HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
APPEAL JUDGMENT
Case no.: HC-MD-CRI-APP-CAL-2025/00013
JANDRÉ LODEWYK DIPPENAAR APPELLANT
and
STATE RESPONDENT
Neutral citation: Dippenaar v S (HC-MD-CRI-APP-CAL-2025/00013) [2025] NAHCMD 772 (5 December 2025)
Coram: SHIVUTE J et USIKU J
Heard: 6 June 2025
Delivered: 5 December 2025
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Fly note: Appeal against conviction and sentence –Evidence – Expert witness – Counsel for the appellant contending that court a quo ignored or attached insufficient weight to expert witnesses’ testimonies – Court a quo rejecting expert witnesses’ testimonies and instead accepting those of eye witnesses – Proper approach being that direct and credible evidence of what happened in collision generally carrying greater weight than opinions of experts – An expert’s views of what might have occurred must give way to the assertions of direct and credible evidence of an eye witness –Only where such direct evidence of an eye witness so improbable that its very credibility is impugned that expert’s opinion of what may or may not have occurred may persuade the court to an expert’s view point.
Criminal law – Counsel for the appellant contending that murder with dolus eventualis not proved – Test for murder with dolus eventualis stated.
Criminal Procedure – Circumstantial evidence – Whether inferences were properly drawn – Appeal court satisfying itself that inferences properly drawn – Credibility findings – Court on appeal interfering with credibility findings of trial court only if alleged irregularities or misdirections shown – Duty to deal with the rejection or acceptance of evidence lying primarily with the trial court – No irregularities or misdirections having been shown or being apparent from the record.
Criminal Procedure – Sentence – Appellant contending among other things that sentence inappropriate and inducing a sense of shock – Punishment pre-eminently a matter for the discretion of the trial court – Powers of court of appeal to interfere with sentence limited – Interference only permissible where trial court not having exercised its discretion judicially – Or where that court misdirected itself on facts material to sentencing or on legal principles relevant to sentencing – Sentence in this matter appropriate in circumstances.
Summary: The appellant was convicted in the Regional Court sitting in Swakopmund, among other things, of reckless driving, contravening section 80 (1) of the Road Traffic and Transport Act 22 of 1999 and sentenced to N$8000 fine or, in default of payment, two (2) years’ imprisonment. He was further convicted on six (6) counts of murder with dolus eventualis arising from the collision of motor vehicles. The six counts were taken together, and he was sentenced to 15 years’ imprisonment. The appellant was dissatisfied with the conviction and sentence, hence the appeal. Grounds of appeal, among other things, counsel for the appellant contended that the court a quo ignored, rejected or attached less weight to the evidence of expert witnesses as opposed to the evidence of eyewitnesses’ testimonies. Held: The proper approach to dealing with expert witness testimony vis-à-vis the eyewitness testimony includes the consideration that direct and credible evidence of what happened in the collision generally carries greater weight than the opinion of an expert witness. An expert view of what might have probably occurred in a collision must give way to the assertions of the direct and credible eyewitness. It is only where such direct evidence of an eyewitness is so improbable that its very credibility is impugned that an expert’s opinion as to what may or may not have occurred can persuade the court to the expert’s view.
Held: The court a quo correctly drew inferences consistent with the proven facts. The court made credibility findings. It is trite that the discretion to accept or reject evidence lies primarily with the trial court. The court of appeal can only interfere with the exercise of the discretion by the trial court if irregularities or misdirections have been shown or are apparent from the record. The court found no misdirection on the trial court’s part.
Held: Punishment is pre – eminently a matter for the discretion of the trial court; the powers of the court of appeal are limited. The court of appeal can only interfere with the exercise of the discretion of the trial court where the trial court failed to exercise its discretion judicially, when the court a quo misdirected itself on facts material to sentencing or on legal principles relating to sentence. Under the circumstances, the sentence imposed on all counts is appropriate, and it does not induce a sense of shock. No misdirection on the part of the court a quo is found.
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ORDER
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The appeal against conviction in respect of counts 1, 4 to 9 is dismissed.
The appeal against sentence in respect of counts 1, 4 to 9 is dismissed.
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APPEAL JUDGMENT
SHIVUTE J (USIKU J concurring):
Introduction
The appellant was convicted in the Swakopmund Regional Court on reckless driving, count one (1); contravening section 80(1) of the Road Traffic and Transport Act 22 of 1999, count three (3); driving without a driver’s licence contravening section 31(1)(a) of the same Act, and six counts four to nine (4 to 9) of murder with dolus eventualis. He was sentenced to (N$8000) eight thousand Namibia dollars fine or, in default of payment, two (2) years’ imprisonment in respect of count one (1) and to (N$2000) two thousand Namibia dollars fine or, in default of payment, three (3) months’ imprisonment in respect of count three (3). The six counts of murder, namely, counts four to nine (4-9), were taken together for the purpose of sentence, and he was sentenced to 15 years’ imprisonment. The accused is aggrieved by both conviction and sentence, hence this appeal.
There are 14 grounds of appeal in respect of conviction on the reckless driving count; fifty-one grounds of appeal against conviction in respect of the murder counts, and ten grounds of appeal against sentence in respect of counts one (1), four (4) to nine (9). Although the appellant stated that he was appealing against his conviction in respect of count three (3), when he enumerated his grounds of appeal, he did not include grounds of appeal in respect of that count, either on conviction or on sentence. Therefore, an inference will be drawn that he is not appealing against the conviction and sentence in respect of count three (3). The appellant, in his grounds of appeal, has also referred to the court a quo’s refusal to recuse itself.
There was an application for recusal before the court a quo. This application was dismissed and not appealed; the trial proceeded to its conclusion. We find it unnecessary for counsel for the appellant to refer to grounds of appeal in connection with the court a quo’s refusal to recuse itself in the appeal against conviction and sentence. If the appellant was not satisfied with the court a quo’s decision to recuse itself, he could have appealed against such a decision. Those grounds are unnecessary at this stage, and they will be ignored.
In total, the appellant filed 75 grounds of appeal and 277 pages of heads of argument. The grounds of appeal are interwoven with arguments and are not concise. This Stalingrad-type of appeal and prolixity makes the task of deciphering the grounds of appeal extremely excruciating and time-consuming. The record is equally voluminous as the trial took about seven (7) years to complete. It is against this backdrop that this Court will do its best to summarize the drawn-out grounds of appeal.
Grounds of appeal against conviction
The grounds of appeal in respect of count one may be summarized as follows:
The learned magistrate misdirected herself by finding that the State had proved its case beyond a reasonable doubt and by rejecting the appellant’s version as not being reasonably possible. The learned magistrate misdirected herself by relying on the unreliable evidence of State witness Mills, which was riddled with contradictions, material discrepancies, and inconsistencies between his evidence under oath and his statement to the police. Furthermore, the court a quo misdirected itself by failing to warn itself that Mills was the sole witness to the allegations of reckless driving between Langstrand and Swakopmund. The court a quo misdirected itself by failing to consider discrepancies and unreliability in the versions of Mills and other State witnesses, namely, Swart and Van der Merwe. It was contended that Mills and Van der Merwe’s evidence contradicted each other, and Van der Merwe’s evidence constituted inadmissible hearsay evidence. Therefore, it could not serve as a corroboration of Mills’ testimony.
It is a ground of appeal that the State witnesses’ evidence under oath contained contradictions compared to their statements to the police. The learned magistrate failed to give sufficient weight to the contradictions in the testimonies of the State witnesses Mills, Swart, and Van der Merwe. The court a quo also misdirected itself by finding that the speed limit on the stretch of the road was 80 km per hour instead of 100 km per hour.
Grounds of appeal in respect of counts four (4) to nine (9) may be summarized as follows:
The learned magistrate erred in law and/or fact by finding that the State had proved its case on the murder counts based on dolus eventualis. Whereas the test postulated by law requires that each inference should follow beyond a reasonable doubt, the court a quo wrongly concluded that the only inference to be drawn is that the appellant must have foreseen the consequences of his actions. That, irrespective of the consequences, he reconciled himself with the consequences, and consequently, the court satisfied itself that the State had proved its case against the appellant beyond a reasonable doubt. The court a quo gave no, or insufficient, weight to the undisputed tracts of evidentiary material placed before it, contained in photos, videos, expert reports, and transparencies, which were admitted as real evidence. This includes GPS speed-tracking data from the Ford Ranger, which was admitted as accurate but inconsistent with the viva voce evidence of the State witnesses. Such evidence is self-destructive or constitutes uncontested evidence of facts that the driver of the Ford Ranger caused the fatal accident when it swerved to the right on the lane of the FJ Cruiser immediately before the accident occurred. It constantly cut corners and swerved into the oncoming traffic, and it was travelling at a high speed of between 102 and 115 km per hour, 500m before the accident occurred.
The learned magistrate misdirected herself by giving no weight or insufficient weight to the fact that the absence of any road traffic signs and/or road markings or any other sign or any other acceptable evidence that it was unsafe for the appellant to overtake the vehicle of Paul Oosthuizen just before the accident occurred on the salt road negated foresight on the part of the appellant of substantial harm arising in this instance. The court misdirected itself by attaching insufficient weight to the res ipsa loquitur facts that had it not been for the Ford Ranger swerving to the lane of the FJ Cruiser just before the accident occurred, the accident was not going to happen; the concession by the expert State witness Joubert that the driver of the Ford Ranger was negligent and that the evidence does not support a finding that the appellant foresaw any consequences, factored them into the bargain and proceeded nonetheless reconciling himself with the consequences.
The learned magistrate misdirected herself by giving no or insufficient weight to the evidence and concessions of the State witnesses, and by failing to consider that, all factors being equal, it is more probable that the appellant was not negligent or reckless, nor was he the sole cause of the accident. The court a quo failed to consider that the Ford Ranger entered the FJ Cruiser’s lane, that there was no evidence of any obstruction in the Ford Ranger’s lane of travel, the probabilities in this matter, and the negligence of the Ford Ranger’s driver. The court a quo also failed to take into consideration the testimonies of State witness Hepkema and defence witness Knouwds that there was no blind rise, no road traffic signs or markings that there was a blind rise at that particular salty road, as the road was levelled and both drivers had visibility of each other for 360 to 400 m before the point of impact.
The court a quo gave insufficient consideration to the evidence that the swerving of the Ford Ranger to the FJ Cruiser’s lane of travel resulted in the error of judgment on the part of the appellant and further the possibility that the appellant, just before the accident, lost control over his vehicle which could also have contributed to the occurrence of a sudden emergency; the testimony of State witness Joschko that her father swerved to the right to avoid the accident from which a reasonable inference can also be drawn that the Ford Ranger caused a sudden emergency for the appellant. Thus, eliminating the elements of dolus eventualis, which is reconciling oneself with the possible consequences of the ensuing result.
The learned magistrate misdirected herself by giving no, or insufficient consideration to the evidence of concessions by State witnesses Paul and Hazel Oosthuizen that when the appellant overtook their vehicle just before the accident happened, visibility was good; there was no oncoming traffic coming from Henties Bay to Swakopmund; the appellant stayed behind their vehicle for approximately 5 to 30 seconds until it was safe to overtake; that immediately after the appellant overtook their vehicle, he moved back to his correct lane. The witnesses never lost sight of the FJ Cruiser until the accident occurred. They only saw the Ford Ranger in the appellant’s lane after the accident occurred at the scene of crime from which a reasonable inference could be drawn that the Ford Ranger was already in the appellant’s lane of travel before the accident happened.
The learned magistrate misdirected herself by considering the gauge marks and debris depicted in exhibits onto the correct lane of travel of the F J Cruiser in contrast to no marks or debris in the left southbound lane of travel of the Ford Ranger. The court a quo failed to consider the fact that the resting position of the Ford Ranger after the accident was on the side of the F J Cruiser’s lane of travel; the point of maximum engagement of the vehicles was within the northbound lane of travel of the F J Cruiser. Therefore, the point of collision would exclude the possibility that the accident could have occurred in the Ford Ranger’s correct lane of travel. The State witness expert Joubert’s concession having an enhanced copy of ‘MM’ – Exhibit ‘NN’ that what he termed as a scuff mark on the eastern side of the left bound lane might have been caused by either a grader that interfered with the scene or another vehicle and not the J F Cruiser as no such mark appears on the photos taken two hours after the accident happened on 29 December 2014.
The learned magistrate misdirected herself by finding that the driver of a Ford Ranger was not negligent and by applying the principles of circumstantial evidence incorrectly. The learned magistrate failed to appreciate or deal with real evidence or discrepancies and inconsistencies in the evidence adduced by the State. The court a quo incorrectly found without any basis in its judgment that:
‘Overtaking on a barrier line and especially on a double barrier line where a motorist should realise that his inability to observe approaching traffic is compounded by the inability of traffic in the opposite direction to see him is probably the most inexcusable dangerous thing a road user can do. The only reasonable inference the court could draw is that the accused must have foreseen driving on that road, specifically on that part where the collision occurred; driving in an inconsiderate, reckless manner at such speed could cause an accident with fatal consequences. The inferential reasoning this court comes to is with continuous illegal manoeuvres; taking risks; driving over the blind rise at high speed while his vision was obscured; the accused must have foreseen the consequences of his actions and reconciled or consented to it.’
The learned magistrate was selective in her approach and one-sided, favouring the State by relying on facts that did not form part of the record of proceedings; as a result, she failed to correctly apply the law to the burden of proof. The court a quo considered the evidence of State witnesses Joubert and Graham, and their concessions that Joubert’s photo 43 does not depict the alleged blind rise at the accident scene, but rather a similar hill 14km away. The learned magistrate misdirected herself by giving no, or insufficient weight to the consideration that no incriminating version was adduced by State witnesses Mills, Van Zyl or Stevenson in respect of the actus reus of the appellant, and no evidence could serve as proof concerning the event which led to the occurrence of the collision.
The learned magistrate misdirected herself by not attaching or attaching insufficient weight to the manner in which the appellant overtook the Oosthuizen’s vehicle in the same way that any reasonable driver would overtake a slower moving vehicle by not considering the discrepancies, improbabilities and contradictions in connection with State witnesses Hazel Oosthuizen, Paul Oosthuizen during cross-examination and by finding that they corroborated each other in every material respects. The court a quo failed to consider that Joubert disagreed with the Oosthuizens’ testimony that the FJ Cruiser turned sharply right and collided with the Ford Ranger. The court a quo failed to consider the damages of the vehicles involved in the accident that were inconsistent with the versions of the Oosthuizens; Joubert’s version that the F J Cruiser was returning to its correct lane; by failing to consider that both Bezuidenhout and Badenhorst testified that Joubert used an inappropriate formula and assumed values to calculate speed. The court a quo failed to consider the tracking system report, and Europcar employees testified that the Ford Ranger’s speed was between 102 and 115 km per hour when it was about 500 m from the accident scene.
The learned magistrate erred in finding the appellant guilty, even though the objective evidence on record, including expert evidence, is compatible with the driver of the Ford Ranger’s negligence as the sole cause of the accident. Although the court a quo found that the appellant was not suicidal or did not desire to bring about the death of his passengers, it found him guilty of murder with dolus eventualis. The learned magistrate failed to consider properly that the appellant suffered from amnesia from Mile 28 onwards and could not remember what happened, and that he never had an intention to hurt himself, his passengers or any other road users. Furthermore, the court misdirected itself by failing to consider that, under the circumstances, the appellant could not have been expected to anticipate that the oncoming Ford Ranger would veer into his lane of travel.
