S. v. GROBLER.

(ORANGE FREE STATE PROVINCIAL DIVISION.)

1972. April 4; May 1.   M: T. STEYN, A.J.
 
Criminal law.-Traffic offences.-Charges of both culpable homicide and driving under the influence of liquor.-Accused convicted on both charges.-Criminal procedure.-Indictment.-Several counts.­When accused can be convicted of both culpable homicide and driving under the influence of intoxicating liquor.

The accused was charged on certain counts, inter alia, firstly, culpable homicide in that he had caused the death of certain persons through negligent driving and, secondly, that he had driven the vehicle in question whilst under the influence of intoxicating liquor.

Held, as the offence constituted by the act of driving under the influence of intoxicating liquor could in the circumstances be treated separately from the act which constituted negligent driving and on which the first count was based, that the accused could be convicted on both charges.

Criminal case. Facts of no importance have been omitted.

E. Marais, for the State.
D. L. Lombard, for the accused.

M. T. STEYN, AJ.: In this case the accused, Petrus Johannes Grobler is charged on four counts. The first count is one of culpable homicide, and the allegation is that on or about 29th December, 1971, and at or near Reddersburg in the district of Reddersburg the accused did wrongfully and unlawfully kill a .certain Robert Ian Cartwright, a white male, and a certain Roderick Allen Cartwright, a white youth.

There is an alternative charge to count 1, viz., that the accused at the same time and place drove negligently.

Then there is a second count which reads as follows:

"In that on or about 29th December, 1971 and at or near Reddersburg in the district of Reddersburg the· accused did wrongfully and unlawfully and upon a public road to wit, the national highway between Reddersburg and Bloemfontein drive a motor vehicle or occupy the driver's seat of a motor vehicle the engine of which was running while he was under the influence of alcoholic liquor or narcotic drugs. "

And it was averred that this constituted a contravention of sec. 140. (1) of Ord. 21 of 1966.

There was a third count which refers to the same date, viz., 29th December, 1971,and which also avers a contravention of sec. 140 (1) of Ord. 21 of.1966, the allegation being that the accused upon Letta street, a public street in Reddersburg drove a motor vehicle while he was under the influence of intoxicating liquor and an alternative count that at the same time and place he drove negligently or recklessly.·

And then there is a fourth count, viz., that on the same date, i.e. 29th December, 1971, and at or near Reddersburg in the district of Reddersburg and upon a public road he drove a motor vehicle without being the holder of a valid driver's licence and the public road referred to is the national highway between Reddersburg and Bloemfontein.

On the formulation of this charge sheet the onus is on the State to prove beyond a reasonable doubt that the accused drove the motor vehicle, a Holden delivery van at or near Reddersburg and also at the time of the collision just outside Reddersburg; secondly, that he drove negligently; thirdly, that in regard to count 1 the accused's negligence caused the death of. the deceased the father and son Cartwright; fourthly that the accused was under the influence of liquor when he drove as aforesaid and also that he drove on a public road, viz., the national highway between Reddersburg and Bloemfontein.

In regard to count 4, that is the charge that the accused drove without a valid driver's licence the defence admits that on that day the accused was in fact not in possession of a valid drivers licence and it is, therefore, not necessary for the State to prove this aspect.

[The Honourable Judge disposed of certain admissions and other evidence and continued as follows.]

I now proceed to deal with the main count viz., count no. 1, the charge of culpable homicide.

I quote the definition of culpable homicide from Hunt, South African Criminal Law and Procedure, vol. II, p. 373:·”……….”

