incident to the
police.
This is, in my view,
irreconcilable with the version that he had earlier been so concerned
about the occupants of the Uno vehicle,
and about the risk that its
driver may fall asleep, that he had decided to inconvenience himself
and to drive
"in tandem"
with them to avoid
this. On the appellant's own version there were at least two
passengers in his vehicle. According to him he did
not know whether
they had cell phones or airtime, but nothing prevented him from
staying at the scene and sending them to the police
station in his
vehicle, or leaving them at the scene and driving to the police
station himself.
When confronted with this
improbability in cross-examination the appellant testified that he
had been shocked. This, in turn, would
be completely inconsistent
with his conduct, on his own version, after having reported the
incident at the police station. According
to him he then went on to
spend time at a tavern with friends of his. Why would he not at least
then have called his colleagues
to find out what they had found at
the scene?
13.8 As
regards the report made by the appellant, he testified that he had
told Const. Kgaje that the Uno had left the
road. It was put to Sue,
however, that the appellant had been unsure whether an accident had
in fact happened, and that he had
told the police to go and look if
an accident had in fact happened. To Mr McDonald it was put that the
appellant had told the police
that there was a possibility that an
accident had taken place. The statement to Sue and this evidence of
the appellant are inconsistent
with what he had, according to him,
reported.
On the appellant's
evidence as a whole it is very clear that he at that stage knew very
well that the Uno had left the road. He
says that he was shocked by
it. That is completely irreconcilable with a report to the effect
that he does not really know whether
an accident had occurred or not.
13.9 In
cross-examination of Sergeant Khantse, the initial investigating
officer, it was put to him that he had contacted
the appellant two
days after the incident and had then told him that photographs had to
be taken of his vehicle by the Local Crime
Record Centre (the
"LCRC')
of the police, that they however did not turn up, that the
appellant then later made enquiries to find out when they were in
fact
coming and that, in response to his enquiries, Khantse told him
that the LCRC was no longer going to take photographs of the vehicle.
Sergeant Khantse denied
this version, and the evidence of the appellant was completely
inconsistent with it. The appellant testified
that Khantse and a
police official by the name of Hendricks came to his house and said
that they wanted to inspect his vehicle.
According to him his vehicle
was at his house at that stage. He testified that they then asked him
to take the vehicle to the police
station to be inspected. According
to him he went there, but when he got there the two of them were not
there. He testified that,
when he left there, he came across them in
the street. In fact, the appellant's attorney blamed Khantse, in
cross-examination,
for not having gone to the appellant's house to
find the vehicle.
[14.]
The evidence of Captain Van Wyk, also a police official and also
stationed in Kenhardt, like the appellant, was presented
on his
behalf. Not only was he a colleague of the appellant, and also his
commanding officer, but he was indeed a cousin of the
appellant.
14.1 According to
Capt Van Wyk he had not been in Kenhardt on the particular Friday or
the Saturday and had only returned
to Kenhardt on the Sunday. He
testified that he had visited the house of the appellant almost daily
and that he had seen his vehicle
on a daily basis.
14.2 The
appellant's version was that the Toyota had a scratch mark on the
left side, but that he had bought it that way and
that Captain Van
Wyk had been the previous owner of the Toyota. Van Wyk confirmed the
presence of the mark on the left side of
the Toyota, but was not
prepared to say that there had not after the date of the incident
also been scratch marks on the right
side of the vehicle. He
testified that he
"believed"
that he had seen
the vehicle after the date of the incident, but that he had not
looked at it specifically and was not able to dispute
the evidence of
Sergeant Khantse about the presence of scratch marks on the right
side of the Toyota after the date of the incident.
[15.]
The evidence of Mr Andre Matthys, the last defence witness, about the
events of that night was also inconsistent with that
of the
appellant:
15.1 He described
the occupants of the Toyota as
"Ek, my broer en Xenopher en
die beskuldigde",
which would mean that there would have
been four people in the Toyota. That would be consistent with the
evidence of Sue to the
effect that there were at least four people in
the Toyota, and possibly five. As already mentioned the appellant's
version, on
the other hand, was that there were only three people in
the Toyota.
