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[2017] ZAFSHC 19
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Muller v S (A172/16) [2017] ZAFSHC 19 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A 172/16
In
the matter between:
CHRISTIAAN
JOHANNES MULLER
Appellant
and
THE
STATE
Respondent
HEARD
ON:
5
DECEMBER 2016
JUDGMENT
BY:
MOKGOBO,
AJ
et
DAFFUE J
DELIVERED
ON:
9
FEBRUARY 2017
A
INTRODUCTION
[
1]
This is an appeal granted on petition by this court against both the
conviction and sentence. The Appellant was convicted and
sentenced in
the magistrate’s court sitting at Frankfort on one count
of culpable homicide arising from a motor vehicle
collision. He was
consequently sentenced to a period of eighteen (18) months
imprisonment suspended for a period of four (4) years
on appropriate
conditions. In addition thereto his driver’s licence was
suspended for a period twelve(12) months. The Appellant
was further
sentenced to correctional supervision for a period of eighteen (18)
months in terms of Section 276 (1) (h) of Act 51
of 1977. The
Appellant felt aggrieved by the conviction and sentence, hence this
appeal.
B
EVIDENCE
PRESENTED
[2]
The following evidence appear from the record of proceedings.
[3]
Ms Bierman on behalf of the State testified that she was a driver of
a Ford Ranger bakkie (“Ranger”) on the R34
to Frankfort.
This is atarred road. She was driving at a speed of
approximately 100 km/h. Both her children, who were
passengers in her
motor vehicle were not restrained. When she approached the
intersection, a motor vehicle driven by the accused
entered the R34
without stopping. She applied brakes but not hard and swerved to the
left to avoid a collision with the vehicle
driven by the accused. Her
motor vehicle left the road and struck the first small tree, moved
forward and struck the second bigger
tree. She further
testified that the gravel road on which the accused was driving is
not in a good condition and the accused
was driving fast under the
circumstances. She had the right of way. The accused told her that he
was late for his appointment and
repeatedly said that he is sorry.
[4]
She denies that her attention was distracted by an incoming call on
her phone. She further testified on a question by the prosecutor
that
she did not know whether she hit a big stone on the gravel shoulder
of the road depicted on a photograph shown to her.
Appellant’s
legal team did not cross-examine her at all in this regard. She
is adamant that the whole incident was
triggered by the accused who
entered the R34 road without stopping. Whilst her motor vehicle was
stationery she received a call
that went on voicemail. On their way
to the hospital she called her Doctor. The time lapse between the
calls was one minute fifty-six
seconds. On the way to the hospital
she also called her husband. Her child died later as a result
of the injuries sustained
in the incident.
[
5]
Adv Engelbrecht on behalf of appellant cross-examined at
length. owever, her testimony did not change in any material
respect save of course that she could not explain the short lapse of
time between the incoming call that went on voicemail and
the first
outgoing call with the events immediately after the incident up until
the transportation of the child to the hospital.
She was emphatic
that the reason she swerved was to avoid a collision with the motor
vehicle driven by the accused.
[6]
Dr Humphries conducted a post mortem, testified that the deceased
sustained a ruptured spleen and the extent of the injuries
are
consistent with high speed accidents. It is his opinion that Ms
Bierman was driving at a speed of about 100 km/h. It
was
further his testimony that even if the child was restrained, she
could have easily sustained neck injuries and might not have
survived
the accident.
[7]
Ms Linette Van Zyl testified that she is a cellphone expert at
Vodacom. She further testified that the incoming call was
disconnected
by the caller and went to voicemail. The disconnected
call and the outgoing calls were made from different locations.
Although
she is not in a position to locate the exact spot from which
the calls were made, she is sure that the calls were received and
made at different spots. Her conclusion was informed by the fact that
the missed call was captured by the Schaaprand tower and second
call
was captured by the Frankfort tower. It was the testimony of the
cellphone expert that the signals of the two towers does
not overlap,
however, where they overlap the stronger tower will capture the
signal.
[9]
Mr Prinsloo testified that the call made at 07h14 and the
following call were received and made at different spots. One
minute
fifty six seconds may lead to another coverage depending on the road.
He further testified that the Schaaprand and Frankfort
towers are not
direct neighbours of one another and that the Schaaprand tower does
not provide coverage on the R34, the tarred
road travelled by Ms
Bierman, in the vicinity of the scene of the accident.
[10]
Judith Swanepoel is a Captain in the SAPS. She testified that Ms
Bierman informed that the accused did not stop at the intersection.
The accused was in a shocked state. She has no experience of
accidents involving speed. She took photos of the scene and observed
that the spot where the Ranger driven by Ms Bierman left the road was
almost even with the intersection with the gravel road. She
also
observed rolling marks from where the Ranger left the road. There
were no brake marks on the tarred road. The left tyre
of the
Ranger was flat and there was a dent in the rim and part of the rim
was missing. On the same day of the incident they
used the
Police vehicle, a Toyota Hilux 4X4 to determine the distance in
which one can bring the vehicle travelling at a
speed of 100 km/h to
a standstill. Warrant Officer Meyer drove the 4x4 at a speed of
100km/h and applied brakes. The vehicle
came to a standstill
within five meters. However the distance was never measured.
She cannot recall whether their vehicle
left brake marks on the road.
