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[2012] ZAKZPHC 26
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Zulu v S (189/2011) [2012] ZAKZPHC 26 (4 May 2012)
IN THE KWAZULU-NATAL
HIGH COURT: PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 189/2011
In the matter between:
PRINCE SIFISO ZULU
….................................................................................
APPELLANT
And
THE STATE
…...............................................................................................
RESPONDENT
______________________________________________________________________
J U D G M E N T
KOEN J
:
INTRODUCTION
:
[1] The appellant was
charged in the Regional Court with the following counts:
1. Culpable Homicide, in
respect of the death of Sidumisile Nonjabulo Mncube;
2. Culpable Homicide, in
respect of the death of Hlengiwe Yvonne Dhlamini;
3. Contravening section
63(1) read with sections 1, 63(2), 63(3), 69, 73, 74 and 89 of the
Road Traffic Act No 93 of 1996 (‘the
Act’) -
Reckless/negligent driving;
4. Contravening section
61(1) read with section 1, 61(4), 61(5), 69, 73, 74 and 89 of the Act
– Failing to perform the duties
of a driver after the accident,
namely failing to immediately stop his vehicle, failing to ascertain
the nature and extent of any
injuries sustained by any person,
failing to render such assistance to the injured person as he may be
capable of rendering, and
failing to ascertain the nature and extent
of any damage sustained;
5. Contravening section
4(2) read with section 1, 69, 73, 74 and 89 of the Act –
Operating an unlicensed /unregistered vehicle;
6. Contravening
Regulation 35(6)(a) read with Regulation 1 of the National Road
Traffic Regulations 2000 as promulgated by section
75 and further
read with section 1, 69, 70, 74 and 89 of the Act – Displaying
an incorrect license number not applicable
to vehicle NUR 392629;
7. Contravening section
65 (2) read with sections 1, 65(3), 65(4), 69, 73, 74 and 89 of the
Act – Driving a motor vehicle
whilst the blood alcohol
concentration exceeded 0,05 grams per 100 ml.
Counts 1 to 6 were all
alleged to have been committed at or near NMR Avenue, Durban on 29
March 2008. Count 7 was alleged to have
been committed on 8 July 2006
on the Western Freeway in the Regional Division of KwaZulu-Natal.
Although counts 3 to 7 identify
the motor vehicle involved, variously
as having registration numbers NUR39629, NUR 39269 and NUR 392629,
nothing turns on this
discrepancy as there is no dispute that the
alleged offences all pertain to the same vehicle, a BMW X5
(hereinafter simply referred
to as ‘the X5’) owned by the
appellant.
[2] The Appellant pleaded
guilty to count 5 and 6, that is that on 29 March 2008 he unlawfully
operated the X5 on a public road,
namely NMR Avenue within the
Regional Division of KwaZulu-Natal whilst such vehicle was not
registered and licensed and that he
did on the same day and at the
same place ‘drive’ the X5 while displaying a licensed
number which was not applicable
to that vehicle. His plea of guilty
to these counts was dealt with in terms of
section 112(1)(a)
of the
Criminal Procedure Act 51 of 1977
. Although having admitted to
‘operate’ and ‘drive’ his vehicle on NMR
Avenue on 29 May 2008, he pleaded
not guilty to counts 1, 2, 3, and
4, and in his plea explanation, which was confirmed by him, advanced
as his defence to those
counts that he was not the driver of the X5
at the time of the accident? He pleaded that the name and details of
the driver of
his vehicle at the time of the accident had been
disclosed to the investigating officer. The appellant also pleaded
not guilty
to count 7, his defence being that due to an alleged
discrepancy in the seal numbers appended to the blood sample taken
from the
appellant and that analysed in the laboratory, the blood
analysis resulting in a reading of 0,15 grams per 100 milliliters, in
excess of that allowed by law, was not proved to be an analysis of
blood taken from the appellant.