The learned magistrate gave no weight, or insufficient weight, to discrepancies and improbabilities in the versions of Joschko and those adduced by other witnesses, including eyewitness reports, sketch plans, diagrams, and photographs. By failing to consider and rule on the evidence of the two independent defence reconstruction expert witnesses, namely Stan Bezuidenhout and Wilna Badenhorst. By failing to rule on the inconsistencies, inaccuracies, manipulations and failures in the evidence of the State expert witness Joubert, as pointed out by the two independent reconstruction experts called by the defence. The court a quo misdirected itself by failing to consider that the evidence of witness Joschko was designed to exonerate her late father from culpability in the accident and to assist her financial interest in the civil action instituted against the appellant, and that Joschko had no proper recollection of how the accident happened.
The court a quo failed to consider that the driver of the Ford Ranger failed to exercise due skill and a duty of care by failing to notice the approaching vehicle of the appellant and would have refrained from turning to the right into the appellant’s lane. The learned magistrate took the wrong approach in evaluating the evidence and accepted the evidence of the State witnesses rather than that of the defence, including the reconstruction evidence of expert witnesses, which is more probable and reasonably possible than the evidence adduced by the State. The court a quo failed to consider the impact of and contamination of the scene by traffic, rain, and a grader from the time of the accident until 5 January 2015, when Joubert visited the scene. The court failed to consider the testimony of Smith that there was no such alleged scuff mark on the scene on the night of the accident, the changing of the value used by Joubert in his first report as compared to his second report, the rotation of the vehicles the post impact displacement distances of both vehicles and Joubert’s manipulation of physical evidence at the scene.
The learned magistrate misdirected herself by relying on the elevated, opinionated evidence and speculation above the objective evidence on record, including expert evidence which is compatible with the verdict of not guilty on all counts. The learned magistrate misdirected herself by rejecting the evidence of Dr Stefanie Badenhorst by finding that the said Doctor became emotional and was not objective without any basis. The court misdirected itself by rejecting the evidence of defence expert witnesses Bezuidenhout and Badenhorst without any basis in law or fact. The learned magistrate failed to attach sufficient weight to the appellant’s consistent evidence and to the evidence presented by all the witnesses called on behalf of the appellant. The court a quo again failed to consider that the State did not properly dispute the testimonies of Smith and other defence witnesses.
The court a quo failed to apply the correct legal principles in similar cases to reach a correct verdict of not guilty, or, in the alternative, a conviction for culpable homicide. The court a quo failed to take into account the issue of culpability concerning the point of collision in applying the doctrine of res ipsa loquitur in light of the fact that when a motor vehicle drove onto the incorrect side of the road and collided with an approaching vehicle, it has been held on the doctrine of res ipsa loquitur that such point of collision is prima facie proof of negligence on part of the driver of the vehicle found to be on the incorrect side which in this instance would be the driver of the Ford Ranger. The learned magistrate applied the foreseeability theory incorrectly by drawing incorrect inferences in order to secure a conviction of murder based on dolus eventualis.
Grounds of appeal in respect of sentence
The grounds of appeal against the sentence may be summarised as follows: The learned magistrate misdirected herself by not attaching appropriate weight to the personal circumstances of the appellant. The court failed to take into account the evidence by expert clinical psychologist and the report she presented; the sorrow he attempted to express to the father of his late friend Mr Horn and the sorrow he expressed to the victim Joschko at a later stage. The court a quo misdirected itself by failing to consider the options of a fine, a suspended sentence, and community service. The learned magistrate misdirected herself in finding that the psychologist’s report was one-sided and unbalanced. The learned magistrate over emphasized the seriousness and prevalence of the offences at the expense of the personal circumstances of the appellant.
The court a quo over emphasized the aggravating circumstances of the case and failed to consider the appellant’s culpability. The court a quo failed to apply the principles of individualism and reformation when sentencing the appellant. It also failed to consider imposing penalties similar to those imposed in other matters involving similar facts to the present matter. The sentence of 15 years’ imprisonment imposed on the appellant is inappropriate and it induces a sense of shock.
Factual background of the case
On 29 December 2014, the appellant was driving a motor vehicle with registration number N8163GO from Long Beach to Swakopmund on a public road when he was pulled over due to a complaint that he drove in a reckless, negligent or inconsiderate manner. He was given a warning because of the way he drove. Thereafter, he proceeded to Swakopmund – Henties Bay C 34 public road. He did not reach his destination because the vehicle he was driving collided with the vehicle bearing registration number N169585W, driven by the late Markus Walter Helmut Joschko. Three people who were in the appellant’s vehicle lost their lives and the appellant was the only survivor in that vehicle. The driver of the other vehicle and two passengers also lost their lives due to injuries suffered in the collision. The deceased’s daughter in the vehicle with a Windhoek registration number was the only survivor. In total, six people lost their lives. As mentioned before, the appellant was convicted of reckless driving in contravention of section 80(1) of the Road Traffic and Transport Act 22 of 1999 as well as six counts of murder with (indirect intent) dolus eventualis.
Argument by Counsel in respect of conviction
Counsel for the appellant argued that it was unprecedented and the first of its kind in Namibia to arraign the offender on charges of murder committed under the present circumstances. Counsel for the appellant argued that in relation to count 1, the appellant was wrongly convicted as the State failed to prove its case beyond reasonable doubt. The court relied on the evidence of Mr Mills who was called by the State and gave evidence riddled by inconsistencies and discrepancies between his viva voce evidence in court and the statement he gave to the police. Apart from the discrepancies stated above, the witness was criticised for being untruthful, as he initially stated that he had given only one statement, or that he had not given a statement at all, only to later recant and say that he had given three statements concerning the incident. Later on he changed and said he gave two statements as one of his statements that was written in long hand was typed and it was brought back to him to sign.
It was again a point of criticism of the witness’s version of why he applied the brakes. The witness testified during cross-examination that he applied the brakes because the appellant was going too fast, there was insufficient space to go, and oncoming traffic was approaching. So, he braked to get away from what was going to happen. The witness was further asked whether he applied the brakes in anticipation to allow the F J Cruiser sufficient space, and he responded in the affirmative. Again, when asked whether there was space for the FJ Cruiser to move in, the witness conceded there was. The witness was confronted with his police statement, in which he said he braked because the FJ Cruiser swerved in front of him, a claim that differs from his testimony in court. Counsel argued that the court a quo failed to consider that Mills was the sole witness and that the court should approach his evidence with caution.
Counsel for the respondent in this regard argued that Mills was driving from Walvis Bay Airport to Swakopmund on the date in issue when he observed through his mirror a white FJ Cruiser coming at a high speed. This vehicle was found to have been driven by the appellant. It overtook his vehicle on the face of oncoming traffic that was very close to the appellant, who was in the oncoming traffic lane. Mills slowed, and the oncoming traffic did too. The appellant returned to the correct lane, drove in front of Mills’ vehicle, and overtook another vehicle again in the face of oncoming traffic. The oncoming driver also flashed his lights. The appellant continued to overtake in this fashion recklessly and under dangerous conditions two more times before he went out of sight.
Because of the manner in which the appellant was driving, Mills called the neighbourhood watch. Van der Merwe responded to Mills, and Mills reported to him the manner in which the appellant was driving. He also gave the FJ Cruiser’s registration number. The witness was in shock as he was shivering and terrified because of the experience he had with the appellant’s manner of driving. Concerning the discrepancies in the evidence of the witness’ viva voce evidence and his statements he gave to the police, counsel argued that the witness did not include the details of the manner in which the appellant drove, the manner of braking, oncoming traffic, flushing of lights and swerving to the left of their lane, because when the police requested him to give his statement he was told that he must be brief.
With regard to the statements the witness gave, the handwritten statement did not form part of the police’s investigations. Counsel for the respondent argued that the court a quo was correct to accept Mills’ evidence despite the contradictions and the omission of some details from his statement to the police. The court a quo found those discrepancies immaterial and did not discredit the witness’s testimony.
Counsel for the appellant argued that State witness Van der Merwe testified that Mills called him and informed him that he was driving behind a white F J Cruiser that was driving inconsiderately. However, this was not contained in the witness statement he gave to the police. The witness had also testified that Mills informed him that the FJ Cruiser was overtaking vehicles on barrier lines and solid lines. It also overtook vehicles on blind crests. This was also not contained in his statement to the police.
The witness testified that he gave a handwritten statement to the police. However, later, he was given a typed statement by the police and told to sign it. The witness did not see his handwritten statement again. Therefore, he could not assist the court in indicating whether the typed statement differed from his original statement. Counsel for the appellant argued that Mills never testified that the F J Cruiser was overtaking vehicles on barrier lines and solid lines. He also did not testify that the F J Cruiser was overtaking vehicles on blind crests. Counsel for the appellant further argued that what Mills told Van der Merwe constitutes inadmissible hearsay evidence. Therefore, it should be rejected as false, and this is because such details were not contained in the witness statement he gave to the police.
With regard to the testimony of State witness Swart, counsel for the appellant argued that the witness gave two statements. One was made for the insurance company whilst the other one was given to the police. However, through cross-examination, it was put to the witness that the version of what Mills told him, namely that “this vehicle was such a danger to the road, he should not have just been warned, he should have immediately locked up,” is not contained in one of his statements. The witness responded that he did not think every small detail was necessary. Again, the witness was confronted with the statement he made to the insurance company that he omitted to state the following in the statement he gave to the police “and the caller could say that the FJ Cruiser was driving at high speed because he, the caller, was driving according to the speed limit, which was at that stage 100 km per hour.” Again, in respect of the omissions that were not part of the statements, counsel argued that such evidence should have been rejected.
With regard to police officer Motinga’s testimony, counsel for the appellant argued that when the appellant was confronted with the allegations that he overtook a vehicle on a barrier line, the appellant apologized and gave an explanation that he overtook a slow moving vehicle on a barrier line when it was safe to do so. Police officer Motinga was satisfied with the explanation and deemed it appropriate to give a warning to the appellant. Furthermore, Motinga, who was very close to the appellant, did not smell any alcohol on the appellant.
On the other hand, counsel for the respondent argued that the court a quo found the testimonies of Swart and Van der Merwe, to whom Mills spoke, to be credible. It is not correct that what Van der Merwe and Swart testified to is inadmissible hearsay evidence as all three witnesses testified to what was said to each other. They corroborated each other.
Concerning the statements where there are minor differences between evidence in chief and statements given to the police it is trite law that a witness is not required at the time of making his or her statement to the police to give in all its details. In respect of the appellant’s version that he did not overtake when it was dangerous to do so, nor did oncoming traffic take evasive action due to his manner of driving, counsel for the respondent argued that witness Mills did not know the identity of the driver of the F J Cruiser at that stage. The manner the appellant drove caused the witness to call Van der Merwe to alert the traffic officers to warn the driver. This is a sign that the infraction in the appellant’s driving was serious enough for a concerned citizen to act and for Mills to be under shock.
It is further argued by counsel for the respondent that the fact that State witness Motinga acted on the information received is a clear indication that there was indeed a report of reckless or negligent driving against the appellant. If the appellant had not driven in a reckless manner, Mills would not have gone to the extent of calling neighborhood watch. Furthermore, the fact that the appellant conceded that he drove across a barrier line to overtake a slow-moving vehicle just before the bridge is an indication that the appellant had no respect for the rules of the road. He preferred to break them by crossing barrier lines. Although Mills did not testify about crossing barriers, the appellant’s admission meant that he was driving in a reckless manner on more occasions than what was witnessed by Mills.
It was again counsel for the respondent’s argument that the appellant was driving in wilful and wanton disregard for the safety of other road users. The appellant drove at a speed exceeding the speed limit when traffic volume on the road was high. He overtook when there was no sufficient space for him to do so. Other vehicles had to make way so he could safely enter the gaps they created. Therefore, in light of this evidence, it is argued that the State proved its case beyond a reasonable doubt in respect of the count of reckless driving, and that the court a quo was correct to find the appellant guilty as charged.
Arguments in respect of grounds of conviction for counts four (4) to nine (9)
These grounds were taken together for purpose of arguments. Counsel for the appellant argued that although State witness Stevenson testified that he was driving at a speed of 110 to 115 km per hour when the FJ Cruiser overtook him that was driven at a high speed, he was unable to recall the registration number of the FJ Cruiser and he was unable to tell the court or to estimate at what speed the FJ Cruiser was traveling. It was further a point of criticism that there is a significant difference between the consequences and effects of what is contained in his statement to the police and what he testified in court during examination-in-chief. Although the witness testified that he did not see the FJ Cruiser overtake the three vehicles in front of him, in his statements to the police he stated that he did see the FJ Cruiser overtake them.
When the witness was asked to explain why he did not inform the police that the F J Cruiser was overtaking vehicles on an uphill as he testified, he responded that the prosecutor asked him more questions than the police who took his statement. Furthermore, the witness was unable to estimate how far oncoming vehicles were. In connection with the evidence of State witness Van Zyl, counsel for the appellant argued that this witness was not near the scene of crime when the accident happened. He was 200 meters before the turn off to Mile 32 when a white FJ Cruiser overtook his vehicle at a very high speed. The witness estimated the speed of the FJ Cruiser to be about 160 km/h. Counsel argued that no weight could be attached to this estimation as it amounts to speculation. The witness testified that he was driving at 100 km/h. It was further argued that when the witness was asked whether the FJ Cruiser he found at the accident scene could have been different from the FJ Cruiser that overtook him, he conceded that it was possible.
Counsel for the respondent in respect of the above arguments argued that Stevenson testified that the appellant, who was driving a white FJ Cruiser, overtook his wife and then him at a high speed. The witness’s car shook when the appellant’s car passed him. The appellant went over the hill on the right side of the road. As the witness went over the hill two to three seconds later, he saw a puff of smoke, meaning that the appellant had collided with the Ford Ranger soon after overtaking him. Although the witness was unable to state the exact speed the appellant was driving, he testified that it was a high speed, as the witness was driving between 110 km and 115 km per hour over the 100 km per hour limit. Obviously, the appellant was driving above 115 km/h.
Counsel for the respondent argued that Stevenson testified that it was not safe to overtake on that part of the road, as the road had little dips and rises. He was unable to see oncoming vehicles because of the blind rise. Stevenson also testified that he assisted to flip the Ford Ranger onto its wheels. The Amarok that was driven by Stevenson was in the same class of vehicle as the one driven by the appellant in terms of height. Stevenson could not see oncoming vehicles. Regarding the witness statement to the police, the witness explained why he did not provide more details. Counsel for the respondent argued that a witness statement is a summary of what happened and that further evidence will emerge during the trial.
