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NOT REPORTABLE

IN THE EASTERN CAPE HIGH COURT, GRAHAMSTOWN

CASE NO: CA&R 214/11

In the matter between

Z E NIKELO ....................................................................................APPELLANT

and

THE STATE ..................................................................................RESPONDENT

APPEAL JUDGMENT

HARTLE J

1. The appellant was convicted by the regional court, Grahamstown, on a charge of culpable homicide. He was sentenced to five years’ direct imprisonment in terms of the provisions of section 276(1)(i) of the Criminal Procedure Act, No. 51 of 1977. His driver’s licence was additionally revoked pursuant to the provisions of section 34(1)(b) of the National Road Traffic Act, No 93 of 1996 and he was declared unfit to obtain another for a period of five years from the date of sentence.

2. An application for leave to appeal against sentence was refused by the trial court but the appellant comes before us with leave granted on petition.

3. The appeal is directed only in respect of sentence and only against the custodial component thereof. The parties appear to recognize however that the effect of the cancellation and endorsement respectively cannot be left out of the reckoning in considering the cumulative impact of the sentence.

4. The appellant is a soldier employed by the South African National Defence Force with the rank of lance corporal. As at the date of the controversial sentence imposed he was 41 years of age with a clean driving record. During the early evening of 25 March 2010 he was the driver of a sedan motor vehicle on the army base road near Grahamstown accompanied by two colleagues. They were returning from a course at the local base on their way home when he collided with the deceased who was jogging on the same road, running in the same direction in which he was driving, but on the right hand side of the road. The damage to the appellant’s motor vehicle indicated that the bottom right hand corner thereof had collided with the right leg of the deceased which was in a posterior position as he ran. The evidence revealed that his toe had been pushed downwards which caused it to open up and emit blood on the road surface in a markedly longitudinal fashion as it was pushed along the road by the impact. He was probably scooped up by the moving vehicle and propelled into the air by the impact, landing on his chest some distance away. He died at the scene.

5. The deceased is survived by his wife, two young children, two siblings and his mother. It transpired that he ran a successful IT business with a local partner. He was also an avid runner who, at the time of the collision, was in training with a running partner for the upcoming Ironman competition.

6. At the trial the appellant pleaded not guilty but made numerous admissions relating to the formal aspects of the trial. A photo album compiled in respect of the accident scene was also admitted into evidence with his consent, the correctness of which was conceded save in respect of the point of impact which on the plan was indicated as being outside of his lane of travel. He denied that he was negligent, maintaining that the collision had occurred on his side of the road. He also insisted that the body of the deceased, which as I pointed out above was found some distance away from the perceived point of impact on the side of the road where it landed afterwards, had rather been dragged there from the road surface by the deceased’s running partner.

7. As for how the accident happened, the appellant testified that whilst driving he noticed the deceased and his running partner jogging about 150 metres ahead of him. It was a clear day and he could see well ahead of him. The second runner was on the right hand edge of the road whilst the deceased was running next to the barrier line in the middle of the road. Despite the customary urban speed limit in place on the particular stretch of road, he travelled at approximately 65km per hour in his estimation. This was because there was some pressure from the rear given a continuous line of other vehicles exiting from the base at the same time which caused him to maintain the faster speed. According to him, when he reached the deceased the latter for no reason encroached over the middle line as a result of which he collided with him. By his own admission he had not adjusted his speed at all nor moved to the left of the road. The suggestion that he was faced with trees impinging on the side of the road to his left or was otherwise compromised by a narrow area was discounted by the accepted evidence as to the topography of the road.

