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[2012] ZAKZPHC 60
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Van Biljon v S (Leave to Appeal) (AR 396/2010) [2012] ZAKZPHC 60 (17 September 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 396/2010
In the matter between:
DAVID CHARLES VAN
BILJON
...........................................
APPELLANT
and
THE STATE
.........................................................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 17
September 2012
________________________________________________________
SWAIN J
[1] The appellant, with
the leave of the Court
a quo
, appeals against his conviction
on a charge of culpable homicide, for which he was sentenced to a
term of imprisonment of three
years in terms of Section 276 (1) (i)
of Act 51 of 1977.
[2] The conviction arose
out of a collision which occurred on 04 May 2008, between a motor
vehicle with registration number NE 5850
driven by the appellant and
a motor vehicle, with registration number NE 10289, driven by Mark
Weideman. The occurrence of the
collision and that the said Mark
Weideman ( the deceased) died as a result of the injuries he
sustained in the collision, was admitted
by the appellant in terms of
Section 220 of Act No. 51 of 1977.
[3] The sole issue for
determination by the Court
a quo
was consequently whether the
negligent driving of motor vehicle NE 5850 by the appellant, was a
cause of the collision. A determination
of this issue had to be
carried out by the Court
a quo,
without the benefit of any
direct evidence of how the accident occurred because the appellant,
stated that he had no recollection
of the accident, apparently caused
by an injury sustained to his head and there were no eye witnesses to
the collision.
[4] The Court
a quo
reached the conclusion it did based upon the evidence of Inspector
Singh and Captain van Wyk, who both arrived on the scene after
the
collision. Based upon their observations of the positions of the
vehicles after the collision, what they determined to be the
point of
the collision on the road surface, the presence of skid marks on the
road surface, as well as what they determined to
be tyre marks off
the side of the road in the direction in which the vehicle driven by
the appellant was travelling, they both
formulated opinions as to how
the accident had occurred. They concluded that the collision was
caused by the vehicle driven by
the appellant, travelling off the
left-hand side of the road, whilst negotiating a curve in the road to
the right, and in attempting
to correct this the appellant lost
control of the vehicle, causing it to travel across the road onto its
incorrect side of the
road, where it collided with the vehicle driven
by the deceased. On the basis of the length of the skid marks left on
the road
surface by the vehicle driven by the appellant, Inspector
Singh concluded that the appellant had been driving in excess of the
speed limit, which he said was sixty kilometres per hour.
[5] The legal
representative of the appellant in the Court
a
quo
, accepted that the skid marks which
appeared on photos taken of the scene of the collision shortly after
its occurrence, travelled
from the left- hand side of the road, in
the direction in which the appellant was travelling, were caused by
the appellant’s
vehicle before the collision, and veered across
to the right-hand side of the road, into the lane in which the
deceased was travelling
in the opposite direction. The appellant’s
legal representative submitted that the
crux
of the case however was a determination of the cause of
the appellant’s vehicle swerving, or skidding onto its
incorrect side
of the road. The Magistrate determined this issue by
finding that
“
The only
inference to be drawn from these facts was that the accused drove his
vehicle grossly negligently and that he drove too
fast for the
circumstances. He failed to control his motor vehicle and thereby
took the life of Mark Alan Weideman”.
[6] Ms van Jaarsveld, who
appeared on behalf of the appellant, submitted in heads of argument
that the Magistrate erred in placing
reliance upon the opinions of
Inspector Singh and Captain van Wyk, neither of whom were properly
qualified experts in the field
of accident reconstruction. In
addition, she submitted that the Magistrate erred in rejecting the
explanation tendered by the defence
as to what caused the appellant
to swerve into his incorrect lane. This was that there was a pothole
in the lane in which the deceased
was travelling, shortly before the
collision which caused the deceased to take evasive action by
swerving into the appellant’s
lane. The appellant in turn took
evasive action to avoid a collision with the deceased’s
vehicle, by swerving into the opposite
lane, at which stage the
deceased’s vehicle had returned to its correct lane, resulting
in the collision taking place on
the appellant’s incorrect side
of the road. The Magistrate concluded that
“
If anything
is clear it is that the collision could not have taken place as
suggested by the defence. What is suggested as a probability
cannot
even be a possibility”.
[7] In addition to
placing reliance upon the views of Inspector Singh and Captain van
Wyk, the Magistrate also referred to the maxim
res
ipsa loquitur
in the context that
“
The defence
suggests that the reliance on the factual inference of
res
ipsa loquitur
cannot find application here as there might be too many factors
present for that conclusion to be reached”.