With regard to the point of criticism levelled against the testimony of Van Zyl, counsel for the respondent argued that Van Zyl testified that about 7 km from Henties Bay, he reversed towards Swakopmund when a Lifelink motor vehicle passed him. He then saw puffs of smoke and the accident scene with the appellant lying on the ground. For the witness to return to the scene and find the appellant at the scene and the FJ Cruiser still burning meant that the witness was overtaken by the appellant during the same period. It was further argued that the witness, being a seasoned driver who had driven at 160 km per hour, was competent to estimate the speed of the white FJ Cruiser he had seen. The witness testified that the white FJ Cruiser he found at the crime scene was a lookalike of the one that overtook him, moving very fast and in his view for about 2 to 3 seconds. Therefore, the only inference that could be drawn is that this could only be the same motor vehicle.
Counsel for the appellant in respect of Joschko’s evidence argued that although she described her father to be a careful driver, her version has been contradicted by the tracker’s report and the video showing her father’s driving on 29 December 2014, swerving and weaving across the road from side to side and not staying in the correct lane of the road. The trackers’ report showed that after lunch, the driver of the Ford Ranger began driving faster and more frequently exceeding the speed limit. Counsel further argued that according to Joschko’s testimony, during late afternoon, they drove up a hill and a long white car suddenly appeared right in front of them on the left side of the road. She remembered seeing a part of the right-hand side of the road. However, this is improbable, as the right-hand side of the road would have been obscured by her father and the right-hand driver’s seat in front of her.
Less than a second later, before the collision occurred, she noticed that her father was instinctively steering the steering wheel to his right because they would have gone off the road on the left-hand side. She described the road as pointing downwards on the left-hand side. This is inconsistent with the observation of the scene from photographs provided by the State and defense witnesses. It would have been safe for the Ford Ranger driver to swerve left rather than right. The defense expert witness maintained that the driver of the Ford Ranger would not have collided with any vehicle had it continued to drive straight forward in its correct lane, so counsel for the appellant argued.
It was again counsel for the appellant’s argument that Joschko testified that her father could not have avoided the accident because he saw the other car too late, he tried to react, but his reaction could not have changed anything. The approaching vehicle was too close, even if her father had turned to the left, as the collision was more on the left-hand side. This version, however, is contrary to the evidence introduced by the defense expert witness and the photos provided by the State. The defense witness testified that had the Ford Ranger remained in its correct lane, the collision would have been avoided. Furthermore, the point of maximum engagement (gouge mark) is on the correct side of the appellant’s vehicle. The issue of Joschko’s view of the car is disputed, as she initially indicated she had turned a little to the left and thereafter was able to see what was happening in front of her. This was raised during cross-examination, when she testified that she had leaned her upper body to the left.
It was again a point of criticism of Joschko’s version by counsel for the appellant that although she estimated her father to have been driving between 80 km to 90 km per hour, this has been contradicted by the Tracker report exhibit VVV. The witness was confronted with her statement and that of a certain Aschenbourn’s who was not called by any of the parties. It was alleged that there existed discrepancies and inconsistencies between the statement she gave to the police, her evidence-in-chief and the statement given by Aschenbourn. I pause to state that the statement of Aschenbourn, who is a witness in the court, is not a quo and is inadmissible hearsay as far as it is tendered to establish the truthfulness of what is contained in it.
Counsel for the respondent in respect of the arguments regarding Joschko and Inspector Havenga’s testimonies argued that Joschko’s testimony that she never saw the car on the right side was corroborated by State witness Stevenson who testified that the appellant went over the hill on the right hand side of the road after overtaking and two to three seconds later when he went over the hill he saw puffs of smoke. Paul and Hazel Oosthuizen also corroborated Joschko that the appellant was driving on the wrong side of the road as he went uphill. Regarding information in the Namibia Road Accident form that was put to Joschko that the area where the collision occurred was flat, it was argued that the accident scene itself was at a plateau; to get to that point, one had to drive uphill on both sides of the road to get to that flat area. This version was corroborated by State witnesses Paul and Hazel Oosthuizen, as well as Brian Louw, Stevenson, Joubert, Graham, Hepkema, and defence witness Knouwds, who testified that to reach that spot there was an incline.
Concerning Inspector Havenga’s testimony, counsel for the respondent argued that Joschko could not be held to what Havenga testified to, as Joschko’s testimony was clearer and more credible than Havenga’s. Concerning exhibit O, photos compiled by defense witness Nico Smith, counsel argued that such photos were misleading as they were taken while he was outside the vehicle, whereas Joschko was seated in a vehicle. This means that their viewpoint would have been different. This is borne out by the fact that the drivers in their vehicles, namely Paul and Hazel, could not see over the hill and only saw the Ford Ranger at impact after they had also crossed the hill. Stevenson testified that he remained on his side. He could not overtake because he could not see over the crest.
Counsel for the appellant argued that police officer Murorua accompanied police officer Havenga to the scene on 31 December 2014, but he did not attest that there was any hill behind which a vehicle could disappear from sight of oncoming traffic and that he did not measure the depth of this incline in the road at the scene of the accident. He took photographs as directed by Havenga at the crime scene. Murorua then compiled a photo plan. According to Murorua, the possible area of the point of impact was 55.1 m south of the final next portion of the FJ Cruiser. However, this possible point of impact was disputed by expert witnesses called by both the defence and the State, who testified that the area of impact was at the gouges visible on the road at the scene of the accident. Counsel further argued that none of the witnesses measured the depth of this dip because they did not consider it to be a blind rise. Therefore, the blind rise was an afterthought and never formed part of the expert witnesses’ versions. Murorua’s testimony was further criticized because he failed to see gouge marks.
As to the evidence of Hazel Oosthuizen, counsel for the appellant argued that Ms Oosthuizen testified that the appellant overtook her vehicle when it was safe to do so and then moved back to the correct lane in front of them. Thereafter, the FJ Cruiser tail was swerving and the next moment it totally lost control and moved right. The FJ Cruiser was going uphill. With one sudden movement, it moved to the right into oncoming vehicles, and this was where the collision took place over the summit, where the road was levelled. The witness was unable to explain whether the collision was a head-on collision or a front-side collision. She also did not precisely see the angle which the motor vehicles collided. It was further argued that the Oosthuizens’ statements were copycats.
With regard to Mr Paul Oosthuizen’s testimony, counsel for the appellant argued, among other things, that he testified that he was driving at about 100 km per hour. However, when he was cross-examined, he confirmed that, at the time the FJ Cruiser drove behind him, it must have been driving at approximately the same speed as his motor vehicle. The witness was further asked as to the condition of the road where the appellant’s vehicle overtook his vehicle, and he stated that it was a small road, uneven, with good sight, and it was reasonably levelled. He further stated that the motor vehicle passed by and it moved first towards the correct side of the road. In the process, he could immediately see that the FJ Cruiser was not under control, as its rear was drifting left and right. When he was asked during cross-examination why he did not see any oncoming vehicles when the FJ Cruiser overtook them, the witness testified that there was an uphill in front of him and his vehicle was lower than the uphill.
When the witness was asked to explain where the collision happened on the road, he explained that the accident happened on the wrong side of the road which is the right side of the road as the FJ Cruiser immediately drove into the Ford Ranger, an incoming vehicle. The witness further explained that he first saw the Ford Ranger at the point of collision, as the road was lower at the plateau, and that when the collision occurred, he was not yet on the crest. He further maintained that he did not lose sight of the FJ Cruiser.
In respect of the above arguments by counsel for the appellant, counsel for the respondent argued that even if Murorua was criticized in connection with the photographs he took because he failed to locate the gouge marks, besides the photo plan that he compiled, this evidence was supplemented by the State’s reconstruction experts.
Concerning the evidence of Hazel Oosthuizen, counsel for the respondent argued that about 12 km from Henties Bay, a white FJ Cruiser was driving too close behind their vehicle, and it overtook them and accelerated quite significantly. They were driving at about 95 km per hour. The appellant overtook where there was a blind spot and one could not see what was on the other side of the road. As they went over, she saw that the appellant’s vehicle collided with a white Ford Ranger which overturned and rolled over. The FJ Cruiser moved a bit and burst into flames. The witness testified that the accident took place on the wrong side of the road in the appellant’s vehicle. She was unable to be precise about angles and distances at point of impact. She testified that her husband and another person pulled out the appellant and heard her husband screaming that the appellant was under the influence of alcohol. She testified that the appellant’s speed was very fast and he had no control over his vehicle and was on the wrong side of the road. According to her testimony, the Ford Ranger was not on the lane of the appellant. When she was asked why the details she furnished at court were not included in her statement, she maintained her version of what she saw and what caused the collision.
Counsel for the respondent argued that there was no reason for Hazel and Paul to say that the appellant was in the wrong lane if that was not what they saw. Hazel was adamant that the appellant drove on the wrong side at the blind spot. Counsel further argued that when it was put to Hazel that her perception that the appellant drove to the right at the point of impact was destructive to Mr Joubert’s findings who said at the point of impact the appellant went left. The witness reiterated her evidence in chief that the appellant made a mistake and turned to the left and could have corrected himself in a split of seconds as he went uphill. Counsel for the respondent argued that there was no contradiction with the witness’ version as she was correct when describing the appellant’s movements. The witness denied that the Ford Ranger was on their lane of travel. She clarified that the Ford Ranger was pushed to their lane of travel on impact. Counsel again argued that there was no fabrication of a blind rise, as this was confirmed by the maps of the road that Hepkema testified on, and this was corroborated by Joubert, who testified that there was a blind rise.
Counsel for the respondent again argued that Paul and Hazel Oosthuizen corroborated each other that when the appellant overtook them, his vehicle was not under control. Paul Oosthuizen maintained that the collision was on the right side of the road (the Ford Ranger’s side) despite being cross-examined that the gouge marks were in the appellant’s lane of travel. Oosthuizen further maintained that the appellant’s vehicle swerved to the right, although the appellant could have corrected himself. The witness was very clear on how he observed the collision. According to him, it was on the level part of the crest after the appellant had driven up in a zigzag fashion from loss of control. The witness testified that the appellant stayed about five seconds behind him as opposed to the seconds that were said to be by Smith through a secret recording done in contravention of the witness’s right to privacy of communication. Such a recording without the witness’s consent is inadmissible. The court a quo correctly exercised its discretion by disregarding Smith’s secret recording. Smith is a civilian and had interest in the matter as he had a relationship with the appellant and his father.
Oosthuizen testified that he was close to the appellant and he could smell alcohol. The witness also asked the appellant whether anyone else was in the vehicle, and the appellant said his friend was. Counsel argued that the appellant understood what was being said to him, and he was aware of what was going on when the collision occurred. Therefore, the appellant was not suffering from amnesia at that stage. Regarding the statements by Paul and Hazel Oosthuizen that were said to be copycat statements, they explained that they observed the incident together. They did not try to mislead the court that they had discussed the case. The witness admitted they were unsure what to do because the police had not contacted them. This shows that they were responsible citizens. They were aware that, as eyewitnesses, their evidence was crucial to ensuring justice.
Counsel for the appellant argued that Joubert, the expert witness, testified twice. He was recalled after State witness Graham testified. The information became available after Graham testified, which Joubert never testified about earlier. He was cross-examined on the omissions when he was recalled. It was argued that such discrepancies and omissions had a direct effect on his credibility and the reliability of his evidence. It was argued that Joubert testified that he first arrived at the scene on 7 January 2015, when Louw identified it to them. However, it was later discovered that Joubert and Graham visited the scene on 5 January 2015. Therefore, Louw did not point out the accident scene, as Joubert testified. According to Joubert, he observed the gouge himself, and Louw indicated the final resting position of the two vehicles. However, this contradicts Louw’s testimony that he pointed out all the relevant marks to Joubert, including the scuff mark.
Joubert prepared a PowerPoint presentation as part of his report. It is contended that his report is not accurate. Joubert testified that the scuff mark is almost at the top of the uphill and the road became levelled up to the point of impact. Joubert confirmed that the gouge mark was created during the two vehicles’ maximum engagement. This dispels any notion from Havenga and Murorua that the accident took place at point in exhibit R. Counsel for the appellant argued that the scuff mark that Joubert relies on for his conclusion is disputed, as the evidence concerning the scuff mark does not meet the scientific definition and characteristic of a scuff mark as per evidence of Stanley Bezuidenhout and Wilna Badenhorst, both defense witnesses. It was argued that Joubert testified that, about halfway between the incline and the summit of the hill, the grade changed to 2.1°. It became steeper uphill.
Counsel further argued that this is misleading. As a driver approaches the summit of the hill from Swakopmund, the road flattens out. This would be consistent with Havenga’s Road Accident Report, which indicates the area of the collision to be flat. Counsel for the appellant again argued that Joubert manipulated some figures and measurements in his electronic program. Joubert tried to justify his evidence in respect of photo 43 by comparing it with photographs 2 and 6, in which he saw a rise and a dip, whereas no blind crest was visible in those photographs. Nowhere in Joubert’s report is there any mention of a blind crest. Joubert did not consider the rise to be a blind crest or a blind hill whilst compiling his report. Joubert testified earlier that the Ford Ranger was lying on its right side, contrary to his PowerPoint presentation, in which he said it was lying on the left side.
[According to Joubert’s report, the gouge mark was the area of maximum engagement and not the point of impact. The point of impact was 0.5 m in the southbound lane. This is improbable and impossible. Joubert attempted to place the F J Cruiser in the south bound lane, the version that would suit Hollard Insurance Company who commissioned him to compile the report. Another criticism directed at Joubert’s report or testimony is that defense expert witnesses believed Joubert used the wrong momentum calculation formula for this type of collision. He used an angular momentum calculation, whereas he should have used a linear momentum formula due to the angle at which the vehicles collided. It was further argued that Joubert used an alleged pre-impact velocity of 85 km/h for the Ford Ranger, which he allegedly obtained from a Europcar GPS Tracking System Report. However, this was later found to be not the case as he had no access to such a report.
According to Europcar’s Schoeman, the last 10 entries in the tracking system for the Ford Ranger, covering 1,826 km, show the driver driving at speeds ranging from 98 to 105 km per hour. This is an average of 102.7 km/h for the above distance. Without the Ford Ranger’s correct speed, Joubert would be unable to calculate the FJ Cruiser’s pre-impact velocity, as he claimed it was 147 km per hour. Furthermore, it was argued that according to the defense expert witnesses Bezuidenhout and Badenhorst, the point of maximum engagement and the point of impact were at the gouge mark in the northbound lane, the correct lane of the FJ Cruiser. Joubert testified that the internationally accepted perception reaction time for brake application is one and a half seconds; in the case of swerving, it is one second for an average driver. This is disputed. Joubert failed to consider that the appellant was an experienced seasonal rally driver at the time, whose reaction was much better than that of the average driver.
It was again argued by counsel for the appellant that Joubert did not know how the mark he saw on the side of the road was caused or what caused it. Such a mark could only have been caused by the grader entering onto the road where the alleged scuff was found, as shown in exhibits MM and NN. Joubert conceded that exhibit MM photo 19, taken by defense witness Smith, depicted a position almost identical to that shown in the exhibit. Exhibit MM was taken by Smith on 30 December 2014, the day after the accident, whilst Joubert’s photographs 11 and 12 were taken on 7 January 2015 after the road was soaked by rain. The evidence of Joubert was challenged as inaccurate, as it is alleged that he changed five other values from the original calculations, despite confirming that no measurements had changed from those obtained on 7 January 2015. Counsel argued that the court a quo ought to have rejected Joubert’s report.