8. The magistrate rejected the appellant’s evidence, finding that the point of impact was on the right hand side of the road where the deceased and his partner had been running, clearly delineated by the longitudinal blood streak on the road surface which, according to the plan and key, was two metres over the median line. His finding in this regard led inferentially to the determination that the appellant had driven inconsiderately or negligently and was criminally responsible for the death of the deceased which ensued. As far as he was concerned, the point of impact was “an indicator of the guilt of the (appellant)”. If the point of impact was determined to be on the left hand side of the road the appellant’s version might be reasonably possibly true but, conversely, if it were found to be on the opposite side of the road the inference would be inescapable that he was “either negligent or reckless in the driving of the motor vehicle.” I refer to his concluding remarks which are as follows:

“By colliding with the deceased on the right side of the road, it is clear that he either drove inconsiderate or negligent without knowledge or failed to keep a proper lookout of road users on the right hand side of the road. It is therefore inescapable that the death of the deceased took place as a result and direct consequences of a reckless and negligent driving of the accused.” (sic)

9. During the sentencing proceedings the state adduced the testimony of the deceased’s wife. She testified that they had married in 2000. Her late husband had contributed about two-thirds of their income to the support of the family. He ran his own business with a partner and also speculated in property. Apart from his own children he had also supported two children of an employee by contributing towards their costs of education. Leaving aside the financial and practical impact of the deceased’s death, which was to some extent ameliorated by the proceeds of a buy back insurance policy, she reflected that the initial emotional impact had been immense on them. She clarified that they were coping, her and the children, albeit with difficulty. Both she and her daughter had received counseling and she was still seeing a therapist at the time of the sentence proceedings.

10. When invited to say how she felt about the appellant’s conviction she testified as follows:

“I think the thing I find most upsetting during the trial was the lack of remorse or responsibility in, you know things go wrong and mistakes are made though with dire consequences, but I have never imagined to not showing remorse.”

11. This sentiment was expressed again during cross examination when she clarified that the one thing that really upset her and which she experienced as being quite hurtful was that the appellant had pleaded not guilty and shown no regret.

12. The appellant’s wife testified on his behalf in mitigation of sentence

13. He had been married before but ironically lost his first wife in a motor vehicle accident. They met in 1994 after he was transferred to Port Elizabeth. From Kimberley, where he was later posted, he requested a move to Grahamstown after his brother died in 2007 and he became solely responsible for the family’s support. Her own father was ill and the appellant wanted her to come and help look after him. She herself was suffering severe migraine headaches. His siblings were uneducated and were not providing for themselves. The eldest had had a stroke and was the recipient of a government grant. His older sister stayed at home with three children. Another brother was unemployed and a younger sister was married but both she and her husband were unemployed. The youngest child, who dropped out of school in Standard 9, was also unemployed with no income prospects. He had further taken over responsibility for the three children of his late brother.

14. The appellant himself has three children, two from his previous marriage and the third one born from the present marriage. The eldest is a major but is still schooling, whereas the last two are aged 15 and 14 years respectively.

15. His wife described him as being “very responsible”. He had looked out for her own mother too since her father passed away. Apart from his siblings, who she thought took advantage of his good nature; he had also taken care of his late wife after she was injured in a motor vehicle collision. He did what was expected of him in this regard even though she was with a boyfriend at the time of the accident, a reason why he might legitimately shun her.

16. She offered an apology to the deceased’s family and begged the court to show him mercy. Despite the ostensible lack of remorse displayed by the appellant during the trial, she offered a different side to his personality:

“… The accident happened and he cannot undo that and secondly I would like on my husband’s behalf your worship to say to apologise to the family of the deceased’s wife your worship. My husband informed me that he had asked his superiors your worship to send words of condolences to the family of the deceased. First of all your worship my husband, it is my husband’s character your worship to not be able to express himself your worship and that would falsely make someone think that he has a lot of pride your worship. He finds it hard to express himself your worship hence you would think that he is arrogant or full of pride. And I would like this court to remember that my husband is very responsible, he does not drink, he does not smoke and he loves God. The accused your worship looks, takes care of three families your worship, that is my family, our homestead and his mother your worship and [inaudible] are the only ones responsible of taking care of the families, financially your worship and also I would like the court to consider his mother’s age your worship, she is well advanced years.” (sic)

17. Under cross examination she clarified that she would not “fully” be able to sustain the family on her teacher’s post level one salary if her husband were committed to prison.