[11]
Benjamin Kotze is a Warrant Officer in the SAPS. He testified
that he does accident investigations in the Eastern Free
State. His
duties entails amongst others to give a detailed report of the scene,
positions of the respective vehicles and to determine
the cause of
the crash. On 8/11/2013 the scene was pointed out to him by Captain
Swanepoel. A crash occured on the intersection
of the R34 provincial
road and the S758 secondary route. There are no obstructions visible
on the R34 and S758 for a distance of
200 meters. A posted stop sign
was clearly visible on the left hand side of the S758. When he
visited the scene, marks and debris
were still visible. All the tyres
of the Ranger were fairly new and inflated except the left front
tyre. The rim of the left wheel
was bent as a result of the impact.
The dent on the rim could have been caused by a stone or any hard
object which could have been
removed since he only visited the scene
two days after the incident. According to his observation the cause
of the crash can be
attributed to driver negligence as no
enviromental or vehicle factors coud be found that might have
contributed to the crash. He
was not in a position to express any
opinion on speed as speed calculations are normally done on skid
marks as a reliable factor.
[12]
Mr Muller, the appellant, testified that when he approached the
intersection, he made the necessary observations and when he
realised
that there was no car in sight, he entered the R34 driving at a
speed of 5 km/h. Whilst on the tarmac he heard a
noise from the back
and noticed that a Ford Ranger bakkie had veered off the road
whereafter it struck the trees.
[13]
He further testified that he paid an amount of R100 000
for hospitalisation of the injured child as a gesture of
goodwill and
not as a sign of any guilt on his part. However, that money was
paid back to him when the child succumbed to
her injuries.
[14]
He further testified that on the same day and on advice of his
attorney they visited the scene of the incident. The reasons
he
advanced for the visit is that the attorney wanted him, firstly to
explain the situation and secondly to show him certain points.
[15]
Appellant further denied that he had ever said that he was late for
his appointment. He had an appointment with his attorney,
but there
was no specific time set for the appointment. He admitted to have
said “sorry”, but contended that the words
were not
uttered as a sign of guilt but were said as sign of sympathy to the
situation in which Ms Bierman found herself.
[16]
Mr A Claassen testified that according to his opinion, Ms Bierman was
driving at a high speed of about 142 km/h. Her motor
vehicle struck
the stone on the gravel shoulder of the road and to the left of the
tarmac, the left front tyre deflated causing
the vehicle to
immediately veer off to the left and striking the trees. Ms Bierman’s
vehicle was already off the tarmac at
that stage. His opinion is
based on information given to him and his visit of the scene prior
the commencement of the trial and
during the inspection
in
loco
.
[17]
Mr D Claasen is the attorney of record. He testified that there was
no specific time set for the appointment with the accused.
However,
on a question by the court he admitted that there was an arrangement
to meet before 09h00.
[18]
It was on the basis of this evidence that the appellant was convicted
and sentenced. He feels aggrieved by the conviction and
sentence and
now approaches this court with leave granted on petition.
C
GROUNDS
OF APPEAL
[19]
Ad
conviction
(i)
The
magistrate committed a grave irregularity and has misdirected himself
when he evaluated the evidence of the witnesses and erred
in taking
judicial notice of his own feelings and experiences.
(ii)
The
magistrate erred in rejecting the fact that the first cellphone call
was made to Bierman’s cellphone prior to the incident
of
Bierman’s vehicle striking the trees.
(iii)
The
magistrate erred in rejecting the fact that the left front wheel of
Ms Bierman’s vehicle struck the stone.
(iv)
The
magistrate erred in accepting the evidence of Dr Humphries that the
deceased would have died even if she was restrained.
(v)
The
magistrate erred in rejecting the contention of the defence that
Bierman’s negligence constituted a
novus
actus interveniens
.
(vi)
The
magistrate erred in finding that Bierman drove at a reasonable speed
and thus rejecting the expert opinion of Claassen that
Bierman was
travelling at an excessive speed.
(vii)
The
magistrate erred in accepting the evidence of Bierman.
(viii)
The
magistrate erred in rejecting the evidence of the Appellant and
should have accepted the evidence of the Appellant as truthful.
(ix)
The
magistrate erred in finding that the failure of the Appellant to
bring his motor vehicle to a standstill at the stop sign constituted
negligence on the part of the Appellant.
(x)
The
magistrate erred in not accepting the evidence of Claassen as
truthful; especially that Claassen’s opinion as regards
to
speed was corroborated by Dr Humphries.
[20]
Ad sentence
(i)
The
magistrate erred in finding that the merits of the case required a
suspension of the driver’s licence of the Appellant
as well as
the fact that the Appellant must produce a certificate of competency
to the Commissioner of Correctional Services before
he is allowed to
drive a motor vehicle on a public road.
(ii)
The
magistrate erred in accepting the evidence of the traffic inspector
as proof that the Appellant was not a fit and proper person
to drive
a motor vehicle on a public road.
D
SUBMISSIONS
BY THE DEFENCE
[21]
Adv Engelbrecht argued before us that the incoming call that went on
voicemail was received prior to the incident and it was
that call
that distracted Ms Bierman’s attention, causing her not to
observe appellant’s vehicle earlier and consequently
veering
off the road to the left hand side and in the process her vehicle
struck the stone on the gravel shoulder of the tarred
road causing
the left front tyre of her vehicle to deflate whereupon the vehicle
ultimately struck the trees. He further argued
that Ms Bierman could
not apply the brakes severely because she knew that her children were
not restrained. He further argued that
Ms Bierman was an accomplice;
hence she had reason to put the blame of the incident on appellant.
