About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 91
|
|
Motinyane v S (A238/2016) [2017] ZAFSHC 91 (25 May 2017)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A238/2016
In
the matter between:
MOAHLODI
KAMOGELO
MOTINYANE
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J et NAIDOO, J
HEARD
ON:
15 MAY 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
25 MAY 2017
SUMMARY:
Criminal law: maxim or doctrine of
res
ipsa loquitur
correctly
applied through reasoning by inference. Exercise of
constitutional right to silence in the face of facts from
which an
inference of negligence can be drawn as the only reasonable inference
has adverse consequences. Conviction for negligent
driving and
sentence confirmed where appellant failed to answer the case against
him. The obligation of magistrates to comply with
rule 67(5) of
Magistrates’ Court Rules by furnishing adequate reasons for
impugned decisions for the benefit of the court
of appeal emphasised.
[1]
On 21 November 2015 and along Modisenyane Street at Kgotsong in
Bothaville the appellant, who held a learner’s licence,
was
driving his uncle’s vehicle, a red VW City Golf hatchback,
without the latter’s consent when a 14 year old girl
suddenly
entered the road from amongst vehicles parked partly on the road. In
an attempt to avoid colliding with her the appellant
crashed into the
parked cars and eventually knocked the girl down. He subsequently
appeared before the Bothaville Magistrate’s
Court charged with
reckless or negligent driving.
[2]
On 30 August 2016 the appellant, who was legally represented, was
convicted of negligent driving in contravention of
section 63(1)
of
the
National Road Traffic Act 93 of 1996
and sentenced to 6 months
imprisonment or a fine of R3000 wholly and conditionally suspended.
He feels aggrieved by the conviction
and now approaches us on appeal
against the same with leave of the trial court.
[3]
On returning the guilty verdict the court below found that the
parties were
ad
idem
that the cars were parked in such a manner that made it possible for
vehicles in the position of the City Golf driven by the appellant
to
pass along the gravel road. The magistrate, further, found that it
was common cause between the parties that the child emerged
from the
fence concealed by the parked vehicles and when she did so she was
already in the road. The trial court, furthermore,
remarked
that the appellant avoided the child but nevertheless knocked her
down and the same applied to the vehicles which he also
avoided in
vain. In the magistrate’s view there was evidentiary
burden on the appellant to explain what he did when
the child
appeared. In conclusion the court below found that his failure to
take the stand in the circumstances had adverse consequences
for him
according to case law.
[4]
The parties in the instant matter are in agreement that the appeal
should succeed with Mr Tshabalala, for the appellant, contending,
inter
alia
,
to the effect that the child witness was not trustworthy in her
evidence and did not know how she was bumped down while one other
witness was evasive. Ms Moroka for the State, on her part,
submits,
inter
alia
,
to the effect that the trial court erred in finding that the state
had proved its case against the appellant beyond reasonable
doubt
regard being had to,
inter
alia
,
the fact that the child witness previously made an inconsistent
statement to the police on a point material to the case against
the
appellant. In argument before us they, however, concede that the
appellant drove at a high speed but maintain that the State
failed to
prove its case against him beyond reasonable doubt.
[5]
The factual basis for the conviction, as accepted and found by the
court
a
quo,
is
apparent from the evidence of the appellant’s uncle, who
confirmed that his car was damaged and, further, speculated that
the
car probably failed to stop immediately when the appellant applied
brakes because, when one applies brakes, inclusive of handbrake,
on a
gravel road the car would skid and the person can lose control of the
car. The court also based the oral conviction on the
oral evidence of
the child witness who,
inter
alia,
testified that she was hit by a car driven by the appellant while
shooting photographs at a party she was attending, that the tent
erected for the party protruded into the street and cars were parked
with their rear ends protruding into the gravel road.
The
conviction is, further, premised on the facts gathered collectively
by the court and the parties during an inspection in
loco
which,
inter
alia
,
established how the cars affected were parked before the accident and
that two cars could pass along the gravel road in question
notwithstanding the fact that the cars were parked in such a manner.
It was, further, not in dispute that the appellant was travelling
from east to west with such cars parked on the left hand side of the
road. The child conceded, under cross examination, that
the
appellant was confronted by a situation of sudden emergency and acted
reasonably in the circumstances insofar as he tried to
avoid
colliding with her when she entered the road suddenly and, instead,
collided first with a parked car after applying footbrakes
and the
handbrake before he bumped her. In response to judicial questioning
she testified that children were going up and down
in the street and
the sun was still up when the collision occurred.
[6]
It is true, as correctly pointed out by the trial court, that an
accused person exercises the constitutional right to remain
silent at
his own peril insofar as such election has consequences and failure
to testify in the face of credible incriminating
evidence may be
detrimental. (See
S
v Boesak
2001(1) SA 912 (CC) at
par
[24]).
[7]
It is, further, correct, as alluded to by the court below, that the
facts in an appropriate case can lead to an inference of
negligence
being drawn therefrom through reasoning by inference expressed in the
maxim
res
ipsa loquitur
and, thus, saddle the accused person with evidentiary burden for
purposes of setting the record straight by explaining his conduct.
(See
R
v Robertson
1958 (1) SA 676
(A) and
R
v Van Zyl
1958 (1) PH O6 (O)).
[8]
It is, furthermore, true that in reasoning by inference in criminal
matters, the cardinal rules of logic applicable are that
the
inference sought to be drawn should be consistent with all the facts
proved and should be the only reasonable inference that
can be drawn
therefrom. (See
R
v Blom
1939 (AD) 188).
[9]
In our law a driver who
“
in
a moment of crisis is confronted by the need to take safeguarding
action must not be judged as though he had adequate time and
opportunity to reflect and act with normal circumspection.”