18. The appellant’s legal representative was hard pressed to find a reason for the manner in which the appellant had driven at the fatal moment, speculating only that his personal circumstances may have “disturbed” him at the time. When invited by the court to indicate whether the appellant was maintaining his version of how the accident had occurred, he persisted that he could only speculate as to the cause as he had no instructions to the contrary.

19. An earnest plea was made from the Bar to impose a non-custodial sentence. Although the appellant was asked to record his rank, no discussion ensued regarding his earnings or his affordability to pay a fine. In passing his representative mentioned that the incident had “affected” him in the sense that he was now confined to being in and around his battalion rather than being available to be deployed beyond the borders of South Africa as a peace keeping officer which in the past had presented an opportunity for him to augment his income. This important aspect was not probed any further except to ask the appellant whether his absence from home on this basis did not impact his “family responsibilities”.

20. In sentencing the appellant, the court noted that it had sympathy with his immediate family, his in-laws, as well as his extended family, recognizing that irrespective of what sentence was imposed, they too would suffer.

21. As to the possibility of a non-custodial sentence, it appeared to weigh up the options of a fine or suspended sentence in the first instance, yet concluded that the seriousness of the offence militated against these. For the same reason and despite stressing that the appellant was in its view a most suitable candidate for correctional supervision, such sentence too was held to be unsuitable in the circumstances. The following remarks bear repeating:

“… non-custodial sentences can take the form of a fine, in your case sir due to your income, your family’s responsibilities towards your family and your extended family and as well as the fact that you have no substantial amount to pay a fine, makes this form of a sentence unsuitable.

Another form of a non-custodial sentence is a suspended sentence. In the light of the fact and the possibilities and the probabilities that you will not commit a similar offence in future are fairly slim, the court is satisfied that a suspended sentence will serve no purpose at all.

As indicated from the outset I am satisfied that you would have been a suitable candidate for correctional supervision whether or not it is in terms of section 276(1)(h) or 276(1)(i) of Act 51 of 1977 the court must consider whether or not it is a suitable sentence. The fact that you are a suitable candidate does not automatically render it a suitable sentence as well. Regarding the suitability of correctional supervision as a sentence the court refers you to the matter of S v D 1995 (1) SACR 295 (AD), the court of appeal held that the appellant’s conduct is sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the court’s strong disapproval and hoping to act as a deterent to others likeminded to the safety. Keep in mind that this case does not refer to road traffic offences but to sexual offences, but the sentiments remain the same. The court finds that a sentence of correctional supervision only would not be adequate.”

22. Whilst recognizing that a sentence of correctional supervision is, despite appearing to the community to be a light touch and not serving the ends of criminal justice a substantial punishment, the court with reference to S v D noted that the question to be answered is a wider one whether the particular offender, having regard to his personal circumstances, the nature of the crime and the interests of society, should be removed from the community. In that regard it inclined toward the view that the appellant was indeed such a person:

“Sir after considering the non-custodial sentence options I am satisfied that the interests of society and the seriousness of this offence mitigates against the sentencing of a non-custodial sentence. This case is one of those where your personal circumstances must give way to that of the community in order to balance the scales evenly.”

23. Regarding the choice of sentence which the court ultimately concluded was suitable, and albeit acknowledging that the objective of rehabilitation was the least imperative, it reasoned thus:

“The sentence means sir that after you have served one-sixth of the sentence to wit ten months the commission of correctional services may decide to convert your sentence of direct imprisonment to one of correctional supervision. I must stress that the commissioner may do it, the commissioner is not obliged to do it. If you do not behave yourself in prison or you do not abide by the rules of the prison the commissioner may decide to keep you there for the whole five years.”

