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[2017] ZANCHC 10
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Kalamore v S (CA&R100/2016) [2017] ZANCHC 10 (3 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case
number:
CA&R
100/2016
Datum aangehoor /
Date Heard:
12
/ 12 / 2016
Datum
gelewer/Date delivered:
03
/ 02 / 2017
In
the appeal of:
REFILOE
KALAMORE
Appellant
and
THE
STATE
Coram:
Pakati, J
et
Erasmus,
AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
The appellant was convicted in the Galeshewe Magistrate’s Court
on two charges, to wit a contravention of section 63(1)
of the
National Road Traffic Act, No 93 of 1996 (negligent driving) and a
contravention of section 61(1)(c) of the same Act in
that he had
failed to offer assistance after having been involved in a motor
vehicle accident.
[2]
In respect of count 1, he was sentenced to 3 years imprisonment and
on count 2 to a fine of R1,000.00 or 60 (SIXTY) days imprisonment.
[3]
With leave of the Court
a
quo
he now appeals against the conviction and sentence on count 1 and the
conviction on count 2. He was released on bail pending
the
finalisation of his appeal.
[4]
The facts which are common cause between the parties are the
following:
4.1
On 31 May 2013, at approximately 20:00, a light delivery van with
registration no. [F...] (‘the vehicle’),
was involved in
a collision with two pedestrians who had been walking on the pavement
in Hulana Street, Galeshewe, Kimberley after
the driver thereof had
lost control of the vehicle.
4.2
The pedestrians had sustained serious injuries.
4.3
The first pedestrian suffered severe injuries to her spinal cord,
liver and hip leaving her paralysed and wheelchair-bound
as a result.
4.4
The second victim sustained a broken left foot and a few injuries to
her forehead.
[5]
The only issue pertaining to the convictions was whether the
appellant had been the driver of the motor vehicle.
[6]
The victims of the motor vehicle collision were called to testify but
neither of them could identify the driver of the vehicle
concerned.
[7]
The State relied on the evidence of Mr Joachem Mabula and Mr Thabo
Malgas. Both these witnesses alleged that they had been passengers
in
the vehicle driven by the appellant. The appellant is known to both
these witnesses. On the day of the incident they had assisted
him in
moving his belongings and furniture to the premises of Mr Thabo
Malgas, where he was to reside. The two witnesses and the
appellant
had been drinking together at a place referred to as “
the
premises of Bogati
”.
At approximately 20:00, they left the premises of Bogati in the
vehicle. Mr Mabula was seated on the left passenger
seat, Mr Malgas
in the middle and the appellant in the driver’s seat.
[8]
Mr Mabula had felt the vehicle swerve and the appellant informed him
that he had collided with people on the sidewalk. He did
not observe
the accident, but had noticed damage to the left window, left mirror
and the bonnet of the vehicle. Mabula did
not report the
accident at the police station and instead went to sleep. The reason
for not reporting was that the appellant had
bribed them not to.
[9]
The morning after the collision the employer of the appellant came to
the premises where Mr Mabula resided and where the vehicle
had been
parked. Mabula woke the appellant and then requested the keys of the
vehicle, whereafter the appellant took the keys from
his trouser
pocket and handed it over to him.
[10]
During cross-examination, it was put to him that the appellant had
not been the driver but that he (Mabula) had in fact
been the
driver. He denied this, saying he was unable to drive a vehicle
and that he was not in possession of a driver’s
licence.
[11]
Mr Malgas corroborated the evidence of Mr Mabula regarding the manner
in which the collision had taken place and the
events of the
following morning. He further testified that the appellant had
requested Mr Mabula to inform his employer that he
was available he
had gone to Bloemfontein. He also confirmed Mr Mabula’s
evidence that the appellant had instructed them
to keep quiet about
the accident and that he had bribed them in order to do so.
[12]
During cross-examination Mr Malgas also denied that Mr Mabula had
been the driver of the vehicle and persisted with his
version that
the appellant had in fact been the driver.
[13]
Mr Mabula only reported the events of 31 May 2013 several months
later, initially to his mother and later to the police.
The reason
proffered for the eventual reporting of the actual events of that
evening was that he had felt an overwhelming sense
of guilt when he
would see the wheelchair bound victim. He too confirmed that the
appellant had earlier bribed them to secure their
silence.
[14]
The appellant testified in his own defence. According to him he
had spent the day drinking whilst moving his belongings,
with the
assistance of Mr Malgas, to his new place of residence. Having
finished the move, they went to the premises of Bogati
where they
left the vehicle and continued to consume alcohol. Mr Mabula joined
them later. According to the appellant he later
sent Mr Malgas to
draw money and on his return they continued drinking. At some stage
he decided to go home to bathe and met up
with a certain Owen along
the way. He gave Owen some money to buy more beer and the two of them
stood together at the corner, drinking.
He eventually passed
out at his new place of residence. He indicated to Court that Owen
would be called as a defence witness.