15.2 Mr Matthys
testified that the Uno had travelled on the right side of the road,
and in fact on the shoulder of the road,
at the time when they first
approached it from behind. From the photographs it is clear that the
only shoulder that the road had,
was in fact the gravel next to the
tarred surface. Mr Matthys furthermore testified that he got the
impression that the driver
of the Uno was drunk, and that the
appellant then enquired from the passengers in the Toyota whether
they should not drive
"in tandem"
with the
Uno. This is inconsistent with the evidence of the appellant that
there was nothing wrong with the way in which the Uno
was being
driven at the time when he decided to assist the driver to stay
awake. It is also inconsistent with the statements to
Mr McDonald and
Sue that the Uno had drifted across the road at that stage. It was
never put to them that the Uno had ever at that
stage been on the
shoulder of the road.
15.3 Mr Matthys
denied that the appellant had ever flashed the headlights of his
vehicle before overtaking the Uno, which
directly contradicted the
appellant's version in this regard.
15.4 Mr Matthys
testified that, after they had stopped and then again caught up with
the Uno, the two vehicles had again overtaken
each other about three
of four times, before the Uno eventually left the road. This is
inconsistent with the appellant's version
that he, on that occasion,
overtook the Uno only once and that the Uno had only once thereafter
attempted to overtake him after
that, when the accident happened.
15.5 Mr Matthys testified
that he had, after the accident, suggested that they should stop and
phone the police, but that the appellant
had no airtime, and that the
battery of Xenopher's cellphone was flat. This is very difficult to
reconcile with the appellant's
version. Although he also said that he
had no airtime, he went on to say that he does not know whether the
others had cell phones
with them, which is difficult to reconcile
with a version which would suggest that there had in fact at that
stage been a discussion
amongst them about exactly this issue.
[16.]
Although there were inconsistencies in the evidence presented by the
prosecution, the court
a quo
adopted the correct approach in
considering them as a part of all of the evidence presented by both
the prosecution and the appellant,
including the probabilities and
improbabilities in such evidence. In my view there is no basis upon
which this court could interfere
with the trial court's credibility
findings in these circumstances.
[17.]
This brings me to the appeal against the sentence. In
Packereysammy
v S
the approach to be adopted by a court of appeal in this
regard was restated as follows:
"Punishment is
pre-eminently a matter for the discretion of the trial court.
The
court on appeal is not to erode such discretion; on appeal no general
right exists to interfere with a sentence imposed by the
trial court.
It
will only interfere if the discretion has not been judicially and
properly
exercised.
This
will
be
so
only
where
the
sentence is vitiated by an irregularity or misdirection or is
disturbingly inappropriate".
[12]
[18.]
The appeal against the sentence is based on just one ground,
viz
that the issue of retribution, the interests of the community and
the seriousness of the offences were over-emphasised at the expense
of the appellant's personal circumstances. The only argument advanced
on behalf of the appellant before us was that the seriousness
of the
offences had been over-emphasised and the favourable personal
circumstances of the appellant under-emphasised, and that
the
sentence imposed is shockingly inappropriate.
[19.]
The appellant's personal circumstances are reasonably favourable and
were taken into account by the court
a quo.
The
appellant is, at the age of 38 years, a first offender. He is a
member of the South African Police Services, holds the rank
of
Constable and earns a salary of R15 000.00 per month. It is common
cause that a custodial sentence will lead to the loss of
the
appellant's employment.
[20.]
Although the appellant is not married he has a 6 year old child,
towards the maintenance of whom he contributes a monthly
amount of R1
000.00. He lives with his parents, and to this end he pays an amount
of R1 500.00 per month to them. He also contributes
to other
financial expenses of his parents, for example by paying their policy
premiums.
[21.]
The child's mother is also employed fulltime, and works shifts. When
she is at work, the child stays with the appellant and
his parents.
[22.]
The appellant is also actively involved in church activities, more
specifically the church choir, and he also helps out at
a school
after working hours.
[23.]
The court
a quo
was quite correct to regard the inordinate
delay in the prosecution of the appellant as a mitigating factor. The
crimes were committed
in February 2010. The appellant appeared in
court for the first time approximately 4 and half years later, on 5
September 2014.
There is no explanation for this.
[24.]