24. No reasons were furnished for the exercise of the court’s discretion in favour of revoking the appellant’s driver’s licence although his legal representative had indicated that he commuted on weekends between his latest base in Mthatha and Tabankulu, precisely because of his family responsibilities, which was a drive in excess of 2 hours, one-way. The court further thought it appropriate to declare that the appellant was not unfit to possess a firearm in terms of the provisions of section 103 (2) (a) of the Firearms Control Act no 60 of 2000, ostensibly due to the nature of his work which involved the instruction and training of new recruits in the Defence Force. Precisely how the latter concession would be of any value to him if he were going to be committed to prison and lose his job as a result in any event is not clear. But conversely the cancellation of his licence for the same period he would notionally be incarcerated for detracts from the objective sought to be achieved by such an order in the circumstances. Nonetheless for present purposes this is a substantive penalty and must be regarded as such.

25. It is trite that an appeal court will interfere with the sentence of the trial court on the grounds that it is excessive only if there is a striking disparity between the sentence imposed and a sentence which this court considers to be reasonable.

26. The state submitted that, having regard to the lack of remorse shown by the appellant and the aggravating factors at play in respect of the collision and its consequences, the sentence imposed did not induce a sense of shock. The chief submission on behalf of the appellant was that the magistrate had over-emphasized the seriousness of the offence and the interests of society above his personal circumstances.

27. Mr Msindo appearing on his behalf contended that the fact that the appellant is a family man in full time government employment ought to have tilted the scales in favour of a sentence with an option of a fine, alternatively one of correctional supervision. This was especially so since a direct term of imprisonment automatically results in a discharge from employment from any government department including the SANDF. ¹

28. In determining an appropriate sentence regard must first be had to the “conventional approach” adopted by our courts in road-accident death- related cases which is helpfully set out S v Nyathi,² useful for its comparative analysis of the types of sentences imposed in similar matters. The gist of all of these is that the basic criterion to which the court should have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to this assessment would be the extent of his deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of his negligence.³

29. The significance of the distinction in degree, and the difficulty it imposes in relation to the aspect of sentencing where death results, is aptly set out in S v Naidoo and Others⁴ as follows:

‘With regard to sentencing, the circumstances in which the crime of culpable homicide may be committed range across a wide spectrum. At one end is the case where a momentary lapse in concentration on the task at hand has a tragic result. Neither the lapse nor the failure to foresee the consequences of it is deliberate. Yet they have resulted in a loss of life. They could just as easily not have had that result. Sentencing fairly and appropriately in such a case is one of the law's most difficult tasks. The culpa may have been slight but the result stirs an understandable call from society at large (and a fortiori from those close to the deceased) for the sentence to visit tangible retribution upon the culprit. Balancing the need for a sentence that, on the one hand, will not appear to rate the loss of a life with all the attendant trauma to those to whom the deceased was near and dear as not too serious against, on the other, the need to calibrate the degree to which the accused's conduct deviated from the standard of care expected of a reasonable person and, if it is found to be slight, also to reflect that adequately in the sentence to be imposed, is inherently difficult. The outcome will often satisfy neither those close to the deceased nor those close to the accused, being too lenient in the eyes of the former and too severe in the eyes of the latter. But that does not absolve a court from its duty to strive as best it can to achieve a proper balance between those objectives. At the other end of the culpable homicide spectrum is the type of case where the accused has deliberately assaulted the deceased but has not been convicted of murder because the State has failed to prove beyond reasonable doubt that death was actually foreseen as a reasonably possible consequence of the assault. Because it should have been foreseen a verdict of culpable homicide is returned. Here there is more involved than culpa. An assault has been committed. Dolus is present. A deliberate attack upon a person's bodily integrity which was intended to harm has resulted in the most irremediable harm of all: death. Few would quibble at the justness of substantial custodial sentences for that type of culpable homicide. But even within that class of case there are distinctions to be drawn, such as whether a weapon was used, how obviously potentially lethal it was, whether there was provocation or how great was the negligence in failing to foresee that death might result’.

30. These comments (albeit relative to a matter which involved an assault), and especially the concept of a delicate balancing between the recognized objectives of punishment, apply equally to the context at hand. Whereas punishment should acknowledge the sanctity of human life the loss of which per se constitutes a serious consequence and by its inherent nature an aggravating factor warranting a more severe sentence than would otherwise have been imposed, no greater moral blameworthiness arises from the fact that the negligent act caused death. Most notably regard must be had to the fact that road accidents with the most devastating consequences are often caused by single moments of inadvertence⁵. In S v Naicker⁶ the court warned that in sentencing, the magnitude of the tragedy resulting from negligence should not be allowed to obscure the true nature of the crime or culpability which is that of negligence.

