REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case Number : 448 / 04
In the matter between
S NYATHI APPELLANT
and
THE STATE RESPONDENT
Coram
: ZULMAN, CONRADIE and JAFTA JJA
Date of hearing : 11 MAY 2005
Date of delivery : 23 MAY 2005
SUMMARY
Six charges of culpable homicide arising from negligent driving of a motor vehicle – driver
attempting to overtake in defiance of double barrier line prohibiting overtaking in either
direction – negligence found to have been gro ss – sentence of five years’ imprisonment of
which two years suspended upheld on appeal.
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J U D G M E N T
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CONRADIE JA
[1] On 7 December 1994 on the nati onal road between Cathcart and
Stutterheim a collision occurred between a sedan driven by the appellant
towards Cathcart and a minibus taxi driven towards Stutterheim. The impact
caused the minibus to overturn, killing si x of its occupants. Other passengers
were injured. The incident led to the ap pellant’s facing six charges of culpable
homicide in the regional court, alternativ ely a charge of reckless or negligent
driving or, as a further alternative, driv ing under the influence of intoxicating
liquor. He was convicted of culpable homic ide and sentenced to five years’
imprisonment, two of which were suspended for five y ears. His driver’s licence
was suspended for four years.
[2] An appeal to the Eastern Cape division of the high court was dismissed. The
appellant was nevertheless granted leave by that court to appeal against the
conviction and sentence.
[3] The crucial issue in the appeal is the correctness of the regional magistrate’s
finding that the collision occurred on the appellant’s incorrect side of the road.
Former police sergeant Holloway was th e draughtsman sent out to record
evidence on the accident scene. The salient feature recorded by him was a
yellow chalked cross enclosed in a circle marked on the road surface. It was
located 2.2 metres from the centre white line within the la ne in which the
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minibus travelled from Cathcart to Stutterh eim. This was where he was told the
impact between the two ve hicles had occurred. For better visibility constable
Kuhn was asked to st and on the yellow cross and a photograph in the record
depicts him there.
[4] Holloway said that he was taught not to accept unquestioningly the
correctness of a point of collision but to judge by hi s own observations whether
the point appeared to be correct. He di d so on this occasion and came to the
conclusion that the yellow cross accurate ly identified the point of impact. He
observed that the right front tyre of th e appellant’s sedan had been detached by
the collision. Left exposed by the removal of the ty re, the wheel rim made a
mark on the tarred road surface from th e indicated point of collision to where
the sedan left the road to come to rest on the grass verge. The presence of bits of
road gravel lying on the surface showed that the marks had been freshly made.
On the other side of the yellow cross we re marks that appeared to Holloway to
have been made by the minibus taxi. A ll marks on the road surface emanated
from the spot pointed out to him and a ll the collision debris near the collision
site lay on the side of the road where the yellow cross was.
[5] Constable Kuhn was the one who told Holloway that the yellow cross
represented the point of impact. It had been marked by capta in, then sergeant,
Zondeka who testified that the spot had been pointed out to him by the appellant
the only driver who could do so, the driver of the minibus having been killed.
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[6] The appellant admitted that he ha d indicated a point of collision but
maintained that it was on his correct side of the road and that he had shown it to
another policeman who had marked the spot in the same way as the Zondeka
spot had been marked. The appellant’s version found no sup port from anyone.
Holloway was firm that the cross on which Kuhn stood, was the only ‘crayon’
marking on the road and Zondeka maintain ed throughout that the spot that he
had marked was the one pointed out to him by the appellant.
[7] The conspiracy theory put up by the appellant, that Zondeka was falsely
implicating him and had gone so far as to persuade eye witnesses to perjure
themselves was not accepted by the trial court. Zondeka showed the appellant
nothing but kindness on the day in questi on, going to extraordinary lengths to
help him secure money to pay the bail that had been set for him.
[8] The State does not rely on the physi cal evidence alone. It called three eye
witnesses, all of them passengers in the minibus taxi. There were the usual
discrepancies in their eviden ce, but they were clear on one thing: the sedan that
collided with the minibus, in attemp ting an overtaking manoeuvre, suddenly
appeared from behind another vehicle an d drove into the bus on the latter’s
correct side of the road.
[9] There is no reason to doubt the evid ence of these three witnesses. The
regional magistrate believed them and trusted their recollection and
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observations ; no reason app ears from the record suggest ing that he should not
have done so. The eye witnesses powerfu lly corroborate Ho lloway’s evidence
and his evidence in turn renders theirs entirely convincing. The appeal against
the conviction cannot succeed.