He further submitted that the
continuing acts of negligence on the
part of Ms Bierman constituted a
novus
actus interveniens.
E
SUBMISSIONS
BY THE STATE
[22]
Adv. Chalale on behalf of the State submitted that the
incoming call that went on voicemail was received after the incident
whilst the motor vehicle was stationery. The first outgoing call was
made to the doctor on their way to the hospital, hence the
short
lapse of time between the two calls. It was further his submission
that the short lapse of time between the calls is inconsistent
with
the events as they unfolded prior to and after the
incident. Ms Bierman was confronted with a sudden emergency
and has
done everything humanely possible to avoid a collision with the motor
vehicle of appellant.
F
APPLICABLE
LEGAL PRINCIPLES WITH REGARD TO THE CONVICTION
[23]
In
R v Dhlumayo and Others
1948 (2) SA 677
(AD)
at page 705-706 Davis AJA said:
“
I
summarise the conclusions to which I have come with regard to the
principles which should guide an appellate court in an appeal
purely
upon fact as follows:
1. An appellant is entitled as of
right to a rehearing, but with the limitations imposed by these
principles; this right is a matter
of law and must not be made
illusory.
2.
Those principles are in the main matters of common sense, flexible
and such as not to hamper the appellate court in doing justice
in the
particular case before it.
3. The trial Judge has advantages -
which the appellate court cannot have - in seeing and hearing the
witnesses and in being steeped
in the atmosphere of the trial. Not
only has he had the opportunity of observing their demeanour, but
also their appearance and
whole personality. This should never be
overlooked.
4. Consequently the appellate court
is very reluctant to upset the findings of the trial Judge.
5. The mere fact that the trial
Judge has not commented on the demeanour of the witnesses can hardly
ever place the appeal court
in as good a position as he was.
6. Even in drawing inferences the
trial Judge may be in a better position than the appellate court, in
that he may be more able
to estimate what is probable or improbable
in relation to the particular people whom he has observed at the
trial.
7.
Sometimes, however, the appellate court may be in as good
a position as
the trial Judge to draw inferences, where they are either drawn from
admitted facts or from the facts as found by
him.
8. Where there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct; the appellate
court will only reverse it where
it is convinced that it is wrong.
9. In such a case, if the appellate
court is merely left in doubt as to the correctness of the
conclusion, then it will uphold it.
10. There may be a misdirection on
fact by the trial Judge where the reasons are either on their face
unsatisfactory or where the
record shows them to be such; there may
be such a misdirection also where, though the reasons as far as they
go are satisfactory,
he is shown to have overlooked other facts or
probabilities.
11. The appellate court is then at
large to disregard his findings on fact, even though based on
credibility, in whole or in part
according to the nature of the
misdirection and the circumstances of the particular case, and so
come to its own conclusion on
the matter.
12. An appellate court should not
seek anxiously to discover reasons adverse to the conclusions of the
trial Judge. No judgment
can ever be perfect and all-embracing, and
it does not necessarily follow that, because something has not been
mentioned, therefore
it has not been considered.
13. Where the appellate court is
constrained to decide the case purely on the record, the question of
onus becomes all-important,
whether in a civil or criminal case.
14. Subject to the difference as to
onus, the same general principles will guide an appellate court both
in civil and criminal cases.
15. In order to succeed, the
appellant has not to satisfy an appellate court that there has been
'some miscarriage of justice or
violation of some principle of law or
procedure'.
16. The English practice in regard
to 'concurrent findings of fact by two courts' has no application in
South Africa”.
[
24]
In
S
v Monyane and others
2008 (1) SACR 543
(SCA) the SCA at para 15 stated that it is only in
exceptional cases that it will be entitled to interfere with the
trial court’s
evaluation of oral evidence and concluded as
follows:
“
This
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. It has not been suggested that
the trial
court misdirected itself in any respect. In the absence of
demonstrable and material misdirection by the trial court,
its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong
(S v Hadebe and Others
1997
(2) SACR 641 (SCA)
at
645e - f).”
[25]
Section
208
of the
Criminal Procedure Act, 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of any
competent witness. When it comes to
the consideration of the
credibility of a single witness a trial court should weigh the
evidence of the single witness and consider
its merits and demerits
and, having done so, should decide whether it is trustworthy and
whether, despite the fact that there are
shortcomings, contradictions
or defects in the testimony that it is satisfied that the truth has
been told. See
S
v Sauls and Others
1981 (3) SA 172
(AD) at 180E-G.
[26]
In
S
v Khoza
1982 (3) SA 1019
(A) at 1031 B-F, the proper terminology in the
participation doctrine was discussed. A participant may take the form
of a perpetrator,
co-perpetrator or an accomplice. This distinction
between the forms of participations in an offence was recently
restated in
S
v Kimberley and Another
2004 (2) SACR 38
(ECD) at para [10] where the following was held:-
"Perpetrators
and accomplices are all participants in a crime. A perpetrator is one
who performs the act that constitutes the
particular crime with the
intention required by law for that crime. Where two or more persons
together perpetrate a crime, they
are termed perpetrators. An
accomplice is neither a perpetrator nor a co-perpetrator, in that the
acts performed by him do not
constitute a component of the
actus
reus of the particular crime. He is one that consciously associates
himself with the commission of the crime by aiding or
assisting the
perpetrator, which generally involves affording him or her
opportunity, means or information in respect of the commission
of the
crime.. The criminal liability of an accomplice is therefore
accessory in nature
”
.