[3] After hearing
evidence, the court
a quo
convicted the appellant of all seven
counts. The sentences imposed were as follows:
(a) Counts 1, 2 and 3
were treated as one for the purpose of sentence and the appellant was
sentenced to five (5) years’ imprisonment,
two (2) years’
of which was suspended for three years’ on condition that he
was not convicted of reckless or negligent
driving or culpable
homicide committed during the period of suspension;
(b) On count 4 he was
sentenced to pay a fine of R3000,00 or in default to undergo one (1)
years’ imprisonment;
(c) On counts 5 and 6 he
was sentenced to pay a fine of R1 500,00 or three (3) months
imprisonment on each count;
(d) On count 7 he was
sentenced to pay a fine of R3 000,00 or in default to undergo one (1)
years’ imprisonment.
It was directed that the
sentences on counts 4, 5, 6 and 7 run concurrently with the sentence
on counts 1, 2 and 3.
[4] The appellant appeals
with the leave of the trial court against his convictions on counts 1
to 4 and 7, and the sentences of
these counts.
THE FACTS THAT ARE
COMMON CAUSE OR NOT IN DISPUTE PROVING THE COMMISSION OF THE
OFFENCES
:
[5] The learned
Magistrate in the court
a quo
correctly recorded that the
following facts are either common cause or not in dispute:
(a) That a horrific
accident occurred at the intersection of NMR Avenue and Somtsue Road
in the evening of 29 March 2008 at approximately
21h00;
(b) That the X5 collided
with a Colt Mitsubishi double cab bakkie;
(c) That the X5 vehicle
belonged to the appellant;
(d) That the driver of
the appellant’s vehicle abandoned the vehicle and the scene and
absconded from the scene of the accident;
(e) That two occupants of
the colt Mitsubishi double cab were killed and several others injured
as a result of the collision;
(f) That the X5 was
travelling south upon NMR Avenue at a high speed, and had disregarded
the red robot at the intersection and
collided with the Colt
Mitsubishi vehicle which was turning into Somtsue Road;
(g) That the two deceased
died as a direct result of the injuries they sustained during the
accident; and
(h) With regard to count
7 that the appellant was stopped at a road block on the western
freeway whilst driving his vehicle, that
blood was drawn from him and
sent for an analysis of the alcohol content.
THE ISSUES BEFORE THE
COURT A QUO:
[6] In the light of the
appellant’s plea explanation, the trial proceeded on the
following issues:
(a) Whether the appellant
was the driver of the X5 on NMR Avenue on 29 March 2008 when it was
involved in a collision;
(b) Whether the blood
sample analyzed was proved to be that taken from the the appellant.
WAS THE BLOOD SPECIMEN
ANALYZED, THE BLOOD SPECIMEN TAKEN FROM THE APPELLANT?
:
[7] The evidence
established that after having been stopped on the western freeway on
8 July 2006, a blood specimen was taken from
the appellant by Sister
Ogle within two hours of him being stopped. The regularity of
obtaining the specimen was not impeached
in any way. She opened a
blood kit sealed and marked BA/A289602 from which she took a
vacu-tainer which would contain the blood.
Once she had taken the
blood specimen she put it back in the kit and sealed it with seal
number BA/A289603 which had come with
the kit. The evidence
established that a blood specimen sealed with number BA/A289603 was
received by Ms Erna Hofmayer under cover
of a letter with CAS no
144/07/06. It was analyzed by her and produced a finding that the
concentration of alcohol in the specimen
of blood, was 0.15 grams per
hundred milliliters, thus exceeding the permissible legal limit of
0,05 grams per 100 milliliters.
[8] The appellant’s
contention that the blood specimen analyzed was not that taken from
him, was not pursued with great vigour
by Mr Masuku on behalf of the
appellant and, not surprisingly so. Something was sought to be made
of a hypothetical situation should
a specimen of blood be received
reflecting a seal number BA/A289602/3. The uncontroverted evidence of
Sister Ogle was that this
would still refer to the same specimen.
