Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number A284/11
In the matter of:

versus

JUDGMENT DELIVERED ON 22 SEPTEMBER 2011

ZONDI, J Introduction
[1] The appellant, who was legally represented, appeared in the Strand Magistrates Court on 4 November 2009 facing two charges; one of culpable homicide with two alternative charges and driving under the influence of liquor or drugs in contravention of the National Road Traffic Act. The charges arose out of a motor vehicle collision which occurred on 11 August 2008 on N2, Sir Lowry's Pass, Gordons Bay between a truck with registration number DMX 016 EC driven by the appellant and a bakkie driven by the deceased. The appellant pleaded not guilty to all the charges. He was found guilty of culpable homicide and sentenced to three years' imprisonment in terms of section 276(1 )(i) of the Criminal Procedure Act 51 of 1977 ("the Act"). He was acquitted on the charge of driving the truck whilst under the influence of liquor or drugs.

[3] It is common cause that on the day in question the appellant was driving a truck from South to North on N2, Sir Lowry's Pass, Gordons Bay and whilst driving as aforesaid he lost control over the truck. The truck left its normal path of travel, got onto a lane for oncoming traffic and collided with a bakkie driven by the deceased. The deceased died instantly in the collision. At the time of the collision the appellant was a well experienced truck driver; he had 18 years experience as a truck driver and was familiar with the traffic conditions of the area at which the accident occurred. He had driven on this road on a number of occasions before the incident giving rise to the proceedings.
[4] The question was whether the appellant drove the truck negligently and whether his negligent driving caused the collision and the resultant death of the deceased. The appellant denied that he was negligent. He blamed the collision on the failure of the truck braking mechanism which caused him to lose control over the truck with the consequence that the truck left its normal path of travel and landed on an incorrect side of the road.

9.1.3. Foundation brake components (brake shoe linings and brake drums) at the right wheel brake assembly, on the second rear axle, presented with minor levels of overheating."

[7] Inspector Marais further testified that when he examined the first/leading trailer he found:
"9.2.1. Foundation brake components (brake shoe linings and brake drums) on the first/leading rear axle (left & right) and at the left on the second rear axle presented with visual evidence suggesting an episode of excessive overheating at the time immediately prior to this incident. 
9.2.2 Foundation brake components (brake shoe linings and brake drums) at the right on the second rear axle presented with no visual evidence to suggest overheating. The brake shoes, at this wheel brake assembly, touched the brake drum with full service brake application, however, this wheel could still be rotated by hand. This "condition" was the result of the inadequate brake shoe to -drum clearance adjustment at this wheel brake assembly."

[8]    His examination of the second trailer revealed that:
"9.3.1 Foundation brake components (brake shoe linings and brake drums) on the front axle (left & right) and at the left on the rear axle presented with visual evidence suggesting an episode of excessive overheating at the time immediately prior to this incident.

[9] He concluded that the foundation brake components suggested that they had overheated excessively at the time immediately prior to the collision. He stated that the level of overheating which he observed at these components, was indicative of an episode of prolonged foundation brake application immediately prior to the collision.

[12] The following question was put to Marais by the defence following his evidence after his-recall by the Court:
"Kyk, so as die beskuldigde sou se hy het teen 40, 50 kilometer die pas afgegaan in derde rat dan het hy die regie rat gekies."
Marais response was:
"Ek twyfel of 'n voertuig, hetsy hy 12 of 16 ratte het, sou 40 of 50 kilometer 'n uur haal in derde rat. In my opinion sal dit meer in die omgewing van tussen 15 en 20 kilometer 'n uur wees, die top spoed in die spesifieke rat"

But he conceded that he had never driven a Scania truck.

[14] He stated that the overheating of the service brake was as a result of the appellant having used it repeatedly to control the speed of the truck which he should have done by using the exhaust brake. This was poor driving. He formed the view that the appellant had been travelling at a high speed explaining his overuse of the service brake.

[16] He denied that he was drunk on the day in question. He stated that the last time he had taken alcohol was late in the day before the collision. He had two quarts of beer and Old Brown Sherry.

[17] Thereafter Mr Burger was called to give expert evidence for the appellant. He stated that the truck in question had 12 gears. It had a dip-tronic system. He had driven his Scania truck on Sir Lowry's Pass on a number of occasions in the past and he normally used the third gear and had been able to restrain the speed of the trailer by using the retarder. In his opinion the appellant had followed safe driving procedures when he drove down the Pass.

[18] During cross-examination he conceded that he never drove the truck in question. Neither did he examine it after the collision. He never visited the scene of the collision but had driven past it before and his knowledge of the road and the traffic conditions in that vicinity was reasonably well. He conceded that his evidence was based on the assumptions.