31. Against this background, what strikes one as absent is a clear determination by the trial court of the basic measure of culpability applicable in casu as setting the tone for an appropriate sentence. With reference to the extract referred to in paragraph 8 above, it equivocated in this regard between concepts of both negligent and reckless driving, not giving a clear or specific label to the applicable degree of culpability at hand. Whereas the first denotes inadvertence – the failure to take reasonable and proper care in the circumstances, the second presupposes a wilful or wanton disregard for the safety of persons or property on the road⁷ and elevates the matter to a greater degree of culpability or blameworthiness by its very nature attracting a harsher punishment.

32. This failure to commit to the precise measure of culpability - no doubt because the evidence had revealed little in this regard, continues in the court’s judgment on sentence evident from the following extract:

“Mr Yeko submitted to the court that something had happened. That is patently clear to the court that something had happened, the court found based on the physical evidence as well as the circumstantial evidence that you were driving on the wrong side of the road. However, you are the only one who could tell the court why it was necessary for you to drive on the wrong side of the road. The court keeps in mind that where an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious offence or even the chance to escape conviction altogether and his evidence is rejected the court cannot speculate as to the less serious of the possible facts.”

33. What is the more serious however was not clarified by the court although it leaned in sentencing towards a graver characterization of the appellant’s blameworthiness without saying why it did so. Considering the cases which it referred to as offering guidance, the court evidently put his conduct on a par with the most aggravated degrees of culpability.

34. The difficulty with the thought that speculation at the high end of the scale was justified, however, is that the conclusion in this regard must be undertaken with due observance of the established rules of logic in connection with circumstantial evidence. In casu no evidence other than the appellant’s was adduced as to how he drove before the collision. At worst for him he conceded that driving 5km per hour faster than the regulated speed, the pressure of vehicles coming up from behind, and his failure to slow down as he approached the clearly visible deceased running close to the barrier line in all the circumstances on his version in itself probably amounted to negligent driving.

35. It is important to distinguish in this regard between those factors extracted from the evidence which were essential in reaching the determination of the appellant’s guilt, and those which reflected a lack of remorse on his part. In my view the court correctly accepted as aggravating features the fact that the appellant tailored his evidence concerning where in the road the impact had occurred to avoid conviction, brazenly imputed complicity to the deceased’s running partner in moving the body from the road surface to the grass edge after the collision - no doubt to mitigate the sting of the deceased’s far flung body, and failed to take the court into his confidence generally. Perhaps the state in arguing at the hearing that the court should view the appellant’s conduct in the worst light conflated the issue of culpability with its own sense of outrage at the appellant’s unconscionable conduct in seeking to avoid blame for the collision and his persistence in maintaining a false defence. But this lack of candour on his part, or keeping mum as it were, does not automatically conduce to speculation of the most serious kind not consistent with the proved facts. At the end of the day, with reference to the accepted point of impact, the admissions made by the appellant that he drove slightly faster than the speed limit and under some pressure from the rear, and the accepted facts that nothing impaired his vision neither was he surprised by the deceased’s presence, the worst taint is that the collision occurred because he strayed onto the wrong side of the road, either unwittingly or because he failed to keep a proper lookout. This appears from the use of the phrase “without knowledge” in the extract highlighted in paragraph 8 above, seemingly suggesting in the court’s view some error of judgment on the appellant’s part in crossing over to the wrong side of the road, inattentiveness or lack of concentration due to inadvertence rather than the exercise of a dangerous manoevure and assumption of a conscious risk as envisaged in S Nyathi.⁸ It appeared fortuitous that the appellant caught the back of the deceased’s right leg as he ran (not touching the deceased’s running partner who was running in very close proximity to him), which according to the evidence unfortunately resulted in the latter being dragged along the road for a brief period and thereafter hauled into the air and thrown onto the grass edge. There was no evidence to support a conclusion that excessive speed was a causal factor in this neither did the court make such a finding. Therefore the reference to “reckless” driving in its conclusion, in the sense that the appellant drove in wilful or wanton disregard for the safety of the deceased, or executed a manoevre that involved taking a risk of any degree, must be taken to be superfluous as this is not consistent with the proved facts. This is one of those instances where, on the objective scale of gravity as it were, the appellant’s culpability, although not slight, is certainly not as reprehensible as one who wantonly crosses over the median line without regard for the presence of other road users. The evidence does not justify a finding of recklessness and I am satisfied that the negligence was not of such an aggravated degree as to warrant a sentence of direct imprisonment.