This evidence was not contradicted by the appellant.
[9] In any event the
specimen respectively taken by Sister Ogle and analyzed in the
laboratory, were not only identified by the
serial number, but also
an Umbilo CAS number 144/07/06, which is also reflected on the
results of the specimen analyzed.
[10] The technical
defence raised by the appellant regarding the identification of the
blood specimen, was without any merit whatsoever.
I am satisfied that
the court
a quo
was correct in concluding that the State had
proved beyond a reasonable doubt that the specimen analyzed was the
blood specimen
obtained from the appellant. The appeal against the
conviction of the appellant on count 7 accordingly falls to be
dismissed.
WAS THE APPELLANT THE
DRIVER OF THE X5 MOTOR VEHICLE AT ALL TIMES MATERIAL TO COUNTS 1, 2,
3 AND 4 ON 29 MARCH 2008 ON NMR AVENUE?
:
[11] Counts 1 to 4 all
involve the driving of the X5 motor vehicle for the purposes of the
common law offence of culpable homicide
( counts 1 and 2), or for the
purposes of the Act (counts 3 and 4).
[12] The State bears the
onus of proving beyond a reasonable doubt that the appellant was the
driver of this vehicle.
[13] In order to
discharge this onus, the State relied on:
(a) The presumption
contained in section 73 of the Act;
(b) Circumstantial
evidence.
[14] The circumstantial
evidence relevant to whether the appellant was the driver of the X5,
was largely either not disputed or
not contradicted. The defence
sought to make much of what the appellant had allegedly reported to
various witnesses called by the
state regarding who the driver of his
vehicle allegedly had been at the relevant time, as well as responses
given by these witnesses
when confronted in cross-examination with
the version of the accused that the driver at the time was one
Bongumusa Gumede.
1
In some instances these
witnesses candidly admitted when confronted with the version of the
appellant and when pressed on the issue,
that they would not be in a
position to dispute such version. Putting the version of an accused
to state witnesses, is of course
one of the fundamental requirements
of cross-examination of state witnesses, namely that they should be
confronted with the accused’s
version, so that they may comment
thereon, either concede it, indicate that they cannot comment
thereon, or dispute such version.
In the absence of a concession or
admission of the correctness of the version of an accused, thus
making the version of the accused
the evidence of a particular
witness, propositions as to what the accused will say or advance as
part of his case, is not evidence,
unless proved by the testimony of
the accused or witnesses he may call. What the accused reported to
state witnesses, when testified
to by them, generally remains
inadmissible as hearsay evidence, or should he give evidence, as a
previous consistent statement
(which would only be admissible in
exceptionable circumstances),
but
it is not evidence
per
se
.
[15] The question more
correctly in regard to the circumstantial evidence adduced, is
whether the court
a
quo
was
justified in drawing the inferences it did. This aspect will be
considered when considering the evidence in more detail below.
THE PRESUMPTION IN
SECTION 73 OF THE ACT
:
[16] Section 73 (1) of
the Act provides:
‘
Where in any prosecution in
terms of the common law relating to the driving of a motor vehicle on
a public road or in terms of this
Act, it is necessary to prove who
was the driver of such vehicle, it shall be presumed, in the absence
of evidence to the contrary,
that such vehicle was driven by the
owner thereof.’
[17] The onus remained
throughout on the state to prove the guilt of the appellant beyond a
reasonable doubt. Accordingly, it would
be sufficient for the
appellant to rebut the presumption,
if
on the probabilities the appellant as the owner of the vehicle can
show on a conspectus of the evidence that he was not the driver.
2
But that is a question to
be answered on a conspectus of and an evaluation of all the
admissible and credible evidence adduced before
the court.