[10] The appeal against the sentence im posed by the magistrate was dismissed
by the court a quo . Its conclusion was that th ere had been no material
misdirection vitiating the sentence. I agree that no misdirection has been shown.
I also agree that the sentence was not so severe that no reasonable court would
have imposed it.
[11] The collision occurred on a blin d rise where a double barrier line
prohibits overtaking by vehicles proceeding either to or from Cathcart. It was
common cause at the trial that forward vi sibility was restricted. The appellant’s
case was that he would not have thought of overtaking because he could not see
ahead well enough. The fact that the appellant did overtake proclaims grave
negligence on his part. Overtaking on a barrier line, and especially on a double
barrier line where a motorist should realise that his in ability to observe
approaching traffic is compounded by th e inability of traffic in the opposite
direction to see him is probably the mo st inexcusably dangerous thing a road
user can do.
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[12] It is hard to conceive of an inst ance of road-related conduct that could be
considered more dangerous. A driver un der the influence of intoxicating liquor
who ventures onto the wrong side of the road in similar circumstances might, I
suppose, be considered more blamewort hy: his condition would prevent him
from seizing what little ch ange there might be of avoiding a vehicle coming
towards him. Other than that, I am at a loss. Deliberately ignoring a red traffic
light is of course very dangerous but unless the intersection is obscured, a
vehicle or a pedestrian lawfully cro ssing the intersection at least has an
opportunity of observing the offending vehicle approach and of judging whether
it is likely to obey the red traffic signal or not.
[13] Road accidents with calamitous c onsequences are frequently caused by
inadvertence, often momentary. 1 Overtaking on a double barrier line is not
inadvertence. It is a conscious decisi on to execute a manoeuvre that involves
taking a fearfully high risk.
[14] In S v Nxumalo 1982 (3) SA 856 (SCA) the court approved a passage
from R v Barnardo 1960 (3) SA 552 (A) (at 557D-E ) where the court held that
although no greater moral blameworthiness arises from the fact that a negligent
act caused death, the punishment should acknowle dge the sanctity of human
1 Dube v S [2002] JOL (Judgments on Line) 9645 (T), a case mentioned by the regional magistrate, is
an example. The appellant was the driver of a bus involved in an accident on a mountain pass which
killed twenty eight passengers. On appeal a suspended sentence of two years’ imprisonment was
substituted for one of six years’ imprisonment imposed by the trial court on the footing that the
appellant’s negligence had been slight.
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life. It affirmed the dicta of Miller J who twenty years earlier in S v Ngcobo
1962 (2) SA 333 (N) at 336H-337B had set out the approach to road death
cases. At 861H Corbett JA said:
‘It seems to me that in determining an appropriate sentence in such cases the basic criterion to
which the Court must have regard is the degree of culpability or blameworthiness exhibited
by the accused in committing the negligent act. Relevant to such culpability or
blameworthiness would be the extent of the accused’s deviation from the norm of reasonable
conduct in the circumstances and the foreseeabi lity of the consequences of the accused’s
negligence. At the same time the actual consequences of the accused’s negligence cannot be
disregarded. If they have been serious and pa rticularly if the accused’s negligence has
resulted in serious injury to others or loss of life, such consequences will almost inevitably
constitute an aggravating factor, warranting a more severe sentence than might otherwise
have been imposed.’
[15] More severe yes, but how much more severe? In translating degrees of
negligence into years in custody, it is usef ul to have regard in a general sort of
way to sentences imposed by this and other courts.
[16] The best starting point is sentences for culpable homicide in serious road
accident cases confirmed or imposed by this court in the last ten years. In S v
Greyling 1990 (1) SACR 49 (A) a ni neteen year old who to ok a corner too fast
collided with a concrete wall, killing four of five young women who were being
conveyed on the back of his pick-up. His sentence of five years’ imprisonment
of which one year was su spended was on appeal changed to one of twelve
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months’ imprisonment. The court reaffirmed the approach that in cases of gross
negligence imprisonment even for a fi rst offender may be indicated. The
accused in S v Keulder 1994 (1) SACR 91 (A) was an alcoholic who was
convicted of culpable homicide commi tted while driving in a heavily
intoxicated condition. His sentence of two years’ imprisonment was set aside
and the matter remitted to the trial court to consider the imposition of a sentence
of correctional supervision. Having rega rd to the fact the appellant had two
previous convictions for road rela ted alcohol offences his personal
circumstances obviously weighed heavily with the appeal court.
