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[2021] ZAECGHC 58
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Tsobo v S (CA&R175/2019) [2021] ZAECGHC 58 (8 June 2021)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION: GRAHAMSTOWN
CASE NO. CA&R175/2019
In the matter between:
THANDO SYDNEY TSOBO Appellant
and
THE STATE Respondent
APPEAL JUDGMENT
JOLWANA J:
Introduction
[1] On 3 July 2015 a tragic loss of life occurred in which Ms Nomakhaya Phillip and Mr Tom Nqophiso (the deceased) died at Chris Hani Road in the district of Kirkwood. The death of the deceased was consequent upon a collision between a caterpillar and a trailer of a tractor. The appellant was charged with and convicted on two counts of culpable homicide for wrongfully, unlawfully and negligently causing the death of the deceased. He was sentenced to five years’ imprisonment and his driver’s licence was suspended for twelve months. He was also declared unfit to possess a firearm. After the refusal of his application for leave to appeal by the court a quo, he was granted leave to appeal both his conviction and sentence by this Court on petition. During the hearing of the appeal the State placed on record that it was conceding the merits of the appeal and that the convictions and sentence may be set aside.
The issues
[2] It was on the basis of the evidence of Mr Thys Solomon, the driver of the tractor and a few other witnesses that the court a quo found the State to have proved the guilt of the appellant beyond reasonable doubt. The issue for determination in this appeal is mainly whether the evidence tendered by the State met the standard of proof beyond reasonable doubt and therefore, the appellant was, on that evidence correctly convicted. That broad issue can be narrowed down to whether there was evidence that the appellant was in fact the driver of the caterpillar that allegedly caused the accident. Furthermore, whether and in any event, the State established the grounds of reckless and negligent driving that were relied upon in charging the appellant. It is mainly on these two issues that this appeal will be determined.
The evidence
[3] The evidence of Mr Solomon was that he has been employed at Morehoop Farm at Sunnybank in Kirkwood as a driver and also assisted in mechanical work since 1996. He has a code 8 driver’s licence. On 3 July 2015 he and his co-workers were working on the farm. After work he transported his co-workers to their place of residence at Moses Mabida using the tractor after they had knocked off at about 17:00 arriving there at about 17:20. The tractor was pulling two trailers that were normally used to transport citrus fruit. He could not tell how many people were in the two trailers but there were more than ten people in each trailer. The high mast lights were already switched on at Moses Mabida and his dim lights on the tractor and the lights of the trailers were switched on.
[4] His first stop at Moses Mabida was at Chris Hani Street. He stopped the tractor on the left hand side of the road next to the pavement and waited for some of his colleagues to alight. At all material times the tractor and the trailers did not go outside the tarred area of the road. After being told to drive on and after checking the mirrors he continued to drive. As he was driving along he noticed a caterpillar approaching ahead of him driving fast down towards him. He was driving the tractor upwards to off-load more of his passengers. The remaining passengers were all in the second trailer but he did not know how many passengers were still in that trailer. He heard a bang after the caterpillar had gone past the tractor and the first trailer. He did not know how it was that the caterpillar drove past the tractor and the first trailer but struck the second trailer. At that stage he was still driving on his side of the road and the caterpillar was on the right hand side of the road, that is on its left hand side of the road.
[5] He then stopped the tractor and alighted from it. After he alighted he heard the cries of the people and saw the deceased lying on the road. One of the deceased was in the middle of the road and the second person was lying next to the trailer. He could not say what caused the collision but thought that if the blade was in the position it should have been in the accident would not have occurred. He said the blade should have been under the caterpillar when the caterpillar was in motion. He further testified that he knew the appellant as the appellant grew up as a child in front of him.
[6] Under cross-examination he confirmed that he did not know what the cause of the accident was. He did not see the blade when the caterpillar drove past him but after it had stopped he saw the blade protruding and realised that the protruding blade of the caterpillar must be the cause of the accident. He confirmed that as he was driving up the road the caterpillar drove past the tractor and the first trailer without colliding with them. At all material times the tractor was on its lane and the caterpillar was on its lane.
