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[2013] ZAECBHC 3
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Kwelita v S (CA&R 6/12) [2013] ZAECBHC 3 (14 March 2013)
IN
THE EASTERN CAPE HIGH COURT,
BHISHO
CASE
NO: CA&R 6/12
NOT
REPORTABLE
In
the matter between
NCEDANI
SAMSON KWELITA
APPELLANT
Versus
THE
STATE
RESPONDENT
APPEAL
JUDGMENT
HARTLE
J
1.
The
appellant was convicted by the Regional Court, Zwelitsha, on charges
of culpable homicide and failing to obey a road traffic
sign by
driving in excess of the prescribed speed limit of 80 kilometers per
hour respectively.
[1]
2.
In respect of count 1, he was sentenced to undergo four
years’
imprisonment - wholly suspended for five years on certain conditions,
and, in addition, was ordered to pay a fine
of R60 000.00 or in
default of payment to undergo two years’ imprisonment.
On count 2 he was sentenced to pay
a fine of R1 000.00 or two months’
imprisonment.
3.
The present appeal is against both conviction and sentence.
4.
The
charges
[2]
arise from a
fatal collision with a pedestrian on the R63 near Dimbaza on the
early morning of 12 March 2008 in circumstances
where the deceased
suffered an apparently rare transection of his abdominal cavity.
The late Mr
Buya
,
a 37 year old man, was last seen just before the collision by a local
resident, Mr
Elvin
Tamesi
,
who testified that he was making his way on foot towards the R63 on
the left side of the road as one drives from King William’s
Town to Dimbaza, approaching from the direction of Mamata
administrative area. He himself was on watch duty at the gate
of a brickyard near the road when the deceased passed him by.
They had greeted one another and exchanged pleasantries, leading
the
witness to conclude that he was in his sound and sober senses.
He furthermore appeared unhurried. According to
his
observations the deceased was proceeding towards a bus stop which was
about 500 metres from where he was standing when shortly
thereafter
he heard a bang and the sound of a motor vehicle with “
high
revs
”.
On looking in the direction of the R63, he saw something flying up in
the air over the bus shelter and a solitary
motor vehicle on the road
emitting smoke as if it might burn.
5.
He immediately rushed to the road and observed only the
appellant’s
vehicle which had pulled up ahead of the bus shelter. The
appellant, who had alighted from his vehicle
by now, informed him
that he thought he had hit a pedestrian. On looking for the
deceased they ultimately found his dismembered
body lying in two
different areas on the right hand side of the road not very far
apart. He also observed a sports bag and
a primus stove near
the side of the road which he recognized as being the deceased’s
possessions he had seen him carrying
earlier.
6.
He confirmed that there was clear visibility at the time.
It
was already light although the sun was not yet up. From the
point where he was standing at the time he heard the bang,
he could
not see the surface of the road.
7.
Since there
were no eye witnesses who saw how the collision occurred, save for
the appellant himself, the
S
tate
sought to rely on circumstantial evidence. It called certain
police officers who had attended the scene of the collision
to gather
information and make observations, the most important being
Sergeant
Tuze
who took photographs and prepared a sketch plan and key thereto.
[3]
It further called Dr
Zondi
who conducted an autopsy on the deceased and noted the injuries
sustained by him. He attributed the nature of these to a high impact
velocity caused by a blunt object, yet ultimately conceded that the
transection could also have been caused by the deceased’s
interaction with the front leading edge of the roof of the
appellant’s vehicle, which was a sharper object, or the
uplifted
leading edge of the bonnet. A collision expert, Colonel
Poolman
,
who set out to “
prove”
that
the appellant at the time of the collision was driving in excess of
112km/hr, also testified. He sought to establish
this speed
with reference to three different scenarios. The first of these was
reliant upon the distance moved by the vehicle subsequent
to the
point of impact
[4]
, which he
himself conceded ultimately could not be relied on. The second
approach involved a comparison with other case studies,
each
obviously with their unique and different factors, and an unjustified
generalisation that the dismemberment of the body at
the pelvis area
“
is
common at speeds over 138 km/hr
”,
a hypothesis he also agreed was not going to be relied upon.
The third premise was dependent upon the position
of the two
sections of the deceased’s body after the impact and the
assumed distance each travelled through the air, i.e.
the projectile
movement of the parts. But having stated the proposition that
the appellant had probably achieved a speed
of 112 km/hr, the witness
was obliged to concede that this was merely an estimate based on
numerous assumptions which he agreed
were either untested or based on
case studies which differed in many respects from the collision
in
casu
.
8.