[18] The appellant has
adopted a novel approach to his obligations arising from the
operation of the presumption. He argues that
his denial of being the
driver communicated extra curially to state witnesses on a number of
occasions, as testified to by them,
including the evidence that the
appellant had initially advised them that Mr Dumisani Ngcobo and
subsequently Mr Bongumusa Gumede
was the driver at the relevant time,
constitutes ‘evidence’ that the appellant as owner was
not the driver, that such
evidence was none the less ignored by the
State, that it meant that the court was faced with two irreconcilable
versions on ‘the
evidence’, that the presumption
accordingly could not apply, and that it remained for the state to
prove its case against
the appellant, without the assistance of the
presumption, beyond a reasonable doubt, which it failed to do.
[19] The fundamental flaw
in the appellant’s aforesaid submission lies in treating the
evidence of state witnesses as to what
was reported to them by the
appellant or others,
such
as Mr Bongumusa Gumede and what the appellant said to his attorney,
Mr Kafu,
as
admissible and credible evidence, which it is not.
3
[20] As indicated
earlier,
what
the appellant reported to state witnesses as to who was the driver,
or as to what Mr
Bongumusa Gumede might have reported to the investigating officer,
is inadmissible, or at
the very least of insufficient probative value, in the absence of the
appellant and/or Mr Bongumusa Gumede
testifying, to even remotely
rebut the presumption on a balance of probabilities.
[21] The appellant never
testified and what he was alleged to have reported to the state
witnesses as to the true identity of the
driver of his vehicle at the
time, could never be tested in cross-examination. His identification
of the driver, as reported to
the state witnesses in any event varied
from him initially having identified Mr Duminsani Ngcobo of
Pietermaritzburg,
4
to the appellant
subsequently reporting to the investigating officer that the driver
was in fact Mr Bongumusa Gumede. Mr Bongumusa
Gumede never testified,
and when confronted by the investigating officer was not prepared to
admit in his warning statement that
he was the driver of the vehicle.
His warning statement simply recorded that he would ‘speak in
court.’ Such an approach
is understandable in the light of Mr
Bongumsa Gumede’s right not to incriminate himself, but it then
made it all the more
indispensable for the appellant to testify.
[22] Apart from not being
established by credible admissible evidence of sufficient probative
value, these versions of the appellant
as to the identity of the
driver of the X5 are themselves inherently contradictory, mutually
exclusive, the contradiction never
explained by the appellant, and
accordingly patently insufficient to constitute a rebuttal of the
operation of the presumption.
Mr Bongumusa Gumede’s statement
to Mr Quinton Herbst, the insurance assessor, even if taken as extra
curial admission
5
to which Mr Herbst
testified, is not conclusive. At the end of the day its probative
value must be assessed on a conspectus of all
the evidence. Mr Herbst
stated that he did not believe Mr Bongumusa Gumede, and weighed
against all the evidence neither do I.
Similar considerations apply
to his alleged visit to the police station accompanied by his
attorney Mr Kafu. Mr Kafu simply acts
on his client’s
instructions and cannot vouch for the truthfulness or otherwise of
his client’s version. It might seem
improbable that Mr
Bongumusa Gumede would admit or would want to admit to being the
driver of the vehicle which killed two persons,
even extra curially,
if it was not in fact the case. But none of his statements constitute
admissible incriminating evidence against
him. However,
in the light of all the
evidence and specifically the failure of the appellant and Mr
Bongumusa Gumede to testify and the extremely
poor,
if
not pathetic evidence of Mr Xulu, the discrepancies in the version of
the appellant, as it has varied from time to time,
and
the cogent circumstantial evidence of the state witnesses,
which I will deal with
further below, I have absolutely no hesitation in rejecting the
appellant’s version,
such
as it may be sought to be advanced through the testimony of other
witnesses,
as
false beyond a reasonable doubt.