[7] The second witness for the State was Mr Tose, a colleague of Mr Solomon who was one of the passengers in the second trailer. He testified that he vaguely remembered the accident which occurred between the tractor and the caterpillar. The caterpillar was driving fast from the top. He was shocked when the caterpillar scratched the second trailer underneath. But when asked by the prosecutor what part of the caterpillar scratched the trailer, he said he did not know. When he was asked by the prosecutor, what caused the accident, he said he did not know. He was asked if he knew the appellant and he said he did not know him.
[8] He was cross-examined mainly on his evidence in which he had said that the caterpillar was driving fast as it approached. He testified that he had never seen a caterpillar in motion before and conceded that his assessment of the speed at which the caterpillar was travelling might have been incorrect. In response to questions asked by the court he testified that there was no place to sit on the trailers and all of them were standing. He was at the back standing as well and while the tractor was moving he was facing to the back of the trailer chatting to one of the people that had alighted.
[9] The next witness was Mr Gayiya who was also one of the passengers in the second trailer. He testified that he just saw the caterpillar coming from the top and after that his “lights were off”, meaning he lost consciousness. He testified that he could not explain what caused the accident. He last saw the caterpillar coming and when he came to his senses he was lying down. He did not know how he landed on the road.
[10] The last witness was constable Munnick. He testified that he attended to the scene of the accident in the afternoon of the 3 July 2015. He went there with a colleague of his and a reservist police officer. When he arrived there he saw a caterpillar and a tractor that had been involved in the accident. He saw people lying all around the tractor. He looked around for both drivers and at some point they came to him and gave him their details. He saw the two deceased persons as well as twenty-four people who were sitting next to a house being attended to by an ambulance. When he got there, he found the ambulance already there. It was dark outside and the time was about 17:05. An officer from the Local Criminal Records Centre also arrived there to take photographs at about 19:05. He showed that officer around the scene of the accident and that officer took photos. He used the driver’s licence of both drivers to compile the accident report. He also compiled a rough sketch of the road.
[11] Under cross-examination constable Munnick testified that in his statement that he made about that accident he never mentioned having interviewed or spoken to the drivers. He further testified that he drew a rough sketch with no measurements. His rough sketch depicted the vehicles as they were standing when he arrived at the scene after the accident had occurred. He did not know how the accident happened because he was not there. During cross-examination constable Munnick was directed to the discrepancies between his rough sketch of the accident and the photo album. Those discrepancies remained unresolved because the compiler of the photo album had not been called when the State closed its case despite the fact that it had been provisionally admitted when Mr Solomon testified.
[12] At the close of the case for the State the defence applied for the discharge of the appellant in terms of section 174 of the Criminal Procedure Act 51 of 1977. This was, in the main, based on the fact that further particulars had been sought and provided by the State. The defence contended that none of the State witnesses established the grounds of negligence that were alleged in the further particulars. Secondly, it was contended that the State failed to establish that the appellant was in fact the driver of the caterpillar. Thirdly, that he drove negligently in the manner described by the State in its further particulars. The section 174 application was dismissed where after the case for the defence was closed without leading any evidence.
The analysis
[13] Mr Solomon’s evidence on what caused the accident was that he noticed the caterpillar coming downhill moving fast as it approached the bend whilst he was going up. He was then asked by the prosecutor to describe how the caterpillar struck the second trailer. His immediate response was “I cannot say”. He was then asked “Do you know why the caterpillar passed the tractor and the [first] trailer and then collided with the second trailer?” His immediate response was, “I do not know how it could have happened that it went past me and struck the second trailer.” Mr Solomon was again asked “Sir, what would you say was the reason for the collision on this day?”. His response was, “I cannot actually say but what I do say is that if the blade was in the position that it should have been, then the accident would not have occurred. What position should that have been? According to my understanding and knowledge, that blade should be under the caterpillar once it is in motion.”
[14] That was the sum total of his evidence in chief as it related to what could have caused the accident. He was never asked if he saw the blade protruding as the caterpillar was approaching. This is important firstly because if he saw the blade already protruding before the accident as the caterpillar was approaching his theory of the blade being the probable cause of the collision would make sense even if it might not be necessarily correct. Secondly, it was, in my view, hugely significant that the blade did not strike the tractor and the first trailer if it was already protruding when the caterpillar was in motion and as it drove past the tractor and the first trailer.
