IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

                                                                                   CASE NO:  CA 60/07

In the matter between:

ROGERIO CORREIRA DINIZ                                                                  Appellant

and

THE STATE                                                                                          Respondent

CRIMINAL APPEAL

HENDRICKS J;  GURA J

DATE OF HEARING	:	30 MAY 2008
DATE OF JUDGMENT	:	05 JUNE 2008	

COUNSEL FOR THE APPELLANT	:	ADV L M  HODES
COUNSEL FOR THE STATE		:	ADV N G  MUNYAI

JUDGMENT

HENDRICKS J:

[A]	Introduction:-

[1]	The Appellant was charged with two counts of culpable homicide and in the alternative with reckless or negligent driving.  He pleaded not guilty to both the main as well as the alternative counts.  He was convicted on the main count(s) of culpable homicide and was sentenced to pay “a fine of R20 000-00 … and to a term of imprisonment of three (3) years.”  The Appellant appeals against his conviction(s).

[B]	The merits:-

[2]	It is not clear from the record whether the Appellant was convicted on both counts of culpable homicide or just one count.  The sentence that was imposed makes it even more confusing because of the word “and” between the amount of R20 000-00 and the term of imprisonment of three (3) years.

[3]	Certain admissions were made in terms of Section 220 of the Criminal Procedure Act, Act 51 of 1977, as amended, which make it common cause that on the 2nd December 2000, the Appellant was the driver of a Dyna truck, which he drove on the Johannesburg-Rustenburg road.  This road is a public road and he was on his way towards Rustenburg.  He admitted that he was involved in a collision with the motor vehicle in which the two deceased persons died as a result of the injuries sustained in the collision and that they sustained no further injuries apart from those sustained as a result of the accident that contributed to their death.

[4]	Renier Johannes le Roux testified that he was the driver of the motor vehicle in which the two deceased persons were passengers.  They were traveling from Roodepoort (Johannesburg) to Rustenburg at approximately midday on a good road surface.  He saw the Dyna truck of the Appellant on the left hand side of the road and what he can remember is that the next moment it was in front of him.  He applied brakes which actually locked and his motor vehicle moved to the right and collided with the Dyna truck of the Appellant, by striking it in the middle thereof.  To him it appeared as though the Appellant was making a U-turn.  He lost consciousness and only regained it seven days later.  The two deceased persons were his wife and stepson.  He could not remember that a Toyota Hilux bakkie was traveling in front of him.  He remembers that he had not overtaken a bakkie at an inopportune moment, neither had he traveled at an excessive speed.

[5]	Professor Jeffrey Christopher Hillman was called as a witness on behalf of the Appellant.  He testified that he inspected the scene of the collision on the 12th December 2000.  From the observations he concluded that Mr le Roux must have traveled at a speed in excess of 140 kilometers per hour when the collision occurred.  This he concluded from the damage to the motor vehicles.  According to him, if Mr le Roux had traveled at a speed of 100 kilometers per hour and had noticed the Appellant’s truck at a distance of approximately 40 meters as he testified, he (le Roux) would have had ample time and opportunity to bring his vehicle to a standstill.  He however conceded that he could not with certainty state how fast Mr le Roux traveled with his motor vehicle but estimates it to be in excess of 140 kilometers per hour.  According to him, it is a normal reaction of a driver when seeing another vehicle on the left-hand side of the road moving onto the road, to try and move as far away as possible from it in an attempt to avoid a collision.

[6]	The Appellant’s version is that he was traveling towards Rustenburg, when he received a telephone call that the goods that he was supposed to collect had not been delivered, which made his trip unnecessary.  He then decided to turn back.  He went off from the tarred road and reversed into a farm entrance on the verge of the road and waited for an opportune moment to cross the road and drove back in the direction of Johannesburg.