With regard to the testimony of State witness Brian Louw, an engineer, counsel for the appellant argued that the witness testified that the scuff marks were on the left edge of the road, facing towards Swakopmund. He also testified that he informed Joubert and Graham that there was a possibility the scuff marks were caused by something else or another vehicle. He could also not say in which direction the vehicle that made the alleged scuff mark was travelling. Considering the volume of vehicles that travelled on that road between 29 December 2014, after the accident, and 5 January 2015, it is impossible for Graham to conclude that they found a wide scuff mark that could only have been made by the FJ Cruiser.
It was argued on behalf of the appellant that State expert witness Hepkema testified that the road where the accident occurred is almost a straight alignment, and the road’s horizontal alignment was not altered at this location. The road was flat from km 93 plus 0 to 93 plus 2. Whereafter, the road was 1.8 m to a crest at km 93 plus 32, whereafter it had a flat down slope of around 0.5 per cent, that is, 5 m per 100 m, so it is slowly going down. The small dip on the downslope is located at 93 plus 520; the downslope ends at km 93.2, hence at 93 plus 940, from where the road rises again to the next place at 94 plus 2. In essence, Hepkema testified that a vehicle travelling at 100 km per hour would need 200 m to stop safely. The crest between the two vehicles meant that the drivers from opposite directions could only see each other when they were less than 200 m apart. The witness explained to the court that the Roads Authority was obliged to paint a barrier line when visibility is less than 400 meters, with the lines spaced 200 meters apart, or, if that is not possible, to put up a non-overtaking sign to warn road users.
It was put to the witness that the reason there were no road signs or warning signs on this particular road was that the vehicles approaching would have had sight over the elevation or crest. The witness responded that based upon his findings in his report, the vehicle that travelled from Henties Bay would have had sight, although to a limited extent, a better sight over the crest and its sight would have become earlier, not being obstructed by the crest as a result of the lesser gradient. He further testified that, according to Exhibit XXX, the vehicles involved in the accident would become visible to each other at a distance of 460 m; beyond that, visibility may be limited until 420 m, and then, for a very short period, until 360 m, they would not be visible to each other. From 360 m until the crest, they would be visible to each other.
On the other hand, counsel for the respondent argued that Joubert, the expert witness and accident reconstructionist, was recalled because when the trial started and when he testified, there was supposed to have been a car track report on the speed of the Ford Ranger. But what the State had at that stage was just the evidence of the owners of the Ford Ranger, Mrs Olivier of Europcar, who testified about the screenshot of the last speed when the accident happened, which was 80 to 85 km per hour. The State then got car track records. Mr Schoemann testified that the last reading of the car track report was at 105 km per hour. But it turned out that the 105 km per hour was the reading 500 m before the accident occurred. Mr Joubert was asked by the State to recalculate the speed he had found using 105 km per hour instead of the 85 km per hour he initially used. Therefore, it cannot be said that Joubert manipulated or altered the sketch plans, as he was now using different values.
Counsel proceeded to argue that Mr Hepkema, a road engineer, testified that there was a blind crest at the area where the accident occurred. Hepkema was involved in the construction of the road. Using the measurements he took along that road; he was able to say there was a 1.8-metre rise at the point where the accident happened. His testimony was that the hill or crest is where you normally would not be able to see. When he conducted the sight distance test or the stopping sight distance test, he confirmed that there would be points where drivers of the two vehicles, travelling in opposite directions, would not be able to see each other. Concerning the photographs 17 to 21 taken by Mr Smith or from his photo plan shown to the court and depicting that when you are at the point of impact you can see both sides, meaning that there is no obstruction, the State argued that these photos were taken by a person outside a vehicle. They are not taken from vehicles which are either side of the crest. There are testimonies from people inside the vehicles that they could not see over the crest. Eyewitnesses Hazel Oosthuizen, Paul Oosthuizen and Stevenson all testified that one could not see on the other side when the appellant overtook their vehicles. Antonia Joschko, Hazel, and Paul Oosthuizen all testified that the accident occurred on the correct lane of the Ford Ranger.
Counsel for the respondent argued that Joubert determined the point of impact to be 0.5 m inside the lane of the vehicle moving towards Swakopmund, the Ford Ranger’s lane. He explained that he did not use the measurements or values that he obtained from the scuff mark that they found. As for photograph 43, which was said to be manipulated or contaminated, it was argued that the photograph showed Mr Graham measuring the road gradient at that point. That point had nothing to do with the collision in this case. He was measuring the road’s gradient to show that it was too steep for road construction or authority. However, the State conceded that, at first, Joubert mistakenly used it as the area where the collision occurred. However, Graham testified that he took the photograph for the above-stated reasons.
The correct point of impact is the one that was shown by Hepkema, where the sight distance was determined. By the end of the hearing in the court a quo, everyone was clear that it was a mistake that was corrected. The point that Joubert initially depicted as the area where the accident occurred in photograph 3 was actually 14 km away from the scene. Regarding the formula of calculations used by Mr Joubert that was alleged to be wrong when he came up with a speed of 147 km per hour being the speed driven by the appellant at the time of the collision, counsel argued that even if this speed is disregarded, the evidence of eye witnesses shows that the appellant was driving very fast above the speed limit at the time of the collision. This argument is based on the testimony of Stevenson, whom the appellant first overtook before he overtook the Oosthuizens, that he was driving between 110 and 115 km per hour. For the appellant to overtake someone going over the speed limit means he was driving over the speed limit. Van Zyl also testified that a white FJ Cruiser overtook him at the 32-kilometre point, and he estimated the speed to be about 150 to 160 km per hour.
Counsel for the respondent argued that it is not correct that Joubert did not refer to the blind crest. He referred to the blind crest when he said the following:
‘The Toyota Cruiser only became visible to the driver of the Ford Ranger just before the Toyota FJ Cruiser reached the summit of the hill, therefore within seconds perception/reaction time for the driver of the Ford Ranger to have swerved. The Toyota FJ Cruiser was outside the line of sight in the 1.5 seconds/perception/reaction time needed for the driver of the Ford Ranger to have applied brakes.’
The description clearly shows that there was a blind crest. The fact that Joubert used different words to describe it does not mean he only spoke about it after hearing the State witnesses’ evidence. There might have been concessions to mistakes made in the use of the formula for calculating speed, but the evidence of eye witnesses, Antonio, Hazel and Paul, Stevenson, as well as Van Zyl, proved beyond a reasonable doubt that the appellant was driving recklessly.
With respect to Louw’s testimony, counsel for the respondent argued that Joubert requested that Louw indicate the crime scene on 7 January 2015. Louw was the first medic to attend to accident victims on the day in question. The road was cleaned by then, but a lot of the marks could still be seen. Police officer Lange confirmed that sand was used to cover the holes where the collision occurred. The witness confirmed the final resting positions of the FJ Cruiser and the Ford Ranger after they were put back on their wheels. He assisted in moving the Ford Ranger about a meter from its position when it had been put on its wheels. He further testified that a day or two later, he saw photos in the media of the Ford Ranger in its original resting position, nose down. This was before he met Joubert. Counsel argued that the witness could describe the initial resting position of the Ford Ranger before it was put back on its wheels. He was also able to see the mark the Ford Ranger made when it came to rest before it was put on its wheels. Skid marks were still there. The witness testified about seeing a scuff mark that was consistent with a vehicle coming from the direction of Swakopmund. However, it was difficult to say that it was made by the same vehicle. Louw further testified that driving from Henties Bay one cannot easily see the blind rise as it is deceptive and one could not really see cars. Counsel for the respondent argued that this witness’s evidence was clear and satisfactory in all material respects.
Counsel for the respondent further argued that besides observations made by Graham at the scene, he went together with Joubert to the place where the two vehicles were towed to. His observation on the Ford Ranger was that the bottom of the cross-member made contact with the ground and caused the gouge mark found at the scene. The cross member had the same composite as found at the scene. Counsel argued further that the witness also made observations of the F J Cruiser that the crumble zone and the destruction of the vehicle reflected a high-speed impact, not below and close to 150-160 km per hour. The fact that the vehicle’s body moved over its own chassis reflected high speed. Through cross-examination, he testified that a car getting out of control at 160 km per hour would not necessarily leave brake marks, as it has ABS and is computerized, and that it would decide how to apply the brakes.
When it was put to the witness that the F J Cruiser was in its own lane of travel when the accident happened, he responded that the angle at which the gouge mark was formed shows that the force exerted onto the Ford Ranger came from the opposite lane. The witness also did a brake skid test with a vehicle similar to the Ford Ranger, and the measurements were recorded by Joubert. Counsel further argued that this witness is a diesel mechanic.
Counsel for the respondent argued that with regard to the criticism levelled against Hepkema, the engineer, by the defense during cross-examination that he did not use the correct eye line of the appellant as was used by Mr Knouwds in cross-examination, Knouwds conceded that a person may not be sitting straight in the car, may be slouched or leaning forward. The seat can also be adjusted. Knouds testified that he used the provided height. It is argued that in the absence of confirmation from the accused himself on how he was seated and the height at which the seat was (whether at the collision point it was adjusted or not), since he has no memory of the events immediately before the collision, it cannot be said that the 155 cm used to calculate the sight distance is accurate. Furthermore, the FJ Cruiser driven by the appellant was not used as the seats were destroyed in fire. A similar FJ Cruiser was used.
The fact that there was a point that one could not see over the hill was corroborated by Stevenson, Hazel Oosthuzen, Paul Oosthuizen and Antonio Joschko. It was again counsel for the respondent’s argument that Hepkema testified on the stopping distance that for a vehicle moving a 100 km per hour, it would need 200 m to be able to stop safely. According to his calculations, there was not enough time to stop once the two drivers saw each other. This was corroborated by Joschko, who testified that there was no time for her father to avoid the collision once the accused’s vehicle became visible to them. This is consistent with Hepkema’s testimony that the crest between the two vehicles meant the two drivers could only see each other when they were less than 400 m apart, and 400 m is not a sufficient distance to stop safely at 100 km or more per hour.
Counsel for the respondent argued that a distance of 400 m means that each driver will be 200 m from the point they would meet, so each driver travels 200 m to reach the other if they are travelling at the same speed. This means either driver has 200 m to stop and not 400 m. These are the reasons Hepkema and Joubert testified that there was insufficient time and distance for the two vehicles to avoid each other, resulting in the collision. Hazel and Paul Oosthuizen confirmed that the appellant overtook them when they were driving at 95 -100 km per hour. The appellant accelerated rapidly whilst still in the right-hand side lane. This indicates that the appellant must have exceeded the speed limit of 100 km per hour or higher. Hepkema was asked, through cross-examination, about the effect of using a sitting height of 155 cm instead of the 150 cm he had used, and he responded that it would not be substantial. He further explained that sight distance can be calculated mathematically, but the graphic method he used is better for explanation.
[Counsel for the appellant argued that on that day, the appellant poured himself a shot of vodka with Coke Zero. He got into the car, basically just pulled away, realized he was wasting his time, and that he was going to mess up the car, so he poured it out. Thereafter, he drank a Coke Zero out of the tin, without drinking any liquor again that day. He remembered that, enroute to Swakopmund, he overtook vehicles when it was safe to do so. He only overtook the vehicles that were driving slower than the rest of the traffic. The appellant specifically remembered one incident in which he overtook a slow-moving vehicle at a barrier line to avoid colliding with the vehicles behind him. When it was put to the appellant that he overtook lines of vehicles at a high speed to the extent that the oncoming vehicles flashed their headlights at him and these vehicles had to drive from the road, he responded that he did not know why Mills would say such a thing as he would not have passed vehicles at a blind spot nor would he pass vehicles when there was not enough space to come back to his lane.
Counsel for the appellant further argued that when the appellant was approached by Motinga that he received a complaint in connection with the manner he was driving, he provided police officer Motinga with the explanation of what happened and he was given a warning that he should drive carefully or cautiously. The appellant continued his journey until Mile 28, when he spoke with his passengers. From there, he had suffered from amnesia except on the day he woke up in the hospital, and his mother told him that he was involved in a car accident. Regarding the appellant losing control of his vehicle, it was argued that he testified he could not believe he had lost control, as there was no reason he should have. It was further argued that the appellant had no intention to hurt anyone.
Counsel for the appellant further argued that due to the loss of memory the appellant had suffered, he was referred to a psychologist, Dr Badenhorst, one of the defence expert witnesses who evaluated the appellant. She compiled an evaluation report, marked as Exhibit BBBB. According to the evaluation report, the appellant could not recall any details of the collision. The appellant experienced the motor vehicle accident as very traumatic, and he suffered serious injuries from the accident, which were still affecting his daily functioning. The appellant could only remember reaching Mile 28 on the way to Henties Bay, about 12 km before the accident scene. Dr Badenhorst highlighted that the appellant’s memory loss of the accident that occurred on 29 December 2014 could be explained in the context of the traumatic experience, his traumatic brain injury (TBI), as well as the severe emotional trauma that he suffered as a result of the accident or emotional trauma as a result of the impact of the accident.
Counsel for the appellant argued that Smith, one of the defense experts called by the defense, inquired from Warrant Officer Havenga, who arrived before him at the scene, whether she had any idea what happened. According to Havenga, the FJ Cruiser was traveling from Henties Bay to Swakopmund and it was on the wrong side of the road and it collided with the Ford Ranger. According to her information, the point of the collision was much further south from where the vehicles ended up. However, this did not make sense to Smith, as he saw no signs of a collision from the south. Smith informed Havenga that he found it strange because, according to him, the FJ Cruiser was travelling from Swakopmund to Henties Bay. She further told him that another witness had a different version. However, under cross-examination, Havenga denied having such a conversation with Smith. It was further argued that when Smith asked Havenga whether he could take photographs, she refused and told him to wait until they finished. This is why most of the photographs were taken outside the cordoned-off area. According to Smith’s observation, the impact damage was to the left front side of the Ford Range as depicted in photograph 10. The gouge mark was in the northbound lane. There was a lot of debris in the immediate vicinity, indicating that the point of impact was at the gouge mark. He estimated that the vehicles involved in the accident were 9 to 10 m from the gouge mark.
According to photograph 12 of Smith’s photographs, there is a small pole on the eastern side of the road. This is the same pole that was referred to in Exhibit CCC 10 where Joubert claimed he found the scuff mark. From this photograph, Smith testified that he found no debris, tyre marks, skid marks or any other mark on the road that could indicate movement of colliding vehicles from that small pole up to the vehicle parked in the middle of the road at the gouge mark. However, when he returned to the accident scene the following day, on 30 December 2014, between 14h00 and 15h00, the condition of the road changed. The northbound lane, as well as the shoulder of the road on the western side, was graded from the gouge mark going south towards Swakopmund. It was further argued that, according to photograph 16, one could see how far one could see in the northerly direction. There was no blind rise as the vehicle approached the area of the collision from a northerly direction.