[23] The appellant’s
ultimate version that Mr Bongumusa Gumede was the driver, was a
poorly and ill-conceived strategy to
mislead the court and defeat the
administration of justice. It is probably deserving of him and his
cohorts possibly being charged
with defeating the ends of justice and
possibly perjury. It was a strategy designed to mislead, but devised
in an extremely amateurish
manner. That it could ever have been
thought to have any prospect of success was to insult the
intelligence of the learned magistrate,
who, to his credit, was not
fooled by this deceit.
[24] In the light of my
conclusions on the operation of the presumption, the guilt of the
appellant is established on counts 1 to
4. It is strictly not
necessary to undertake any further analysis of the evidence.
[25] I however intend
referring briefly to some aspects of the evidence as, even in the
absence of the presumption, the evidence
adduced by the state on the
identification of the appellant as the driver, which evidence was
largely unchallenged, irresistibly
point as the only logical and
reasonable inference to the appellant being the driver of his vehicle
at the relevant time.
THE EVIDENCE
:
[26] Captain Spilsbury, a
metro policeman was at the intersection where the accident occurred.
He immediately stopped and proceeded
to contact his control room on
his radio. Whilst talking (no estimation as to how long after the
impact occurred this was) he saw
two men run past his vehicle coming
from the side of the accident scene. One was dressed in a white shirt
and had dreadlocks. The
other was wearing khaki clothes. When he
later discovered that the driver of the X5 had fled the scene, he
informed the other police
officers about the two males he had seen
running from the scene.
[27] Later that same
evening Captain Spilsbury was called to Durban Central Police
Station. As he walked towards the charge office
he saw the appellant
sitting outside the charge office and recognized him as one of the
men who ran past his vehicle at the scene.
The appellant was wearing
khaki clothes resembling the clothes worn by one of the men he had
seen fleeing. He enquired from the
appellant whether he was the
driver of the X5. The appellant denied he had been the driver.
[28] Captain Spilsbury
returned from inside the police station with Inspector Pillay, who
asked him if the appellant was one of
the persons he had seen fleeing
the scene. Captain Spilsbury was not 100 per cent certain but said
that the clothing was the same.
Captain Spilsbury testified that
while they were talking to the appellant, the appellant kept on
rubbing his chest and arms.
[29] Mr Tristan Manning,
a paramedic was at a filling station about 20 meters away from the
scene of the accident, when the collision
occurred. He immediately
rushed to the scene. Upon arriving he saw a person standing outside
the X5 next to the front passenger
door. This person, who was talking
on his cell phone, was wearing a white shirt and had dreadlocks. He
observed the driver of the
X5 still sitting on the driver’s
seat behind the steering wheel. He turned his immediate attention to
the injured persons
scattered all over the road. Whilst attending to
the injured he noticed the male with dreadlocks running away from the
scene.
[30] Inspector Subramoney
Pillay attended the scene and confirmed that the driver of the X5 was
not at the scene. While opening
a criminal docket at the Durban
Central Police Station, Captain Naicker informed him that he had
brought the appellant to the police
station. Upon questioning, the
appellant confirmed that the X5 belonged to him, but denied being the
driver at the time. When asked
for particulars of the driver, the
appellant replied that it was Mr Dumisani Ngcobo, who lives somewhere
in Pietermaritzburg. When
asked for Mr Ngcobo’s contact number,
the appellant said he could not recall the number. The appellant
tried to phone Mr
Ngcobo on his cell phone but was unsuccessful. The
appellant further explained that he had been at Musgrave having a
party and
was too drunk to drive and then took a taxi to his home in
the Point area. The appellant could not provide the name of the taxi
company that transported him. He observed that the appellant had
scratch marks on his hands and kept his hands across his chest
clenching it, as if he was in pain. When he inquired whether the
appellant was feeling okay, the appellant replied that he had
had a
wild party. He noticed that the appellant was wearing a pair of long
khaki pants and a short sleeved khaki shirt. Captain
Spilsbury later
confirmed to him that he was not 100 per cent sure that the appellant
was the person that he had seen fleeing the
scene of the accident,
but that the appellant’s clothing matched those worn by the
person fleeing the scene.