It is not clear from the
Judgment however, whether the Magistrate applied the maxim in
reaching the conclusion that he did. Be that
as it may, it is clear
that the maxim
“gives rise to an inference, not a
presumption of negligence. The Court is not compelled to draw the
inference”.
Stacey v Kent
1995 (3) SA 344
(ECD) at 352 E – F
The test of liability is
the same in both civil and criminal matters, being the standard of
care and skill which would be observed
by the reasonable man
R v Meiring
1927 AD 41
at 46
The standard of proof
obviously differs in a criminal case and a civil case, bearing in
mind that
“one is dealing with a rebuttable inference
and not a shifting of
onus”
S v Mudoti
1986 (4) SA 278
(ZSC) at 279 J – 280 A
Once the State proves the
occurrence giving rise to the inference of negligence on the part of
the accused, the accused must give
an explanation or lead evidence,
which creates a reasonable possibility of innocence.
Stacey at 352 G
Mudoti at 280 A
“
Mere
theories or hypothetical suggestions will not avail the defendant,
his explanation must have some substantial foundation in
fact and the
evidence produced must be sufficient to destroy the probability of
negligence inferred to be present prior to the
testimony adduced by
him”.
Stacey at 352 H
[8] In this context the
following
dictum
in
Stacey at 357 F –
I
is apposite
“
I would
lastly refer to the case of
Marais
v Caledonian Insurance Co. Ltd.
1967 (4) SA 199
(E). In that case the plaintiff motorist, faced with
an oncoming vehicle on its incorrect side of the road, applied
brakes, with
the result that he lost control of his vehicle, which
skidded onto its incorrect side of the road. The oncoming vehicle had
reverted
to its correct side of the road and the collision occurred
there. At 202D the following passage appears:
‘
In
considering whether the plaintiff’s explanation is sufficient
to dispel the
prima
facie
proof
of negligence which exists against him by virtue of the fact that the
collision occurred on his incorrect side of the road,
it is necessary
to consider the position of a driver who is approached by a vehicle
on its incorrect side.’
On analysis this passage reflects
that, notwithstanding that the plaintiff’s vehicle
skidded
onto the incorrect side of the road, there was
prima facie
proof of negligence against him arising out of the fact that the
collision occurred on his incorrect side of the road, which
circumstances
required an explanation from him; in other words, an
application of the
res ipsa loquitur
principle”.
[9] This
dictum
must be read in the context of the following passage in the
unreported case of
Baigi v Potgieter
1939 TPD (J/C
70/39)
quoted in
Stacey at 356 G –
J
with approval
“
Now it seems
to me that all skidding cases contain serious difficulties in
apportioning blame, because the general proposition has
been laid
down more than once – and it seems a reasonable one –
that skidding by itself is not evidence of negligence.
Skidding can
take place without negligence; but it requires and generally receives
explanation from the circumstances in which
it takes place. The
plaintiff, where the skidding has affected the vehicle of the
defendant , is often in a difficult position
because it is not
possible, as a rule, for him to fix precisely what the cause of the
skid was, and that being so it is often difficult
for him to show
that the defendant was negligent in any one respect. In such
circumstances the defendant may provide an explanation
which leaves
the evidence in a state of equilibrium, in which case the plaintiff
will fail in his action. But if the circumstances
lead to the
inference that there was negligence in the conduct of the driver of
the skidding car before the skid arose, or if after
the skid came
into existence the indications are that a prudent driver would, by
the exercise of reasonable care, have avoided
the collision by
getting out of the skid or otherwise controlling his vehicle, then,
of course, the plaintiff will succeed”.
In Stacey, the learned
Judges concluded that the extract from the decision in Baigi was
“apposite where the
res ipsa loquitur
rule is
being applied”
(at 357A) and added the following
(at 357 I – 358 C)
“
I would add
that in my judgment there are no considerations of policy which could
found an objection to an application of the
res
ipsa loquitur
principle to a case where the evidence is that the defendant’s
vehicle collided with the plaintiff’s vehicle on the
latter’s
correct side of the road as a result of the former vehicle skidding
onto that side of the road, notwithstanding
statements in the
first-mentioned line of cases discussed above to the effect that
skidding is not necessarily negligence. As was
pointed out in
Baigi’s
case, a plaintiff will, as a rule, not be in a position to give
positive evidence that the skid was due to the negligence of the
defendant. The defendant, however, would ordinarily be in a position
to tender an explanation for the skid and, if he fails to
do so, or
to do so acceptably, an inference of negligence may properly be
drawn. I do not consider that a distinction can properly
be drawn
between the case where a vehicle is driven onto the incorrect side of
the road and where it skids into that position,
provided, of course,
that that is all that is known. If, for example, the plaintiff’s
evidence is that at the very spot where
the defendant’s vehicle
skidded there was an unforeseeable pool of oil - as opposed to the
situation where the road is patently
slippery by reason of rain –
and the probable inference is that it was that oil which caused the
defendant’s vehicle
to skid, the matter could hardly be said to
be one where
res
ipsa loquitur”.
