Qabane v R (CRI/A 9 of 2000) [2000] LSCA 60 (28 July 2000)

CRI/A/9/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: T L O T L I SO Q A B A NE A P P E L L A NT and R EX R E S P O N D E NT J U D G E M E NT Delivered by the H o n o u r a b le Mr Justice S. N. Peete on the 28th July 2 0 00 This is an appeal against the j u d g e m e nt of the Leribe Subordinate C o u rt in w h i ch the learned Magistrate convicted the appellant on four counts of culpable h o m i c i de a nd sentenced h im on e a ch count to five years i m p r i s o n m e nt - sentences b e i ng ordered to r un concurrently. I pointed it out m e ro m o tu to the C r o wn C o u n s el that the m a in counts of culpable h o m i c i de w e re rather inelegantly drafted because the negligence alleged s e e ms to be in relation to the driving a nd not to the causing of death; for e x a m p le c o u nt o ne reads: " C O U NT 1 T h at the said accused is charged with the c r i me of C u l p a b le H o m i c i d e. In that u p on or about the 10th day of S e p t e m b e r, 1 9 94 a nd at along M a in N o r th I Public R o ad at Leribe M o r e n e ng in the district of Leribe, the said accused drive m o t or vehicle X 2 0 3 0, negligently a nd as a result did collide with another m o t or vehicle to wit C 0 1 0 7, a nd a certain passenger therein sustained s o me injuries w h i ch c a u s ed her death. Passenger - Malepati Phalisa. A L T E R N A T I V E LY T h at the said accused is charged with contravening section 90 (1) of R o ad Traffic A ct 8/81 as a m e n d e d. In that u p on or about the 10th d ay of S e p t e m b e r, 1 9 94 a nd along M a in N o r th I Public R o a d, at Leribe M o r e n e ng in the district of Leribe, the said accused drive m o t or vehicle X 2 0 30 recklessly or negligently a nd did collide with another m o t or vehicle to wit C 0 1 0 7, a nd Malepati Phalisa sustained s o me injuries." I s e em to prefer the s p e c i m en indictment suggested by M i l t on - S o u th A f r i c an C r i m i n al L aw a nd P r o c e d u re (3rd E d) p a ge 4 00 w h i ch alleges that the accused did "unlawfully a nd negligent killed Y ". Mr P h o o f o lo h ad no objection to the charge being a m e n d ed at this stage on appeal since there is no material prejudice to the appellant ( R ex vs M o s h e s h a - 1 9 7 4 - 75 L LR 4 2 8: R ex vs S h i m ba 1 9 5 5 ( 1 ) SA 3 3 1 ). Mr Phoofolo h o w e v er strenuously argued that there had b e en improper splitting of charges in that the appellant had been charged with four separate counts of culpable homicide (with alternative charges of negligent driving under section 90 (1) of the R o ad Traffic A ct 1981) w h en in fact the four deaths had been caused by a single actus reus and had occurred all but simultaneously, and he submits that the appellant w as prejudiced by the multiple jeopardy. He cited the case of S. vs M a m pa - 1 9 85 (4) SA 6 33 w h e re it w as held in similar circumstances that the accused's conduct could not be separated into different acts and that he should h a ve b e en charged with one count of culpable homicide in w h i ch reference w as m a de to both deceased persons. This is the correct approach and the charges are therefore substituted with one charge with one conviction in respect of four deceased persons. (See generally - R vs M o s e me 1 9 36 A. D 5 2; R vs S a b u yi 1 9 05 TS 1 7 0; S. vs N d ou 1 9 71 (1) SA 6 6 8 :R vs K u z w a yo - 1 9 60 (1) SA 3 4 0; S. vs K a tz 1 9 59 (3) SA 4 0 8. I should point out that combining the charges into one, does not belittle the sanctity of h u m an life because it is the act, and not its consequences, w h i ch establishes the criminal act. Different considerations apply in multiple murders w h e re for e x a m p le X poisons the w h o le village or explodes a b o mb in a bus; in such cases he foresees and intends the death of each o ne of his victims even w h e re his intent is dolus indeterminatus (eventualis)R vs B e r n a d o- 1960 (3) SA 5 5 2. " C o m m on experience s h o ws that in cases of culpable homicide arising from negligent driving of a motor vehicle it is often fortuitous whether the resulting collision does or does not cause the death of o ne or m o re persons. W h e t h er o ne or t wo persons die as a result of the collision is not really connected with the degree of negligence of the b l a m e w o r t hy state of m i nd of the accused, whereas in the m u r d er of t wo persons the intent to kill is directed at the death of both. Negligence ranges in degree from slight inadvertence to recklessness w h i ch verges on dolus. but slight negligence m ay cause the death of several persons in a m o t or collision whereas gross negligence m ay result in the death of but o ne person. W h e t h er a negligent act results in o ne death or several deaths bears no necessary proportion relationship to the fault or degree of fault of the accused. T he calamity of multiple deaths resulting from negligence such as careless driving is obviously greater than the calamity of a single death but the criminal blameworthiness of the accused is not