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South Africa: North Gauteng High Court, Pretoria
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[2017] ZAGPPHC 47
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Mashiloane v S (A542/2015) [2017] ZAGPPHC 47 (14 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
A542/2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
14/02/2017
In
the matter between:
BAPHELILE
JOHANNES MASHILOANE
Appellant
versus
THE
STATE
Respondent
JUDGMENT
MPHAHLELE
J
[1]
The appellant was arraigned in the
Middleburg district court on the following charges:
Count 1: Culpable
homicide in that on 19 June 2010 he did wrongfully and negligently
cause the death of Jacob Daniel van Schalkwyk.
In that on 19 June 2010
and on Middelburg/Groblersdal Road, a public road in the district of
Middelburg, he was the driver of a
motor vehicle to wit: Audi with
registration number B[...]; and whereas such vehicle was involved in
or contributed to an accident
in which another person was killed.
Count 2: And whereas he
unlawfully failed to bring such vehicle to an immediate standstill;
therefore he is guilty of contravening
section 61(1) (a) read with
sections 1, 69(1), 73, 89(1) and 89(4) (b) of Act 93 of 1996, as
amended.
Count 3: And whereas he
unlawfully failed to ascertain the nature and extent of any injury
sustained by any person(s); therefore
he is guilty of contravening
section 61(1)(b) read with sections: 69(1); 73; 89(1) and 89(4)(a) of
Act 93 of 1996, as amended.
Count 4: And whereas he
unlawfully failed to render such assistance to the injured deceased
as he was capable of rendering; therefore
he is guilty of
contravening section 61(1) read with sections 1, 69(1), 73, 89(1),
and 89(4)(a) of Act 93 of 1996, as amended.
Count 5: And whereas he
unlawfully failed to ascertain the nature and extent of any damage
sustained; therefore he is guilty of
contravening section 61(1) (d)
read with section 1, 69(1), 73, 89(1) and 89(4) (b) of Act 93 of
1996, as amended.
[2]
The appellant pleaded not guilty to
all the mentioned charges. He was subsequently acquitted on count 1
and found guilty on counts
2, 3, 4 and 5. All the charges were taken
together for the purpose of sentence and the appellant was sentenced
to R8 000-00 or
12 months imprisonment. His licence was also
suspended for a period of six months in terms of section 35 of Act 93
of 1996, as
amended. This appeal is before us with the leave of the
trial court.
[3]
The state led the evidence of three
witnesses and the appellant elected not to testify during the trial
proceedings.
[4]
Mr Johannes Matthews Lodewikus van Staden,
a sergeant in the South African Police Service testified that in June
2010 he attended
a scene of a motor vehicle accident. Upon arrival at
this scene, he noted that there was a head on collision between a
truck and
a motorcycle. The driver of the motorcycle died at the
scene of the accident. He found Mr Zwane, the driver of the truck at
the
scene of the accident. Mr Zwane informed him that he was driving
in the opposite direction of the motorcycle. Mr Zwane informed
him
that there was a car parked on the other side of the road and this
car entered the road in front of the motorcycle. The motorcycle
flashed its lights. All of a sudden, the motorcycle hit the truck
head-on. The accident took place at approximately 19h00. It was
dark
and there was no lighting in the area.
[5]
Sergeant van Staden noted that the
truck was about 300 metres away from the scene of the accident and it
was damaged in the front
part far left. The motor cycle was lying on
the left side of the road and it was badly damaged. There was no
other motor vehicle
found at the scene of the accident.
[6]
Mr David Mduduzi Eugene Zwane
testified that on the day of the incident at around 19h00 he was
driving from Groblersdal to Middelburg.