[10] On the facts of this
case which are common cause, the collision took place on the
appellant’s incorrect side of the road.
It is also common cause
that the appellant’s vehicle left skid marks travelling from
the appellant’s correct side of
the road, to the incorrect side
of the road. It appears to have been common cause that these skid
marks were caused by the application
of the brakes of the appellant’s
vehicle. An inference of negligence on the part of the appellant
consequently arises, namely
that the appellant applied the brakes,
lost control of his vehicle and skidded onto the incorrect of the
road. The drawing of such
an inference of negligence, does not depend
for its validity upon the correctness of the views expressed by
Inspector Singh and
Captain van Wyk that there was evidence that the
appellant had driven his vehicle off the left-hand side of the road
before the
collision. In my view, the photographic evidence placed
before the Court
a quo,
in
support of their views, does not do so. Inspector Singh reached his
conclusion on the basis that the grass on the side of the
road was
“pressed down”.
He said it was not a
skid mark because the grass would have been
“torn off –
torn out”.
He maintained that they were tyre marks
and when asked whether they could have been caused by another
vehicle, or people walking,
his reply was
“
The trampled
grass at the time of taking that photo was chosen because the grass
was wet – not wet as in rain but it was damp
and it was chosen
because the grass at that point was freshly pressed down. And if
people were walking there all the time, it would
be much more worn
out than what it was”.
He agree that the
enlarged photos were not that clear, but maintained that the smaller
photos were a bit clearer. Having carefully
examined the photos
relied upon by the witness, all that is evident is a depression in
the grass, which could quite simply be a
footpath. In fact, Captain
van Wyk said he thought that this was a footpath. Captain van Wyk
however maintained by reference to
photo “B” that
“you
could clearly see that a vehicle’s tyres left the road there”.
Having closely examined this photo, although there is
some evidence of a tyre print in soil, between the grass verge and
the tarmac,
it is difficult to see how this imprint is sufficiently
closely connected with the skid marks on the road surface, to state
with
any degree of assurance that it was left by the left hand wheels
of the appellant’s vehicle. I accordingly disagree with the
view of the Magistrate that there was no significant break in the
line of the skid marks on the road and on the shoulder of the
road.
The drawing of such an
inference of negligence also does not depend for its validity upon
the view of Inspector Singh that the appellant’s
vehicle was
travelling at an excessive speed. Inspector Singh was forced to
concede when cross-examined that his estimate of the
speed of the
appellant’s vehicle, was based upon an incorrect estimation of
the length of the skid marks. He conceded that
one was left with no
indication of the speed of the appellant’s vehicle. Captain van
Wyk did not express any view on the
speed of the appellant’s
vehicle. I accordingly also disagree with the view of the Magistrate
that
“
The opinion
of Singh and van Wyk that the accused was driving at a high speed is
a fair conclusion to be reached from the available
evidence”.
I accordingly disagree
with the further conclusion of the Magistrate that the evidence of
Inspector Singh and Captain van Wyk, proved
that the appellant drove
his vehicle grossly negligently and too fast for the circumstances,
based as such evidence was upon insufficient
reliable evidence to
prove that the appellant’s vehicle was driven off the left hand
side of the road and was travelling
at an excessive speed.
[11] However, because of
the inference of negligence which may be drawn on an application of
the principle of
res ipsa loquitur
to the facts which are common cause, it was incumbent
upon the appellant to lead evidence, or give an explanation which
created
a reasonable possibility of innocence. Central to the
explanation advanced by the appellant, referred to above, was the
presence
of the pothole in the lane, in which the deceased was
travelling. In this regard I agree with the conclusion of the
Magistrate,
that it was unclear on the evidence, whether the pothole
was in existence at the time of the collision. In addition, it was
also
unclear on the evidence, whether it could have played any
significant role in the deceased taking evasive action. The
explanation
offered by the appellant accordingly did not have any
“substantial foundation in fact”
and
was insufficient to
“destroy the probability of
negligence inferred to be present”.
The
explanation advanced was accordingly no more than a theory, or
hypothetical suggestion, as to how the collision occurred. The
fact
that the inability of the appellant to offer any explanation in
rebuttal of the
prima facie
case
against him
“was due to his amnesia, cannot assist him
and the position is simply that he has not dispelled or neutralised
the probability
of negligence on his part”.