[31] Captain Casey
Naicker of the Durban Metro Police attended the scene. Having been
given the description of the two males who
fled the scene by Captain
Spilsbury, he circulated that information to the dog unit to search
for the suspects. The then MEC for
Transport and Security, Mr Cele,
then arrived at the scene. At some stage Mr Cele left the scene to
return later with the appellant,
who he handed over to Captain
Naicker to take to the Durban Police Station. The appellant told them
that he had been at his home
sleeping when the Minister called him.
He further stated that the person who was driving his vehicle was a
friend who was employed
by the Provincial Government working in
Pietermaritzburg. He told Captain Naicker that he had tried to phone
this friend but the
friend did not answer. The appellant did not give
the name of the driver to him. He took the appellant to the police
station where
he handed him over to Inspector Pillay who then asked
him to call Captain Spilsbury to come to the police station which he
did.
He did not discuss the matter with Captain Spilsbury but only
asked him when he came to the police station, to ask for Inspector
Pillay.
[32] The investigating
officer, Inspector Ndlovu testified that on 8 April 2008 he and
senior superintendent Ntshinga, who previously
also investigated the
matter but who has since passed away, met with the appellant. After
having been warned of his rights, the
appellant informed them that Mr
Dumisani Ngcobo to whom he had given his motor vehicle keys was not
the one who was driving at
the time of the accident, but that it was
Mr Bongomusa Gumede. He explained his movement on the day and said
that he had returned
home and was playing music at his home, when he
received a call from Mr Cele informing him that his X5 had been
involved in an
accident. Mr Cele collected him and took him to the
scene of the accident. He could not give details of the taxi he took,
except
that it was white in colour. During the meeting the appellant
excused himself for a short while and thereafter returned with Mr
Bongomusa Gumede in the company of his attorney. Mr Gumede was asked
by the police whether he wanted to say anything as it was
alleged
that he was the driver of the vehicle. Mr Gumede said that there was
nothing and that he would talk in court. Mr Gumede
then left. As they
did not believe the appellant and did not have any evidence against
Mr Gumede they requested the appellant to
show them Mr Ngcobo’s
residence. He failed to do so.
[33] Mr Quinton Herbst,
the insurance assessor, testified that the appellant came to meet him
with Mr Bongomusa Gumede. Mr Gumede
told him that after they had
drinks at Musgrave, he then went to Florida road in the appellant’s
X5, the keys to which had
been handed to him, to see a friend. The
appellant had left Musgrave with a Mr Ntshinga. After being involved
in the accident he
got out and simply walked away. The appellant
confirmed this explanation by Mr Gumede to Mr Herbst. The appellant
never mentioned
the name of Mr Dumisani Ngcobo to Mr Herbst.
[34] The State adduced
evidence of certain cell phone records relating to the cell number
used by the appellant. Much criticism
was leveled at the cell phone
records. The cell phone records clearly are not conclusive on their
own. Although open to criticism
they do place the handset which
contained the sim-card allocated to the cell phone number of the
appellant, in the general area
of the accident in Durban.
[35] Neither the
appellant, Mr Bongomusa Gumede nor Mr Dumisani Ngcobo (if such a
person in fact exists) testified. The accused
called a Mr Xulu who
testified that he, the appellant, Mr Bongomusa Gumede and another
person called Sifiso met at Musgrave at
a venue called Vestage at
about 18h30 to 19h00 on 29 March 2008. They had planned to meet some
other friends in Umhlanga Rocks.
The appellant declined to go with
them but lent his car to some of them to travel to Umhlanga. He
stated that if he recalls well,
the appellant gave the keys to Mr
Gumede, although he did not actually see the appellant give the keys
to Mr Gumede.