therefore greater. T he gravity of an accused's conduct in offences based on negligence cannot be judged by its actual consequences - R vs M s i m a n go - 1 9 50 (2) SA 2 05 - 209/10. It follows that to charge a nd convict an accused with o ne offence or several offences of culpable h o m i c i de arising from a single negligent act or omission according to the n u m b er of persons w h o se deaths w e re caused by the accused's negligence w o u ld be arbitrary a nd unrelated to his criminal blameworthiness. On these considerations a single negligent act such as failing to k e ep a proper look out while driving a m o t or car w h i ch results in a collision a nd deaths of o ne or m o re persons w o u ld s e em to constitute in substance o ne offence." In the circumstances the charge in the present case should read:- " T H A T: the accused is charged with the crime of culpable H o m i c i d e. In that u p on or about the 10th d ay of S e p t e m b er 1 9 99 a nd at or along the N o r th M a in I public road at the Leribe M o r e n e ng in the district of Leribe, the accused unlawfully and negligently drive m o t or vehicle X 2 0 30 a nd collide with another m o t or vehicle C 0 1 07 and as a result negligently kill the following persons - 1. 2. 3. 4. Malepati Phalisa Clovis M o k h o b a lo M o l a po L e b o h a ng M o n o a qo Joseph M o h a n ya Alternatively That the said accused is charged with contravening Section 9 0 ( 1) of the R o ad Traffic A ct of 1 9 81 (as a m e n d e d ). "In that u p on or about the 10th d ay of S e p t e m b er 1 9 94 a nd along the M a in N o r th I at Leribe M o r e n e ng in the district of Leribe, the said accused drove m o t or vehicle X 2 0 30 recklessly or negligently a nd did as a result collide with m o t or vehicle C 0 1 07 causing injuries to - M a k o p o ka L e t h u n ya - M a k o l a na L e t h u n ya - K h o m o a t s a na Lebitsa." Mr P h o o f o lo w h en arguing on the merits of the conviction submits that there w as no evidence sufficient to support the verdict of culpable h o m i c i d e. T he evidence of the c r o wn c a me f r om t wo witnesses. P . W .1 N o. Sergeant N t h i mo w ho attended the scene of the accident informed the court that u p on arrival at the scene on the 10th S e p t e m b er 1 9 94 he f o u nd t wo vehicles that h ad b e en involved in a collision. Vehicle X 2 0 30 w h i ch h ad b e en driven by the appellant w as straddling the dotted central line on the high w ay a nd the c o m bi C 0 1 07 w as off the road w i th extensive d a m a g e s; the passengers injured or deceased, h ad already b e en c o n v e y ed to the hospital. It w as c o m m on cause that the appellant w as also not present at the scene w h en the police officer t o ok the m e a s u r e m e n t s. He d e m a r c a t ed X1 as b e i ng the point of i m p a ct b e c a u se he f o u nd "signs of collision s u ch as b r o k en glasses a nd the m u d ." He says that w h en he s h o w ed this point tot he appellant on the following day, the appellant disagreed a nd instead pointed out a point - X2 - as b e i ng the point w h e re the collision occurred. T h is latter point is a l m o st along the centre line w h i le the police officer's m a rk is in the m i d d le on the lane in w h i ch C 0 1 07 w as s u p p o s e d ly travelling. T he police officer h as indicated in his m ap that the appellant's vehicle X 2 0 30 stood a l o ng the centre line five p a c es a w ay f r om X1. A c c o r d i ng to the police officer vehicle C 0 1 07 w as d a m a g ed b e y o nd repair while the vehicle X 2 0 30 w as d a m a g ed on the bonnet, radiator grill, w i n d s c r e en front b u m p e r, front h e ad l a m ps indicator, right d o or a nd top. It is quite clear that the issue of the point of collision w as very controversial in this case it b e i ng the w o rd of the police officer a nd that of the appellant. In my v i e w, it is a l w a ys important that w h e re a police officer m a r ks a point of i m p a ct in the a b s e n ce of the accused, he should a l w a ys m a rk the spot indelibly w i th a chalk or stone in order to s h ow it to the a c c u s ed w h en he c o m es to point out the spot later. M ud a nd b r o k en glass in the m i d d le of the tar road m ay n ot last long e n o u gh to be still present w h en the accused c o m es to the scene. T he e v i d e n ce as it stands is rather equivocal. P . W .2 merely says that " T he point of i m p a ct h a p p e n ed at o ur lane." He o b s e r v ed this f r om w h e re he w as standing b e h i nd t wo front passengers a nd he says that as the coaster w as s l o w i ng d o wn the appellant's vehicle o v e r t o ok it driving a h i gh speed. He denied that his c o m bi w as "fighting" o v er the lane w i th another taxi as they w e re a p p r o a c h i ng the appellant's vehicle. In a case s u ch as the present it w as necessary that the learned magistrate m e ro m o tu or on application of the prosecutor to h a ve g o ne on an inspection in loco to h a ve the positions clarified. T h is w as not d o ne a nd the issue, important as it is, r e m a i ns in