[27]
In
National
Employees’ General Insurance Co Ltd v
Sullivan
1988
(1) SA 27
(AD) at 36D-E Hefer JA said:
“
The
driver in a through street, while being required to keep a general
look out, is entitled to assume, in the absence of indications
to the
contrary, that a driver approaching from a stop street will heed the
stop sign operating against him and bring his vehicle
to a stop. It
is only when it would become apparent to a reasonable man in the
position of the driver in the through street that
the driver in the
stop street that the driver in the stop street does not intend to
stop, or will be unable to stop in time, that
the duty rests on the
through street driver to take appropriate avoiding action. Until that
stage is reached it is not incumbent
upon him, under normal
conditions, to regulate his driving on the assumption that the driver
in the stop street may not stop”.
G
APPLICABLE
LEGAL PRINCIPLES WITH REGARD TO SENTENCE
[28]
In
S
v Fhetani
2007
(2) SACR 590
(SCA) at para 5 the court said:
“
It
is a well-established principle of our law that the sentence imposed
must fit the nature of the offence of which the accused
was found
guilty. Put differently, the severity of the sentence must not be
gr
ossly
disproportionate to the offence itself. An exemplary sentence such as
the one we are concerned with here, is not a fair and
just punishment
because it is disproportionate to the true deserts of the offender”.
H
ANALYSIS
OF THE EVIDENCE AND APPLICATION OF THE LAW
[
29]
In the present matter, Adv Engebrecht argued that the
magistrate has misdirected himself in his evaluation of the
evidence by making inferences and conclusions based on his knowledge
and personal experiences. The record is speaking volumes of
such
inferences and his conclusions.
[30]
In order to determine whether the magistrate has misdirected himself
and has erred in analysing the evidence it is important
to have
regard to the record of proceedings and judgment of the magistrate.
[31]
Ms Bierman is a single witness and her evidence with regard to her
speed of 100 km/h is corroborated by Dr Humphries to the
extent of
the injuries sustained by the deceased are consistent with a speed of
100 km/h.
[32]
Her evidence that she did not apply her brakes severely and had
swerved to the left is supported by the rolling marks as opposed
to
brake and/or skid marks and the movement of her motor vehicle
as depicted on the photos. The rolling marks as depicted
on the
photos are consistent with her version.
[33]
She was emphatic that the first call that went on voicemail was
received after the incident when her vehicle was stationery.
Her
version with regard to the exact location of where the call was
received could not seriously be controverted by the cellphone
experts. In the absence of evidence to the contrary, there was no
basis not to accept her version that the call was received after
the
incident. In view of the above, the submission on behalf of appellant
based on the time lapse between the initial call and
the subsequent
call made by Ms Bierman on their way to the hospital cannot be
accepted as proof that the call was received before
the incident.
Informed by the uncontroverted evidence of Ms Bierman, the
magistrate, save of course his opinion and experience
relied upon
which was not required, was correct by having found that the call was
received not before, but after the incident.
[34]
Ms Bierman’s testimony with regard to her conversation with
appellant who told her that he had an appointment and he
was “sorry”
was eventually not disputed by appellant. She was quite open
and frank with the court by admitting
that her children were not
restrained.
[35]
Despite the lengthy cross-examination, her testimony did not change
in any material respect. The only criticism that can be
levelled
against her is the fact that she could not explain the
short lapse of time between the incoming call that
went on voicemail
and the first outgoing call, bearing in mind the events immediately
after the incident until transportation of
the child to the hospital.
Nothwithstanding a measure of doubt in this regard, Ms Bierman was in
my view a remarkably honest and
trustworthy witness.
[36]
Warrant Officer Kotze constructed the scene on the basis of the
contents of the docket and his observation of the scene and
vehicle
concerned. He conceded during cross-examination that the damage to
the rim could have been caused by the stone depicted
on the
photograph or any other hard object. He could not give an estimate of
speed and explained that he only visited the scene
two days after the
incident. At that stage the tyre marks were already in the
process of degeneration. Skid marks are usually
a reliable factor to
determine speed. W/O Kotze accepted not as a fact, but as a
possibility, that the dent in the rim could have
been caused by the
stone or any hard object. The magistrate was in my view correct not
to have accepted as a fact that
Ms Bierman’s Ranger hit
the stone, that this affected her driving ability and caused the
vehicle to veer further off to the
left in the direction of the
trees.
[37]
With regard to the version of the accused, the following appear from
the record:
Examination
by Adv Engelbrecht:
“
In
u verklaring wat ingehandig is meld u dat u en u prokureur die toneel
besoek het ek dink daardie selfde middag......Dis korrek
Hoekom het julle na die toneel toe
gegaan?..... My prokureur het my gevra ons moet soontoe gaan sodat ek
vir hom die situasie kan
verduidelik en die punte kon uitwys.
Het u enige besering, ek weet ek gaan
nou in detail in ‘n mens kyk so, maar kan u onthou of enige
beserings by haar opgemerk
het?....Ek het geen beserings opgemerk nie
behalwe dat sy bloederig was veral in die mond omgewing waar ek die
bloed verwyder het
en mond tot mond asemhaling op haar toegepas
het.........