Mr
Rodney Crawford
who is a senior manager in the Department
of Transport responsible for the speed limits on national roads
testified with regard
to the speed limit at the time in place on the
R63. He explained that speed limits are determined with
reference to
their suitability for safe travel and added that they
need to be credible (in the sense that motorists accept the limit to
be appropriate
to the environment), failing which they are likely to
be disobeyed. Although his own assessment of a safe and credible
speed at
the relevant junction was 100 km/hr in both directions, he
confirmed that the limit applicable at the time and place (for
traffic
going in the direction of Alice) was 80km/hr. A
decision had been taken to replace the existing sign alleged to have
been
disobeyed by the appellant with one indicating a speed limit of
100km/hr - which should have happened in November 2008 since it
was
gazetted around that time, but to his knowledge it was only increased
in 2009 or so.
9.
The trial court further conducted an inspection
in loco
at the
scene of the collision. The magistrate’s observations
were that the road was straight and wide open, leading
her to accept
that a pedestrian could easily be seen from quite a long distance
away.
10.
The appellant pleaded not guilty to both counts (as well as the
alternatives
to the main count of reckless/negligent driving or
further alternatively inconsiderate driving) and made certain
admissions in
terms of
section 220
of the
Criminal Procedure Act, No
51 of 1977
, relating to the identi
ty
of
the deceased, the peculiar injuries sustained by him, the fact that
he succumbed as a result thereof and that he, the appellant,
was the
driver of the motor vehicle at the time. His defence, however,
was that he was faced with a sudden emergency at the
scene of the
collision. He had taken all the necessary steps he was able to,
but was ultimately unable to avoid the collision.
11.
He testified that he had seen the deceased as he neared the junction
where the
accident occurred from a distance of about 100 metres away
as he was driving along the R63 in the direction of Dimbaza. He
was driving an E Class Mercedes Benz which, according to him, was in
a good condition. Although he was not looking at his
speedometer, he was satisfied that he could not have been speeding as
he normally observes the speed limits on the road unless
he has a
blue light and is driving for an emergency. (As an aside I
mention that the appellant was at the time of trial a
member of the
executive council in the provincial Bhisho legislature.) On
that day he did not have a blue light, however,
and so was required
to adhere to the speed limit. Although he was under certain time
constraints (he had an early cabinet meeting
at 7h00 and needed to
visit his mother in Dimbaza who had called him the previous night
complaining of being ill), he had given
himself plenty of time to
check on her and return to Bhisho in time for his meeting.
12.
It was still dark at the time, although not pitch dark. As a
result he
travelled with his lights on. According to his observations
the deceased gave a clear indication that he was cognizant of his
vehicle
approaching because he had stopped on the side of the road.
Since this was the case, he thought it was safe to continue along.
There was no apprehension of anything untoward, neither any reason to
reduce his speed.
13.
As he got nearer the deceased, however, at a distance of
approximately 10 -
20 metres away, he began to walk into the road.
He weighed whether he should apply his brakes or rather swerve onto
the wrong
side of the road to avoid the collision. Since he did not
think he could stop in time - given the short distance between his
vehicle
and the deceased, he opted for the latter, accelerating
slightly as he did so to ensure a wider berth around him. To
his
surprise, however, the deceased began to run to the right and he
collided with him. All at once he heard a bang on the left side
of
his vehicle resulting in the vehicle’s airbag being deployed
into his face and chest. He managed to bring the vehicle,
which was
veering over onto the right hand side of the road, under control and
stopped a bit further along on the roadway in the
middle, fairly
straddling both sides of the median.
14.
After alighting from the vehicle, he summonsed the police. He
then met
Mr
Tamesi
and together they searched for the
pedestrian first to no avail on the left side of the road.
Ultimately they made the tragic
discovery of his mutilated body on
the opposite side.
15.
When the police arrived he estimated the point of impact as there was
nothing
that could assist him in confirming this exactly.
16.
He confirmed that he had applied his brakes when he heard the bang,
but not
harshly as he was trying to bring his vehicle back to the
left. Under cross examination he rejected the notion that he had not
kept a proper lookout for pedestrians and livestock. In
response to a question posed by the court, he agreed that he had not
sounded his hooter to notify the deceased of his presence on the road
when he had at first seen him, but clarified that this was
in his
view unnecessary since no danger was anticipated.
17.