36. In the premises, compared with penalties imposed in similar matters where the degree of culpability was found to be far more reprehensible, I must conclude that the sentence imposed in casu, even without reference to the further substantial penalty of revocation of the appellant’s driver’s licence, is disproportionate and falls to be interfered with.

37. It is perhaps necessary to refer to the several examples set out in S v Nyathi as providing a general guide in “translating degrees of negligence into years in custody” ⁹ to demonstrate the heavy-handed approach which the court adopted:

‘[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 19 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 12 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 section 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 section 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 section 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 24 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 six,3  it should surprise no one if there is an upward pressure on the custodial penalties imposed for road accident related culpable homicide offences.’

38. In S v Nyathi the convicted driver overtook another vehicle on a blind rise against a double barrier line, and caused the death of six passengers in a minibus taxi. A sentence of five years’ imprisonment, of which two were conditionally suspended, was confirmed on appeal.

39. In addition to the matter of S v Greyling mentioned in the extract above, the trial court referred to S v Motau¹⁰, S v Viljoen¹¹ and a recent judgment of Grogan AJ of this division in S v Qeqe¹² as inviting comparison, but a cursory glance at these will reveal that the applicable degree of culpability in each instance, coupled with the peculiar aggravating factors, is at the upper end of the scale and that the circumstances respectively are entirely dissimilar, markedly in my view, from the appellant’s in casu. If the sentences imposed on De Bruin and Nyathi are the benchmark of the most severe custodial sentences, it is not difficult to see why the appellant’s effective sentence is strikingly disparate.

40. This notwithstanding, negligence can be characterized as serious even when committed without advertence having regard to a driver’s deviation from the norms of reasonable conduct in the peculiar circumstances of the matter and the foreseeability of the consequences of such negligence. The appellant’s veering over the median line where no need to encroach was found to be in evidence, is a clear example of a high degree of negligence in the circumstances. He could and should have seen the deceased and his running partner and be able to pass them with ease had he remained on his side of the road. The loss of life that ensued by driving in this manner may also be taken into account not for its punitive effect, but for its deterrent effect and as a warning to motorists that negligent driving might result in severe penalties, especially when it causes the death of innocent persons.¹³ Our courts have consistently sought to bring home in judgments of this nature that society expects them to protect innocent users of the road by imposing appropriately severe sentences. There is no doubt in this instance having regard to the tragic consequence of the deceased’s death that the same is warranted.

41. Leaving aside the unfortunately fatal and devastating consequences of the appellant’s negligence, the present instance is also not without its severely aggravating features, some of which I have already alluded to above. Having regard to the deceased’s wife’s comments at the hearing, the appellant’s lack of remorse in the face of the terrible disaster was chilling to her. One gets the impression that a different attitude may have ameliorated her loss to an extent and helped her to come to terms with her husband’s ill-fated death but this, sadly, was not the case. In S v Mapipa¹⁴ the court was astute to take into account as an aggravating aspect upon sentencing the “unconscionable conduct” of the appellant in that matter who, after having caused the death of a motorcyclist by cutting across his line of travel without any regard for his safety, had sought in a failed attempt at the scene of the collision to suggest that his wife drove the vehicle to avoid being taken for a blood test, had persisted in maintaining a false defence and had shown an utter lack of remorse. As an aside, the appellant in that matter having been convicted of culpable homicide and driving under the influence of liquor in contravention of section 65 (1) (a) of the National Road Traffic Act, was sentenced to four years’ imprisonment in terms of section 276 (1) (i) of the Criminal Procedure Act. The appeal court found no basis to interfere with the sentence imposed.