Is u gekwalifiseerd in hierdie tipe
van menseredding?... Ek het ‘n kursus gedoen op Potchefstroom
Universiteit waar hulle
ons van praktiese toepassing van so iets
geleer het.
Kan
u vir ons ‘n idee gee van min of meer hoe lank het u wat se u
KPR toegepas?........ 30 na 40 sekondes
Cross examination by Prosecutor:
Why did you say ek is jammer.....?
... Ja ek het dit vir die hof gese...
Were you worried that the child might
die? .......Nee
She was badly injured
sir................. Ek is nie ‘n mediese dokter nie....”
He
is not responsible for the incident but he goes to the scene with his
attorney to explain the situation and to point out certain
points.
When asked about the extent of the injuries, his response was that he
is not medically trained. He is not medically trained
but strange
enough he applied mouth to mouth resuscitation on the injured child.
He is not medically trained but he remained on
the hospital premises
and on his own say so to render assistance. He is not medically
trained but in the same vein he has completed
a practical “
menseredding” course at the University of the North-West,
formerly known as the University of Potchefstroom.
On the
question of the Prosecutor as to why did he say that he is sorry, his
answer was that he told the court.
His
version that there was no time set for the appointment is directly
contradicted by his attorney that they have agreed to meet
before
09h00. The accused was evasive, his evidence is riddled with
inconsistencies and is improbable and cannot be accepted as
truthful.
[38]
Mr Claassen, the expert called by the accused only visited the scene,
three weeks before the commencement of the trial. His
opinion and
conclusions with regard to speed, distance and how the incident
occured is largely based on photos, hearsay, assumptions
and
projections and inconclusive estimations. His version was that
a driver cannot enter the R34 from the gravel road at
a high speed.
He did not explain what he meant by a high speed, however, in his
calculations he accepted it as a fact that the
accused entered the
road driving at a speed of 5 km/h, a version vehemently disputed by
Ms Bierman. The accuracy of his estimation
is further complicated by
the fact that his initial report had to be amended. The
magistrate, in my view, cannot be faulted
for having accepted the
evidence of Ms Bierman about her speed and how the incident
occurred.
[39]
There is no dispute that the gravel road joining the R34 is bad, the
stop sign is a few metres away from the intersection,
visibility from
both roads to the intersection is unrestricted for two hundred metres
and extreme caution is required when entering
the R34. Ms Bierman’s
evidence that the missed call that went to voicemal was
received after the incident and her lack
of knowledge that the Ranger
hit a stone (as alleged on behalf of appellant but of which there is
no proof) are facts that could
not be disputed by acceptable
countervailing evidence. In view of the above, I am satisfied that
the inferences and conclusions
arrived at by the magistrate were
informed by undisputed facts and I cannot find any misdirection on
his part with his factual
finding. If it is found, which I doubt,
that he has misdirected himself, it would be my conclusion that
the misdirection
was not so material to vitiate the entire
proceedings.
[40]
Adv Engelbrecht argued that Ms Bierman was negligent and her
negligence constituted a
novus
actus interveniens
.
He argued that her negligence is premised on the fact that the
incoming call distracted her attention and in the process
she failed
to observe appellant’s vehicle earlier, to swerve to the left
causing her motor vehicle to leave the tarred road
as a result of
which the left front tyre hit the stone on the gravel shoulder which
deflated at once and whereafter the vehicle
hit the trees. He further
argued that these sequence of events constituted a
novus
actus interveniens
.
[41]
In the present case, Ms Bierman was driving in a through road.The
presence or otherwise of the stone did not bother her. She
is
emphatic that the call that went on voicemail was received after the
incident. Her version that the first call went on voicemail
is
corroborated by Ms Van Zyl. Secondly her version that the said
call was received while her vehicle was stationery could
not be
controverted by any of the two cellphone experts. Further her
version that the calls were received and made from different
spots is
corroborated by the two experts who were emphatic that the calls were
received and made from different spots. The
version of
the accused as to the location where the first call was
received is speculative. The time lapse on the cellphone
record of Ms
Bierman can with respect never be a conclusive proof of the exact
location were the call was received. The evidence
of Ms Bierman as to
the exact location where the call was received is in my view
instructive. Secondly the version with regard
to the stone allegedly
struck by the motor vehicle that ultimately caused the blowout is
crucial to substantiate appellant’s
defence, but that version,
significant as it appears to be, was never put to Ms Bierman,
notwithstanding the fact that the
defence was in possession of its
expert’s initial report prior to the start of the trial.
Having failed to put that
version to the witness and only
raising it after she had testified, is in my view, nothing else but
an afterthought and a desperate
attempt by appellant to shift the
blame to Ms Bierman. On that score, I am satisfied that Ms
Bierman left the road because
she was faced with a sudden emergency
caused by appellant entering the R34 in front of her when it was not
safe under the circumstances.
I am satisfied that there is no
independent event that caused or contributed to the incident other
than the conduct
of appellant. See in this regard Neethling,
Law
of delict,
6th ed p 206. The magistrate was in my view correct, albeit on
different reasons, to have found that there was no
novus
actus interveniens
.