Professor
Baart
, an expert physicist who also specializes in
the reconstruction of accidents, testified on behalf of the defence
essentially refuting
Colonel
Poolman’s
postulations with
regard to the speed at which he suggested the appellant must have
travelled prior to the collision. Each of the
approaches advocated
him were dealt with in turn and discounted by Professor
Baart
especially with reference to some of the assumptions made by Colonel
Poolman
such as, for example, that the body is elastic
and therefore would have bounced off the vehicle; that the body would
have
hit the ground and just stopped dead instead of sliding; that
the appellant had fully applied his brakes and the realibility of
the
point of impact, each of which factors would have affected his
calculations of speed. Professor
Baart
concluded that
Colonel
Poolman’s
estimated speed of 112km/hr was
unreasonable and imprudent because the information relied on was
insufficient or imprecise, a view
which the trial court, correctly in
my view, accepted without question.
18.
Professor
Baart’s
evidence revealed further that
statistically 80 – 90% of drivers when faced with danger from
the left swerve toward the right
to try and avoid it. He also
opined that if the appellant were travelling at a speed of 80km/hr it
would take 35 metres to
come to a halt. Accordingly, in his
view, if the appellant had applied brakes initially as a means to
avoid the collision,
rather than trying to get around the pedestrian,
he would certainly have hit him in any event. He expressed the
opinion that
the appellant had therefore done precisely the right
thing in the circumstances.
19.
Notwithstanding the trial court’s rejection of Colonel
Poolman’s
conclusions with regard to the speed travelled
by the appellant, the magistrate nonetheless went on to conclude in
her judgment
as follows:
“
Having said that,
the evidence of Mr Kwelita himself, on his own admissions during his
testimony and on being asked by the Court
he told he did not take all
the necessary steps he was able to take to avoid the accident as he
admitted not having (lowered) his
speed at the time he saw a
pedestrian coming from the residential area to join the road, seeing
that witness at the time he was
walking up until the time he stopped
on the edge of the road, when he could have done so driving a
vehicle, a C-Class Mercedes
Benz, which was described by Mr (Poolman)
without being challenged to have been a very efficient braking type
of a vehicle.
He failed to hoot to alert the pedestrian of his
presence or of danger on the road to alert the pedestrian not to
cross, when he
could have done so – or when a reasonable person
in his shoes could have done so. He himself tells the Court
that when
he failed to do so he was still at about 30 to 40metres
[5]
away from the deceased person. He was not five feet away from
the deceased or ten feet away from the deceased person, he
had ample
(time) to have manoeuvred that vehicle in the manner a reasonable
person would have done in the circumstances. Even if
it were to be
accepted that with that vehicle he was driving at 100 kilometres per
hour, the Court having observed the scene and
that road and the
distance, the Court feels he had ample opportunity to have stopped
the vehicle – not even lowered his speed,
to have stopped that
vehicle before colliding with the deceased.
And it is for that reason
that the Court finds that having listened to Mr (Poolman) and the
authorities that he gave to the Court,
that such dismemberment of the
body is very rare and the studies shows that it only happens in
(excessive speeds), that is why
the academics refer to that –
in relation to that as excessive speed. And according to Mr
(Poolman), which the authorities
that he showed to the Court showing
that in most cases – or three or four cases where such incident
according to the authorities
had happened, the speed was alleged to
have been far higher than 138 kilometres per hour. And that
version seems to be corroborated
by Dr Zondi, who describes with his
own experience and a number of years in the autopsy,
[6]
corroborates the version that for a person to have been dismembered
on that part of the body which has strong muscles, it clearly
was due
to – or the only probability is that it was due to high kinetic
energy.
And it is for that reason
that the Court finds that the accused person was negligent at the
time and drove at a speed that rendered
him unable to properly –
or to reasonabl(y) manoeuvre the vehicle in a manner a reasonable
person would have done, which
is why he ended up taking – or
making a choice of trying to avoid the deceased person instead of
stopping the vehicle.”
(Sic)
20.
This finding then provided the basis for the court to conclude that
the appellant
was similarly guilty on count 2 as well.
21.