[15]
The appellant further testified that he had merely assumed the keys
would still be in the vehicle at the premises of
Bogati where he had
left it. He elaborated on this reasoning by saying that Thabo
and Bogati had arrived with the vehicle
and had left the keys in the
ignition and that they had used the vehicle to go and draw money.
He testified further that
he usually gave the vehicle to Mr Malgas.
He was under the impression that Mr Malgas had left the keys in the
ignition because
he had not given the keys back to him on his return.
According to the appellant someone had told him that he had seen
Messrs Mabula
and Malgas in the vehicle. When asked during
cross-examination by whom the vehicle had been driven when the two
state witnesses
went to draw money, the appellant merely said that he
had given the keys to Bogati. When this question was repeated, he
said Bogati
had driven the vehicle as he had given him the keys
because he had not been drinking.
[16]
Although the evidence of Mr Mabula that he could not drive a vehicle
was not contested, the appellant testified during
cross-examination
that Mr Mabula usually drove his car and his parents’ taxi.
[17]
Although it was put to the state witnesses that someone had seen Mr
Mabula driving the vehicle, no witnesses were called
to attest
thereto. The appellant did not call any other witnesses as it had
emerged that one of them could not be traced and the
other was not
available to testify on the day the appellant had testified.
[18]
Adv Nel, on behalf of the appellant, submitted that the Court
a
quo
erred
in not finding that the appellant’s version was reasonably
possibly true. Although he conceded that there were
unsatisfactory aspects in the evidence of the appellant, he submitted
that these were not so serious as to lead to a finding that
his
version is not reasonably possibly true.
[19]
Mr Nel referred to the contradictions between Messrs Mabula and
Malgas, specifically the contradictions between the testimony
of Mr
Mabula and the contents of a statement that he had made in a case of
theft of the motor vehicle. Mr Nel pointed out
that Mr Malgas
had testified that the appellant had requested Mr Mabula to inform
his employer that he was in Bloemfontein whilst
Mr Mabula never
testified to that.
[20]
Adv Mxabo, on behalf of the respondent, submitted that the
contradictions between the evidence of Mr Mabula and Malgas
are not
material and do not cast doubt on the crucial issue, namely who the
driver of the vehicle was at the time of the collision.
He
further submitted that the learned Magistrate was correct in
rejecting the appellant’s version.
[21]
It
is trite that a court of appeal will not lightly interfere with the
factual findings of the trial court and that it will only
interfere
if it is convinced that the findings were wrong.
[1]
Put differently, it is presumed
that
a trial court's findings of fact are correct. If there is no
misdirection, the Court of appeal will interfere only if
it is
convinced that such evaluation is wrong.
[2]
[22]
Contradictions will not
per
se
lead
to the rejection of the evidence of a witness. Such
contradictions could merely be as a result of a mistake on the part
of the witness.
[3]
The evidence in totality should be considered and the court must be
satisfied that the truth of what had happened had been
told.
[4]
On the other hand,
it
is
not
a prerequisite for an acquittal that the Court should believe the
innocent account of the accused: it is sufficient that it
might be
substantially true.
[5]
[23]
The learned Magistrate found that the two witnesses, Mr Mabula and Mr
Malgas, had corroborated one another in that the appellant
had been
the driver of the vehicle. It appears from the judgment that he
had considered the contradictions between the state
witnesses and the
evidence as a whole. He considered the contradictions in the version
of the appellant and emphasised the fact
that the appellant had
stated in his plea explanation that he had left the key in the
ignition, but later testified that Bogati
had been the last person to
drive the vehicle.
[24]
The Court
a
quo
also referred to the improbabilities in the version of the appellant,
more specifically that he would leave his employer’s
vehicle
outside the premises of Bogati to go and bath whilst they were all
still drinking and then not return to the vehicle having
left the
keys in the ignition. The learned Magistrate also considered
the improbability of the appellant allegedly passing
out but
remembering finer details such as how long he had been talking to
Owen.
[25]
We are not
convinced
that the findings of the Court
a
quo
were
wrong or that the learned Magistrate had misdirected itself. We
are satisfied that the finding that the appellant had
been driving
the vehicle is correct. The appeal against the convictions on
both counts therefor stands to be dismissed.
[26]
In
respect of the appeal against the sentence imposed on count 1,
Mr
Nel submitted that the Court
a
quo
over-emphasized
the apparent lack of remorse on the side of the appellant and
under-emphasized his favourable personal circumstances.
Given
the fact that the appellant had been convicted of negligent driving
and no finding of gross negligence, the sentence of 3
years
imprisonment is therefore excessive and induces a sense of shock.
Mr Nel referred to several judgments and pointed
out that even in
cases where an accused had been convicted of culpable homicide, the
imposition of direct imprisonment is exceptional.
[6]
[28]
Mr Mxabo correctly pointed out that there were several aggravating
factors present, all of which had been taken into account
before the
appellant was sentenced to direct imprisonment. He submitted
that the appeal against the sentence should be dismissed.