[42]
In conclusion Adv Engelbrecht argued that Ms Bierman was an
accomplice and it is for that reason that she shifted the blame
to
appellant. An accomplice is a person who consciously associates
herself or himself with the perpertrator or co-perpetrator in
the
commission of the crime by aiding or providing the means for the
commission of the crime. See
S
v Kimberley
and
Another
supra
.
[43]
In the
present case, there is no evidence whatsoever, that Ms Bierman
consciously associated herself with appellant by aiding
him to
commit any crime. Instead what is clear from the evidence is that Ms
Bierman disassociated herself from the conduct of appellant
by taking
some evasive steps to avoid an imminent collision with his motor
vehicle. This argument of Adv Engelbrecht is with
respect
misplaced. If for whatever reason it is accepted that Ms Bierman is
indeed an accomplice, then it would follow that appellant
was the
perpetrator and by virtue of his role as perpetrator, he complied
with the definition of the crime and on his own
version he is
guilty of the crime.
I
ANALYSIS
OF EVIDENCE REGARDING THE SENTENCE
[44]
The sentence is only assailed on the basis of the order suspending
the licence of the accused and the competency certificate
the
accused must produce before driving a motor vehicle on a public road.
Both counsel agree that the orders are disproportionate
to the
offence.
[45]
I am inclined to agree with them. The magistrate relied heavily on
the evidence of Captain Swanepoel and the traffic officer
and had
ignored or laid less emphasis on the following factors:
-
that the accused has been convicted of culpable homicide
of which the constituent element is negligence.
- the fact
that he is a first offender and a holder of a valid drivers licence
for a number of years.
- the
fact that immediately after the incident he stopped his motor
vehicle, ran to the scene and rendered assistance
and
-
the fact that the accused is a farmer and his licence
and motor vehicle are essential tools for his business.
[46]
In view of the aforegoing, the orders given by the magistrate are
under the circumstances shockingly disproportionate to the
offence.
The magistrate in my view, ought to have exercised his discretion
against the granting of such orders.
[47] In the result the
following orders are made:
(a)
The
appeal against conviction is dismissed.
(b)
The
appeal against sentence partially succeeds and the following orders
are made:
(i)
The
order in terms of
Section 34(1)(a)
Act 93 of 1996 with regard to the
suspension of the accused’s driving licence and the order to
produce a certificate of driving
competency to the Commissioner
of Correctional Services are set aside.
(ii)
Save
for the above, the sentences are confirmed .
________
__________
M.
C. MOKGOBO, AJ
I
agree
______________
J.
P. DAFFUE, J
[48]
I indicated
supra
that I concur in the judgment of Mokgobo AJ,
but believe it is apposit to refer to the following critical aspects
in more detail
pertaing to the appeal against conviction. Mr
Engelbrecht submitted that two murually destructive versions were
placed before
the court
a quo,
that a double cautionary rule
should have been applied in that Ms Bierman was a single witness and
an accomplice. Furthermore
her credibility was totally
destroyed insofar as the police expert, W/O Kotze concealed that the
Ranger struck a stone, but notwithstanding
that he was seated next to
the prosecutor durin the testimony of the defence expert, Mr
Claassen, and clearly not agreeing therewith.
Ms Bierman could
not say whether she struck a stone. I do not agree that this
has any bearing on the credibility of Ms Bierman.
The stone was
clearly not hit, bearing in mind the persuasive evidence led by the
State and the photograps indicating that the
wheels of the Ranger
were rolling past the stone and continued to roll thereafter.
If there was uch severe impact as speculated
about by Mr Claassen,
the consequences would have been visible on the photographs. Ms
Bierman would have felt such impact.
She had no reason to lie
about this. At that time she was already on the gravel
shoulder, trying to avoid the appellant’s
Toyota that entered
the tarred road right in front of her. In any event the defence
case during the trial was to show that
Ms Bierman did not keep a
proper lookout as her attention was affected due to an incoming
cell phone call.
[49]
Ms Bierman’s tesimony was seriously attacked in respect of two
further aspects, i.e. her speed before the incident and
her evidence
about cell phone calls made and received. Before I deal with
these issues it is apposit to refer to relevant
authorities. I
shall firstly consider estimates made by witnesses in order to
evaluate the evidence of Mr Claassen
[50]
In motor vehicle collision cases the respective drivers and
eyewitness are without exception requested to estimated aspects
such
as speed, duration and distance. It is obviously necessary to
obtain clarification from witnesses, but there can be
no doubt that
it is notoriously difficult for anyone to make accurate estimates in
the proverbial split second and/or in the agony
of the moment.
See
Olivier
v Rondalia Versekeringsmaatskappy Van SA Bpk
1979
(3) SA 20
(AD) at 26-27 and
Rodrigues
v SA Mutual and General Insurance
1981 (2) SA 274
(AD) at 279 and 280. A strictly mathematical
approach, although undoubtedly very useful as a check, can rarely be
applied
as an absolute test in collision cases since any mathematical
calculation depends on exact positions and speeds whereas in truth
these are merely estimates almost invariably made under circumstances
wholly unfavourable to accuracy. See
Van
der Westhuizen v SA Liberal Insurance Co
1949 (3) SA 160
(C) at 168 quoted with approval in
Diale
v Commercial Union Assurance Co of SA Ltd
1975 (4) SA 572
(AD) at 577A.