If there was any doubt that the conviction on both counts was
motivated by the
magistrate finding that the appellant had driven at
an excessive speed in the circumstances and that she considered him
liable
on the basis of his own version amplified by his admission
under examination by the court that he had failed to hoot or
decelerate,
this was clarified in her reasons for judgment as
follows:
“
AD PARAGRAPH 1, 2
AND 3
[7]
It is indeed correct
that, the court found that mr (Poolman’s) conclusions regarding
the estimated speed at which the applicant
was driving could not be
relied on and not all of mr (Poolman) evidence was rejected by the
court but his ultimate estimated speed
at which the applicant was
driving at the time. The court in convicting he applicant
considered amongst other things, applicants
own version of events
during examination by court, viz that he saw the deceased for the
first time on the side of the road when
applicant
was
about 100 metres away from him and that he was about 20-30 Metres
[8]
away from the deceased started entering the road and running to cross
over. It was his evidence that he never at any stage
reduced
his speed nor did he apply his (brakes) or hooter
[9]
to avoid colliding with the deceased. That coupled with the
evidence that applicants vehicle, in the absence of any suggestions
of any mechanical defect, has a high level of (braking) efficiency
(according to an expert Mr Poolman) as well as other evidential
material in the sense the postmaster,
[10]
the observations by the court during the inspection in loco, the
evidence by Dr Zondi with regards to his chief post mortem findings
that the dissection of the body on the torso is not only very rare
but consistent with high velocity; the court found that the
applicant
drove at a high speed that rendered him incapable of properly
manoeuvring his vehicle to avoid colliding with the deceased
and was
thus negligent in the circumstances.
AD PARAGRAPH 4
[11]
From applicants own
version during examination by court, he did not apply his (brakes) to
reduce speed when he saw the deceased
on the side of the road, he did
not apply his hooter, coupled with the finding made by court that he
travelled at a high speed
that rendered him incapable of avoiding a
collision with the deceased, it was the finding by court that his
actions in trying to
avoid the deceased by swerving to his wrong side
on the road was not just an error of judgement on his part but were
to a certain
extent motivated by the high speed he was driving at and
in the circumstances he was the creator of the sudden emergency he
found
himself in.
AD PARAGRAPH 5
[12]
Having accepted DR
(Z)ondi’s evidence and having made a finding that applicant was
driving at a high speed, the court found
applicant guilty on the
second count as well.” (Sic)
22.
Not surprisingly the appellant sought leave to appeal against his
conviction
inter alia
on the basis that having recognized the
limitations and unreliability of the evidence of Colonel
Poolman
,
the court had nevertheless sought to rely thereupon for its finding
of negligence. In this regard the premise that the appellant
had travelled at an excessive speed provided a false basis for the
conclusions reached by the court not founded in the evidence,
inter
alia
, that he had had ample opportunity to stop his vehicle in
time to avoid the collision, and that he himself was responsible for
creating the danger in the first place. Further, the court had
convicted him of findings of negligence not relied upon by
the state
either in the charge sheet or in the further particulars. The
appellant also complained that the magistrate had failed
to apply the
proper test with regard to circumstantial evidence and had similarly
failed to have regard to the onus on the state
to prove its case
beyond reasonable doubt.
23.
It was further submitted that, more critically, the trial court had
wrongly
rejected the evidence of the appellant when it was
uncontroverted and certainly reasonably possibly true.
24.
The State submitted on the other hand that the magistrate had
correctly drawn
an inference from the circumstances that the
appellant had driven at an excessive speed in the circumstances.
25.
As a
premise there were two distinct issues before the trial court.
The first concerned whether the State had proved beyond
reasonable
doubt that the appellant had driven at a speed which was excessive in
the circumstances and was therefore negligent
(this being the ground
of negligence relied upon by the State) and, secondly, whether he had
driven at a speed in excess of 80
km/hr, thereby disobeying the
applicable road sign. A positive finding on the latter aspect
would not necessarily have established
negligence. Although the
appellant was charged with disobeying a road sign rather than
speeding
[13]
(perhaps because
the State was relying on inferential reasoning in this regard), it
was still necessary for it to established as
a fact that he drove his
vehicle at a speed in excess of 80 km/hr. This is no mean feat
especially since even estimates of
speed in general are approached
with great caution, yet the
S
tate
sought to establish this fact by inferential reasoning.
26.
The theme of the
S
tate’s case was
that this extremely rare transection
of the
deceased’s body
could only have been the result of the
application of substantial force to it. Dr
Zondi’s
evidence was calculated to support the view that because of the size
and strength of the abdominal cavity and its muscles, realistically
it could only be transected by the vehicle - which had no sharp edges
to it, colliding with him at high speed. Colonel
Poolman’s
evidence was similarly aimed at “
proving
” that the
appellant had driven at high speed by relying
inter alia
on
the extremely rare nature of the injury and a text book article which
propounded that the dismemberment of a body at pelvis
area is
“
common
” at speeds over 138 km/hr.
27.
But this is in my view not one of those instances where the doctrine
of
res ipsa loquitor
is applicable simply on the basis of the
rare nature of the transection. The injury cannot speak for
itself because it could
have occurred in a myriad of ways as Dr
Zondi
conceded under cross examination, even where the vehicle interacting
with the pedestrian was moving at a speed of less than 80
km/hr.