[29]
The correct approach which this court must follow when deciding
whether to interfere with the sentence imposed by the Court
a
quo
was set out by
Rumpff
JA in
S
v Anderson
[7]
:
'A
court of appeal will not alter a determination arrived at by the
exercise of a discretionary power merely because it would have
exercised that discretion differently. There must be more than that.
The court of appeal, after careful consideration of all the
relevant
circumstances as to the nature of the offence committed and the
person of the accused, will determine what it thinks the
proper
sentence ought to be, and if the difference between that sentence and
the sentence actually imposed is so great that the
inference can be
made that the trial court acted unreasonably, and therefore
improperly, the court of appeal will alter the sentence.
If there is
not that degree of difference the sentence will not be interfered
with.'
[30]
The consequences brought about by the negligent conduct of the
appellant are severe and cannot be rectified. A 26-year
old
woman was paralysed for life as a result of his negligence. It
should be kept in mind though that, as pointed out by
Miller J in
S
v Ngcobo
[8]
,
‘
the
magnitude of the tragedy resulting from negligence should never be
allowed to obscure the true nature of an accused’s
crime or
culpability
.’
[31]
The appellant was 31 years old at the time of sentencing and a first
offender. He had passed grade 12 and was gainfully
employed at
the time of the collision. He was convicted of a crime
involving negligence and not intent.
[32]
A correctional supervision report, as envisaged in section 276A of
the Criminal Procedure Act, No. 51 of 1977 (‘the CPA’),
had been obtained before the imposition of sentence. From the
report it appears that the appellant was considered to be a
suitable
candidate for rehabilitation within the community context and it was
recommended that he be sentenced to correctional
supervision in terms
of section 276(1)(h) of the CPA. Although not specifically
stated, it appears from the judgment of the
learned Magistrate that
he had considered correctional supervision to not be appropriate
because of the seriousness of the offence
and the interest of the
community.
[33]
Having considered the personal circumstances of the appellant, the
seriousness of this specific offence and the circumstance
under which
the crime had been committed, the interests of the community and
objectives of punishment, we are satisfied that the
learned
Magistrate had erred in not considering correctional supervision in
terms of section 276(1)(h) or (i) of the CPA as a suitable
sentence
option. Furthermore, the sentence of 3 years imprisonment
induces a sense of shock and the difference between it
and the
sentence we consider appropriate is such that it can be inferred that
the trial court had acted unreasonably. We
are therefore at
liberty to consider sentence afresh.
[34]
As
emphasized by Majiedt J (as he then was) in
S
v Botha
[9]
,
correctional supervision is not a ‘light’ sentence.
We are satisfied that in this instance the objectives of
punishment,
being prevention and deterrence, rehabilitation and retribution, will
be served by imposing a sentence under section
276(1)(i) of the CPA.
The appeal against the sentence on count 1 therefore stands to
succeed.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
THE
APPEAL AGAINST THE CONVICTIONS ON COUNTS 1 AND 2 IS DISMISSED.
2.
THE
APPEAL AGAINST THE SENTENCE ON COUNT 1 SUCCEEDS AND THE SENTENCE
IMPOSED BY THE MAGISTRATE GALESHEWE UNDER CASE NUMBER GAL 1962/2015
IS SET ASIDE AND REPLACED WITH THE FOLLOWING SENTENCE:
“
3
YEARS IMPRISONMENT IN TERMS OF
SECTION 276(1)(i)
OF THE
CRIMINAL
PROCEDURE ACT, NO. 51 OF 1977
”
_________________
SL ERASMUS
ACTING
JUDGE
I concur.
_________________
B PAKATI
JUDGE
On
behalf of the Appellant:
Adv.
I.J. Nel (oio Towell and Groenewaldt Attorneys)
On
behalf of Respondent:
Adv.
N.X. Mxabo (oio the NDPP)
[1]
R
v Dhlumayo and Another
1948(2)
SA 677 (A) op 705 -706;
Alfred
Mnisi v S
(531/12)
[2012]
ZASCA 41
(2
8
March 2013)
[2]
S
v Mlumbi en 'n Ander
1991
(1) SACR 235 (A)
;
S
v Hadebe and Others
1998
(1) SACR 422 (SCA)
;
S
v Kekana
2013
(1) SACR 101 (SCA)
[3]
S
v Mkohle
1990(1)
SACR 95 (A) op 98f-g;
[4]
See
also
S
v Hlongwa
1991
(1) SACR 583
(A) at 587
[5]
Rex
v Difford
1937
AD 370
at 272; See also
S
v V
2000
(1) SACR 453
(SCA
)
[6]
S
v Botha
(A141/06)
[2006] ZANCHC 77 para [13]-[14] and [20]-[34] and the cases
referred to
[7]
1964
(3) SA 494
(A)
at
495G-H; See also
S
v L
1998
(1) SACR 463 (SCA)
468
f
-
h;
S v Romer
2011
(2) SACR 153 (SCA)
at
[22]-[23]
[8]
1962(2) SA 333 (N) at
336H-337A;
S v
Naicker
1996(2)
SACR 557 (A) at 560F-H
[9]
Supra
par
[36];
S v E
1992(2)
SACR 625 (A) at 633a