[15] Under cross-examination Mr Solomon repeated his evidence that he could not say what caused the accident. He further testified that he did not see that the blade was protruding when the caterpillar passed him but “after it had stopped and I saw the blade and I said: This must be the cause if it.” However, if he was convinced as his evidence suggested, that it was the protruding blade of the caterpillar that collided with the second trailer his consistency that he could not say what was the cause of the accident does not make sense.
[16] It is unclear how he could say that the accident would not have occurred if the blade was not protruding when the caterpillar was moving when he did not see the blade protruding when the caterpillar was moving and drove past him. Only later did he try to create the contradictory impression that he saw the blade protruding as the caterpillar was coming. This belated bald assertion was contrary to his own earlier evidence both when he gave his evidence in chief and when he testified under cross-examination in which he repeatedly said he did not know what could have caused the accident.
[17] The court a quo pointed out that if the tractor and the two trailers and the caterpillar stayed on their respective lanes that accident could not have happened. The court, based on the photos and the photo album concluded that the blade was proportionally on the wrong side of the road. It was common cause that that road had no markings or lines delineating or separating the lanes. There was no evidence of the extent of this proportionality and whether or not it would have caused the accident. There was no evidence of the nature of the damage caused to the second trailer to determine if it was such that it could have been caused by the blade of the caterpillar. The court then said that there was evidence that the tractor and the two trailers remained on their respective lanes. What the court did not deal with was the fact that there was no evidence that the caterpillar swerved or moved from its lane. On the contrary the evidence of Mr Solomon was that the caterpillar was, throughout, on its side of the road. It is unclear how the second trailer and the blade or any part of the caterpillar made contact and if it was the caterpillar that was responsible for that contact bearing in mind that both vehicles were, on the evidence before court, moving.
[18] In dealing with this issue the court referred to the third and fourth images from which the blade is depicted protruding from under the caterpillar. Based on this the court concluded that the blade in that position caused the caterpillar to occupy a larger section of the road. This conclusion by the court ignored the fact that those photos were taken at least after two hours after the accident had occurred. Even if the blade did protrude as depicted it still went past the tractor and the first trailer despite occupying a larger section of the road. Therefore it could not, without more, be said that the protruding blade, if it was protruding before the accident, caused the accident.
[19] All the State witnesses were not able to give clear evidence of what was the cause of the accident. On the contrary, all of them said that they did not know the cause of the accident. This is very important, more so that in responding to a request for further particulars, the State provided the following particulars to amplify the charge that the appellant drove the caterpillar recklessly or negligently:
“1. That he failed to keep a proper lookout.
2. That he failed to keep proper control of the vehicle.
3. That he drove the vehicle under the traffic circumstances regarding time and place at a dangerous speed.
4. That he failed to avoid a collision when collision appeared imminent.
5. That he failed to keep to his left hand side of the road at a stage when he endangered other vehicles using the road.
6. That he failed to pass on-coming traffic at a safe distance.
7. That he failed to take sufficient care when he neared on-coming traffic.”
[20] The State witnesses simply did not give evidence that sought to establish any of the grounds on which the appellant was charged as a result of his alleged reckless or negligent driving. The nearest they came to and even then, not with the clarity or the detail that would have been expected, was in relation to the speed at which the caterpillar was driven. But even if the caterpillar was driven as fast as suggested in the sense of being driven faster than the circumstances permitted, how it drove past the tractor and the first trailer with a protruding blade that caused it to occupy a proportionally bigger section of the road as the court a quo found without any incident remains unclear. In my view, the accident cannot be safely explained with reference to whatever speed that the caterpillar was moving at. In any event the evidence of the caterpillar being driven fast was not substantiated beyond the mere say so of Mr Solomon and Mr Tose. It is also not clear how Mr Tose could have seen the caterpillar approaching and observed that it was moving fast when he was facing backwards and not in the direction from which it was coming.