For the consideration of the merits of the present case reference need only be made to that part of the definition which deals with negligence which causes death. In this regard I also quote a passage from the judgment of RUMPFF; J., as he then was, in the case of R. v. Loubser in the Witwatersrand Local Division and reported in 1953 (2) P.H.190 at p. 384. The quotation reads as follows:

"In the case of this type of crime (i.e. culpable homicide) there must be a causative nexus between the act and the consequence. In general any result is brought into existence by the co-action of a number of factors. It is, however, clear that in law the accused cannot in a case like the present be held liable for each factor which causes the result. Somewhere a limitation must be placed … It is obviously impossible to formulate a definition which will cover all possible cases … Each case must be considered on its merits. But, in my opinion, in law an act is only cause of a result when according to human experience, the possibility must be taken into account that from .the act the result may develop. If the result comes into being by the operation of extraordinary circumstances which are not related to the acts, then the act cannot be regarded as cause of the result.''

With this view I, respectfully, agree.

The questions which ·must still be decided in regard to count 1, are therefore, the following: firstly, whether the accused drove negligently, just before and at the time of the collision and if so, then secondly, whether the accused's negligent act caused the death of the deceased, or contributed thereto.

[The Honourable Judge dealt with the evidence and continued as follows.]

The Court, therefore, finds that the accused's negligence was the direct and only cause of the death of both deceased and consequently the accused is guilty of culpable homicide. On count 1 he is, therefore convicted on the main count as charged.

I now deal with count 2, i.e. the charge of driving under the influence of liquor on the national road between Reddersburg and Bloemfontein on the afternoon of 29th December, 1971.

The requirements which must be proved -by the State beyond any reasonable doubt in the case of a charge of contravening sec. 140 (1) of Ord. 21 of 1966 (O) are very clearly stated in a recent decision of this Court in the case of S. v. Mhetoa, 1968 (2) S.A. 773 (O), where ERASMUS, J., said the following at 774D-F:

"In cases concerning liquor and where a person is charged with contravening sec. 140 (1) (a) of the Ordinance, the State must prove that an accused was in a condition as formulated by the Appellate Division in R. v. Spicer, 1945 A.D. 433 at pp. 435 and 436 in regard to the phrase 'under the influence of intoxicating liquor' or 'while under the influence of intoxicating liquor'. The Appellate Division, inter alia, quoted with approval a passage, from the judgment of MARITZ, J., in R. v. Donian, 1935 T.P.D. 5 at p. 9 that to be under the influence of liquor means that a person has consumed sufficient liquor 'to have impaired his driving efficiency ... for example by dulling "his vision or blunting his judgment or by making his muscular reactions to communications from his brain sluggish'."

With this exposition I, respectfully, agree.

The question is, therefore, whether the accused consumed a sufficient quantity of intoxicating liquor to have impaired his efficiency as driver, i.e. by weakening his sense of hearing and sight, and/or impairing his judgment, and/or causing his muscular movements to be slower and unco-ordinated.

[The Honourable Judge analysed the evidence and continued as follows.]

In the circumstances it is found to be proved beyond·a reasonable doubt that the accused drove under the influence of liquor on ·the national road between Reddersburg and the scene of the accident on 29th December, 1971 and, therefore, contravened sec. 140 (1) (a). of Ord. 21 of 1966 (O), i.e. that he had already committed this offence before he drove negligently and in a manner which resulted in the collision.

The question which now arises, however, and which must be answered, is whether the Court in view of the fact that the accused has already been convicted of culpable homicide on count 1 can also convict the accused on count 2.

This question was dealt with by this Court in the case of S. v. Mafata, which was quoted by Mr. Marais on behalf of the State and in which KLOPPER, J. delivered the judgment of the Court on 27th August. 1970. As the judgment is, surprisingly, not reported it is necessary to quote from it in extenso. KLOPPER, J., said the following, and I quote:

"The appellant was convicted in the local regional court on two counts, viz., that in contravention of sec. 140 (1) (a) of Ord. 21 of 1966 he had driven a motor vehicle under the influence of liquor and secondly of culpable homicide. On the two counts jointly he was sentenced to six months' imprisonment and his driver's licence was also suspended for six months.

Both counts arose from the driving of a motor vehicle by appellant on Mkhuhlani street, a public road, in the local Bantu residential area. It appears that appellant collided with a Bantu youth and while the youth was hanging from the motor vehicle's mascot on the bonnet which caught the collar of his jacket he drove with him for about one mile. A Bantu constable saw the person hanging from appellant's car and he stopped the appellant. It was then found that the person was already dead.