[36] The defence also
called a Mr Gazu, who sought to impeach the evidence of Captain
Spilsbury that he had never seen the appellant
prior to that day, and
a Mr John Ullyett in respect of the cell phone records.
DISCUSSION OF THE
MERITS:
[37] The learned
Magistrate conducted a careful evaluation of the evidence. He
concluded that the state witnesses were impressive
and corroborated
each other on every material respect, that they were forthright with
answers under cross-examination and did not
contradict each other in
any material respects or aspects. The learned Magistrate concluded
that the evidence of Captain Spilsbury
and Inspector Pillay and that
of Mr Manning, when considered together with the other evidence in
the matter pointed to the appellant
as being the driver of his
vehicle on the evening in question. I do not repeat the learned
Magistrate’s reasons in this judgment
in detail. I have
considered them carefully and find his reasoning convincing.
[38] The only possible
criticism that could be leveled at the evidence of the state relates
to timing. Captain Spilsbury had testified
that when the accident
occurred he communicated on the radio in his vehicle for assistance,
when he saw the two persons fleeing
the scene. The evidence of Mr
Manning was that upon the accident occurring he immediately proceeded
to the scene 20 meters away,
noticed the one person with a white
shirt and dreadlocks standing outside the passenger door and the
driver still behind the wheel
of the vehicle. The former was talking
on his cell phone. He later noticed the person with the white shirt
fleeing the scene. The
criticism was leveled at the fact that Captain
Spilsbury could not have seen the two persons, with the descriptions
he gave of
them, fleeing the scene immediately after the accident,
as, according to the evidence of Mr Manning the one with the white
shirt
was still busy on his cell phone and the driver was still
seated behind the wheel immediately after the accident. It was argued
that this amounts to a contradiction in their evidence, tainting the
reliability of particularly the evidence of Captain Spilsbury.
[39] No questions were
posed on the time that elapsed from the time that the collision
occurred until Captain Spilsbury had raised
his control room on his
radio, looked up and saw the two persons fleeing the scene, on the
one hand, or Mr Manning moving immediately
to the scene 20 meters
away from where he was and noticing the passenger having disembarked
from the X5 and standing next to the
passenger door talking on his
cell phone while the driver was still behind the wheel. It being a
moving scene, the two versions
are not irreconcilable, that testified
to by Mr Manning probably being from a different aspect or view,
probably relating to what
occurred the earlier in time while Captain
Spilsbury was busy on his radio establishing radio contact with his
control room. It
is also significant that Mr Manning’s
concentration would, as a paramedic, be focused on assisting the
injured scattered
all over the road. His attention would not have
been focused on the people he saw at the X5, whom he probably only
noticed as a
snap shot and in passing. He could only testify to
seeing the person with the white shirt and dreadlocks fleeing the
scene, his
attention by then clearly having moved from whoever was at
the vehicle to the injured. The arguments advanced by the defence in
this regard do not detract from the overall credibility of the state
witnesses, particularly that of Captain Spilsbury.
[40] The learned
Magistrate had the opportunity of observing the demeanor of the
witnesses. He explained his preference for accepting
the evidence of
the state witnesses and rejecting that of the defence where in
conflict, in a well reasoned judgment. The appellant
has not
demonstrated that the learned Magistrate misdirected himself in any
respect. Indeed, if regard is had to the overwhelming
probabilities
arising from the evidence taken alone, and even more so when read
with presumption, the case against the appellant
is overwhelming. The
version of the appellant was riddled by contradictions. I agree with
the learned Magistrate’s conclusion
that the explanation
tendered by the appellant to the police was simply untrue. The first
defence witness, Mr Xulu was a poor witness
whose evidence was
riddled with contradictions and improbabilities, his evidence at
times also being in conflict with the appellant’s
version.
These were highlighted in the judgment of the learned magistrate and
do not require repeating herein.
[41] No basis has been
advanced to interfere with the judgment of the learned Magistrate.