42. Mr Mdolomba on behalf of the state submitted that a further manifestation of the appellant’s lack of remorse was that his colleague, who was a passenger in the motor vehicle with him at the time, had sought to interfere with the crime scene by removing a large piece that fell from the vehicle as a result of the collision (this captured in a photograph taken at the scene by the deceased’s running partner), but the evidence did not support in my view that the appellant was either complicit in this regard, or aware of this happening. He also suggested that the appellant putting up his wife to testify in mitigation showed him to be impenitent and her pleas as to how the family would suffer to be opportunistic, but it was never suggested at the hearing that she was insincere. On the contrary, the record of her testimony reflects deep pathos on her part for the unfortunate incident and the loss of the deceased’s life. It is not a fair submission that she sought to place before the court a one side story about how she and the children would suffer if the appellant were committed to jail. Further, whilst the state was hopeful that the appellant would “man up” as it were and personally apologize, his wife explained, convincingly in my view, that he was unable to express himself. In time perhaps such a personal apology will bring restoration.

43. It appears to me with regard to the particular issue of the appellant’s ability to pay a fine that the magistrate made certain assumptions which were not justified, no doubt influenced by his view that the appellant’s moral blameworthiness was of the most aggravated degree rendering a custodial sentence imperative. There was no suggestion that the appellant could not pay a fine as he concluded. Indeed, this aspect was not canvassed by him at all. In this manner too he misdirected himself.

44. Despite all indications that an austere punishment is called for which meets the objectives of prevention and tangible retribution, it is not so that the only appropriate sentence which can be imposed is one which commits the appellant to prison. The imposition of a fine which reflects his objective blameworthiness can serve those purposes too in a meaningful way. Whilst the imposition of a fine has the obvious effect of keeping an offender out of jail, it should not be overlooked that the most important purpose of a fine is to punish him by reducing his financial ability and to worsen the quality of his life for some time. ¹⁵ Having regard to the appellant’s multifarious obligation to support an extended family, there is no doubt that it will be trying for him if a heavy fine were imposed, but evidently not impossible for him to pay it. The possibility is assumed however that making himself available to perform special duties will give him an opportunity to supplement his income. An absence from home where the objective is to meet a penal obligation is far more preferable to outright incarceration with the attendant loss of a job and other serious consequences to the family and extended family reliant on his support. The forced separation from his family will also be a disturbing reminder to him of his culpability, and for that reason will serve a rehabilitative purpose as well.

45. Similarly, and again because of the mistaken view the court took regarding the appellant’s degree of culpability, it denied him the opportunity of a proper investigation by experts to determine the suitability of the imposition of correctional supervision in terms of section 276 (1) (h) of the Criminal Procedure Act as an appropriate sentence (rather than in terms of sub-paragraph (i)); and the suggestion of appropriate conditions in this regard specific to the peculiar circumstances. The possibility arises that the imposition of community service as a condition of a suspended sentence might also have been recommended as a means of effectively addressing the objectives of deterrence and retribution. The trial court was content to rest with the thought that the “Commissioner” (sic) might release the appellant on correctional supervision after serving ten months in custody. This in itself recognizes the suitability of community corrections as a sentence option, a sentiment made quite clear at the outset when the court intimated that it was unnecessary for a pre-sentence report to be obtained because it considered the appellant an eminently suitable candidate for correctional supervision. Whereas courts are obliged to truly consider correctional supervision as an appropriate sentencing option, especially where the offender appears to be a suitable candidate, it is apparent that the court in this instance had closed its mind to anything other than direct imprisonment and in so doing missed a valuable opportunity to craft an innovative sentence retaining all of the necessary objectives of sentencing. It also erred in failing to recognize that despite the fact that appellant was deserving of punishment, he is not the type of offender who ought to be removed from society.