doubt. T he appellant's version is to effect that as he w as driving X 2 0 30 a coaster in front w as negotiating a c u r ve a nd indicating to the left. He says it s t o p p ed a nd as he w as overtaking it he s aw a taxi followed by another taxi travelling in the opposite direction; a nd that w h en he w as alongside the coaster the taxi C 0 1 07 a p p e a r ed a nd he tried to veer to the left but the collision t h en occurred. As it is, the e v i d e n ce of the c r o wn relied on the a c c o u nt g i v en by a single witness, n a m e ly P . W .2 a nd the c r o w n 's a nd appellant's versions are mutually destructive. In the case of R vs M o h l e r e pe - 1 9 79 (1) L LR 1 48 M o f o k e ng J held that - " W h e re there are t wo m u t u al destructive versions presented to the court the test to be applied in s u ch a situation is s i m p ly that the court m u st be satisfied on a d e q u a te g r o u n ds that the version it accepts is true a nd the other false; a court is not entitled to convict an a c c u s ed p e r s on m e r e ly b e c a u se his explanation is i m p r o b a b l e. It will do so if b e y o nd d o u bt the explanation is false; an a c c u s ed p e r s on should not be convicted m e r e ly b e c a u se he is a liar" I h a ve pointed out that the evidence on the point of impact is equivocal a nd I find that there are no adequate reasons to reject the X2 as false b e y o nd doubt. On a charge of culpable homicide, the critical question a l w a ys is whether a reasonable driver in the appellant's position ought to h a ve foreseen the possibility that his driving m i g ht cause death; it m u st also be proved that the appellant's negligent driving w as the proximate cause of the victim's death ( R . vs L e n n e tt - 1 9 17 C PD 4 44 at 4 4 5. It has also b e en held h o w e v er that it is c o m p e t e nt for the court to convict the accused of negligent driving provided the evidence proves the elements of negligent driving in the alternative R vs N d w a n d we - 1 9 76 (1) SA 3 2 3. In this case it is not clear w h e t h er the deaths of the victims w e re the result of the negligent driving of the appellant or resulted f r om the contributory negligence of the driver of C 0 1 07 or combination of both. I am not satisfied that it can be said with all conviction that appellant's negligence (if proved) w as the proximate cause of the victims' death. In M a s e r e t se vs R - 1 9 74 - 75 L LR 3 85 Isaacs AJ said that d e p e n d i ng on the circumstances a driver m ay be guilty of negligent driving but he cannot be found guilty of culpable h o m i c i de unless it has been proved b e y o nd reasonable doubt that his negligence w as the proximate cause of the deceased's death. In my view, the verdict of culpable homicide w as not supported by the evidence w h i ch I hold to be equivocal a nd inconclusive. There matter does not e nd there. I h o w e v er hold that the appellant w as h o w e v er negligent in overtaking the coaster without having assured himself that it w as safe to do so and that overtaking could be achieved without endangering the o n c o m i ng traffic. He admits that the coaster w as indicating to stop at a curve yet he overtook it without assuring himself that it w as safe to do so without endangering the said o n c o m i ng traffic. He should h a ve exercised care a nd should h a ve s l o w ed d o wn before attempting to overtake the coaster m o re so because he h ad noticed an o n c o m i ng taxi. Whilst it cannot be said that his negligent overtaking w as the proximate cause of the accident ( R vs M h l o n go - 1 9 48 (1) SA 1 1 0 9) this is a case in which, in all probability the negligence of both drivers w as so c o n t e m p o r a n e o us as to m a ke it impossible to say either could h a ve avoided the consequences of other's negligence a nd in w h i ch both could h a ve contributed to the accident - S w a d l i ng vs C o o p er - 1931 AC 10. T he question whether the death of several victims w a s, b e y o nd reasonable doubt the result of the sole negligence of the appellant or in combination with that of the driver of C0 1 07 should be a n s w e r ed in the negative. This finding does not h o w e v er totally exonerate the appellant f r om all criminal liability. T he charge h ad an alternative under section 9 0 ( 1) of R o ad Traffic A ct of 1981 and in my v i e w, the appellant's negligent driving w as sufficiently proven. I therefore set aside conviction of culpable h o m i c i de a nd substitute therefore conviction on the alternative charge of negligent driving. Sentence: H a v i ng thus altered the conviction, the court is at large to reconsider sentence. T he appellant has no criminal record. H a v i ng considered all the circumstances of the case, I i m p o se the following sentence - "Three years imprisonment or M 2 , 0 0 0 . 00 half of w h i ch is suspended for a period of three years on condition that the appellant is not during the said period convicted of an offence involving negligent driving." S. N . P E E TE J U D GE For Appellant: Mr Phoofolo For Respondent: Mr H o e a ne