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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2016] ZAKZPHC 66
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Ndlovu v S (AR626/2015) [2016] ZAKZPHC 66 (5 July 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO:
AR626/2015
In the
matter between:
MALUSI
GOODWILL
NDLOVU
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram : Moodley et Seegobin JJ
Heard : 28 June 2016
Delivered : 5 July 2016
ORDER
On appeal
from the Magistrate’s Court, Vryheid (sitting as a court of
first instance):
The appeal
succeeds and the conviction and sentence are set aside.
JUDGMENT
SEEGOBIN J
(et Moodley J concurring):
[1] The
appellant was convicted in the Magistrate’s Court, Vryheid, on
one count of negligent driving in contravention of
the relevant
provisions of the
National Road Traffic Act 93 of 1996
. He was
sentenced to pay a fine of R2500,00 and in default thereof to undergo
six months imprisonment. The present
appeal against conviction
and sentence is with leave of the court
a quo
.
[2] The
appellant who was legally represented pleaded not guilty to the
charge. From the outset his defence was that at the
relevant
time he was disturbed by a swarm of bees while driving his vehicle.
[3] The
incident in question was alleged to have occurred on 9 September 2014
in the parking lot of the Checkers Supermarket at
Vryheid. The
State case rested on the evidence of three witnesses, two of them viz
Xulu
and
Mhlongo
are police officers who were seated in
a police motor vehicle when it was struck by the appellant’s
motor vehicle.
The third witness, viz
Radebe
was the
owner of the other motor vehicle which was struck by the appellant’s
motor vehicle. It was common cause that
Radebe did not witness
the collision at all.
[4] The
evidence showed that while the appellant was attempting to park his
motor vehicle, the vehicle suddenly moved beyond the
confines of the
chosen parking bay and collided with front parts of both the police
vehicle and that belonging to Radebe.
Both Xulu and Mhlongo who
were looking at the appellant’s motor vehicle as the appellant
was trying to park it, were unable
to point to anything untoward in
the manner in which the appellant was driving at the time.
Accordingly, it was not really
apparent on the State case why the
collision would have occurred in the first place.
[5] The
appellant’s version was that just at the time when he was
attempting to maneuver his vehicle into the parking bay,
he was
disturbed by a swarm of bees. This caused him to lose control
of his motor vehicle when his foot slipped off the brake
onto the
accelerator. The appellant testified that he was driving with
his windows open at the time. He also testified
that he was
stung once in the vicinity of his neck and ear. His further
evidence was that the swarm had entered his motor
vehicle from the
left windows. He tried to ward off the bees with both hands and
in the process lost control of his motor
vehicle.
[6] Although
the witness Radebe did not witness the collision, he did, however,
confirm that during the relevant period there was
a swarm of bees
that caused havoc in the area by stinging people.
[7] In
convicting the appellant the learned magistrate simply rejected his
evidence without considering whether it was reasonably
possibly
true. He went further and found that there were no bees at the
time despite the undisputed evidence of Radebe that
there was bee
activity in the area at the time. This lent some credence to
the appellant’s version which could not
be ignored. The
learned magistrate appears to have based his reasoning on the matter
of
S v Erwin
1974(3) SA 438(c). However, the
distinguishing feature for me is that in the
Erwin
matter the
driver was faced with ‘a single’ bee entering the motor
vehicle. In the present matter it was a swarm
of bees which
posed a huge threat to the appellant and interfered with the
appellant’s driving. In my view, the appellant
was
clearly faced with a sudden emergency which caused him to lose
control of the vehicle. His version was, in my view, reasonably
possibly true and no blame can thus be attributed to him for what
transpired at the time.
[8] Mr Du
Preez who appeared for the State has quite properly and correctly, in
my view, submitted that there was no evidence to
rebut the
appellant’s version of what transpired at the relevant time. It
follows that the conviction is wrong and must be
set aside.
[9] The order
I propose is the following:
The appeal
succeeds and the conviction and sentence are set aside.
I agree
MOODLEY J
Date of Hearing : 28 June 2016
Date of Judgment : 5 July 2016
Counsel for Appellant : GL Leppan
Instructed by : Justice Centre
Counsel for Respondent : R Du Preez
Instructed by : Director Public Prosecutor,
Pietermaritzburg