The trial itself began on 24 March 2015 and the evidence was
concluded on 26 May 2016, when the matter was postponed for
approximately 2 months for argument. While this postponement is
perhaps understandable, it is completely unacceptable that the
magistrate only delivered judgment between 8 and 9 months later
(after three postponements).
[25.]
After evidence had been presented on sentence, and the matter had
then been postponed for about a month for argument on sentence,
the
magistrate did not after having heard argument proceed to sentence
the appellant, but instead postponed the matter for another
approximately 1 month to consider sentence.
[26.]
The end result is that the appellant was only sentenced in August
2017, almost 3 years after first appearing in court and
about 6 and a
half years after the incident. The undisputed evidence of Mr R F
Newman, a social worker, was that the appellant
had told him that the
criminal trial caused him to feel emotionally drained and to have
nightmares.
[27.]
There can be no doubt that the possibility of being charged, and
later the reality of facing charges that could result in
his
imprisonment, must have caused the appellant considerable
"mental
anguish"
and that the exceptionally long delay would have
exacerbated this, and this most certainly constitutes a mitigating
factor
[13]
.
[28.]
As already mentioned, it is clear from the judgment on sentence that
the court
a quo
did indeed take the delay in the prosecution
into account as a mitigating factor, and it has not been argued on
behalf of the appellant
that, on the available information,
insufficient weight was attached to this issue.
[29.]
This
brings
me
to
the
offences
of
which
the
appellant
has
been
convicted.
Counsel for
the
appellant,
Mr
Van
Heerden, in submitting that the seriousness of particularly
the
offence
of
culpable
homicide
was
over-emphasised,
made
reference
to
S
v
Naicker
[14]
and
S
Nyathi
[15]
.
In
the
latter
of
these
two
cases
sentences in
matters
like these over a period of 10 years before that
judgment
were considered and compared.
[30.]
In the
Naicker
case a
sentence of 2 years imprisonment was set aside on appeal and the
matter was remitted to the trial court for consideration
of a
sentence in terms of section 276(1)(h) of the
Criminal
Procedure Act
[16]
(in
other words correctional supervision without any imprisonment), after
it
was
found that the appellant in that matter had not been grossly
negligent in driving at a high speed, and failing to keep a proper
lookout when he changed lanes and his vehicle collided with another,
resulting in the death of a passenger in the
vehicle
driven by that appellant.
What
distinguishes the facts in the
Naicker
case
from those in the present matter is that the appellant in that case
had caused the
accident by
his failure to keep a proper lookout, and therefore through an
omission.
His driving
at a high speed was not aimed at causing the accident.
In the
present matter the accident was not
caused by a
negligent failure to avoid the accident, but instead by a deliberate
and reckless action, indeed aimed at causing the
accident.
[31.]
In the
Nyathi
case
the appellant had been convicted on 6 counts of culpable homicide and
was sentenced to 5 years imprisonment, of which 2 years
were
conditionally suspended.
The
appellant in that matter had overtaken another vehicle on a blind
rise, resulting in a head-on collision between his vehicle
and an
oncoming minibus, and the deaths of 6 passengers in it.
On appeal
the conduct of that appellant was found to have been grossly
negligent.
Although
there were more fatalities in the
Nyathi
case
than in the present
matter, the
"degree
of
...
culpability
or blameworthiness"
[17]
of the
appellant in the present matter is in my view far greater than that
of the appellant in the
Nyathi
case.
Once again
the appellant
in the
Nyathi
matter
did not deliberately cause the
accident.
Instead it
was found that there had on the part of that appellant been a
"conscious
assumption of the risk of a devastating collision"
[18]
.
[32.]
In cases
like these
"the
consequences of negligent wrongdoing are less important than the
degree of blameworthiness of the
wrongdoer,
measured by the extent to which his conduct deviates from that of the
reasonable man in the circumstances"
[19]
and the
fact that the present appellant's conduct resulted in only one death,
and not in six deaths like was the case in
Nyathi,
is
therefore
not decisive.
[33.]
Other cases of culpable homicide through reckless or negligent
driving and in which sentences of direct imprisonment without
the
option of a fine were imposed or confirmed are:
33.1
S v
Birkenfield
[20]
:
Two
people had died and a sentence of 5 years imprisonment in terms of
section 276(1)(i) of the
Criminal
Procedure Act
was
imposed;
33.2
S v Van
der Merwe
[21]
:
In this
matter the accident, which resulted in the death of one person, was
found to have been caused by a high degree of negligence,
but not
recklessness.
