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[2014] ZAFSHC 28
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Taye v S (A105.2013) [2014] ZAFSHC 28 (6 March 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A105/2013
In the matter between:
MPHALANE
ANTHONY
TAYE
...........................................................................
Appellant
and
THE
STATE
…...................................................................................................
Respondent
CORAM:
VAN
DER MERWE, J
et
MOTLOUNG,
AJ
HEARD ON:
10
FEBRUARY 2014
JUDGMENT BY:
MOTLOUNG, AJ
DELIVERED ON:
6 MARCH 2014
[1] The appellant appeared in the Bethlehem
district court on the 17
th
September 2012 on a charge of reckless or negligent driving. He
was convicted of negligent driving and sentenced to R3 000.00
or
six months, which sentence was suspended for three years. The
appellant appeals against the conviction with the leave
of the
magistrate.
[2] The conviction flowed from a collision
between a Toyota Venture with registration number C[…], driven
by the complainant,
Mr Maipato, and a Volkswagen Golf with
registration number C[…], driven by the appellant, Mphalane
Anthony Taye. The
collision took place on Riemland road in
Bethlehem on the 26
th
January 2012.
[3] The evidence of the complainant was that at
approximately 9 (nine) to 10 (ten) o’ clock at night on the day
of the collision,
he was driving in the right hand lane of the two
lanes leading south. It was not overcast and visibility was
clear.
The appellant was driving from the opposite direction in
the left lane of the two lanes leading north. A Quantum kombi
was
also driving in the left lane in a northerly direction. It
appeared that the appellant intended to overtake the Quantum.
The vehicles were driving at approximately 60 km/h. Suddenly
the appellant’s vehicle veered to the right hand side
of the
road and collided with the venture driven by the complainant.
This was out of the blue as there was ample space to
overtake the
Quantum.
[4] The damage to complainant’s vehicle
was on the right fender, as well as a torn right front tyre and
damaged rim.
Due to the impact of the collision, the Venture
ended up on the opposite side from where it came.
[5] The complainant testified that the
appellant seemed to be under the influence of alcohol, as they had to
assist him to get out
of the vehicle after the collision. The
appellant could not stand on his feet. Soon thereafter police
arrived on the
scene, but the appellant was then whisked away by
friends and left the accident scene. The police officer was
informed that
the appellant was about to leave, but he failed to act.
[6] On arrival at the scene, student constable
Moses Nkomo found the complainant’s vehicle on the opposite
side of the road.
He proceeded to draw a sketch plan.
[7] It was further the evidence of the
complainant that the appellant did not know what happened. He
said that the appellant
came to see him the next morning to ask what
happened, as the appellant could not remember how the accident
occurred. The
complainant said everything happened so fast, he
could do nothing to avoid a collision. The appellant offered to
repair the
complainant’s vehicle.
[8] In support of the state case, constable
Moses Nkono also testified that broken glass was found on the point
of impact as indicated
by the complainant. This is also
reflected on the sketch plan submitted. He said the bonnet of
the Golf driven by appellant
was also damaged. Furthermore, the
right front headlamp of the Golf and the mirror were also damaged.
There was no
damage to the right front door of the Golf. He
further found that the Venture of the complainant was damaged on the
fender,
right rim as well as a torn wheel, as testified by the
complainant.
[9] He emphasised that these were his
observations, as he did not see the accident taking place. He
had interviewed the complainant
as the appellant had already left the
scene of the accident. He said there were streetlights at the
scene of the accident
and while it was at dark, the sky was clear.
[10] The appellant testified that he was coming
from Nando’s, a fast food outlet, that night driving in the
direction of Bohlokong.
After stopping at the set of robots at
the intersection of Muller and Riemland Road, he drove on to the left
lane of the two lanes
to Bohlokong. He noticed a Quantum kombi
travelling in the same direction and he decided to change lanes to
overtake the
Quantum. This necessitated that he drive into the
right lane of the two lanes.
[11] Upon reaching the turn-off to Malan
Street, he noticed the Venture, driven by the complainant, indicating
that it would turn
right and he anticipated that it would wait for
him to pass. The next moment the Venture just bumped into his
vehicle and
hit it at the front wheel at the right door pillar.
[12] He tried to avoid the accident by
accelerating, but the Venture had already bumped into his vehicle.
He said this took
place far from the collision point as indicated on
the sketch plan and that the accident did not occur at the point
indicated on
the plan. He was not under the influence of
liquor. On the day of the accident he suffered shock as a
result of which
he rushed home to get medication for his heart
condition.
[13] It is clear that on the version of the
complainant the collision was caused by the negligence of the
appellant whilst on the
version of the appellant it was caused by the
negligence of the complainant.
[14] The magistrate accepted the evidence of
the complainant and rejected that of the appellant as false beyond
reasonable doubt.
On appeal we can only interfere with these
findings in case of material misdirection by the magistrate or if we
are convinced that
they are wrong. See
R
v Dhlumayo and Another
1948 (2) SA
677
(AD).
[15] No reliance is placed by the appellant on
misdirection. We are not convinced that the findings of the
magistrate are
wrong. On the contrary, they appear to rest on
solid grounds.
15.1 Constable
Moses Nkomo corroborated the evidence of the complainant with regard
to the area of impact. He testified that
the broken glass
pieces were found on the opposite side of the road relative to where
the appellant was heading to.
15.2 He
further corroborated the evidence of the complainant regarding the
damage to both vehicles. He gave evidence that the front
part of the
appellant’s Golf was damaged, which contradicts appellant’s
version that the complainant was turning to
the right and as a result
bumped into the door of his vehicle.
15.3
Another shortcoming in the evidence of the appellant was that he left
the scene of the accident as soon as police arrived.
He failed
to explain adequately why he could not wait until the police
completed the investigation.
[16] In
the result, the appeal must fail.
ORDER
[17] The
appeal is dismissed.
S.E.
MOTLOUNG, AJ
I concur.
C.H.G. VAN DER MERWE, J
On behalf of appellant: Adv P. Nel
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of respondent: Adv S.
Mthethwa
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse