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 gross – sentence of five years’ imprisonment of
which two years suspended upheld on appeal.

___________________________________________________________________________

J U D G M E N T
___________________________________________________________________________

CONRADIE  JA
[1] On 7 December 1994 on the national 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 six of its occupants. Other passengers
were injured. The incident led to the appellant’s facing six charges of culpable
homicide in the regional court, alternatively a charge of reckless or negligent
driving or, as a further alternative, driving under the influence of intoxicating
liquor. He was convicted of culpable homicide and sentenced to five years’
imprisonment, two of which were suspended for five years. 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 the 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 lane in which the

minibus travelled from Cathcart to Stutterheim. This was where he was told the
impact between the two vehicles had occurred. For better visibility constable
Kuhn was asked to stand 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 his own observations whether
the point appeared to be correct. He did so on this occasion and came to the
conclusion that the yellow cross accurately identified the point of impact. He
observed that the right front tyre of the appellant’s sedan had been detached by
the collision. Left exposed by the removal of the tyre, the wheel rim made a
mark on the tarred road surface from the 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 were marks that appeared to Holloway to
have been made by the minibus taxi. All marks on the road surface emanated
from the spot pointed out to him and all 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 captain, 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.

[6] The appellant admitted that he had 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 support from anyone.
Holloway was firm that the cross on which Kuhn stood, was the only ‘crayon’
marking on the road and Zondeka maintained 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 question, 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 physical evidence alone. It called three eye
witnesses, all of them passengers in the minibus taxi. There were the usual
discrepancies in their evidence, but they were clear on one thing: the sedan that
collided with the minibus, in attempting an overtaking manoeuvre, suddenly
appeared from behind another vehicle and drove into the bus on the latter’s
correct side of the road.

[9] There is no reason to doubt the evidence of these three witnesses. The
regional magistrate believed them and trusted their recollection and

observations ; no reason appears from the record suggesting that he should not
have done so. The eye witnesses powerfully corroborate Holloway’s evidence
and his evidence in turn renders theirs entirely convincing. The appeal against
the conviction cannot succeed.

[10] The appeal against the sentence imposed by the magistrate was dismissed
by the court a quo. Its conclusion was that there 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 blind 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 visibility 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 inability to observe
approaching traffic is compounded by the inability of traffic in the opposite
direction to see him is probably the most inexcusably dangerous thing a road
user can do.

[12] It is hard to conceive of an instance of road-related conduct that could be
considered more dangerous. A driver under the influence of intoxicating liquor
who ventures onto the wrong side of the road in similar circumstances might, I
suppose, be considered more blameworthy: his condition would prevent him
from seizing what little change 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 crossing 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 consequences are frequently caused by
inadvertence, often momentary.1 Overtaking on a double barrier line is not
inadvertence. It is a conscious decision 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 acknowledge 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.

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 foreseeability 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 particularly 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 useful 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 nineteen year old who took 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 suspended was on appeal changed to one of twelve

months’ imprisonment. The court reaffirmed the approach that in cases of gross
negligence imprisonment even for a first offender may be indicated. The
accused in S v Keulder 1994 (1) SACR 91 (A) was an alcoholic who was
convicted of culpable homicide committed 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 regard to the fact the appellant had two
previous convictions for road related 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 cyclists 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 633c). 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 supervision. This appeal court disagreed with the
stigmatisation as gross negligence of the appellant’s conduct in moving at high
speed (he had been racing another vehicle) into the slow lane obstructed by a

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’ imprisonment 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 attention 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 driver 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 where a driver strayed onto
the wrong side of the road. Three passengers in the offending vehicle were
killed. A sentence of two years’ correctional supervision was confirmed on
appeal. It appears to have been one of those cases where the driver lost
concentration or fell asleep at the wheel. Another case of negligent driving that
cost the lives of three people is S v de Bruin 1991 (2) SACR 158 (W). There the

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 consumed alcohol before driving and had
three previous convictions for driving under the influence of liquor or for
driving with a higher than permitted blood alcohol level. Apart from S v
Birkenfield (where the sentence was 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 the 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 above 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. For 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

above cases. Now that the National Road Traffic Act 93 of 19962 has increased
the maximum imprisonment for negligent driving from one year to three and for
reckless driving from three years to six3, it should surprise no one if there is an
upward pressure on the custodial penalties imposed for road accident related
culpable homicide offences.

The appeal against the conviction 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.