Horrific and seemingly incredulous it may be to accept that the
transection of a pedestrian can be caused by anything
other than an
impacting vehicle colliding with him at high speed, that in itself is
not enough to sustain the conclusion that the
appellant was driving
at an excessive speed in the circumstances.
28.
Once the
magistrate recognized the fallibility of Colonel
Poolman’s
calculations
and the unreliability of his estimate of speed (and had she
taken into account Dr
Zondi’s
concession under cross examination that the deceased’s injury
could equally have been caused by his interaction with the
appellant’s vehicle on impact either on the sharp lifted edge
of the bonnet or the windscreen, this providing a reasonable
alternative explanation for the transection), the two requirements
for a conviction based on circumstantial evidence set out in
R
v Blom
[14]
could not be met. Indeed the magistrate appeared to completely
ignore the cardinal rules of logic postulated for inferential
reasoning, simply pegging her conclusion that the appellant drove at
an excessive speed on the two generalised observations referred
to
above which have no basis in the facts proved.
29.
There is
further no general legal principle that a presumption of negligence,
both in fact and law arises against a motorist who
knocks down a
pedestrian in a road, even in broad daylight.
[15]
In any event, the damage to the appellant’s vehicle and the
approximate area of impact pointed out by him are consistent
with the
deceased having “
force(
d
)
his wilful act against the will of the road users
”
[16]
by crossing the road when it was inopportune to do so. That
this was the most likely scenario, i.e. that the deceased ran
from
left to right across the roadway in front of the appellant’s
approaching vehicle and that it swerved right in an attempt
to avoid
the collision appeared to be accepted.
30.
In this regard, the trial court found, correctly in my view, that the
appellant
was faced with a sudden emergency by the deceased entering
onto the road. This is evident from her judgment on sentence in
which she observed that:
“
There is no doubt
in this Court’s mind that the deceased person contributed to
the accident that led to his fatal death on
that day. He was a
grown up adult who stayed not far from the area and evidence
suggested he regularly used the road in question
and as indicated
during judgment, the road in question is a wide, clear road, the
deceased obviously saw Mr Kwelita’s vehicle
on the road and he
himself should have exercised caution as an adult, before crossing
the road.”
31.
What she took issue with however is how he conducted himself in the
face of
this imminent danger. In this assessment she
unfortunately reverted back to the premise that he had driven at an
excessive
speed, this evident from the rare nature of the transected
abdomen, “
corroborated
” in her view by Dr
Zondi’s
evidence that such injury had been caused by high velocity.
Once she had rejected Dr
Poolman’s
estimate of the speed
travelled before the collision, however, there was no basis then to
rely on this evidence in determining
whether the doctrine of sudden
emergency should apply or not. Dr
Zondi
had also made
the important concession that there were sharp edges on the vehicle
equally responsible for the transection which
the magistrate
overlooked. The supposed “
blameworthiness
”
on his part in this regard can therefore simply not be established on
the evidence.
32.
Further
implicit in the magistrate’s reasoning that the appellant was
responsible for creating the emergency was the idea
firstly that he
had failed to keep a proper lookout. This, however, ignores the
evidence and her apparent acceptance of it,
that the deceased only
entered the roadway much later. Therefore, the advantage of
being on a wide open road and clearly
being able to see the deceased
from a distance of 100 metres away is irrelevant because, from this
distance, no danger presented
itself. The deceased had not
encroached onto the roadway as yet and there was no reason at that
point to be especially cautious,
or to take reasonable precautions,
because of his presence there. By waiting on the side of the
road it was reasonable for
the appellant to infer that the deceased
had seen him. The appellant’s mere sighting of him was no
portent of what
unfolded later as the distance between them
closed.
[17]
It follows
for this reason that there was no need for him to have either lowered
his speed or to have hooted to warn the
deceased.
[18]
Absent any apprehension of danger, it was not unreasonable for the
appellant to expect at that stage that he could safely
pass the
deceased.
33.
Different considerations apply however from the moment the appellant
realized
that he was in a position of imminent danger. In this
regard the magistrate - having no reason to reject the appellant’s
estimate of when the deceased began to enter the road (he says 10 –
20 metres), incorrectly records it as being at a distance
of 30 –
40 metres away from the deceased. In her reasons for judgment
she says the distance was 20 – 30 metres.