[51]
I wish to quote the following from Cooper,
Delictual
Liability in Motor Law
,
1996 ed, vol 2 at 471, relying
inter
alia
on
President
Insurance v Tshabalala
1981 (1) SA 1016
(A),
Kapp
v Protea Ass
1981 (3) SA 168
(A) and
Marine
& Trade Ins v Van der Schyff
1972 (1) SA 26
(A):
“
In
a civil case a court is obliged to determine all issues on a balance
of probabilities. If on the totality of the facts,
and after
making due allowance for the risk of error, the court is satisfied on
a balance of probabilities of the reliability of
the estimates, there
is no reason why it should not adopt a ‘mathematical’
approach, not merely as a ‘useful
check’ but to determine
the negligence issue. The many reported judgments in collision
cases reflect the important
role this line of reasoning plays in the
determination of the negligence issue.”
[52]
Reaction time, that is the time that a driver takes to respond to any
adversity, differs from person to person and experts
make provision
for different reaction times when reconstructing collision scenes.
Reaction time of the normal person ranges
between 1 and 1.5 second.
See
Rodrigues
supra
at 279G where the reaction time was accepted as 1.5 second and
Road
Accident Fund v Grobler
2007 (6) SA 230
(SCA) where the expert allowed for reaction time of
about 1 second. See footnote 1 on page 233 of the judgment.
[53]
The authorities quoted dealt with civil litigation, but in my view
the principles are well-established and are equally applicable
in
adjudicating criminal matters. Ms Bierman testified that she
travelled at approximate 100 kph before the incident.
She was
hesitant to make estimates in respect of distances as the record
clearly shows. She was even invited to exit the
court room and
point out distances which she declined. Eventually an
inspection
in
loco
was
arranged whereupon she pointed out where she was when she noticed
appellant’s Toyota as well as the position of the Toyota
at
that stage. This was about a year after the incident.
Based on her estimates Mr Claassen made calculations
and submitted
that Ms Bierman would have been past the intersection beffore
appellant’s arrival. He testified,
based on
appellant’s version that he did not see Ms Bierman’s
Ranger before he entered the tarred road and the speculation
that her
vehicle must have been at the other side of the blind rise at the
time, some 200 metres away, as well as his version pertaing
to the
events immediately before the impact with the trees, that she must
have been driving at a speed of 142 kph.
[55]
A major topic argued was the receipt of the incoming call
(which was not answered but went on voice mail) as well as
the
further calls made. The call data received from Vodacom show
that Ms Bierman’s phone received a call at 07h14:41
which went
on voice mail and that she made two calls at 07h16:35 and 07h19:17.
The first call was according to the records apparently
received in
the Schaaprand tower coverage area and the other two were made in the
Frankfort Central tower coverage area.
Ms Bierman testified
that the incoming call was receved just after the incident and whilst
she was still in her vehicle.
On her way to Franfort, being
transported by appellant, she firstly call het doctor and the her
husband. Mr Engelbrecht extensively
cross-examined Ms Bierman
and submitted that she was lying. According to him the incoming
call and the call to the doctor
would have been in the coverage area
of the same tower if her version was correct, but the different
towers are indicative of and
serves as proof that the incoming call
was received prior to the incident and that the call distracted Ms
Bierman to such an extent
that she did not keep a proper lookout and
notcied appellant’s Toyota at a very late stage. On the
defence version
the incoming call would be received whilst Ms Bierman
was travelling on the tarred road – the R34 – less than
metres
away from the point where appellant entered that road.
It must be emphasised that it was never the defence suggestion during
cross-examination that Ms Bierman left the road as a result of the
distraction; rather that she failed to notice the Toyota timeously.
[55]
An engineer of Vodacom, Mr Prinsloo, was called to testify. He
relied on charts setting out coverage areas of all relevant
cell
phone towers in the area. The irony of the evidence presented
by him is that the Schaaprand tower of Vodacom apparently
does not
provided coverage on the R34 at all. This cannot be correct, or
if correct, then Vodacom’s statements relied
upon by the
parties as correct pertaining to the time when calls were made and
received are wrong. Mr Prinsloo conceded that
the map was based
on predictions and could not be accepted as 100% accurate.
There is no reason to doubt that the three calls
referred to
supra
have
been received and made. Thus, the submissions of Mr
Engelbrecht, based on speculation, cannot be correct.
[56]
It is true that the time lapse between the call received ant the
first outgoing call is less than 2 minutes, and bearing in
mind all
the action taking place immediately after impact with the trees, it
might be said that this appears to be improbable.
However
exactly the same argument can be advanced to counter Mr Engelbrecht’s
argument. If the incoming call was received
whilst Ms Bierman
was still driving, It would be highly improbable that she would be
making a call to her doctor in such a short
space of time, bearing in
mind the commotion that followed. Her version that the call to
the doctor was made on route to
Frankfort and that she phoned her
husband thereafter must be accepted as the most plausible version.
Appellant testified
about one call, but he was uncertain in this
regard.
[57]
Experts are frequently called in to assist our courts, but courts are
not bound by the opinion of an expert. An expert
must be called
as a witness on matters calling for specialised knowledge. It
is the duty of the expert to furnish the court
with the necessary
scientific criteria for testing the accuracy of the expert’s
conclusions so as to enable it to form an
independent judgment by the
application of these criteria to the facts proved in evidence.
See
Coopers
(South Africa) (Pty( Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 370H – 372A. In the evaluation of
the evidence of experts it is required to determine whether and to
what extent
their opinions advanced are founded on logical
reasoning. See
Michael
and another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [36].