(See
Stolzenberg
v Lurie
1959(2)
SA 67 (W) 74D-E).
[10]
A person faced with sudden emergency is treated differently insofar
as allowance is made, on his part, for possible error of
judgment.
(See
Marine
& Trade Insurance Co. Ltd v Mariamah & Ano.
1978(3) SA 480 (A)).
[11]
In situations of sudden emergency
“
It
is not every error of judgment which is excusable as amounting to
negligence, but only one which a reasonably careful and skilled
driver of a vehicle might commit. There can only be a moment of agony
if the person whose conduct is in question had neither the
time nor
the opportunity to weigh the pros and cons of the situation in which
he found himself.”
(See
Goode
v SA Mutual Fire & General Insurance Co. Ltd
1979(4)
SA 301(W) 307A).
[12]
The question in the instant matter is whether or not the State proved
its case against the appellant beyond reasonable doubt
in that the
inference that he was negligent is consistent with the facts that
served before the trial court. If so, whether or
not such an
inference is the only reasonable one that can be drawn from,
inter
alia,
the facts that he crashed into parked vehicles and, in the process,
collided with a girl who was visible and while he had room
to
manoeuvre given the findings of the
in
loco
inspection that two cars could pass behind the parked vehicles.
[13]
Although the appellant closed his case without tendering any
evidence, his version of sudden emergency, as put to the girl
witness, was not disputed and was, in fact, conceded as reasonably
possibly true insofar as the witness in question effectively
confirmed the same as a true reflection of what transpired. His
uncle, further, alluded in his evidence for the State to the
possibility
that the car could have skidded when he pulled the
handbrake.
[14]
A perusal of the totality of evidence before the court below,
however, reveals a
lacuna
in the
appellant’s admitted version insofar as it does not explain how
he managed to hit the girl after colliding with parked
vehicles.
It is, further, not apparent
ex
facie
the
record how the appellant collided with three vehicles. According to
the owner of one of the affected vehicles, one Ms Priscilla
Tlhapi,
her car was hit at the tow bar and tossed into the one next to it
which, in turn, bumped the car parked next to it. She
concluded,
therefore, that the appellant was driving at a high speed.
[15]
In my view a prudent driver would have reduced speed as soon as he
noticed the cars parked partly on the road and children
moving up and
down in the street. The condition of the road, being gravel
road, was also such that a careful and reasonable
driver would have
been cautious in the circumstances of the instant matter and driven
at such a speed that, when he applied brakes,
the car would have
stopped immediately. Even if the car would not have stopped
instantly but skidded because of the nature
of the road, one would
reasonably expect it to have stopped when it hit Priscilla Tlhapi’s
car. A careful and reasonable
driver travelling at a reasonable speed
along a gravel road does not, in my opinion, collide with three cars
and a pedestrian in
a built-up area, where the speed limit is not
more than 60km/hour, and in the clear late afternoon. The appellant
had a case to
answer and his failure to take the trial court into his
confidence as to what happened has consequences for him. He must
stand
or fall by his election.
[16]
We are, therefore, unable to agree with counsel on both sides that
the conviction is not supported by the material properly
before the
trial court. The inference that the appellant was negligent in that
he, at the very least, drove at an excessive speed
in the
circumstances of the present matter is consistent with the facts
properly before the trial court and is, in our view, the
only
reasonable one to be drawn therefrom.
[17]
The trial court appears to have been very economical with the reasons
for his decision in convicting the appellant. He left
it to the
reader to glean same from the record. The judgment, as far as reasons
are concerned, is so cryptic and terse that it,
in effect, amounts to
just saying “
the
record speaks for itself
.”
The importance of furnishing full reasons for appeal purposes can be
appreciated from the fact that
rule 67(5)
of Magistrates’ Court
Rules impels, in peremptory terms, a magistrate against whose
decision an appeal is noted to furnish
specified information,
inclusive of facts found proven and reasons for impugned rulings, to
the clerk of court within prescribed
time period. Full or adequate
reasons are necessary because:
“…
when
a judgment is
appealed, written reasons are indispensable. Failure to supply them
will usually be a grave lapse of duty, a breach
of litigants’
rights and an impediment to the appeal process.”
(See
Strategic
Liquor Services v Mvumbi NO & Others
2010(2) SA 92 (CC) at
par
[15])
[18
]
In purported compliance with rule 67(5) of the said Rules the trial
court referred to the impugned judgment declaring that he
had nothing
further to add. In the aforegoing regard the courts have also
reiterated the importance of written reasons to the appeal
process by
pointing out that where there is doubt as to whether an
ex
tempore
judgment
is sufficiently to the point, the magistrate should make it his
business to assist the appeal court by dealing specifically
with the
grounds of appeal. Failure by a magistrate to comply with the rule
with regard to reasons may expose him to an order of
costs
de
bonis propriis
if
he acted mala fide. (See
S
v Vogel
1979(3) SA 822 (N);
Williams
v Eerste Addisionele Landdros
1967(4) SA 61 (O) and
Regional
Magistrate Du Preez v Walker
1976(4) SA 849 (A)).
[19]
The learned magistrate is urged to take note of the provisions of
Magistrates’ Court Rule 67(5) and comply more fully
therewith
in future if his
ex tempore
judgment does not contain adequate
reasons to assist the court on appeal.
ORDER
[20]
In consequence the appeal is dismissed.
[21]
The conviction and sentence are confirmed.
_____________
L.J.
LEKALE, J
I
concur
____________
S.
NAIDOO, J
On
behalf of appellant: Mr. L Tshabalala
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv. MMM Moroka
Instructed
by: Office of Director of Public Prosecutions
Bloemfontein