This no doubt
influenced her finding that the appellant had “
ample
”
time to manoeuvre his vehicle in the manner a reasonable person would
have done in the circumstances and indeed even to
have brought it to
a complete stop, a conclusion not founded in the evidence. In
this regard she ignored the unchallenged
evidence of Professor
Baart
that even at a speed of 80 km/hr a distance of least 35 metres was
necessary to bring the vehicle to a stop. Seemingly she relied
for
this finding entirely on her own observations of the “
scene
and that road and the distance
” and the incorrect
assumption that preventative measures were necessitated from the
moment of the appellant’s first
sighting of the pedestrian.
34.
The steps
expected from a driver facing a sudden emergency are such as a
reasonably careful driver would fairly be expected to take
in the
circumstances.
[19]
In
this regard the appellant convincingly explained why he thought it
would be safer to swerve to the right in an attempt
to avoid the
collision and in so doing why he needed to accelerate. There
was no time, given the short distance between him
and the deceased
when the danger first presented itself to stop his vehicle.
There is no evidence that suggests that another
approach would have
been more appropriate or would have prevented the collision.
35.
The appellant’s own explanation of how he perceived the danger
and responded,
and his denial that he exceeded the prescribed speed
limit or drove with an excessive speed so as to have been responsible
for
creating the sudden emergency and therefore being unable to react
in time as a reasonable driver would, is not found wanting in
any
respect. Indeed, his credibility was not impugned neither
was it suggested by the magistrate that his evidence
was improbable.
On the contrary, there is corroboration to be found in his account of
how the events unfolded as I indicated
above, for example in the
recorded damage to the vehicle and the area of impact pointed out by
him. Further, both Colonel
Poolman
and Professor
Baart
agreed that the defining event, that is the deceased entering the
roadway and the trajectory which he took towards the right side
of
the road, was the most likely scenario in their reconstruction each
of the collision.
36.
As for the appellant’s denial that excessive speed was a
factor, in the
absence of any reliable estimate to the contrary,
there exists a reasonable possibility that his evidence in this
regard may be
substantially true. The same applies to his
estimate of the distance between himself and the deceased at the
onset of the
emergency. He ought therefore in my view to have
enjoyed the benefit of the doubt.
37.
Shorn of
the premise that the appellant drove at an excessive speed in the
circumstances, an examination of the situation to determine
what a
reasonable driver would have done takes on an entirely different
gloss. In this regard, in assessing the manner in
which he says
he responded, it ought properly to be borne in mind that when a
person is confronted with a sudden emergency not
of his own doing, it
is wrong to examine meticulously the options taken by him to avoid
the accident, in the light of after acquired
knowledge, and to hold
that because he took the wrong option, he was negligent.
[20]
38.
The test is whether the course which he ultimately adopted fell short
of what
a reasonable driver would have done in the circumstances. I
am satisfied, having regard to the evidence, that the appellant
took
the proper steps to avoid the accident and that he acted reasonably
in the circumstances. His attempting to steer a
course around
the deceased appears to my mind to have been the better option of the
two which the trial court accepted presented
itself to him at the
time, especially since the evidence established that he would have
been unable to timeously pull up his vehicle
to avoid the collision
over the short distance between him and the deceased when the latter
stepped onto the roadway.
39.
In the result the conviction on the charge of culpable homicide ought
to be
set aside.
40.
Since the same reasoning concerning the estimated speed at which the
appellant
travelled before the collision applies in respect of the
conviction on count 2, it must follow in my view that the inference
drawn
by the trial court that the appellant drove at a speed in
excess of the prescribed speed limit and that he therefore disobeyed
a traffic sign cannot be sustained. I suspect that the reason
the State charged the appellant with the offence of disobeying
a
traffic sign, rather than failing to observe the prescribed speed
limit (which requires specificity regarding the speed exceeded),
is
because it was reliant on circumstantial evidence in the first place.
41.
It is unnecessary to traverse in detail each of the other specified
grounds
upon which it is submitted the magistrate misdirected
herself, except to single out one of those in particular. I
refer in
this regard to the appellant’s submission that during
the course of the trial the magistrate sought actively by way of
intervention
and questioning to further the case of the prosecution
and to refute his case.
42.
One such
example is that she sought by way of questioning Sergeant
Tuze
to clarify or attempt to justify certain irregularities pointed out
by the defence in respect of the sketch plan prepared by him.
She
also sought to elicit evidence from Colonel
Poolman
in respect of an issue not pursued by the State.
Notwithstanding an objection by counsel for the appellant that what
she
was seeking to extract from him had not been covered by the
State, this did not deter her from pressing in with her own
preconceived
notion that the appellant could have stopped his
vehicle over the longer distance of 100 metres in sufficient time to
avoid
the collision. When the appellant himself testified she
again sought by way of extensive questioning to promote the premise
that his failure to hoot constituted a basis for negligence.