Dr. Loubser who did the post mortem found that there were no injuries to the deceased's vertebrae and that he died as result of strangulation. His opinion was that the deceased had become unconscious after about one minute and that he had died about five minutes later."

This passage gives the factual background on which the decision is based. From p. 5 of the typed judgment KLOPPER, J. continues as follows:

"Mr. Malherbe, however, submitted that a conviction on both counts would amount to an improper duplication of convictions. He directed attention to the fact that the magistrate had found in fact that the appellant had been negligent because he had been under the influence of liquor."

In the case of S. v. Mtsweni. 1963 (3) S.A. 398 (T), DOWLING, A.J.P., found that a conviction of negligent driving under the influence of liquor which flowed from the same incident was an improper duplication of convictions. He says at p. 399: ‘……….’

.Although the tests, for the determination whether an improper duplication of convictions had taken place as formulated in the various decisions, are clear, the application thereof is not easy. In the case of R. v. Gordon; 1909 E.D.C, 254 KOTZE, J.P., applied the following test at p. 260; viz.: '……….'

In R. v. Sabuyi, 1905 T.S. 170 INNES, C.J., applied the following test. viz: '……….’

In the case of S. v. Grobler and Another, 1966 (1) S.A. 507 (A.D.) after a careful consideration of all the decisions appertaining to the present question WESSELS, J.A., came to the following conclusion at p; 523, viz.: ‘……….’
 
In the case which the learned Judge considered, the first appellant had been convicted of theft, robbery and murder. While the second appellant had been convicted of theft, robbery and as accessory after the fact to murder.

In view of the continuous nature of the appellants' actions while the crimes had been committed the objections raised on appeal were that improper duplication of convictions had taken place. The learned Judge concluded with the following findings: '……….'

The fact that the appellant drove under the influence of intoxicating liquor and that that caused him to be negligent, which negligence resulted in the death of the deceased, creates the feeling that it must be regarded as one offence only. The reason why a person is negligent is irrelevant.

In the case of Tembokwayo v. R., J.C. 228/1946 (T) where the accused was also convicted of culpable homicide and driving under the influence of intoxicating liquor DE VILLIERS, J., found that there was no duplication of convictions. He decided as follows : '……….'

The fact that the appellant in the present case drove under the influence of intoxicating liquor does not necessarily render him guilty of negligent driving. A person may be guilty of contravening the particular Traffic Ordinance, in that, he drove under the influence of liquor, but still with the utmost care.

The decision of WESSELS, J.A., in the case of S. v. Grobler, supra is also apposite here, viz. that all the elements of the reprehensible behaviour cannot be brought within the scope of only one of the crimes. The magistrate correctly treated the two crimes as one for the purpose of sentence; In my opinion he also did not err in the imposition of sentence.

The appeal is, therefore, dismissed.”

In the application of Mafata's case to the present case the following must receive attention: In this case the accused, according to the evidence of Rev. Laufs, which the Court accepts, drove properly for more than two miles on the national road between Reddersburg and the scene of the accident before he went over to the wrong side of the road. He, therefore, did not drive negligently on this part of the road.

After careful consideration I am satisfied that the offence consisting of the driving under influence of liquor on that part of the road to the north of Reddersburg where the accused overtook Rev. Laufs up to the point where he went over to the wrong side of the road can be proved and dealt with separately from the act which amounted to negligent driving and which consists of the veering to the wrong side of the road, the swerve back to the left and the collision with the Ford Fairmont.

I am satisfied not only that I am bound by the decision in Mafata's case, but also that it is legally a correct judgment.

Consequently I find that the accused can also be convicted on count 2, and he is found guilty as charged.

[The Court imposed a sentence of ten years' imprisonment of which three years were suspended on condition that the accused would not drive a motor vehicle in any way for a period of three years which would start to run after his release from prison.]