It was again argued by counsel for the appellant that Smith did a drag test in order to determine what the coefficient of friction value of this salt road would be. The calculation by Joubert included a factor for a tar road, which is not the same as a salt road. Smith was also instructed to measure the distance from the ground to the level of a person sitting in a vehicle to the roof of each vehicle. From the ground to the eye level of the FJ Cruiser, it was 155 cm, and for the Ford Ranger, it was also 155 cm. It was Smith’s conclusion that the area of impact had to be in the western (northbound) lane. He could not find any indication of damage to the eastern (southbound) side of the road, which might indicate an impact on that side.
Counsel for the appellant argued again that another expert called by the defense was Stanley Bezuidenhout, an accident reconstruction specialist. His investigation commenced on 7 January 2015. He visited the accident scene on 8 January 2015. He considered photographs, witness statements, and his own observations of the scene and vehicles, and compiled a report, Exhibit FFF. He testified that there was no road sign observed near or in the area directly around the scene of the collision. The closest signs observed in relation to the scene were a lights-on sign 2.1 km south of the scene and a T-junction sign 1.5 km north of the scene. Relying on the photographs taken from Smith’s report, he testified that the gouge mark is in the lane of travel for the F J Cruiser, northbound. He concluded that the FJ Cruiser was travelling in its lane immediately prior to the collision occurred. The FJ Cruiser was not coming diagonally across the centreline prior to impact, as per Joubert’s conclusion. He found that the collision was not a pure head-on collision but an offset collision, albeit at a small angle.
It was argued that both vehicles would have rotated anticlockwise in the collision as per Bezuidenhout’s testimony. This is evident from the damage to the two vehicles. The damage to the front side of the FJ Cruiser moved from right to left and backwards. This means that from the point of impact to maximum engagement, the Ford Ranger was exercising force on the FJ Cruiser from the front and displacing the components from right to left. In respect of the Ford Ranger, the FJ Cruiser was exerting forces from the left corner of the vehicle into the vehicle at a 47° angle. Bezuidenhout’s conclusion was that the FJ Cruiser was approaching in its correct northbound lane when the impact occurred. The gouge mark is evidence of that. The FJ Cruiser had already returned to its lane on the point of impact. The driver of the Ford Ranger, since he is from Germany, where traffic drives on the right, took the right and entered the FJ Cruiser’s lane of travel.
The witness further concluded that the final rest position of the Ford Ranger, as stated by Joubert in his report, was wrong, as the vehicle was flipped on its wheels and then pulled away from the fire. Joubert was off by two m regarding the Ford Ranger’s exact position. Any calculation that relies on that position as a variable will be negatively impacted. He found several errors in the accuracy of the scale plan drawn up by Joubert. According to Bezuidenhout, contamination of the scene before any measurements could be obtained contributed to some of these inaccuracies, which Joubert should have taken into account when he compiled his scale plan. It was argued that although Joubert mentioned that the shoulders of the road were scraped shortly after the accident, he made no reference to the road itself, which was also scraped when Bezuidenhout visited the scene on 8 to 9 January 2015. It was argued that Bezuidenhout disagreed that the Ford Ranger left any visible wheel impressions because the vehicle was standing on its nose with rear wheels in the air.
It was also argued that Joubert used the wrong baseline as he was inaccurate in drawing the scale plan. Bezuidenhout disagreed with Joubert’s report that the direction of travel of the Ford Ranger at separation can be derived from the gouge mark caused at maximum engagement on the basis that without actual evidence of the path travelled by the center of mass of a particular vehicle in a collision, any reconstructionist can only use a straight line from maximum engagement to a final rest position to indicate the departure path of travel from maximum engagement. Bezuidenhout opined that the point of impact and the point of maximum engagement in this collision were practically the same area, where the black tyre marks began and the gouge formed. It was contended that there were no scuff marks in the area, as alleged by Joubert at the time of Bezuidenhout’s visit to the scene.
It was further argued that Bezuidenhout confirmed that from eye height to eye height, the drivers of the vehicles were more than 300 m apart. Considering Hepkema’s testimony that roads are designed to allow 200 m to come to a complete stop, it was argued that in the present matter, the vehicles were not required to come to a complete stop, and the drivers of the FJ Cruiser and Ford Ranger had more than enough time to notice each other. It is further argued that this nullifies Joubert’s version that the driver of the Ford Ranger had less than one second to swerve and therefore could not avoid the accident.
Counsel for the appellant argued further that another defense expert witness who is also an accident reconstruction specialist, Badenhorst, was called. This witness did not visit the accident scene but she had to rely on the information she was provided with, namely a report by Mr Joubert, measurements taken by Mr Smith in respect of the coefficient of friction value of the salt road surface, photo album sketch plan and key to the sketch plan by police officer Murorua, photo album by police officer Havenga, various photographs of the scene of the accident and photographs taken by Mr Stanley Bezuidenhout as well as google images. After she analysed the photographs contained in the reports she was given as well as the Google images, she concluded that she did not agree with Mr Joubert’s report. Upon analysing the images, she observed that the impact force that worked on the left front of the FJ Cruiser was greater than the impact force that worked on the right front of the FJ Cruiser. The principal directions of force that acted on the FJ Cruiser are not a centric force and resulted in the FJ Cruiser experiencing a distinct counterclockwise rotation because of the impact. The counterclockwise rotation that the FJ Cruiser experienced is represented by the curved arrow in image one.
It was argued that it was Badenhorst’s expert opinion that the right front hand side of the Ford Ranger was not really affected by the direct contact during the impact. She further opined that the left front wheel of the Ford Ranger was pushed far back, and it was almost underneath where a left front passenger would have been seated. The wheel was positioned where it was because of the massive impact on the left side of the Ford Ranger. She concluded that both the FJ Cruiser and the Ford Ranger could have rotated counterclockwise, meaning the Ford Ranger would have rotated to the left of the FJ Cruiser, and the FJ Cruiser would have rotated to the right. She explained that this would correspond with the Ford Ranger moving to the western side of the road surface and with the FJ Cruiser coming to rest more or less in the middle of the road surface. The rotation could not have been clockwise because then the FJ Cruiser’s final rest position would have been towards the west, and the Ford Ranger’s final rest position would have been towards the right. It was further argued that the point of impact was on the FJ Cruiser’s correct side of the road, according to Ms Badenhorst.
It was argued by counsel for the appellant that, according to photograph 18 of Badenhorst’s report, two gouges indicated by the two black arrows were made by the inner and outer rim flanges of the left front rim of the Ford Ranger. However, she explained to the court that the gouge itself is not meaningful in terms of any pre-collision of any of the two vehicles, as there was a lot of deformation during impact, and the rotation experienced by the vehicle is making the gouges, so it does not assist in determining what happened before the impact. She further testified that, as far as the speed of the respective vehicles was concerned, it was not possible to do any meaningful speed calculations for either of the two vehicles due to the type of collision. This is because the collision did not fit either the linear momentum or the angular momentum calculation scenarios used by Mr Joubert to calculate the speed of the FJ Cruiser. It was her opinion that Joubert was wrong to apply the angular momentum calculations in this collision.
It was further Badenhorst’s opinion that angular momentum calculations are not carried out for opposite-direction collisions such as this collision. It was further argued that according to Joubert’s report, the FJ Cruiser travelled 9.77 m after impact, and the Ford Ranger travelled 11.8 m after impact, but the Ranger also overturned after impact. Where vehicles have travelled less than 15 m after impact to their final rest positions, most of the time experience rotation over less than 15 m, which may lead to less accurate post-impact speed calculations. It was further argued that, according to Badenhorst, Joubert used an incorrect coefficient of friction of 0.8, as shown in the formula in his report. This coefficient of friction of 0.8 is, in general, an acceptable value to consider for a good, tarred road surface under dry circumstances. It was Badenhorst’s opinion that it would be incorrect to apply a 0.8 value for the surface of salt road, without measuring the actual coefficient of friction value.
Badenhorst testified that she requested that Smith measure the coefficient of friction, which was done using a drag sledge. The average of all Smith’s measurements yielded a coefficient of friction of 0.52, which is more realistic. It was again Badenhorst’s testimony that Joubert observed a tyre scuff mark made by the right front tyre of the F J Cruiser on the eastern side of the salt road surface and that the scuff mark played an important part in his analysis. He used this scuff mark to connect it to the area of impact, to indicate or try to establish an approach angle for the FJ Cruiser. It is her opinion that it was highly unlikely that the mark referred to by Joubert was a high-speed tyre scuff mark made by the FJ Cruiser. The witness further disagreed that the reaction time differs for braking and swerving. It was her opinion that the typical average reaction time for a driver to a roadway hazard is in the order of 1.6 seconds, and 1.5 seconds is also accepted, irrespective of whether the driver applies the brakes.
With regard to the evidence of civil engineer Jacobus Knouwds, counsel for the appellant argued that his testimony was that he had to determine what the sight lines were between the drivers of the two vehicles involved in the collision, approaching a certain portion of the road that was indicated as the point of impact. The F J Cruiser was indicated to come from the direction of Swakopmund. The roof height was 1.78 m, and the driver’s eye height was 1.55 m. The Ford Ranger was coming from the direction of Henties Bay. The roof height was 1.81 m, and the driver’s eye height was 1.55 m. He testified that in relation to the point of impact, there was a crest with a dip to the north and south. Knouwds testified that his methodology was to place the vehicles in the lowest positions on either side of the crest.
He drew a line from the eye level of one driver to the roof of the other vehicle, and vice versa. It was his testimony that the distance between these two lowest points is 360 m. According to his measurements, the FJ Cruiser was 210 m from the point of impact, and the Ford Ranger was 150 m from it, as it was positioned at the lowest point, totaling 360 m between them. Knouwds further concluded that each driver seated in their respective vehicles had a direct line of sight to the approaching vehicle on the other side of the crest. As these vehicles approached each other at 240 m, they were already able to see each other’s shoulders, as the clearance above the crest is 46.9 cm. Knouwds continues to testify that at 560 m apart, the two drivers could see each other’s vehicles. However, they then lose sight of one another and regain sight of each other from 460 m onwards. Concerning the question by the State whether the weight he used in his drawings was correct, he said he had no personal knowledge whether they were correct because he was given the drawings by Smith, who testified before him. It was again argued that according to Knouwds, the vehicles were visible to each other at a distance of 360 m. Mr Knouwds worked at the engineering firm that compiled the road construction map, as evidenced by Mr Engelbrecht. He was in charge of the projects while these roads were constructed.
Counsel for the appellant argued that the collision could not have taken place under the circumstances suggested by the State. Speculations, mere theories and suggestions could not avail the State’s suggestion that it could be a probable cause of the accident. Having regard to the real evidence, there was no possibility that the accident happened in the manner testified to by State witnesses. The inferences to be drawn must comply with certain rules of logic. The reasonable inference has to be drawn only from proved facts and not from facts based on speculation or suspicion.
Counsel for the appellant further argued that the court was faced with mutually destructive versions. Therefore, the court must have a good reason for accepting one version over the other and should not only consider the merits and demerits of the State case, but also the defense case and the probabilities. Counsel further argued that the State had the duty to prove its case against the appellant beyond a reasonable doubt, and it was not for the appellant to prove his innocence. Counsel argued that in this matter, the State has failed to discharge its burden of proof.
Counsel for the appellant further argued that if the evidence by the witnesses for the State were true, that the appellant had moved into the line of travel of the Ford Ranger, then the accident would not have happened where it did. The court cannot place decisive reliance on the State witnesses of fact, as their testimonies lack credibility, inter alia, due to material contradictions. Furthermore, when one considers the written statements the said witnesses made after the accident, weighed against the objective factors and the evidence observed at the scene, their versions of events are improbable and unreliable. Therefore, they should be rejected.
Besides, State witnesses contradicting themselves; they embellished the statements they made earlier with factors and more intricate details that would ordinarily have been expected to have been included in their statements when the events were fresher in their memory. The fact that they appeared to remember these much later is suspect, as human memory does not improve with time. Counsel urged this court to reject the evidence adduced by the State.
Counsel further argued that Joschko was a single witness and the court a quo failed to exercise caution in dealing with the evidence of a single witness. In connection with murder with dolus eventualis, counsel argued that the State, in its head of argument, makes a blanket suggestion that it proved the charge of murder with dolus eventualis without alluding to on which basis in law this is based. If foresight of any possibility, however remote, should suffice for dolus eventualis, that would set the threshold potentially lower than that for negligence, which requires the possibility to be reasonably foreseeable.
Counsel for the appellant again argued that the accident occurred on a salt road with no marked lanes, edges, or proper road signs. The expert witnesses worked with a so-called imaginary middle line, into which, according to the State’s expert witness, the appellant crossed 50 cm to the other side of the imaginary line. It is under the circumstances impossible to determine negligence or recklessness in respect of any of the counts of murder and culpable homicide. If this court is expected to work with imaginary lines on a featureless road without any road signs, all that it does translates into reasonable doubt from the onset. The State cannot play and manipulate the process and the rule of law to serve its case, because, if permitted, there can be no doubt that the effect will undermine the administration of justice and the constitutional guarantee of a fair trial.
On the other hand, counsel for the respondent argued that the appellant admitted to having imbibed vodka and Coke in a glass, the size of which he could not remember. Although he claimed to have thrown it away, Paul Oosthuizen, who assisted the appellant, testified that the appellant was smelling of liquor. Furthermore, the appellant, in his plea explanation and through cross-examination, admitted to having had some alcoholic drink. The appellant was also aware that the Swakopmund-Henties Bay road was fairly busy during December.
As regards the appellant’s alleged loss of memory, one psychologist testified on his behalf. The appellant’s response to what happened during the collision was that: ‘I cannot remember, but what I can say is that I would not have passed if it was not safe.’ It was argued that this is contrary to State witnesses Hazel and Paul Oosthuizen, as well as Joschko, who testified that the appellant overtook on a blind rise, hill or crest. It was further argued that the appellant had not raised a defense of automatism. The appellant was able to respond to Oosthuizen when he told him that he was under the influence. The appellant answered. Therefore, it can be inferred that any memory loss occurred after the collision, not before. The appellant at that stage also had the presence of mind to confirm that he had passengers and that his friend was one of them. As the appellant had no memory, there were eyewitnesses who could testify to the collision. There were also expert witnesses, accident reconstructionists who were called by the State and the defense. Counsel argued that it is only where such direct evidence of an eyewitness is so improbable that its very credibility is impugned that an expert’s opinion as to what may not have occurred can persuade the court to his or her view.
It is further argued by counsel for the respondent that even if the appellant testified that there was no reason why he should have lost control of the car that day, Paul and Hazel Oosthuizen gave credible reasons why the appellant lost control, which was overtaking on a blind rise and accelerating up a blind rise at a high speed in the wrong lane. The Oosthuizens were driving at 100 km/h. For the appellant to have overtaken them it means he was driving over the speed limit. The Oosthuizens and Stevenson testified that one could not see over the hill. Furthermore, Van Zyl testified that the white FJ Cruiser that overtook him was travelling at about 160 km/h. This must also have contributed to the collision. The appellant’s driving manner at that point in time was reckless.