Again, and against the strong submission of counsel at the time
that
the State was bound by the further particulars furnished by it that
the grounds of negligence were specific to exceeding the
speed
limit,
[21]
she vociferously
maintained her entitlement to examine him further in the “
interests
of justice
”
and proceeded undeterred by the appellant’s complaint.
43.
It is trite
that a judicial officer must conduct a trial open-mindedly,
impartially and free, and in a manner that instills confidence
in an
accused person that his fair trial rights are not under threat. Such
conduct must be manifest to all those who are concerned
in the trial
and its outcome, especially the accused. The requirement that justice
must not only be done, but be seen to be done
has been recognized as
lying at the heart of the right to a fair trial.
[22]
When a magistrate conducts the examination he gives the unfortunate
impression that, even absent any ulterior motive, his
“
vision
has been clouded by the dust of the conflict
”.
Unconsciously he deprives himself of the advantage of calm and
dispassionate observation.
[23]
44.
In this instance the answers sought to be elicited from the
appellant
under examination by the court seemed designed to make out
a case favorable to the State and the manner in which they were asked
bordered on near cross examination. The appellant was in my view
justified in submitting upon appeal that the magistrate had descended
into the arena and that at least a perception of bias was created to
negate his right to a fair trial. Bias denotes a state
of mind
that is in some way predisposed to a particular result, or that it is
closed with regard to particular issues. Whilst some
of the questions
posed by her were in elucidation, the magistrate clearly steered a
course with her examination which was predisposed
towards finding the
appellant guilty on the facts she elicited, and against the
possibility that his version might be reasonably
possibly true.
45.
Contrary to
what was submitted by the State in this regard, this was not one of
those cases where the interests of justice
[24]
required the court to become involved in the matter and to seek to
adduce evidence which did not form part of the State’s
case.
Rather, I am satisfied that the magistrate’s strained
involvement in the matter amounts to a departure from the standard
of
even handed justice which the law requires of a judicial officer.
This notwithstanding, in view of my findings above on
the merits, I
do not consider it necessary to determine if this irregularity
necessarily vitiated the proceedings. It was incidentally
not argued
to be the case beyond the complaint of a perception of bias.
46.
In the premises the appeal succeeds and the conviction on both counts
is set
aside.
B
C HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE AND IT IS SO ORDERED:
D
Z DUKADA
JUDGE
OF THE HIGH COURT
DATE
OF APPEAL : 9 November 2012
DATE
OF JUDGMENT: 14 March 2013
APPEARANCES:
FOR
APPELLANT:
Mr
E A S Ford SC
Instructed
by
Wesley
Pretorius & Associates,
East
London
FOR
RESPONDENT:
Mr
L L Mbusi,
Care
of the office of the Deputy Directorate of Public Prosecutions,
Bhisho
[1]
The charge sheet referred to a contravention of
section 58(1)
, read
with section 89(1), of the Road Traffic Act, No. 93 of 1996.
[2]
With regard to count 1, apart from the main offence of culpable
homicide, the appellant was charged in the first alternative
with
reckless/negligent driving and in the second alternative with
inconsiderate driving. He sought and was ultimately
furnished
with particulars which foreshadowed the grounds of negligence the
state intended to rely upon. These were that
the appellant’s
vehicle “
was
driven at a speed in excess of 80 km per hour which shows that he
was negligent and did not have a proper lookout for other
road
users
”.
In respect of count 2 it was clarified by the particulars furnished
that the single road sign which he failed to
obey was one of “
80
km/h
”
as was depicted in “
the
photo albums
”
and which was displayed on the road from King William’s Town
to Alice. (As an aside I mention that it was
common cause that
the sign was 2.6 kilometres back from the scene of the collision.
On the other side of the road, going
back in the opposite direction,
a sign near the junction where the collision occurred depicted a
speed limit of 100km/hr.)
[3]
Although
the trial court praised Sergeant
Tuze
for his “
excellent
”
plan and key, numerous errors and inconsistencies in them were
pointed out during cross examination. Accuracy was
fundamental
to the state’s case that the appellant drove at a high speed
in excess of the prescribed speed limit as it’s
expert
witness, Colonel
Poolman
,
sought to calculate the speed alleged to have been travelled by the
appellant with reference to Sergeant
Tuze’s
measurements as to point of impact, where the body was located and
where the vehicle came to a standstill.
[4]
The state delivered further particulars which suggested
inter
alia
that,
having regard to the distance between the point of impact and where
the car driven by the appellant stopped after the collision,
the
inference was to be drawn that the car was driven at a speed in
excess of 80km/hr.