He observed a motor vehicle
parked next to the road facing the opposite direction. He further
observed a motorcycle, which was
also approaching from the opposite
direction. The motor vehicle, which was parked on the side of the
road, then moved into the
road and caused a collision with the
motorcycle. At the time, the motor vehicle entered the road the
motorcycle was approximately
a kilometre away. The motorcycle drove
straight into the back of the motor vehicle. After the collision the
motorcycle lost control,
entered into his lane of travel, and knocked
into the left side of his truck. He then stopped the truck. Upon
inspection of the
scene of the accident, he only found the
motorcycle. He further noted a dead person and picked up a number
plate, which he later
handed over to the police. He denied that he
informed the police that the motorcycle flashed its lights at any
time before the
accident.
[7]
Mr Jeremia Siphiwe Khumalo testified that
on 19 June 2010 he was travelling with the accused and one Skhwehiti
in the accused motor
vehicle. They were travelling in the direction
of Groblersdal. He was sitting in the back seat of the motor vehicle
on the right-hand
side. The motor vehicle was parked on the side of
the road, on the gravel next to the tarred road and they were busy
preparing
to smoke a 'boxer'. He noted a truck, which was approaching
from the opposite direction. As the truck was passing the motor
vehicle,
he heard a big bang on the right side. He thought that
whatever caused the bang came from the truck. They got a big fright
and
the appellant then drove off. Upon enquiry, the appellant
informed him that due to fright, he failed to stop so they could
check
what happened. Upon arrival at home, they noticed that the
appellant's motor vehicle was damaged at the back on the right-hand
side.
[8]
In its judgment, the magistrate
failed to analyse the contradictory evidence tendered by the two
state witnesses, namely Mr Zwane
and Khumalo on the events that led
to the accident. He further failed to indicate which of the two
contradictory versions was accepted
and which one was rejected by the
court and the reasons therefor.
[9]
The accident took place at around 19h00, it
was dark and there were no streetlights on. Because of the poor
visibility, Mr Zwane
could not even identify the make of the motor
vehicle that was parked outside the road. He noted that the lights of
the motor vehicle
were switched on but could not say whether the
motor vehicle gave the indication that it was about to enter the
road. When he first
observed the motorcycle, he thought it was a
motor vehicle. Mr Khumalo on the other hand gave a detailed account
of the events
that took place on the day in question. Their motor
vehicle was parked on the gravel next to the tarred road whilst
preparing 'boxer'
for a smoke. The driver drove off due to fright
thinking whatever that caused a bang onto their motor vehicle was
from the truck.
Mr Khumalo also thought that the object that caused
the bang on their motor vehicle was from the truck. I find the
evidence tendered
by Mr Khumalo to be more probable.
[10]
Section 61
of the
National Road
Traffic Act 93 of 1996
provides as follows: 'duty of driver in event
of accident. - (1) the driver of a vehicle at a time when such
vehicle is involved
in or contributed to any accident in which any
person is killed or injured or suffers damage in respect of any
property, including
a vehicle, or animal shall-
(a)
Immediately stop the vehicle and report the
accident on the prescribed form and in the prescribed manner, the
officer concerned
shall deal with the report in the prescribed manner
and the Chief Executive Officer must ensure that the accident is
recorded in
the register of accidents in the prescribed manner and
within the prescribed period;
(b)
ascertain the nature and extent of any
injury sustained by any person;
(c)
if a person is injured, render such
assistance to the injured person as he or she may be capable of
rendering;
(d)
ascertain the nature and extent of any
damage sustained.
[11]
Section 61
clearly deals with the duties of a driver of a motor
vehicle in the event of an accident. Based on the accepted evidence
of Mr
Khumalo the appellant was not aware of the accident that took
place. The version of the appellant is reasonably possibly true and
the state has accordingly failed to prove beyond a reasonable doubt
that the appellant was aware that the accident had taken place.
Therefore, the entire
section 61
cannot find application under the
circumstances of this case. It follows that the appeal against the
convictions must succeed as
all the four counts upon which the
appellant was convicted are based on
section 61.
[12]
In the result, the following order is made:
1.
The appeal against the convictions is
upheld.
2.
The convictions by the trial court are set
aside together with the sentence imposed in respect thereof.
S S MPHAHLELE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree and it is so
ordered
E M KUBUSHI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA