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Mduli Sibusiso v Rex (18/2001) [2001] SZCA 17 (1 June 2001)

IN THE COURT OF APPEAL OF SWAZILAND

APPEAL CASE NO.18/01

In the matter between:

SIBUSISO MDLULI

AND

THE KING

CORAM : BROWDE JA

: VAN DEN HEEVER JA

: SHEARER JA

FOR APPELLANT : MR. DUNSEITH

FOR RESPONDENT : MR. MASEKO

JUDGMENT

Van den Heever JA:

The appellant was charged in the High Court on five counts of culpable homicide, arising out of a single incident. On the 7^th March 2000 he was driving a bus on the Manzini-Siteki road. Near the Maphobeni bus stop his vehicle knocked down and killed a pedestrian and then collided with an oncoming Mazda car, killing its four occupants. The Crown alleged that these deaths were due to negligence on his part, in that he had driven too fast, failed to keep a proper lookout, failed to brake timeously or at all, driven without due care and without reasonable consideration for other persons using the road, failed to take steps to avoid knocking down the pedestrian, and failed to keep to his side of the road, “particularly when he realized that the bus he was overtaking had switched on its hazard lights”. The Director of Public Prosecutions gave notice that the Crown contended that these five counts were accompanied by aggravating circumstances in that:-

“(a) At the time of the commission of these offences accused person drove recklessly as he was racing for passengers.

2. Accused person’s reckless driving was motivated by greed for money at the expense of the lives of the passengers he was carrying and other users’ lives.

3. As drivers of public service motor vehicles the accused failed to exercise due care.

4. As a result of accused person’s negligent driving, innocent lives were lost”.

There were alternative charges under Section 115(1) read with 115(2) of the Road Traffic Act No.6 of 1965.

The summary of evidence annexed to the indictment alleged that at about 7h30 on that day, another bus, ahead of the appellant’s, suddenly switched on its hazard lights when appellant was close, and overtaking. While he tried to do so, his vehicle “veered off the road and knocked down a pedestrian who died instantly and veered on the road again only to collide with one oncoming motor vehicle” – the Mazda –killing three of the passengers in it and the fourth dying some days later in hospital.

At the commencement of the trial a plea of guilty of culpable homicide was tendered on the basis of facts agreed upon between the prosecution and the defence. This was read into the record and reads as follows:

“STATEMENT OF AGREED FACTS.

Upon or about the 7^th March 2000 and at Maphobeni Bus Stop, along Siteki/Manzini Public Road the accused was driving motor vehicle SD382CN (Ukuthula Bus Service).

The motor vehicle aforesaid was driving behind another bus which suddenly stopped without indicating its intention to stop.

The accused swerved on the right hand side of the road and his motor vehicle lost control and knocked down a pedestrian Siphiwe Siyaya who died on the spot.

The bus went on to collide with an oncoming motor vehicle bearing registration number SD913HG, killing all four passengers in that motor vehicle.

There were no aggravating circumstances in the statement of agreed facts”. (emphasis added)

The court proceeded to convict the appellant of culpable homicide, and sentenced him on each count to a fine of E3,000.00 or 9 months imprisonment – a total, therefore, of E15,000.00 or in default of payment, 45 months’ imprisonment. It was further ordered that his driving licences be suspended for three years and that the particulars of this conviction and sentence be endorsed thereon; and that the E3,000.00 bail he had paid be refunded to him. The present appeal is against this sentence.

The trial Judge motivated it as follows:-

“I considered that accused had pleaded guilty and that he was a first offender – hence the option of a fine. However, I had to take into consideration the very frequent death toll on our roads in Swaziland especially as a result of reckless and negligent driving of drivers of public motor vehicles carrying passengers. This high death toll is invariably motivated by greed on the part of the drivers vying for passengers especially during peak hours”. (emphasis added)

The clear conflict between the italicized passages in the Statement of Agreed Facts and the reasons just quoted, constitute an irregularity. The “aggravating circumstances” included in the indictment, were excluded expressis verbis from the facts the appellant was prepared to admit. The Crown by agreeing to his version of the incident abandoned its own one of more blameworthy conduct on the appellant’s part.

This court is accordingly at large to determine an appropriate sentence : on the agreed statement of facts.

Mr. Maseko who appeared before us for the Crown very fairly conceded that it would be appropriate to treat the five counts as one for purposes of sentence; which in our view would be a proper approach in dealing with this single incident.

The purpose of imposing a fine is normally to enable a person convicted of an offence to choose between financial and physical penance. To offer the alternative of a fine where there is no prospect that the person convicted is in a position to pay it, is pointless. The appellant, who according to his counsel Mr. Dunseith since 1996 earned his livelihood as a public service driver, has been deprived of that livelihood by the order suspending his licences. That in itself would not only be a not inconsiderable punishment, but make the imposition of an E15,000.00 fine a futile gesture.

He was a first offender aged 30, married and father of one child, who on the agreed facts did not keep a safe distance between his vehicle and the one in front of him. When the latter created an emergency by suddenly stopping without advance warning, his reaction to that emergency had tragic consequences, true. But in my view the suggestion of Mr. Dunseith and not opposed by Mr. Maseko, would not be an inappropriate sentence in these circumstances – that taking the five counts as one for the purpose, he be offered a fine in the amount we know is available to him in the shape of the bail he paid, which he will inevitably perceive as financial penance; and be sentenced to nine months’ imprisonment which will obviously run from the date on which the sentence he is presently serving was imposed. That will give him the opportunity of soon finding some means, other than driving, to resume his responsibilities towards his wife and child.

The sentence imposed by the court a quo is deleted, save as regards the suspension of the appellant’s driving documents, and replaced by the following:

“The five counts are taken as one for purposes of sentence. The accused shall undergo nine months’ imprisonment and is further fined E3,000.00 or in default of payment to undergo a further nine months’ imprisonment”.

L. VAN DEN HEEVER JA

I AGREE : J. BROWDE JA

I AGREE : D.L.L. SHEARER JA

Delivered on this day of June 2001