Visser it is highly unlikely that all the braking systems of the truck could fail simultaneously in the light of the fact that according to the appellant's version he had been travelling on a third gear at a speed of 30 to 40 km per hour. In his opinion the fact that the drums were rusted does not mean that they could not stop the truck even if it was travelling at 40 to 60 km per hour.

[22] It went on to find as follows at page 270 line 14-22 of the record:
"Dit is egter vir die hof duidelik, uit die getuienis, dat indien beskuldigde die regte rat gekies het, dat daar geen redelike moontlikheid bestaan dat hierdie voertug, ten spyte van die vrag, bloot net aan die loop sou gaan en al die sisteme sou oppak nie. Weereens moet die hof opmerk dat indien die retarder begin lol het, soos beskuldigde beweer, hy steeds kon stilhou en die trok in 'n gepaste laer rat kon sit, selfs in die ry, indien hy as gevolg van die regte rat-keuse stadig genoeg gery het."

[26] The State case regarding the negligence of the appellant was based on the expert evidence of Marais. Marais inspected the truck and the condition of its braking mechanism immediately after the collision. He found that there was excessive overheating of its braking components due to the appellant's overuse of the footbrake. He explained that the appellant should have used the retarder and exhaust brake instead of service brake to control the speed of the trailer. He was negligent in the choice of the braking system which was not suitable for the traffic conditions. He formed the view that the appellant must have been travelling at a speed prior to the accident which justified the need for his over-use of the footbrake.

[28] The appellant was an experienced truck driver. He was familiar with Sir Lowry's Pass road conditions and the driving technique to employ in driving through the Pass. According to him he engaged the truck on the third gear and drove at a speed of about 30 to 40 km per hour. He stated that at some point he used the retarder to reduce the speed of the trailer. It did not work. He then used the exhaust brake which also did not work. He eventually applied the service brake to stop the truck but it also could not stop the truck. He denied that he used the service brake repeatedly whilst driving between George and Sir Lowry's Pass. He stated that he used service brake as and when it was necessary to do so depending on the condition of the road.

[30] Furthermore it was Visser's evidence that the appellant could not have driven at 30 to 40 km per hour on the third gear. He stated that travelling at that speed on the third gear would have blown up the engine of the truck. In his opinion for the appellant to have been travelling at that speed he must have been on a sixth or seventh gear. It is clear in my view that the driving technique which the appellant employed as he drove through the Pass was inappropriate for the traffic conditions. He over applied the service brake resulting in its overheating. He knew that he should have used the retarder or exhaust brake to control the speed of the trailer. He did not engage the truck in an appropriate gear to avoid the speeding of the trailer. The appellant acted negligently by employing driving techniques which were not suitable for the road conditions on which he was travelling. He was traveling at a very steep decline with very sharp bends. A reasonable person in his position who was an experienced truck driver and familiar with road conditions would foresee the reasonable possibility of his conduct injuring other road users in the event of the truck getting out of control and would have taken reasonable steps to guard against such occurrence. In my view the appellant was correctly convicted of culpable homicide and the appeal against conviction should fail.

"Die saak was dan uitgestel vir betoe en uitspraak. Die hof het dan betoogshoofde ontvang van Mnr Van Coller. Van die staat het die hof nog niks ontvang nie, maar die hof het dan ondertussen die partye meegedeel dat die hof 'n getuie wil roep ten einde duidelikheid te kry oor sekere tegniese aspekte van hierdie voertuig. Die hof het dan inderdaad 'n getuie geroep..."

"the magnitude of the tragedy resulting from negligence should never be allowed to obscure the true nature of the accused's crime or culpability. Whatever the result of the negligent act or omission, the fact remains that what the accused person in such a case guilty of is negligence - the failure to take reasonable and proper care in given circumstances. His negligence may be slight and yet may have the most calamitous consequences; or it may be gross and yet be almost providentially harmless in the result... the basic measure for determining punishment for a negligent motorist must be the degree of his culpability or blameworthiness."

[41] There is no doubt in my mind that the offence of which the appellant was convicted is a serious one and that appreciation must be reflected in the sentence to be imposed. His negligent driving led to a loss of life which can never be replaced. The appellant was a first offender and had been a truck driver for over 18 years at the time of the incident. Road accidents resulting from the negligent driving are common on South African roads these days and these can only be stopped by imposing severe sentence in cases where the conduct had resulted in the loss of life. But as I have already stated the choice of the sentence for the appellant must be made on the basis of the extent of the appellant's culpability which in my view did not amount to gross negligence.
[42] In light of what I have stated a sentence of 3 years' imprisonment in terms of section 276(1 )(i) of the Act should not have been imposed in this matter having regard to the fact that the appellant was a first offender and was not grossly negligent.

DH ZONDI
Judge of the High Court

I agree

N BAWA

Acting Judge of the High Court