With regard to psychologist Stefanie Badenhorst’s testimony, counsel for the respondent argued that this witness was not an impartial witness. She cried in sympathy with the appellant. She tried to excuse herself by saying she was emotional because she was ill. The fact that she was sympathetic and biased towards the appellant, rather than impartial as an expert witness, is shown by her answer that she was a human being, not a brick or stone. Counsel argued that the court a quo was correct not to attach much weight to the psychologist’s report. The psychologist admitted to not having administered the correct test for a person with memory loss, which is a neurological test. Without the relevant test, the findings are flawed and are just what the appellant is telling the witness. An expert should not be called to confirm hearsay statements in the expert report.
In connection with the testimony of Wilna Badenhorst and Stanley Bezuidenhout, counsel for the respondent argued that Wilna Badenhorst was instructed by the appellant’s legal team to consider a report that was compiled by Mr Joubert to consider the available evidence and to comment on his calculations. She utilized some of Mr Bezuidenhout’s information and his photographs, which means that the veracity of her independence must be reviewed in light of the facts that the witness did not visit the scene of the collision, she did not perform own measurements at the scene, she did not measure the physical damage profile of the vehicles to get an accurate angle of the damage. She did not interview any of the eyewitnesses, nor did she consider their versions of what they saw. She never examined the actual vehicles involved in the collision, despite it being common cause in reconstruction that photographs rob an expert of the crucial opportunity to examine the undercarriages of the vehicles, which might indicate further damage or parts that made contact with the ground.
Ms Badenhorst did not independently determine the road’s coefficient value. She relied heavily on the information provided by Ms Bezuidenhout to compile her report, claiming she received the instructions late. She accepted that the total width of the road was 8 m, whilst it is accepted that there are no road markings and that it is difficult to determine the exact place where the road starts or ends. She admitted that there was a 10-15 meter incline preceding the collision scene. She did not conduct a sight-distance test to determine visibility between moving vehicles. She was unable to inform the court of the distance that she found to be straight at the scene. This is critical because, as per her evidence, if both vehicles were travelling at 120 km per hour, they would each cover 33.3 m per second, for a total of 66.6 m per second. Add to this the reaction time of 1 to 1.5 seconds, and it becomes critical to establish how much distance there was for the two drivers to see each other, take possible evasive measures, and avoid the actual impact. Without this knowledge, she would not know when the two vehicles first came into sight of each other or what caused them to react as they did.
She did not compile a scale drawing, never intended to, and could not have, because she did not have measurements of the marks left by the vehicles on the road surface. The extent of her analysis was the photographs of the scene. She did not consider the specifications of the vehicle in question to determine how high it goes or how it performs, acceleration and horsepower. She just looked at the physical outline. She also did not indicate the measurements of the vehicles’ front overhangs, which are important in determining the point of first contact. Having analyzed the photographs and then the damage profile they presented, she concluded that the rotation of the vehicles was counterclockwise.
It was again counsel for the respondent’s argument that Wilna Badenhorst found the area of impact to have been on the lane of travel of the appellant. Her conclusion was based on the gouge marks, tyre marks, debris, damage profile and the area that the two vehicles came to rest. It was again her conclusion that the Ford Ranger was pushed backwards in a north-westerly direction and that the appellant’s vehicle was travelling straight in its lane when the collision occurred. While her assessment was generally informed by ‘physical’ evidence at the scene, what also became apparent is that the physical evidence does not indicate everything that happened there that day. For instance, only two tyres on the Ford Ranger left marks on the road surface, whereas the FJ Cruiser’s tyres left none. This does not mean the FJ Cruiser was not there; it means it left no physical evidence. As the witnesses agreed, collisions do not always leave physical evidence to facilitate reconstruction.
The lack of an independent assessment by the expert Badenhorst undermines the credibility of her conclusions. She failed to consider critical components of the evidence because they did not support her desired outcome. She boldly stated that the pre-collision direction could not be determined, yet the three eyewitnesses, as well as Stevenson’s circumstantial evidence, corroborate that just prior to the collision, the appellant drove on the southbound lane and zigzagged between the two lanes, yet the collision occurred. Her own conclusion showed that the Ford Ranger was not completely in its lane, with its rear wheels in its own lane while the front part of the Ford Ranger was in the northbound lane, i.e., in the westerly direction.
It is argued that this confirms the evidence of Joschko, who testified that the driver of the Ford Ranger tried to swerve to the right to avoid the appellant’s vehicle, which was in the southbound lane. This tallies with the undisputed finding that the Ford Ranger was at an angle during impact and that most of the damage was to its left front. The expert could not say how far the tyre marks were from the imaginary center line. This is critical for assessing the Ford Ranger’s lane of travel just prior to impact. Her conclusions differ materially from those of the other defense expert, Bezuidenhout, even though they both used photographs and measurements, and both relied on the same photos by Sgt. Murorua, media photographs and the report compiled by Joubert.
The first critical difference is the Principal Direction of Force (PDOF). This is a fundamental aspect in determining how the accident occurred, in what direction the vehicles moved relative to one another, how they came to rest and how they rotated. According to Bezuidenhout, the PDOF for the Ford Ranger travelled from approximately the middle of the front of the Ford Ranger, diagonally towards the right side (B-Pillar). Ms Badenhorst found that the PDOF for the Ford Ranger was travelling at a slight angle to the left from the left-front corner to the left-rear corner. Bezuidenhout found the PDOF of the FJ Cruiser to be travelling through the approximate middle of the F J Cruiser towards the left side (A-Pillar).
It was further argued that the defense experts also contradicted each other regarding how the vehicles rotated. Badenhorst found that both vehicles had rotated counterclockwise, while Bezuidenhout found that the FJ Cruiser rotated anticlockwise, but the Ford Ranger rotated counterclockwise after the impact. The experts also contradicted each other on the positions of the vehicles relative to one another at the point of impact and to the road. Bezuidenhout indicated that the Ford Ranger was parallel to the road with its left wheel on the left gouge mark at the point of maximum engagement. Ms Badenhorst, however, places the FJ in its correct lane parallel to the road, with the Ford Ranger approaching at an angle from its correct lane into the incorrect lane. One may legitimately ask: Which expert witness is correct in his or her findings if they used the same material but got different outcomes?
It is argued that an expert opinion is based on factual evidence of another witness; the value of that expert’s opinion will largely depend on the reliability of the evidential matter upon which the opinion is based. Should such a basis be found to be unreliable, little or no value can be attached to such expert opinion. It is argued further by the respondent that Ms Badenhorst’s opinion could not be relied upon. The court a quo considered the relevant legal principles and tools for assessing the credibility and reliability of the expert opinions and correctly applied them.
With regard to the counts of murder, counsel for the respondent argued that the actions of the appellant were such that he could subjectively foresee that driving a motor vehicle in the manner that he did could result in a collision with another vehicle and lives would be lost. The actions of the appellant as he went up a blind rise and the high speed at which he was driving show that he had foreseen the possibilities of the collision and reconciled himself to it.
It was again counsel for the respondent that the Ford Ranger might have been attempting to avoid the imminent collision by turning to the right, but because the driver was in his correct lane, the left lane, the impact was in the left lane almost the middle of the road, hence the three State witnesses’ observations were that the accident happened in the left lane of travel of the Ford Ranger. The appellant’s defense is that the driver of the Ford Ranger caused the accident, as on seeing the appellant in his lane, he should have continued driving straight in his left lane, and the appellant would have safely returned to his correct lane. From the evidence led by the State, the driver of the Ford Range was plunged by the appellant into a situation of sudden emergency, so that he had no more than a second to escape that emergency. Joschko’s testimony is that the collision happened not more than a second after first seeing the appellant’s car.
Joschko testified that her father pulled the steering wheel to the right or attempted to do so, but he did not succeed, as the collision still occurred in the Ford Ranger driver’s lane. The driver of the Ford Ranger was faced with an emergency with no time to react. Concerning the argument by the appellant that the driver of the Ford Ranger was responsible for the cause of the collision because he moved to the incorrect side of the road, which is considered to be a dangerous course to take, it is argued that this is an armchair approach. The question should be whether the driver of the Ford Ranger acted reasonably in the circumstances. The driver of the Ford Ranger had no opportunity to act otherwise than he did.
It was argued that the appellant was in the wrong lane and was driving too fast in the circumstances. He was aware the road was busy. He was also aware that he was going over the blind crest and may not be visible to an oncoming vehicle until it was too late. As a result, he only became visible to Joschko, the deceased’s daughter, when he came over the summit. Joschko testified that the appellant suddenly appeared before their lane with just a second to react. The court a quo was correct to find that using inferential reasoning from subjective perspective, the appellant must have foreseen that by overtaking several vehicles simultaneously, driving at a high speed over a hill on the wrong side of the road in these circumstances, in a collision, the possibility of death may ensue and that includes death of his passengers and/or of other drivers and/or passengers.
It was again argued that the court a quo correctly found that there was no logical reason why the appellant could not have shared this foresight, derived from any person of normal intelligence or with other members of the general population taking into account that the appellant was a champion rally driver and overtaking a vehicle on a blind rise in the face of oncoming vehicles, the possible consequence of death must have been obvious to the appellant. The appellant foresaw a strong, concrete or real possibility of fatal consequences arising; the cognitive aspect of the test for dolus eventualis has thus been satisfied.
It was further argued by counsel for the respondent that if the appellant saw the Ford Ranger, the fact that he tried to overtake when it was too close to avoid a collision meant that the appellant was aware that a collision resulting in his death and the occupants of other vehicles could happen. Therefore, the State has proved beyond a reasonable doubt that the appellant reconciled himself with the consequences of his conduct, which he subjectively foresaw and collided with the Ford Ranger, resulting in the death of six people.
Each counsel referred this court to authorities in support of the propositions they made. Some of the authorities are similar. I will, in due course, consider those authorities.
Applicable law and analysis of the evidence
It is trite that, in considering an appeal against conviction, the court must be satisfied that the court a quo misdirected itself on the facts or the law in arriving at its decision, to justify interference with the court a quo’s findings of fact. S v Tjiho 1991 NR 361 (HC).
Furthermore, the following equally important and pertinent observations were made in S v Slinger 1994 NR 9 (HC) at 10 (E)
‘Where no irregularities or mis directions are proved or apparent from the record, the court on appeal will normally not reject findings of credibility by the trial court and will usually proceed on the factual basis as found by the trial court. It is trite law that the function to decide on acceptance or rejection of evidence falls primarily within the domain of the trial court.’
In determining this appeal, the court will be guided by the above overriding legal principles.
Determination
It has been a point of criticism levelled against the court a quo that it found, without any basis, that the State had proved the first count against the appellant beyond a reasonable doubt. The appellant was convicted of reckless driving in contravention of section 80 (1) of the Road Traffic and Transport Act 22 of 1999. In considering whether an offence was committed, the court a quo took into account the provisions of section 80(3), which provides as follows:
‘In considering whether an offence has been committed sub-section 1, the court shall have regard to all the circumstances in the case, including, but without prejudice to the generality of the foregoing provisions of this section, the nature, condition and use of the public road on which the offence is alleged to have been committed, the amount of traffic which at the time actually was or could reasonably have been expected to be upon that road and the speed at and manner in which the vehicle was driven.’
It is common cause that the public road on which the vehicle was being driven by the appellant was a busy road. It is also common cause that part of the road between Swakopmund and Henties Bay is a salt road. It is common knowledge that the speed limit between Walvis Bay and Swakopmund is 80 km/h. There is evidence from Mr Mills that he was driving in a convoy to Swakopmund at an average speed of 80 km per hour when he observed a white FJ Cruiser approaching at high speed and overtaking his vehicle in the face of oncoming traffic. The oncoming vehicles were too close, and they had to flash their lights because the appellant was driving in their lane. The witness, as well as the oncoming traffic, had to slow down and move towards the left in order to avoid a collision with the vehicle driven by the appellant. The manner in which the appellant drove prompted the witness to call the neighbourhood watch and to speak to Van der Merwe. This resulted in the appellant’s vehicle being stopped and him being issued a warning for his unacceptable driving. The appellant himself admitted that he drove across a barrier line, but explained that he had only overtaken one slow-moving vehicle just before the bridge.
Another point of criticism levelled against the magistrate is that she relied on the evidence of a single witness without cautioning herself about the dangers of convicting on such evidence. Furthermore, the court a quo was also criticized for relying on Mills’ evidence, which is alleged to be riddled with contradictions and discrepancies. It was argued that his court testimony was inconsistent with the statements he gave to the police, as certain material descriptions were omitted from those statements and from the Insurance Company statements.
It is trite that the State carries the onus of proving an accused’s guilt beyond a reasonable doubt. There is no onus whatsoever for the then accused and now appellant to prove his innocence. In this regard, the following dicta in R v Mlambo 1957 (4) SA 727 (A) at 738 were approved and applied by our Supreme Court in S v Van Wyk 1993 NR 426 (NmS) at 438H–439A:
‘In my opinion, there is no obligation upon the crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with or outweighed by the proved facts of the case.’
With regard to the omissions in the police statements or discrepancies or contradictions between viva voce evidence and the statement given to the police, Mills gave an explanation why his viva voce evidence was more detailed than the statements he gave to the police. He explained that when he was requested to give his statement by the police, he was told to be brief. Furthermore, it is trite law that a witness is not required, at the time of making his or her statements to the police, to furnish a statement in all its details.
In Hannekom v State (unreported High Court case) no.: CA 68/1999 Hanna J expressed himself on this subject matter as follows:
‘What is set out in a police statement is more often than not simply the bare bones of complaint and the fact that flesh is added to the account at the stage of oral testimony is not necessarily of the adverse consequences.’
The court a quo was alive to the fact that there were indeed discrepancies and contradictions between the witness’s viva voce evidence and his ex-curial statements. It was held in the High Court matter of S v Da Silva, Case No.: CC 15/2005 (unreported) and S v Losper Case No.: CC 11/20007 (unreported), that a statement made by a person in court and subjected to cross-examination carries more weight than a statement made by that person ex-curia.
In respect of the evaluation of police statements, the following is stated in the headnote of Mafaladiso v S 2003 (1) SACR 583 (SCA) (and I partially paraphrase):
‘Firstly,…the court must take into account the fact that a statement in the police was not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement, and that the person giving a statement is seldom, if ever, asked by the police officer to explain their statement in detail. Secondly,…not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. This evaluation includes the circumstances in which the versions were given, reasons for the discrepancies, the effect of the discrepancies on the witness’s credibility and whether the witness had sufficient opportunity to explain the discrepancies. Lastly, the witness’s previous statement to the police must be weighed up against the witness’s viva voce evidence.’
As alluded to earlier, the learned magistrate was alive to the fact that there were contradictions and inconsistencies in the evidence given in court and the statements made ex-curia. Therefore, there is no basis to hold that she did not bring her mind to bear on the issue. The learned magistrate found the inconsistencies to be immaterial and not to affect the witness’s credibility. The court a quo was also satisfied that there was a plausible explanation why some of the material evidence was omitted in the statements. The court a quo’s findings in this respect were based on a sound legal principle and cannot be faulted.
Another contention of the appellant is that the court a quo misdirected itself by failing to warn itself that Mills was a single witness in relation to the count of reckless driving between Langstrand and Swakopmund. The appellant disputed that he drove in a reckless manner or overtook when it was dangerous or not safe to do so. Although Mr Mills was the only witness to the reckless driving, he reported the incident, and three other State witnesses corroborated each other in testifying that the report was indeed made. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted on the single evidence of a competent witness, provided that the single evidence is good enough to discharge the onus of proof beyond a reasonable doubt.