[42] Accordingly, it
follows that the appeal against conviction should be dismissed.
SENTENCE:
[43] As regards the
sentence, no basis has been advanced to suggest that the learned
Magistrate misdirected himself in any way.
The sentences imposed also
do not induce a sense of shock and are entirely appropriate, if not
lenient. The learned Magistrate
had regard to all the relevant
considerations. An aggravating factor is that the appellant has shown
no remorse. He has persistently
refused to accept that he was the
driver of his motor vehicle on the night in question, has presented
false evidence before the
court
a quo
, and, as is apparent
from the pre-sentence reports that were obtained, persisted in
denying responsibility. Accordingly, there
is no basis on which this
court may interfere with the sentences that were imposed. In reaching
that conclusion, I am very alive
to the fact that the sentence
imposed in respect of counts 1 to 3, entails a period of
incarceration. This was also considered
by the learned Magistrate and
reflected upon very carefully. Prior to being involved in the
collision, the appellant had consumed
alcohol. Although not a
previous conviction, the appellant’s conviction on count 7
shows that he has no hesitation in consuming
alcohol and then taking
to the road thereafter. This is a needless and reckless attitude to
the safety of other road users. It
requires censure in strong terms.
The learned Magistrate correctly considered that a period of
incarceration was called for and
more than suitably modified the
harshness of any such sentence by providing that two (2) years of the
five (5) year period of imprisonment
would be suspended for three (3)
years, to act as a deterrent to the appellant.
[44] In the result, the
appeal against sentence also falls to be dismissed.
ORDER:
[45] The appeal against
conviction and sentence is dismissed. The appellant’s
conviction on counts 1 to 7 and the sentences
imposed by the court
a
quo
are confirmed.
KOEN J
__________________________________
MJOLI AJ
__________________________________
DATE OF HEARING: 2012
DATE
OF DELIVERY 4 MAY 2012
COUNSEL
FOR APPELLANT: ADV T MASUKU
APPELLANT’S
ATTORNEYS: A.D. DANDALA & ASSOCIATES
Ref.:
AD/INV001
C/O
NZIMANDE S.G. ATTORNEYS
Tel.:
033 342 0754
COUNSEL
FOR RESPONDENT: ADV J DU TOIT
RESPONDENT’S
ATTORNEYS: STATE ATTORNEY?
1
During
the trial the appellant’s version was that the driver of the
X5 had been Bongumusa Gumede. Shortly after the accident
he had
reported that the driver was Dumisani Ngcobo of Pietermaritzburg,
who he purportedly tried to contact on his cell phone
on the evening
of the accident. Subsequent to the initial report and before the
trial commenced, he changed his version and told
the investigating
officer that the driver in fact had been Bongumusa Gumede. Neither
the appellant nor Mr Bongumusa Gumede testified
during the trial.
2
.’
see
S v Meaker
1998 (2) SACR 73
(W) referred to by the
Constitutional Court in
S v Manamela and Another (Director
General of Justice intervening)
2000 (3) SA 1
(CC) where the
presumption was described as ‘… an eminently reasonable
device, which accords with practical common
sense and in its
application produces equitable results’
3
Even
if it was possibly admissible on some exceptional basis (such as the
exceptions created in the
Law of Evidence Amendment Act 45 of 1988
which was not advanced by the appellant) the appellant’s
reports to state witnesses would not be of sufficient probative
value as to constitute proof on a balance of probabilities that he
was not the driver.
4
The
appellant’s initial version had been that Mr Dumisani Ngcobo
had taken his vehicle from where they
had been drinking at Musgrave Road to travel to Umhlanga Rocks. The
drinking at Musgrave
Road had also on the appellant’s version
been attended by Mr Xulu who testified on behalf of the appellant.
Significantly
Mr Xulu testified that he did not even know a Mr
Dumisani Ngcobo.
5
which
it really cannot be as it is exculpatory in nature and substance.