[21] It is also important to highlight the fact that on all the grounds of reckless or negligent driving, in none of them is reference made to the blade of the caterpillar being left in a protruding position when it should not have been when the caterpillar was moving. This is important because it is the only basis referred to by the State witness, Mr Solomon as the explanation for the accident. If, as it was suggested, the protruding blade was the cause of the accident it is strange that the State saw no need to refer to it in its alleged grounds of reckless or negligent driving. It is even difficult to avoid the conclusion that it was a belated afterthought as there was no evidence of Mr Solomon mentioning it to constable Munnick when he attended the scene of the accident. It would have been expected that Mr Solomon would have shown constable Munnick the protruding blade and told him that it was the cause of the accident. However, this did not happen.
[22] The situation is further complicated by the fact that there was no evidence of the blade of the caterpillar protruding before the accident when the caterpillar was in motion. All the evidence of the protruding blade related to when the caterpillar was standing after the accident. How long after the accident is unclear. What is clear is that the photograph depicting the blade protruding was taken after 19:05, almost two hours after the accident. There was also no evidence of Mr Solomon ever having had any communication with the driver of the caterpillar in particular the appellant whom he claimed to have known since he was a child. He could have asked him if he had noticed that the caterpillar’s blade was protruding. There was no evidence of Mr Solomon saying anything about the protruding blade, not only to constable Munnick but also and most importantly to the appellant whom he knew very well as the appellant grew up in front of him according to his own evidence. This was, after all, a very serious accident in which two colleagues of Mr Solomon had died and many others were injured. Surely, he would have been expected to assist the police by telling them what he thought might have caused the accident there and then. This also did not happen.
The inferential reasoning of the trial court.
[23] The inferential reasoning of the court a quo in dealing with the evidence before it is difficult to understand. The court said that Mr Solomon’s undisputed evidence was that he remained on his lane and therefore he could not have caused the accident. The court went on to say that some part of the caterpillar struck the right front section of the second trailer. The court later said that “the only inference is that the caterpillar veered slightly to its right when passing the tractor and the first trailer with the result that the blade struck the second trailer and this is the reason why the tractor or the first trailer was not struck”. All of this is clearly speculative reasoning as against being inferential reasoning in my view. The court appears to have gone out of its way to find any and everything that would suggest that the appellant was guilty of the offence. In the process it excluded any consideration of any fact or circumstance that pointed to the possibility that the appellant might be innocent.
[24] In S v Van der Meyden 1999 (1) SACR 447 (W) at 449-50 A-C the court correctly explained our law on how a court should deal with these evidence before it in these terms:
“The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be born in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.”
[25] There is no doubt that Mr Solomon’s evidence that the blade of the caterpillar struck the second trailer was, at best unreliable. He was also a single witness on what could possibly have caused the accident. This seems to have been overlooked by the court a quo. This becomes even more important in a situation in which the two trailers had, as passengers, about twenty people. Amongst all of those twenty people who were in both trailers even though some of them had just alighted not one of them saw what happened including the veering of the caterpillar that the court referred to as it drove past the tractor and the first trailer.
[26] The basis on which the only inference was that it was as the caterpillar that would have veered to the right when the evidence of Mr Solomon was that it was throughout driven on the correct side of the road is not accord with our law on inferential reasoning. How the possibility of the second trailer veering and therefore making contact with the caterpillar was excluded is equally not clear. The evidence of the State left too many unanswered questions and how the only inference that could be drawn was that it was the appellant’s driving that caused the accident is unsustainable.
[27] In Reddy and Others v S [1997] JOL 327 (A) at pages 19-20 the legal position was explained as follows:
“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3 where reference is made to two cardinal rules of logic which cannot be ignored. These are firstly, that the inference sought to be drawn must be consistent with all the proved facts and secondly, the proved facts should be such “that they exclude every reasonable inference from them save the one sought to be drawn”. The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-9:
“The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.””
[28] The evidence of the State, especially that of Mr Solomon and constable Munnick was not sufficient to establish the guilt of the appellant beyond reasonable doubt. For some reason, the trial court moved from the premise that not only was the evidence of Mr Solomon and constable Munnick reliable but went further to accept that it proved whatever was intended to be established by the State in leading it. It does not appear that the evidence was dispassionately considered. Put differently, even if the court considered Mr Solomon to have been a reliable witness it needed to consider whether his evidence established the elements of the offence and in particular the alleged grounds of recklessness or negligence. It cannot, in my view, be said that the evidence of the State as a whole established not just the guilt of the appellant, but and most importantly, the guilt of the appellant beyond reasonable doubt. This is a fundamental requirement for any conviction and it is undergirded by our constitutional value system in terms of which the appellant had and has a right to remain silent.