The court was alive to the cautionary rule regarding evidence of a single witness. It referred to S v HN 2010 (2) NR 429 (HC) at para 56 where it was stated as follows:
‘Evidence of a single witness needs not be satisfactory in every respect as it may safely be relied upon where it has some imperfections, provided that the court can find at the end of the day that, even though there are some shortcomings in the evidence of the single witness, the court is satisfied that the truth has been told.’
The court a quo, having applied the above legal principles, was satisfied that Mr Mills, although a single witness, was a credible and reliable witness. There was no reason for Mr Mills to falsely report that the appellant was driving in a reckless manner. After all, Mr Mills did not know at the time that the white F J Cruiser was being driven by the appellant. He only found out after the appellant was already stopped and warned. Mr Mills testified that he was in shock and traumatized because of the manner the appellant drove. The court found that Mills, Van der Merwe and Swarts corroborated each other in finding that the appellant drove in a reckless manner. The court a quo further found that the State witnesses were credible and reliable, and found no reason to reject their versions. It further rejected the appellant’s version as false beyond a reasonable doubt.
We find no misdirection in the court a quo’s findings as regards count 1. The court a quo’s findings were based on a proper evaluation of the evidence and application of the law to the facts. Therefore, there is no cogent reason warranting interference with the court a quo’s decision in this regard.
I will now proceed to consider the grounds of appeal in respect of the murder counts. Criticism was levelled against Stevenson’s testimony: although he stated he was driving between 110 km and 115 km per hour when the FJ Cruiser overtook, he was unable to say what speed the FJ Cruiser was travelling. Although the witness was unable to state the exact speed the appellant was driving, the speed limit on that road was 100 km/h. The witness was driving between 110 km/h and 115 km/h. If the appellant had overtaken the witness, it is obvious that the appellant was driving above the speed limit and faster than the witness. The witness testified that the appellant was driving at a high speed. He first overtook the witness’s wife’s vehicle and then the witness’s vehicle. The appellant went over the hill on the right side of the road. Two to three seconds later, the appellant collided with the Ford Ranger. According to Stevenson, it was unsafe to overtake on that section of the road, as it had several dips and rises. The witness also could not see the oncoming vehicle due to the blind rise.
Regarding the statement the witness gave to the police, which had fewer details than those in his viva voce evidence, the witness explained that the prosecutor asked him more questions than the police did. As noted earlier, the proper approach to criticisms of differences between police statements and viva voce evidence was set out in Hannekom supra and Mefaladiso supra. I am persuaded that the court a quo correctly applied the approach set out in those cases.
Van Zyl corroborated Stevenson that he saw a white FJ Cruiser that was driving very fast prior to the fatal collision. According to Van Zyl, the FJ Cruiser passed three vehicles at once, including his. Van Zyl was driving at 100 km/h. He estimated the FJ Cruiser to have been driven at 160 km. Van Zyl’s evidence was that when the appellant was overtaking the vehicles in front of him, Van Zyl had to apply the brakes. Although Van Zyl could not state the exact speed at which the appellant was driving, he was adamant that the appellant was driving at a high speed. When Van Zyl arrived at the accident scene, he found a car that resembled the FJ Cruiser he had seen a few minutes earlier. The appellant was lying on the ground. There can be no doubt that the trial court was correct to have drawn an inference that the F J Cruiser at the scene could only be the same car that was seen by Van Zyl speeding prior to the accident.
Hazel Oosthuizen also testified that the FJ Cruiser followed them very closely. The appellant overtook them, accelerated significantly, and tried to pass them on the wrong side. The appellant drove at high speed and was not in control of the vehicle, as he went from side to side or zigzagged. He drove on the wrong side of the road. Hazel Oosthuizen corroborated Stevenson’s claim that there was a blind spot where one could not see oncoming traffic. This piece of evidence, that there is a blind spot where one cannot see oncoming traffic, was also corroborated by Antonia Joschko. Hazel Oosthuizen’s version that the accident took place on the lane of the Ford Ranger was also corroborated by Joschko. There was also corroboration of Hazel Oosthuizen’s evidence by Mr Oosthuizen that when the appellant overtook the vehicles, he drove very fast. The appellant lost control of the vehicle, and the rear of the vehicle was drifting to the right. He further corroborated Ms Oosthuizen that the appellant moved to the right side, which was the wrong side for the FJ Cruiser but the correct side for the For Ranger. He also corroborated her version that the Cruiser accelerated quite significantly. The eyewitnesses corroborated each other in material respects.
Another issue raised by the appellant is that Joschko was the sole witness. This court dealt with the cautionary rule regarding the evidence of a single witness. Although Joschko was the sole witness to the accident, as stated above, part of her testimony has been corroborated by other State witnesses. State witnesses Hazel Oosthuizen, Paul Oosthuizen, Hepkema, Joubert and Joschko corroborated each other that there was a blind rise where the accident occurred. The court was alive to the fact that Joschko was the sole witness to what transpired when his father tried to avoid the accident. She testified that there was no time for her father to avoid the accident once the appellant’s vehicle became visible. The court warned itself of the cautionary rule regarding single witness evidence as it is evident from its judgment.
There was no eyewitness, as far as the defense witnesses are concerned. The appellant, who was supposed to be an eyewitness, conveniently suffered from amnesia at Mile 28. I am using ‘conveniently’ advisedly, because according to the expert witness the psychologist Stefanie Badenhorst, the appellant’s loss of memory of the accident that took place on 29 December 2014 could be explained in the context of the trauma experience, his traumatic brain injury as well as the severe emotional trauma that he suffered as a result of the accident or emotional trauma as a result of the impact of the accident. From this finding, it can be inferred that before the accident, there was no basis for the appellant to suffer from memory loss. Loss of memory could only be explained in the context of his traumatic experience due to the injury he suffered during the accident and the emotional trauma he suffered because of the accident. The psychologist’s conclusion casts doubt on the appellant’s claim of loss of memory before the accident. Therefore, if the appellant had suffered from memory loss, it could only have occurred sometime after the accident.
There is evidence from Oosthuizen that when he inquired from the appellant whether he was under the influence of alcohol after he smelled alcohol from the appellant, the appellant was able to respond. The appellant at that stage was also able to confirm to the witness that there were passengers in his vehicle and that his friend was one of them. Up to that stage it can be fairly concluded that the appellant had a presence of mind. Furthermore, Ms Badenhorst, the psychologist conceded that she did not administer the correct test for a person with memory loss namely, a neurological test. Therefore, the magistrate was justified in not attaching much weight to the psychologist’s report.
Another contention by the appellant is that the court a quo ignored the testimonies of defense expert witnesses or attached insufficient weight to such witnesses’ evidence as opposed to the evidence of eyewitnesses called by the State. It was strenuously contended that the learned magistrate failed to consider and rule on the evidence by the two independent defense reconstruction expert witnesses, namely Stan Bezuidenhout and Wilma Badenhorst. The court a quo was also castigated for failing to rule on the inconsistencies, inaccuracies, manipulations, and failures in the evidence of State expert Joubert. The evidence of the expert witness, Mr Joubert, called by the State, was challenged by the defence as inaccurate. The scuff mark that Joubert relied on for his conclusion does not meet the scientific definition and characteristics of a scuff as per the evidence. It cannot be said that Joubert’s evidence is perfect. The defence pointed at certain aspects where Joubert made mistakes. Such mistakes were conceded by the State. The State further argued that the correct point of impact is the one shown by Hepkema, another State witness expert.
The evidence of the defence’s expert witnesses also has its imperfections. Regarding the sight distance calculation by Mr Knouwds, it cannot be said that the 155 cm he used is accurate. Mr Knouwds conceded that he used the height that was provided to him. He further testified that a person may not be sitting straight in the car; they may be stretched out or leaning forward. The seat could also be adjusted. In the absence of confirmation from the appellant himself on how he was seated before the collision, it cannot be said with certainty that Mr Knouwds’ calculation was accurate. Such evidence is mere speculation.
Ms Wilna Badenhorst did not visit the crime scene, did not perform own measurements at the scene and did not measure the physical damage profile of the vehicles to get an accurate angle of the damage. She never examined the vehicles involved in the collision. She did not conduct a sight-distance test to determine visibility between moving vehicles. She did not compile a scale drawing. She also did not indicate the measurements of the vehicles’ front overhangs, which are important in determining the point of first contact. Furthermore, Ms Badenhorst contradicted another expert called by the defense, Mr Bezuidenhout, in respect of the Principal Direction of Force (PDOF). According to Bezuidenhout, the PDOF for the Ford Ranger travelled from approximately the middle of the front of the Ford Ranger, diagonally towards the right side (B-Pillar). While Ms Badenhorst found that the PDOF for the Ford Ranger travelled at a slight angle to the left from the left-front corner to the left-rear corner. Mr Bezuidenhout found the PDOF of the FJ Cruiser to be travelling through the approximate middle of the FJ towards the right C-Pillar, whilst Ms Badenhorst found the PDOF to have travelled through approximately the middle of the FJ Cruiser towards the left side (A-pillar).
The defense expert witnesses also contradicted each other on how the vehicles rotated. Ms Badenhorst found both vehicles had rotated counterclockwise, while Mr Bezuidenhout found the FJ Cruiser had rotated anticlockwise and the Ford Ranger had rotated clockwise. Other contradictions between Mr Bezuidenhout and Ms Badenhorst are as pointed out by counsel for the respondent in her heads of argument. Although these witnesses used the same evidential material, they arrived at different conclusions. The contradictions and imperfections in the above defense expert witnesses are material, and this also goes to the contradictions and inconsistencies in Mr Joubert’s testimony.
The legal principles in the assessment of expert evidence are set out in cases that counsel referred this court to. In Grove v Endjala (HC-MD-CIV-ACT-CON-2019/05339) [2023] NAHCMD 117 (14 March 2023) at 29 para 115, which the court a quo also referred to, it was stated:
‘The principles were neatly summarized by the South African Supreme Court of Appeal in Price Waterhouse Coopers Inc & others v National Potato Co-operation Ltd & another (451/12) [2015] ZASCA 2 (4 March 2015) ‘[97] opinion evidence is admissible when the court can receive “appreciable help” from that witness on the particular issue. Gentiruco AG v Firestone SA Pty Ltd 1972 (1) SA 589 (AD) at 616 H. That will be when:
“…by reason of their special knowledge and skill, they are best qualified to draw inferences than the trier of fact. There are some subjects upon which the court is usually quite incapable of forming an opinion unassisted, and others upon which it could come to some sort of independent conclusion, but the help of an expert would be useful.” Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976(3) SA 352 (A) at 370 G –H.
‘…an expert’s opinion represents his reasoned conclusions based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witnesses. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, is disclosed by the expert.’ [117] Courts in this and other jurisdictions have experienced problems with expert witnesses, sometimes unflatteringly described as ‘hired guns’.
(Reference to authorities omitted).
‘Gresswell J set out certain duties that an expert witness should observe when giving evidence.
“The duties and responsibilities of eyewitnesses in civil cases include the following:
- Expert evidence presented to the Court should be and should be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the court by way of an objective, unbiased opinion in relation to matters within his expertise… An expert witness in the High Court should never assume the role of advocate.
- An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion.
- An expert witness should make it clear when a particular question or issue goes beyond his expertise.”
These principles echo the point made by Diemmont JA in Stock v Stock 1981 (3) SA 1280 (A) at 1296 E-G that:
“An expert… must be made to understand that he is there to assist the court. If he is to be helpful he must be neutral. The evidence of such witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. I may add that when it comes to assessing the credibility of such a witness, this Court can test his reasoning and is accordingly to that extent in as good a position as the trial court was.”
‘Legal principles and tools to assess credibility and reliability.
Before any weight can be given to an expert’s opinion, the facts upon which opinion is based must be found to exist.
As long as there is some admissible evidence on which the expert’s testimony is based it cannot be ignored; but it follows that the more an expert relies on facts not in evidence the weight given to his opinion will diminish.
An opinion based on facts not in evidence has no value for the court
With respect to its probative value the testimony of an expert is considered in the same manner as the testimony of an ordinary witness. The court is not bound by the expert witness’ opinion
An expert witness’ objectivity and the credibility of his opinions may be called into question, namely where he or she:
- Accepts to perform his her mandate in restricted manner;
- Presents a product influenced as to form or content by the exigencies of litigation
- Shows a lack of independence or a bias,
- Has an interest in the outcome of the litigation, either because of a relationship with the party that retained his or her services or otherwise
- Advocates the position of the party that retained his or her services or otherwise; or
- Selectively examines only the evidence that supports his or her conclusions or accepts to examine only the evidence provided by the party that retained his or her services.”’
Furthermore, the court a quo referred to Gear Transport CC v Springbok Touring of Namibia (PTY) Ltd (1396/2014) [2019] NAHCMD 233 (8 July 2019), where the court had to deal with eyewitnesses and expert witnesses. In that judgment, the court referred to a case in which the proper approach to weighing the evidence of factual witnesses vis-à-vis that of an expert was discussed in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) p 436 – 437 A, where the court expressed itself thus:
‘Direct or credible evidence of what happened in a collision, must to my mind, generally carry greater weight than the opinion of an expert, however, experienced he may be seeking to reconstruct the events in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicle. Tompkin’s concession, therefore, that there are too many unknown factors in a collision to warrant a dogmatic assertion by an expert as to what must have happened, seems to me to have been a very proper one. An expert’s view of what might have probably occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of any eyewitness. It is only where such direct evidence of an eyewitness is so improbable that its very credibility is impugned that an expert’s opinion as to what may or may not have occurred can persuade the court to his view.’
The court a quo correctly applied the above legal principles when it accepted the eyewitnesses’ testimonies rather than the evidence of expert witnesses. Its approach and findings in that regard cannot be faulted either.
It was a point of criticism levelled against the court a quo that it ignored the doctrine of res ipsa loquitur in light of the fact that when a motor vehicle drove onto the incorrect side of the road and collided with an approaching vehicle, it has been held on the basis of this doctrine that such point of collision is prima facie proof of negligence on part of the driver of the Ford Ranger. Counsel for the appellant referred this court to the 7th ed. of The Law of Collisions in South Africa. Lexis Nexis, p 56 -57, where the learned author HB Klopper states the following:
‘A driver, faced with an approaching vehicle on the incorrect side of the road has the duty to take at least three steps, namely, to: reduce the speed, turn as far as possible to the left and hood continuously. In these circumstances, it is incumbent on the driver on the incorrect side of the road to give way as soon as possible and for the driver who is being approached to take reasonable steps to avoid a collision. A driver should not attempt to avoid a collision under these circumstances by moving to his incorrect side of the road due to the risk that the approaching driver may return to his correct side of the road.’