The
appellant had also failed to stop and to lend assistance.
On appeal
the sentence of 18 months imprisonment was altered to the extent that
9 months thereof were conditionally suspended;
33.3
S v
Sikhakhane
[22]
:
The
accident resulted in four deaths and imprisonment for
a period of
2 years was imposed;
33.4
S v
Greyling
[23]
:
The
particular accident resulted in four deaths and a period of 12 months
direct imprisonment was imposed;
33.5
S v
Khoza
[24]
:
in this
matter it was found that the accident, which had resulted
in
one
death,
was
caused
by
ordinary
negligence,
and
a sentence
of
3
months
imprisonment,
as
well
as
a
further
3
months
imprisonment conditionally suspended, was imposed on appeal;
33.6
S v
Mncunza
[25]
:
The
appellant in this matter had driven a public vehicle at a high speed,
while drinking, and the accident resulted in one death.
A sentence of
9 months imprisonment
was
confirmed on appeal;
33.7
S v De
Bruin
[26]
:
The
vehicle driven by the
appellant
in this matter, after he had consumed alcohol, was involved in an
accident which resulted in the deaths of three people.
The
appellant had three previous convictions of driving under the
influence of alcohol or driving a vehicle while the level of alcohol
in his blood was higher than permitted.
A sentence
of 3 years imprisonment was imposed on appeal;
33.8
S v
Ngcobo
[27]
:
In this
matter the appellant was found to have been grossly negligent in
causing the accident which had resulted in the deaths of
four people
and injuries to twenty four other people.
On appeal
the original sentence on 3 years imprisonment was altered to the
extent that 1 year thereof was suspended conditionally;
and
33.9
Mapipa v
S
[28]
:
A
sentence of 4 years imprisonment, where one person had died and the
driver had been under the influence of alcohol, was confirmed
on
appeal.
[34.]
The offence
of which the appellant
has been
convicted on count 2 is also a serious one.
The maximum
prescribed sentence for failing to stop and to ascertain the nature
and extent of injuries and damage is 9 years imprisonment
"in
the
case of the death or
serious
injury to a person"
[29]
•
[35.]
Ms J Y Matthews, who was tasked with the preparation of a so-called
supervision report, expressed the opinion that correctional
supervision (presumably in terms of section 276(1)(h) of the
Criminal
Procedure Act)
would be an appropriate sentence in this case. In
cross-examination she had to concede, however, that this
recommendation was based
solely on the version of events given to her
by the appellant, who had persisted in denying that he had in any way
caused the accident.
[36.]
In my view the court
a
quo
was correct in
finding that a non-custodial sentence would not sufficiently reflect
the seriousness of the offences in the present
matter. Mr Van Heerden
did not argue, in my view wisely so, that this finding was wrong. He
suggested, however, that a sentence
of 4 years imprisonment would
have been appropriate in the circumstances.
[37.]
The sentence of 8 years imprisonment is undoubtedly, when compared
with other matters in which direct imprisonment was imposed,
a heavy
sentence. The facts of the present matter are, however, in my view
distinguishable and considerably more serious than those
of any of
those cases. Unlike even the appellant in the
Nyathi
matter,
the appellant in the present matter did not merely assume the risk
that the accident would happen. He deliberately caused
the accident,
and was grossly negligent as regards the consequences of such an
accident.
[38.]
The court
a
quo
in
my view correctly took into account that the appellant was not an
"ordinary
person",
but
indeed a police officer.
Although it
cannot be said that the appellant abused his position in committing
these offences, it is indeed shocking that the person
who had
terrorised the McDonalds on that lonely stretch of road in the dark
of night and who had eventually deliberately caused
them to be
involved in an accident which cost the
life of
their wife and mother, turned out to be an officer of the law
[30]
.
[39.]
It must also be kept in mind that the events lasted quite some time.
In fact, if the appellant and his brother are to be believed
he had
at one stage pulled
off
the road and spent some time there
before catching up with the Uno again. It is clear therefore that the
appellant had ample time
to reflect.
[40.]
It is also aggravating that the appellant never showed any remorse.