The section 174 application
[29] The manner in which the trial court approached the application for the discharge of the appellant at the close of the case for the prosecution calls for some comment. It is not clear why the application for the discharge of the appellant in terms of section 174 of the Criminal Procedure Act 51 of 1977 was refused. The offence for which the appellant was charged arises out of the provisions of chapter XI of the National Road Traffic Act 93 of 1996 in particular section 63(1) which proscribes the driving of a vehicle on a public road recklessly or negligently by any person. It follows that there must be a person who was driving the vehicle concerned. No evidence was led by the State in this regard and in the section 220 admissions the fact that the appellant was the driver was not admitted. This required the evidence of the identity of the person who was driving the caterpillar to be led. This did not happen.
[30] Some witnesses of the State dealt with the appellant. The first one was Mr Solomon whose only evidence, as it related to the appellant, was that he knew him. It is not clear what was sought to be established by the State in Mr Solomon knowing the appellant. The issue of Mr Solomon knowing the appellant was not pursued beyond this point and in fact the State abruptly ended Mr Solomon’s evidence. Section 174 of the Criminal Procedure Act 51 of 1977 reads:
“If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”
Mr Tose’s evidence was simply that he did not know the appellant. Again it is unclear what the State sought to establish in asking if Mr Tose knew the appellant. The issue of the appellant being the driver was just never pursued by the State during any of the State witnesses’ testimony. The last witness who might have dealt with the appellant was constable Munnick who attended the scene of the accident. His evidence as it related to the drivers of the vehicles was that he looked around for both drivers. They came to him and gave him their details. How he established that the people who came to him amongst the many people who were there were the drivers of the vehicles that were involved in the accident is unclear.
[31] The obvious difficulty with the evidence of the State in this regard is that there was no evidence that the appellant who never admitted driving the caterpillar, was in fact the driver thereof. There was no evidence from Mr Solomon, the tractor driver, that the caterpillar was driven by the appellant. It could not have been difficult to ask constable Munnick how he satisfied himself that the people who gave him their details were the drivers of those vehicles. It surely cannot be that the driver of the offending vehicle is anyone who gives his details to the police whoever that person is. Just to make an obvious example, what happens when a driver of a vehicle is drunk when he drives and causes an accident? Would it be correct to charge with drunken driving and reckless and/or negligent driving, his passenger who was not driving but who when the police arrive gives his details to the police? It clearly cannot be so. The National Road Traffic Act clearly refers to a specific person who was driving a specific vehicle at the time of the accident.
[32] Section 73(1) of the National Road Traffic Act reads:
“Where in any prosecution in terms of the common law relating to the driving of a vehicle on a public road, or in terms of this Act, it is necessary to prove who was the driver of such vehicle, it shall be presumed, in the absence of evidence to the contrary, that such vehicle was driven by the owner thereof.”
In this case it was necessary to prove who was the driver of the caterpillar as it was never admitted. There was no evidence that the appellant was the owner of the caterpillar. This therefore means that the presumption provided for in section 73(1) was not applicable.
[33] Without giving any basis, the court a quo pronounced that it was convinced that constable Munnick, as a police officer who attended the scene of the accident would have interviewed the drivers. In his statement and when he testified in court constable Munnick never mentioned that he spoke to or interviewed the drivers. There was no evidence by constable Munnick, not only of how he satisfied himself that the people who gave him their details were the drivers. The basis on which the court a quo was “convinced” is not clear. Mr Solomon, as the driver of the tractor, could easily have given evidence of the appellant being the driver of the caterpillar. He did not. Constable Munnick could have testified that the caterpillar was driven by the appellant, and how he established that as a fact. He did not. Once the evidence of the appellant being the driver was tendered, it would have been for the appellant to admit or deny, if so advised. The appellant being the driver of the caterpillar was left hanging and any conclusions in that regard were based on assumptions, not evidence.