[7]	When he looked to the left (which must have been in the Rustenburg direction) there were no oncoming motor vehicles, but when he looked to the right (in the Johannesburg direction), he saw a Hilux bakkie approaching at a distance of approximately 40 to 50 meters away.  Because the bakkie was slowly approaching, he thought that there was adequate time for him to safely proceed and turn onto the tarred road (the Johannesburg-Rustenburg public road).  He then heard brakes screeching and the motor vehicle of Mr le Roux collided with his truck.  According to him, he had not made a U-turn neither did he see this motor vehicle behind the Toyota Hilux bakkie.  He testified that the skid marks caused by Mr le Roux’s motor vehicle crossed the solid white line in the road.  After the collision, the occupants of the Toyota Hilux bakkie had stopped and rendered their assistance but he does not know whether the police, who attended the scene, obtained their details.  He was arrested.  He does not believe that he is responsible for the collision.

[8]	From the photographs which forms part of the record, it is clear that the skid marks caused by the motor vehicle of Mr le Roux when he applied brakes, starts on the left hand side of the road in the correct lane in which he traveled.  This means that he was within his right and had the right of way immediately prior to the collision.  This in my view is res ipsa loquitur. 

[9]	It is submitted on behalf of the Appellant that the learned Magistrate erred in finding that the Appellant had a duty of extreme care because he was going to join the main road at a point where there were no road signs at all regulating such an entry and to make sure that there were no obstructions that could prevent him from joining the road.

[10]	It being so, so it is submitted, the learned Magistrate “in effect placed an onus upon the Appellant and had no regard to the onus which rested upon the State to prove the guilt of the Appellant beyond a reasonable doubt”.

[11]	The duty of care albeit “extreme care” that the learned Magistrate referred to has nothing to do with the placing of an onus or rather the shifting of the onus (burden or proof) in this criminal trial from the State to the Appellant.

[12]	Reference to the duty of care is what is expected of a reasonable driver.  The onus of proof beyond a reasonable doubt (in a criminal trial) is totally different from this duty of care.  I am of the view that the learned Magistrate did not confuse the two and correctly found that the Appellant was negligent in joining the main road at a point where there were no road signs at all regulating such entry and that there was a duty upon the Appellant to ensure that there were no obstructions that could prevent him from joining the road.  Sight should not be lost of the fact that the motor vehicles traveling on that main road (Johannesburg-Rustenburg) had the right of way.  The negligence of the Appellant to keep a proper look-out and to join this road when it was safe to do so caused the collision resulting in the death of the two deceased persons.

[13]	I am of the view that the learned Magistrate is correct in finding that the State succeeded in proving the guilt of the Appellant on the main count(s) of culpable homicide.

[14]	The learned Magistrate must have forgotten (I presume) that it were two counts of culpable homicide and not only one count.   The oversight is also apparent in the sentence that the learned Magistrate imposed.  He did not state that the two counts were taken together as one for the purpose of sentence nor is there on record any clear indication that two separate sentences were imposed for each of the two counts.  Exercising our inherent powers of review, I am of the view that this oversight must be corrected.  

[15]	Even the word “and” that was used by the learned Magistrate when he imposed the sentence of “a fine of R20 000-00 as suggested and a term of imprisonment of three (3) years”, is in my view rather an error than an indication that it is two separate sentences that were imposed for the two different counts.  In my view the word “and” should be replaced by the word “or”.

[C]	Order:-

[16]	Therefore, the following order is made:-

	[i]	The appeal against the conviction(s) is dismissed.

[ii]	The order of the Magistrate is set aside and replaced by the following:-

“Guilty on two counts of culpable homicide (the two main counts).  The two counts are taken together as one for the purpose of sentence and the accused is sentenced to pay a fine of R20 000-00 or three (3) years imprisonment.”

R D  HENDRICKS
JUDGE OF THE HIGH COURT

I agree.

SAMKELO GURA
JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT:  BOTHA COETZER SMIT ATTORNEYS.