[58]
In
Mapota
v Santam Versekerings Maatskappy Bpk
1977 (4) SA 515
(AD) at 527H Potgieter JA commented as follows:
“
Dit
is egter welbekend … dat direkte geloofbare getuienis dikwels
aanvaar kan word al sou daardie getuienis indruis teen
waarskynlikhede wat voortspruit uit menslike ervaring of
wetenskaplike menings. In die onderhawige geval sou, na my oordeel,
die
wetenskaplike mediese getuienis slegs die sterk en andersins
aanvaarbare en gestaafde getuienis van appellant kan ontsenu indien
daardie getuienis onteenseglik getoon het dat die redelike
moontlikheid dat die ongeluk kon plaasgevind het soos deur appellant
beskryf is, nie bestaan nie.”
In
Stacey
v Kent
1995 (3) SA 344
(ECD), the full bench of the Eastern Cape Division
considered several
dicta
from a number of judgments dealing with the manner in which expert
evidence should be considered and concluded as follows at 350G-I:
“
I
would point out that the present is not a case where the evidence was
of so technical a nature that this Court is obliged to defer
to the
opinions of the experts who testified. I am further constrained to
make the comment that, as will be shown below, the
expert
testimony adduced in the present matter to an extent verged on the
highly theoretical and hypothetical. As pointed out in
the
authorities cited above, it is the duty of experts to furnish the
Court with the necessary criteria for testing the accuracy
of their
conclusions, so as to enable the Court to form its own
independent judgment by the application of those criteria
to the
facts proved in evidence. The mere pitting of one hypothesis against
another does not constitute the discharge of the functions
of an
expert. The Court should also be on its guard against any tendency on
the part of expert witnesses to be biased in favour
of the side which
calls them and an unwarranted readiness to elevate harmless or
neutral facts to confirmation of preconceived
theories or to
dismiss facts supporting an opposing conclusion.”
[59]
Bearing in mind the quoted
dicta,
direct and credible evidence of what happened in a motor vehicle
collision often carry greater weight then the opinion of an expert
who had to reconstruct the event from his experience and scientific
training. It is only where the direct evidence is so
improbable
that its reliability is impugned that an expert’s opinion of
what may have occurred should prevail. Having
said this, in the
finale result a decision must be reached on the evidence as a whole.
[60]
Captain Swanepoel testified that she and a colleague, W/O Meyer,
established that their vehicle, a Toyota Hilux 4X4, dissimilar
to the
Ranger driven by Ms Bierman, could be stopped within a distance of
five metres at a speed of 100kph. Mr Engelbrecht
tried to make
much of this. The two police officers did not even try to get
out of the vehicle to measure the distance, but
more importantly, no
evidence was led in respect of a fixed point used to start the test
and no provision was made for reaction
time. At 100 kph a
vehicle travels at 27,8 metres a second and normal reaction time
differs between 1 and 1.5 second as indicated
supra.
[61]
I am satisfied that Ms Bierman was a credible witness and that
appellant’s version was rightly rejected as not reasonably
possibly true. He tried all possible available avenues to set
up a defence, but failed to achieve that. On his own
version
there was a stage where the grass next to the gravel road was so tall
that he could not see traffic on the R34. It
is improbable that
he would never see the oncoming Ranger of Ms Bierman, even
immediately when he entered the R34, if he was alert
of his
environment. On his version he entered the R34 at an extremely
slow pace of 5 kph which on its own should raise eye
brows.
Based on all the accepted evidence he did not keep a proper look out
and entered the R34 when it was unsafe to do,
causing Ms Bierman to
take evasive action by veering off to the left of the tarred road.
He must have informed Ms Bierman
that he was late for an appointment,
otherwise she would not even be aware of the appointment.
Appellant’s evidence
is this regard cannot be accepted.
He was not cross-examined on the issue, but in my view a totally
innocent person would
not go back to the scene of the incident,
accompanied by his attorney, and take all kinds of measurements.
[62]
r Engelbrecht submitted that appellant should have been acquitted for
another reason, i.e. that a
novus
actus interveniens
occurred.
According to him Ms Bierman did not focus on the road (whilst driving
at an excessive speed) because of the incoming
call (which we know
was not answered) and when she observed the Toyota in front of her,
she knew that she could not dare to brake
as her children were not
fastened by seat belts and therefore she veered off to the left
whilst he could have either braked effectively
or move to the right
and safely pass the Toyoyta. All these factors are indicative
that her action/inaction was a new intervening
event and that any
negligence on the part of appellant is not causally connected to the
death of the child. I do not agree.
A later event can
only be deemed to break the causal link if it is a completely
independent act, having nothing to do and bearing
no relationship to
in this case the appellant’s act. See Snyman CR,
Criminal
Law,
5th
ed at 87 and
S
v Grotjohn
1970 (2) SA 355
(AD) at 364 and
S
v Lungile
1999 (2) SACR 597
(SCA) at 605 - 606. In the last case Olivier
JA stated that the act must also be abnormal. If appellant did
not enter
the R34 when and as he did, Ms Bierman would in all
probability proceed safely on her way to Frankfort.
[63]
The appeal in respect of conviction must fail.
______________
J.
P. DAFFUE, J
On
behalf of the appellant: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of the respondent: Adv.
Instructed
by:
BLOEMFONTEIN