After having made a report which on his own version did
not in any
way betray that he was responsible for the accident, he went to a
tavern, where he spent some time with friends before
going home to
sleep. The next day he went about his business as if nothing had
happened, and again drove to Brandvlei for some
sport event.
[41.]
The sentence imposed by the court
a quo
is also to serve as
punishment for not stopping to establish the nature and extent of
injuries and damages which could have resulted
from the accident. As
already pointed out, this is in itself a serious offence.
[42.]
I am, in
the light of all circumstances, not persuaded that the court
a
quo "exercised its sentencing discretion improperly or
unreasonably''
[31]
.
[43.]
In the premises the following order is made:
THE
APPEAL IS DISMISSED IN
RESPECT OF BOTH THE CONVICTIONS
AND
THE SENTENCE
AND THE CONVICTIONS AND SENTENCE ARE CONFIRMED.
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
CC
WILLIAMS
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For
the Appellant:
ADV CF VAN HEERDEN
(Instructed
by
Van Der Westhuizen Le Roux Inc, Kakamas
)
For
the Respondent:
ADV K F ILANGA
(On
behalf of
The Director of Public Prosecutions
)
[1]
Reckless or negligent driving
[2]
93 of 1996
[3]
Subsections (a), (b) and (d) of section 61(1) of the Act pe1tain to,
respectively and in the event that a vehicle
"is
involved in or contributes to any accident in which any person is
killed or injured or suffers damage in respect of any property,
including a vehicle
...", the failure to immediately stop
such vehicle, the failure to ascertain the nature and extent of any
injury sustained
by any person and the failure to ascertain the
nature and extent of any damage sustained.
[4]
Karrim
v S
[2012)
2 All SA 125
(SCA) para [65]
[5]
2003 (I) SACR 134 (SCA)
[6]
See also
"BS"
and another v S
[2015]
JOL 32613
(SCA) para [17]
[7]
S v
Mkohle
1990
(1) SACR 95
(A) at 98 f-g; See also
Deppe
en 'n Ander v S
[2013)
JOL 31075 (SCA) para [15]
[8]
Compare
Meje
and another v Mocumi
[2015]
JOL 32802
(FB) para [6].
[9]
1998 (2) SACR 432
(SECLD) at 437h - i
[10]
Morgan
v S
[2009]
2 All SA 158
(SCA) para [21]
[11]
Compare also
S
v Bruiners en 'n Ander
,
supra
(footnote
8), at 437 g- 438 a;
S
v Govender and Others
2006 (1) SACR 322
(ECD) at 326
[12]
[2003] JOL 12156
(SCA)
para
[5]
[13]
See
S v
Roberts
2002
(2) SACR 522
(SCA) para [22]; Compare also
Michele
and another v S
(2010]
1 All SA 446
(SCA) at 450 (Also reported as
2010 (1) SACR 131
(SCA))
and Hendricks v S (2010]
4 All SA 184
(SCA) para's [48] and [50]
[14]
1996 (2) SACR 557 (A)
[15]
2005 (2) SACR 273 (SCA)
[16]
51 of 1977
[17]
R v
Barnardo
1960
(3) SA 552
(A) at 557D - E; See also
S
v Nxumalo
1982
(3) SA 856
(AD) at 861A - G
[18]
Para [22]
[19]
Oelofse
v S
[2002] JOL 9256
(EC) at p2
[20]
2000 (1) SACR 325 (SCA)
[21]
1992 (1) SACR 48
(Nm)
[22]
1992 (1) SACR 783 (N)
[23]
1990 (1) SACR 49 (A)
[24]
1990 (1) SACR 693 (T)
[25]
1990 (2) SACR 96 (Tk)
[26]
1991 (2) SACR 158 (W)
[27]
1962 (2) SA 333
(N)
[28]
[2009] JOL 24219 (ECG)
[29]
Section 89(4)(a) of the
National
Road Traffic Act
[30]
Compare
S
v Strydom en 'n Ander
1994
(2) SACR 456
(W) at 465 d-h;
S
v Von Molendorff
1987
(1) SA 135
(TPD) at 171E-F
[31]
Hewitt
v S
[2016]
JOL 36057
(SCA) ([2016] ZASCA 100) para's [8) and [9]