[5]
This is in fact incorrect. The appellant testified that he was
10 – 20 metres away when he was faced with the sudden
danger
of the deceased coming onto the roadway ahead of him.
[6]
This is a further misstatement. Dr
Zondi
testified that he had only had a few months’ experience before
he conducted the autopsy.
[7]
These paragraphs deal with the court’s finding that the
appellant had ample opportunity to stop his vehicle, and the
unreliability of Colonel
Poolman’s
evidence.
[8]
This estimation by the appellant is again incorrectly stated.
A distance of even 10 metres would make an appreciable difference
to
the assumption that the appellant could have stopped his vehicle
well in time to avoid the collision.
[9]
It
was never a ground of negligence relied upon by the state that the
appellant had failed to hoot but in any event for the reasons
indicated below, it appears entirely unnecessary for him to have
done so when the deceased first came into his sight.
[10]
I
could not discern, even from the context, what the magistrate meant
in this regard.
[11]
This paragraph dealt with the appellant’s submission that his
version that he was confronted with a sudden emergency was
reasonably possibly true.
[12]
This final paragraph concerned the charge of disobeying a road sign.
[13]
A
contravention of section 59(4)(b) of the National Road Traffic Act.
[14]
1939 AD 188
at 202.
[15]
R v
Jonas
1949 (2) SA 801
(N) at 802- 803.
[16]
Tyobo v
Santam Versekeringsmaatskappy Bpk
1981 (4) SA 900
(O) at 902 G – 903 A.
[17]
See
Santam
Insurance Company Limited v Nkosi
1978 (2) SA (AD) in which the duty of the
diligens
paterfamilias
is discussed in the context of a motorist being bound to exercise
especial care and vigilance not only to children whom he sees,
or
ought reasonably to see who are present in or near a street, but
also towards hidden children whose presence there he ought
reasonably to foresee or anticipate. The court called to
memory that the
diligens
paterfamilias
is not a “
timorous
faintheart always in trepidation lest he or others suffer some
injury
”,
nor is he “
given
to anxious conjecture and morbid speculation
”.
These comments apply with equal force
in
casu
.
[18]
See
in this regard
Farelo
v Minister of Police
1973 (1) SA 431
(C) in which it was held that the driver had been
entitled to infer that the pedestrian (who from a distance of 12
feet from
him had crossed to the centre line of a 62 feet wide road,
paused, and stopped, looking to the right and left) was aware
of oncoming traffic and that he was going to wait in the middle of
the road until it was safe to cross the other half of the
road, and
that he had not been negligent in taking no special precautions
either to warn the pedestrian or take avoiding action
in
anticipation of his crossing the path of his vehicle.
[19]
Ntsala
& Others v Mutual and Federal Insurance Company Limited
1996 (2) SA 184
(T) at 192 F – H.
[20]
Cooper
v Armstrong
1939 OPD 140
at 148;
Road
Accident Fund v Jason King Grobler
[2007] SCA 78 RSA at par 12.
[21]
See R
v
Kroukamp
1927
TPD 412
and
R
v Andreka
1946 EDL 254
at 258 regarding the proposition that the State was
bound by the further particulars pleaded and could not raise
additional grounds
of negligence not pleaded or canvassed in the
evidence during the trial. See also
Commentary
on the
Criminal Procedure Act: Du
Toit
at page 14-27
[22]
See in this regard
S
v Le Grange & Others
[2008] ZASCA 102
;
2009
(1) SACR 125
SCA;
S
v Rall
1982 (1) SA 828
(A) at 831;
S
v Msithing
2006 (1) SACR 266
(N); and
S
v Tyebela
1989 (2) SA 22
(A).
[23]
Yuill v
Yuill
1945 (1) ALL ER 183
(CA) at 189A.
[24]
See
S v
Mseluku & Others
2006 (2) SACR 237
(N) at 242 b – d relied upon by the State in
support of the submission that in a criminal case a judge has more
latitude
to intervene to ensure that justice is done, and that her
intervention
in
casu
was necessary to clarify the issues raised by her in the interest of
justice. In the latter matter it was held
that the
inexperience of the prosecutor created the necessity for calling a
witness so that the court could ensure that justice
was done.
Section 186
of the
Criminal Procedure Act no 51 of 1977
provides for
the power of a court to call a witness if the evidence of such a
person appears to the court essential to the just
decision of the
case. In this instance however the matter was less about the
necessity to clear up any points still obscure
after the examination
of the appellant by counsel than the need for her to elicit certain
answers which would justify a finding
of negligence on grounds that
were not even a feature of the State’s case.