Stacey at 359 D –
E
[12] Turning to the issue
of sentence. The appellant was sentenced to three years’
imprisonment in terms of Section 276 (1)
(i) of Act No. 51 of 1977.
The effect of this sentence is that the appellant was sentenced to
imprisonment, from which he could
be placed under correctional
supervision, in the discretion of the Commissioner. Before sentencing
a report was compiled by a correctional
officer in which it was
recommended that the appellant be sentenced to a term of correctional
supervision in terms of Section 276
(1) (h) of Act No. 51 of 1977.
[13] The Magistrate
rejected this recommendation on the basis it was not a suitable
sentence because
“
The
negligence involved and the accused’s current attitude will in
this Court’s view, render the sentence ineffective”.
The Magistrate also
concluded that
“
The accused
qualifies for correctional supervision in all aspects but one and
that is that he from the Court’s vantage point
does not accept
responsibility. The difficulty encountered here is that the
reformation of the accused cannot coincide with a denying
attitude.
Correctional supervision can easily be imposed for an accused person
who comes to court, plays open cards with the Court,
admits his
wrongdoing and apologises for his misconduct in appropriate cases.
The accused unfortunately, has no recollection of
the incident and
the tell-tale signs of the collision doesn’t persuade him that
he is accountable”.
The Magistrate also
stated
“
It is fair
to conclude that the accused at this stage has only concentrated on
his side of affairs and more than two years after
the fact, has not
faced up to the family of the deceased”.
[14] The Magistrate
having accepted that the appellant had no recall of the accident, it
is difficult to see why the appellant should
be subjected to
imprisonment and not correctional supervision purely because in an
attempt to explain the accident, he advanced
an exculpatory theory of
events, which was rejected. Having found that the Magistrate erred in
relying upon the opinions of Inspector
Singh and Captain van Wyk to
prove the negligent conduct of the appellant and finding that an
inference of negligent conduct on
the part of the appellant was only
justified on an application of the principle of
res ipsa loquitur
,
to which the appellant had no satisfactory explanation of events to
rebut this inference, the moral blameworthiness of the appellant
for
the collision is brought into sharper focus. The inability of the
appellant to furnish an explanation for his conduct because
of
amnesia, albeit irrelevant to a determination of his legal liability,
must however be considered when assessing his moral blameworthiness,
for the purposes of sentence. One is left with uncertainty as to what
caused the appellant to brake sharply and lose control of
his
vehicle. The moral blameworthiness of the appellant for the collision
is accordingly not as clearly defined as his legal blameworthiness,
such that a term of direct imprisonment in my view, is not justified
in all of these circumstances.
[15] I am accordingly
satisfied that the Magistrate misdirected himself in concluding that
the appellant was precluded from being
sentenced to correctional
supervision, simply because he did not
“accept
responsibility”
for the collision.
[16] In my view the terms
of correctional supervision suggested by the correctional officer are
entirely appropriate and will find
expression in the order I make.
I grant the following
order:
The appeal against
conviction is refused.
The appeal against the
sentence imposed succeeds, the sentence imposed is set aside and
replaced with the following sentence:
“
The
accused is sentenced to three years of correctional supervision in
terms of Section 276 (1) (h) of Act No. 51 of 1977 on the
following
conditions:
(i) The accused is placed
under house arrest for the duration of this sentence with due
consideration of his working hours, co-operation
in general and other
relevant circumstances.
(ii) The accused may not
leave his residential or work address or magisterial district without
prior approval except for the purposes
of essential work or other
reasons in the discretion of the Commissioner.
(iii) The accused is to
perform a minimum of sixteen hours of free community service for each
month of the sentence.
(iv) The accused is
obliged to attend programmes to be identified by the Commissioner and
which may be deemed necessary during the
serving of his sentence.
(v) The accused must not
make himself guilty of criminal or other misbehaviour.
(vi) The accused may not
commit any further crime.
(vii) In terms of
Section
52
of the
Correctional Services Act No. 111 of 1998
, the Commissioner
may set any other condition, which is essential for the execution of
the sentence of correctional supervision.
(viii) The Commissioner
shall ensure that the conditions are complied with and act in
accordance with the provisions of
Section 70
of the
Correctional
Services Act No. 111 of 1998
upon the violation of any of these
conditions.
____________
SWAIN J
I agree
_____________
GYANDA J
Appearances /…
Appearances
For the Appellant
:
Ms M. E. van Jaarsveld
Instructed by
: Jordaan Geldenhuys Attorneys Escort
For the Respondent
: Mr. J. du Toit
Instructed
by
: Director of Public Prosecutions
Date of Hearing
:
30 August 2012
Date of Filing of
Judgment
: 17 September 2012