[17] The appellant in S v Cunningham 1996 (1) SACR 631 (A) who collided
on his wrong side of the road with two cy clists in an intersection abandoned his
appeal against his sentence of three years’ correctional supervision in terms of s
276(1)(h) of the Criminal Procedure Act 51 of 1977 and two years’
imprisonment suspended for four years. The court remarked that he was correct
in doing so (at 633 c). The same year saw the decision in S v Naicker 1996 (2)
SACR 557 (A), an appeal against sentence only. The regional magistrate’s
sentence of two years’ imprisonment, confirmed by the provincial division, was
set aside on appeal and the matter remitted to the trial court for it to consider the
imposition of correctional s upervision. This appeal court disagreed with the
stigmatisation as gross negl igence of the a ppellant’s conduct in moving at high
speed (he had been racing another vehicl e) into the slow lane obstructed by a
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tanker although, the court observed, he was clearly negligent in failing to keep a
proper look-out before moving into the left hand lane.
[18] In S v Birkenfield 2000 (1) SACR 325 (SCA) the appellant rode his motor
cycle very fast and without stopping at an intersection controlled by a stop sign,
thereby killing a pedestrian as well as his pillion passenger. In confirming the
sentence of five years’ impr isonment subject to s 176(1)( i) of the Criminal
Procedure Act 55 of 1977 the court remarked that it was ‘well within reasonable
limits.’ (at 329g)
[19] The only decision brought to my a ttention concerning a head-on collision
caused by an appellant’s negligent overtaking is S v Sikhakhane 1992 (1) SACR
783 (N). The appellant was found to have been reckless to a high degree. Two
passengers in an approaching vehicle were killed and its dr iver and a motor
cyclist seriously injured. A sentence of two years’ imprisonment was confirmed
on appeal.
[20] S v Omar 1993 (2) SACR 5 (C) was a case wh ere a driver strayed onto
the wrong side of the ro ad. Three passengers in the offending vehicle were
killed. A sentence of two years’ corre ctional supervision was confirmed on
appeal. It appears to have been one of those cases wher e the driver lost
concentration or fell asleep at the whee l. Another case of negligent driving that
cost the lives of three people is S v de Bruin 1991 (2) SACR 158 (W). There the
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appellant was sentenced to four years’ imprisonment by the trial court for
having recklessly entered an intersection controlled by a traffic light when the
light was red against him. He had cons umed alcohol before driving and had
three previous convictions for drivin g under the influence of liquor or for
driving with a higher than permitted blood alcohol level. Apart from S v
Birkenfield (where the sentence wa s subject to s 176(1) (i) of the Criminal
Procedure Act) the sentence imposed on de Bruin was the most severe custodial
sentence (even after it was reduced by the appeal court to three years’
imprisonment) that I know of for culpable homicide in a road accident context.
It must be accepted that his previous convictions counted heavily against him.
[21] Not much less severe was th e sentence imposed on Mr Ngcobo in S v
Ngcobo 1962 (2) SA 333 (N) for having run into a crowd in a well lit street,
killing four and injuring twenty-four of them: on appeal one year of the three
years’ imprisonment was suspended. The gross negligence attributed to him
consisted in having driven too fast while not keeping a proper look-out.
[22] In none of the cases mentioned a bove has the negligence been as gross
and the consequences at the same time as grave as the one we are considering.
The appellant’s culpability is seriously aggravated by his conscious assumption
of the risk of a devastating collision. Fo r that reason, and despite the appellant’s
favourable personal circumstances, I am not dismayed by the fact that the
regional magistrate’s sentence is arguably higher than that imposed in any of the
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above cases. Now that the Nati onal Road Traffic Act 93 of 1996 2 has increased
the maximum imprisonment for negligent driving from one year to three and for
reckless driving from three years to six 3, it should surprise no one if there is an
upward pressure on the cust odial penalties imposed for road accident related
culpable homicide offences.
The appeal against the convicti on and sentence is dismissed.
J H CONRADIE
JUDGE OF APPEAL
CONCURRING:
ZULMAN JA
JAFTA JA
2 Sections 63 read with 89.
3 The earlier penalties were imposed by s 120 read with 149 of the Road Traffic Act 29 of 1989.