[34] In the absence of the evidence relating to the identity of the person who was driving the caterpillar it was risky for the court to have convicted any person who handed his details to the police. Even if I am wrong in this regard, that is not the end of the matter. Even if the identity of the driver of the caterpillar was not in issue, the question before court was whether at the end of the case for the prosecution there was evidence on the basis of which a reasonable court acting carefully might convict. As stated before, when the case for the prosecution was closed the evidence of the State against the appellant was, at best unsatisfactory and unreliable.
[35] While it is so that whether to grant or refuse an application in terms of section 174 is a matter for the exercise of a discretion by the trial court, it is axiomatic that that discretion must be exercised carefully and judiciously. It is clearly not meant to be exercised outside the context of the evidence before court or in the hope that the accused would testify and in the process he might incriminate himself or somehow supplement the obvious weaknesses in the State’s case.
[36] In S v Lubaxa 2001(2) SACR 703 (SCA) at paras 18 and 19 this legal position was authoritatively stated as follows:
“I have no doubt that an accused person (whether or not he is represented) is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence.
The right to be discharged at that stage of the trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be ‘reasonable and probable’ cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s 10 and s 12.”
[37] It is regrettable that innocent lives were lost in that horrific accident and the desire for whoever was responsible for it to be held accountable for his or her actions is perfectly understandable. However, the quest for justice is not and should not be by whatever means necessary. This is because that approach in itself will inevitably result in the unintended consequence of a quest for justice being the instrument for injustice. It is the duty of the courts to always remind themselves that their duty is not to ensure that those accused of serious crime are convicted. Their duty is to ensure that the evidence before them is properly evaluated and I add once again, dispassionately, within the prism of our criminal justice adjudication system.
The dangerous transportation of farm workers
[38] The employers of the farm workers, who might have been instrumental in the deceased being transported in a manner that was itself reckless were not investigated to establish if their conduct did not amount to recklessness. The deceased and their colleagues, approximately 20 of them were transported in two open trailers that were not designed for the transportation of human beings, certainly not on public roads. When the accident occurred it is possible that they would not have fallen from that trailer to their deaths but for the reckless manner in which they were transported. It is and it was the responsibility of the deceased’s employers to transport them safely as it is of anyone who transports people on a public road. It is to be hoped that the authorities or even the Legislature will look into the prevalence of accidents in respect of employees who die or are injured especially farm workers who are transported daily in vehicles or trailers not suitably designed to minimise injury or death in the event of an accident.
[39] On the day of the accident in this matter no less than twenty farm workers were transported in two open trailers connected to a tractor that was pulling them. It could easily have happened that a lot more than the two unfortunate deaths could have occurred. The transportation of workers in a manner that unnecessarily exposes them to accidents or death on a daily basis is mind-boggling. It is clear that the Legislature has to do more to regulate the transportation of employees in work places and on public roads. The possibility that there might be a lot more people who die or are injured in preventable accidents certainly needs urgent attention. The whole manner in which workers are transported unsafely or in glaringly dangerous modes of transportation is a cause for concern and it must be for the Legislature as well. It is hoped that if it is legislation that enables employers to escape prosecution while lives and limbs are lost, legislation will be strengthened for the prosecuting authorities to do what needs to be done.
Conclusion
[40] The appeal against conviction on both counts must succeed and the conviction set aside for the reasons aforestated. It is also noteworthy that the State conceded the merits of the appeal on the ground that there was neither direct nor circumstantial evidence supporting the court a quo’s conclusion that the collision occurred as a result of the appellant’s negligent driving of the caterpillar. The concession made by the State in this regard is properly made. The perusal of the appeal record and the grounds of appeal advanced by the appellant indicate that the evidence of the State was significantly unreliable and at times contradictory. Furthermore, the grounds of negligence relied upon by the State were not established.
[41] In the result, the following order shall issue.
1. The appeal against conviction on all counts succeeds.
2. The convictions and sentences imposed by the court a quo are set aside.
M.S. JOLWANA
JUDGE OF THE HIGH COURT
I agree
N.K. DUKADA
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the Appellant: N.L. NTSEPE
Instructed by: PUMEZA BONO INCORPORATED
c/o WHEELDON RUSHMERE & COLE
GRAHAMSTOWN
Counsel for the Respondent: Z. MDOLOMBA
Instructed by: NPA
GRAHAMSTOWN
Head on : 21 October 2020
Delivered on : 08 June 2021