46. As was stated in S v R ¹⁶ it is now possible for a trial court, by way of imposing correctional supervision as a substantive sentence, to impose severe punishment upon even very serious offences without making use of imprisonment (and without thereby sometimes, if not most of the time, destroying whatever good characteristics remain as far as the offender or prisoner is concerned). It is now possible to impose a severe punishment and to serve the interests of the community by imposing a deterrent and strict sentence, other than imprisonment.

47. The effect of the revocation of the appellant’s licence bears emphasis. Having acknowledged that the objective of rehabilitation was the least of its concerns, the loss of the applellant’s licence under these circumstances (particularly where he had a clean driving record) appears incongruous unless the court was influenced by the aggravated view it took of the appellant’s culpability. But to take the matter even further, the loss of a licence for the same period notionally that the appellant would be serving a custodial sentence leaves an impression that the court failed to properly exercise its discretion in this regard. Our courts have warned that orders pertaining to the suspension and cancellation of an offender’s driver’s licence should not be issued glibly, a caution apposite in the present instance.

48. Despite my view of the matter that the interests of the appellant would have been better served by an appropriate investigation by a probation officer, it appears to me that to now remit the matter to the trial court for such purposes will unnecessarily prolong the anxiety of the appellant, which distress of waiting appears from Mr. Msindo’s submissions to have operated as a penalty in itself to the appellant.

49. In the meantime, although I was informed that the appellant was released on bail pending this appeal, the clerk of the court ostensibly forwarded the necessary instruction to the chief traffic officer in Grahamstown to endorse the order of cancellation of his driver’s licence.¹⁷ As I indicated above this is a substantive penalty in itself which has endured since July 2011 and must, apart from the ban, have operated during the ensuing period to remind the appellant that his deprivation in this regard was the result of taking a prized life. Its effect cannot now be undone.

50. To conclude with what is then an appropriate sentence to impose, since there is no indication that the appellant cannot reasonably afford to pay a fine,¹⁸ I deem it appropriate to set aside the penal orders of the magistrate and to substitute it with an obligation to pay a substantial fine which in my judgment satisfies the preventative and retributive aims of punishment called for in the present instance. Having regard to the appellant’s extended financial obligations, however, I propose in this respect to impose a deferred fine so as to offer him a real alternative to imprisonment. Over the period that the fine remains due, and by the necessity of repeatedly paying the instalments, he will be reminded of his debt to society that arises from his culpable driving.

51. In the result I issue the following order:

1. The appeal against sentence succeeds.

2. The sentence imposed by the magistrate in terms of section 276 (1) (i) of the Criminal Procedure Act no 51 of 1977 is set aside and replaced with the following:

   1. “The accused is sentenced to a fine of R 20 000,00 (twenty thousand rand) or 12 month’s imprisonment;

   2. Payment of the fine is postponed on the following terms:

      1. payment in the amount of R2 000 (two thousand rand) forthwith;

      2. thereafter monthly payments of R1 000,00 (one thousand rand) until the total fine has been paid;

      3. All subsequent payments should be made on or before the last day of the month to the clerk of the court, Grahamstown, commencing at the end of the month following that in which the initial payment is effected”

3. The magistrate’s further order in terms of section 34 (1) (b) of the National Road Traffic Act no 93 of 1996 that the appellant is unfit to obtain a driver’s licence for a period of 5 years from date of the original sentence is uplifted with immediate effect.

_________________

HARTLE J

JUDGE OF THE HIGH COURT

I AGREE AND IT IS SO ORDERED:

_________________

MJALI J

JUDGE OF THE HIGH COURT

DATE OF APPEAL : 12 December 2012

DATE OF JUDGMENT: 31 January 2013

APPEARANCES:

FOR APPELLANT: Mr Msindo, of V.V. Msindo & Associates, care of Mili Attorneys, Grahamstown

FOR RESPONDENT: Mr Mdolomba, Office of the Director of Public Prosecutions,

Grahamstown

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