The driver of the Ford Ranger was faced with an emergency. According to Joschko, her father turned the steering wheel to the right or attempted to do so, but he failed, as the collision still occurred in the Ford Ranger driver’s lane. There is evidence that the appellant lost control of his vehicle and drove in a zigzag pattern. In Ntsala and others v Mutual and Federal Insurance Company Ltd 1996 (2) SA 184 (T), Els J stated the following at 192 F– H:
‘Where a driver of a vehicle suddenly finds himself in a situation of imminent danger, not of his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that he is negligent unless it can be shown that no reasonable man would so have acted. It must be remembered that with a sudden confrontation of danger, a driver only has a split second or a second to consider the pros and cons before he acts and surely cannot be blamed for exercising the option which resulted in a collision.’
In the present matter, the driver of the Ford Ranger faced a sudden confrontation, and it has not been shown that any reasonable man in his position would have acted differently.
It was a point of contention that the court a quo erred in applying the legal principles governing circumstantial evidence. It was contended that it was not the only inference to be drawn that the appellant was solely the cause of the accident and that he was guilty of murder with dolus eventualis.
Regarding circumstantial evidence, there are two cardinal rules of logic which cannot be ignored in reasoning by inference, as it was held in R v Blom 1939 AD at 188 as follows:
‘(1) The inference sought to be drawn must be consistent with all the proven facts. If it is not, the inference cannot be drawn.
2) The proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.’
The record shows that the court a quo was alive to these cardinal rules of logic and applied them correctly. I will now deal with the issue of whether the court a quo misdirected itself in convicting the appellant on six counts of murder with dolus eventualis, an issue which is highly contested by the appellant.
Parker J in Harry Simon v The State 2007 (2) NR 500 (HC) at 503 stated the following in respect of murder with dolus eventualis.
‘(iv) If an accused does foresee – as district from ought to have foreseen – the possibility of such resultant death and persist in his conduct with indifference to fatal consequence (or if he actually intends to kill) the crime would be that of murder. Having regard to the requirements of foresight and persistence, the dividing line between (a) murder with dolus eventualis and (b) culpable homicide is sometimes rather thin.’
In S v Humphreys 2013 (2) SACR 1 (SCA), the following was stated at paras 12, 13, 14 and 15.
‘(12) In accordance with trite principles, the test for dolus eventualis form is two fold: (a) did the appellant subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and (b) did he reconcile himself with that possibility (see eg S v De Oliveira 1993 (2) SACR 59 (A) at 65i – j). Sometimes the element in (b) is described as recklessness as to whether or not the subjectively foreseen possibility ensures (See EG. S v Sigwahla 1967 (4) SA 566 (A) at 570. I shall return to this alternative terminology, which sometimes gives rise to confusion.’
For the first component of dolus eventualis it is not enough that the appellant should (objectively) have foreseen the possibility of fatal injuries to his passengers as a consequence of his conduct, because the fictitious reasonable person in his position would have foreseen those consequences. That would constitute negligence and not dolus in any form. One should also avoid the flawed process of deductive reasoning that because the appellant should have foreseen the consequences, it can be concluded that he did. That would conflate the different test for dolus and negligence. On the other hand like any other fact, subjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight derived from common human experience with other members of the general population.
Adopting what essentially amounted to this line of inferential reasoning the court a quo concluded that in the prevailing circumstances, the appellant subjectively foresaw the death of his passengers as a possible consequences of his conduct. I do not believe this conclusion can be faulted…
This brings me to the second element of dolus eventualis, namely that of reconciliation with the foreseen possibility. The import of this element was explained by Jansen JA in S v Ngubane 1985 (3) SA 677 (A) at 685 A–H in the following way:
“A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, e.g. by unreasonably underestimating the degree of possibility or unreasonably failing to take steps to avoid possibility … The concept of conscious (advertent) negligence (luxuria) is well known on the continent and has in recent times often been discussed by out writers … Conscious negligence is not to be equated with dolus eventualis. The distinguishing features of dolus eventualis is the volitional component: the agent (the perpetrator) ‘‘consents” to the consequences foreseen as possibility, he reconciles himself to it, he “takes it into the bargain” … Our cases often speak of the agent being reckless of that consequences, but in this context it means consenting, recounting or taking into the bargain, and not the “recklessness” of the Anglo American systems nor an aggravated degree of negligence. It is the particular subjective, volitional mental state in regard to the foreseen possibility which characterised dolus eventualis and which is absent.”’
In Humphreys, Humphreys was charged with ten counts of murder that arose from a single incident. He was driving a minibus that was hit by a train at a railway station. There were 14 children in the minibus. Ten of the children were fatally injured in the collision, which gave rise to the ten charges of murder. Four of the children were seriously injured. At the end of the trial, Humphreys was convicted of murder with dolus eventualis. On appeal, one of the grounds was that the State had failed to prove one of the elements of murder, namely dolus eventualis. The question that arose was whether it had been established that the appellant reconciled himself with the consequences of his conduct, which he subjectively foresaw. The court held that the second element was not met due to the reasons, which included the following pertinent ones:
‘First, I believe common sense dictates that if the appellant foresaw the possibility of a fatal injury to one or more of his passengers – as it is found he did – he must by the same token have foreseen fatal injuries to himself. An inference that the appellant took the death of his passengers into the bargain when he proceeded with his accidents would unavoidably require the further necessary inference that the appellant also took his own death into the bargain. Put differently, the appellant must have been indifferent as to whether he would live or die. But there is no indication on the evidence that the appellant valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life. In consequence, I do not think it can be said that the appellant reconciled himself with the possibility of his own death. What must follow from this is that he had not reconciled himself with the occurrence of the collision or the death of his passengers either. In short, he foresaw the possibility of the collision, but he thought it would not happen: he took a risk which he thought would not materialise. My second reason for concluding that the appellant did not reconcile himself with the consequences rests on the evidence that the appellant had successfully performed the same manoeuvre in virtually the same circumstances previously.
Moreover, as a matter of mathematical calculation, a collision with the train could plainly be avoided, even if the crossing was entered after the boom came down. . . So, the fact that the manoeuvre which the appellant tried to execute was practically possible and that it had in fact been successfully executed by him previously, leads me to the inference that, as a matter of probability, the appellant thought he could do so again. Differently stated, the fact that the appellant had previously been successful in performing this manoeuvre probably led him to a misplaced sense of confidence that he could safely repeat the same exercise. Self-evidently, the fact that the confidence was misplaced does not distract from the absence of reconciliation with the consequence he subjectively foresaw.’
In this matter, the court a quo also referred to S v Siyaya (03/2024) [2024] ZAKZDHC 24 (14 May 2024), which in turn referred to Humphreys. In Siyaya, the accused was convicted of the murder of 20 people with dolus eventualis. He was a truck driver driving a truck carrying 34 tons of coal, with a total mass of 55 tons that collided head-on with a vehicle transporting schoolchildren. The dispute concerned the second element of dolus eventualis, also known as the conative aspect. It was stated that this may not necessarily be an enquiry based on fact, where the unique nature of every case needs to be considered. It was again stated that the important aspect is that the accused foresaw the death of other road users as a substantial and real possibility, yet volitionally and deliberately embarked on the most dangerous course of driving fully alive as to the consequences to other road users. On these facts, the court held that he could not escape a conviction.
The basis of the accused’s defense in Siyaya was that, sometime prior to the fatal collision, the vehicle’s stopping mechanisms had malfunctioned to the extent that the driver was unable to control the speed of the vehicle at all. The heavy-duty vehicle he was driving had become a runaway truck, and at all material times, he was unable to properly control its speed. The State led evidence that he regularly exceeded the speed limit at regular intervals because his driving was motivated by his desire to complete trips as quickly as possible to maximise his earnings, as he was paid per trip. At the time of the accident, the accused deliberately failed to stop at a mandatory truck stop. There was evidence that he was in full control of his vehicle. The accused deliberately moved his vehicle into oncoming traffic.
In this matter, the court a quo applied the legal principles stated in the Humphreys and Siyaya matters. The trial court distinguished the two matters. The Siyaya matter was not an instance where the accused, when overtaking on a double barrier line, knew and foresaw the risk but believed that, because of the relatively short duration, he would be on the wrong side of the road and that the feared consequences of a head-on collision would not arise. In that regard, the harrowing footage from the lead-up to the collision was ample evidence of his guilt. The foresight on the part of the accused of substantial harm arising was elevated.
The court a quo applied the above legal principles and found that the elements of dolus eventualis were proven. The court found that the appellant drove recklessly between Walvis Bay and Swakopmund, overtaking vehicles whilst it was dangerous to do so. The appellant admitted to having overtaken at least one vehicle on a barrier line, claiming he had overtaken a slow-moving vehicle. He was stopped by a police officer after a report was made and was warned not to drive as he did. He continued his way to Henties Bay, but he did not reach there. The appellant admitted that the road was extra busy that day, as it was the norm during the festive season. By all accounts, having been warned about his dangerous driving, and given that it was a busy road at that time of the year, that he was driving on a salt road, and he overtook vehicles at a speed that State witnesses considered well over the speed limit, it is evident that he drove in a dangerous manner. Furthermore, evidence presented was that the appellant overtook at a spot where there was a blind rise.
The test for dolus eventualis has two elements. Firstly, whether the appellant subjectively foresaw the possibility of the death of his passengers and other road users ensuing from his dangerous driving and secondly, whether he reconciled himself with that possibility. As was explained at para 13 of Humphreys, for the first component of dolus eventualis to be met, it is not enough that the appellant should (subjectively) have foreseen the possibility of fatal injuries to his passenger and/or other road users as a result of his conduct, because a fictional ‘reasonable person’ in his position would have foreseen those consequences. The reason is that such reasoning would constitute negligence, not dolus in any form. Humphreys also warns of the dangers of deductive reasoning that goes like this: Because the appellant should have foreseen the consequences of his conduct, it can be concluded that he did.
On the other hand, Humphreys also recognizes that subjective foresight, like any other fact, can be proved by inference. This may start with a common-sense approach to inferential reasoning. Approaching the facts this way, it is obvious that, in accordance with common human experience, the possibility of the consequences that would ensue from the appellant’s dangerous driving would have been obvious to any person of normal intelligence. The question that arises is, therefore, whether, in light of all the facts narrated above, there is any reason why the appellant would not have shared this foresight derived from human experience with other members of the general population?
In light of all the evidence, this court is persuaded that the trial court was correct to have found that the appellant subjectively foresaw the death of his passengers and other road users. There was no logical reason why the appellant could not have shared this foresight derived from any person of normal intelligence or with other members of the general population, taking into account that the appellant was a champion rally driver and overtaking a vehicle over a blind rise in the face of an oncoming vehicle, the possible consequence of death must have been obvious to him. The first element was thus satisfied.
Regarding the second element, the enquiry is whether the appellant took the consequences that he foresaw into the bargain; whether it can be inferred that it was immaterial to the appellant that the consequences of his dangerous driving would flow from his conduct. This Court is persuaded that the trial court’s inferential reasoning that, from the subjective perspective, the appellant must have seen that, by overtaking several vehicles simultaneously and driving at a high speed over a hill on the wrong side of the road in these circumstances, the possibility of a collision and death could occur. That includes death for his passengers and other drivers. Unlike the facts in Humpreys, it was not the appellant’s defence that he believed that in driving in such a manner, he was not going to cause an accident, because that is the usual manner of manoeuvring his vehicle without causing an accident. The facts in this matter are distinguishable from the facts in Humphreys. This is because there is no evidence that the appellant had driven the way he did on the day of the accident or on any other date. The evidence shows that the way he drove that day alarmed other road users to the point that they felt compelled to report him to the police. Even after being warned to drive responsibly, the appellant did not stop. He foresaw the consequences of his dangerous driving, factored them into the bargain, and proceeded regardless.
Did the appellant reconcile with his own death?
As was reasoned in Siyaya, an inference that the appellant took the death of his passengers into the bargain when he proceeded with his conduct, would require the further inference that he also took his own death into the equation. Although there is no evidence that he was suicidal, there can be no doubt that, given the dangerous way he drove that day and the fact that he was warned by the police of his dangerous driving that could be harmful to other road users and himself, he must have been indifferent as to whether he would live or die. He had taken his possible death into the bargain.
From the cumulative consideration of all these proved facts, murder with dolus eventualis was an appropriate verdict as found by the court a quo. Furthermore, having regard to all the evidence, the relevant legal principles, the arguments advanced by both counsel, and the court a quo’s application of those principles to the evidence, we are of the opinion that there are no mis directions of law or fact on the part of the trial court. We will proceed to consider and decide the appeal against sentence.
Appeal against sentence
Counsel for the appellant argued that the court a quo failed to give appropriate weight to the personal circumstances of the appellant, which included the following: the evidence of the clinical psychologist Willem Annadale and the report he presented to the court depicting the change the appellant underwent since the occurrence of the accident; the sorrow expressed by the appellant when he attempted to contact and discuss the accident with the father of his late friend Jan Carel Horn; the fact that he also wanted to express his sorrow towards the surviving passenger Joschko concerning her loss in court, and the reasons given why he could not do so earlier. The trial court was also criticized for failing to take into account the fact that the appellant was a first offender and by refusing to consider a fine coupled with a suspended sentence and possible community service as well as other forms of punishment different from imprisonment.
Other factors said to have been ignored include the fact that the appellant’s conviction could not be construed as an offence involving violence and therefore did not render the appellant a danger to society. The appellant’s age and the fact that, although not married has two dependents and was in a stable relationship at the time. It was further argued that the court a quo erred in finding the expert report by Dr Annadale to be one-sided and imbalanced. In this regard, the court a quo failed to appreciate the importance of the evidence adduced on behalf of the appellant and accorded it no weight at all. The court emphasized the seriousness of the crime and the interest of society at the expense of the personal interest of the appellant.
The court a quo was also said to have misdirected itself when it found that the offence of which the appellant was convicted was prevalent. It was argued that the State presented no evidence to corroborate such a finding. The court lost sight of the fact that the conviction was the first of its kind. The court erred by failing to consider the appellant’s culpability. The court failed to consider the uniformity of the sentence imposed in other matters involving similar facts. Finally, it contended that the sentence imposed was inappropriate and it induced a sense of shock.
On the other hand counsel for the respondent argued that the appellant was convicted of six counts of murder with dolus eventualis. Murder on its own is a serious offence. Innocent people lost their lives in a most horrible manner. Counsel argued that the sentence imposed by the court a quo was appropriate and did not induce a sense of shock. The court a quo was correct to find that Annadale’s recommendation that a suspended sentence was appropriate even in a case that resulted in multiple deaths was one-sided, as it concentrated mostly on the appellant and did not take into account the interest of society, a fact conceded by Annadale through cross-examination that the option did not take the interest of society into account. Counsel further argued that the report was one-sided, as it dealt only with the appellant’s personal circumstances. Furthermore, the court a quo took into account that the appellant expressed remorse by apologising to Antonia Joschko and the father of J C Horn. The court a quo considered the appellant’s surrounding conduct to determine whether there was genuine remorse or merely a search for sympathy. Counsel argued that the appellant said he was ‘sorry’ but without saying what he was sorry for.
The court a quo did weigh the appellant’s personal circumstances against the aggravating circumstances. The fact that the appellant was a first offender and had two children was considered. However, the mitigating factors were found to be far outweighed by the aggravating circumstances. Counsel for the respondent correctly argued that the court a quo was entitled to take that factor into account and referred to S v Van Wyk 1993 NR 426 at 448 E where it was held that: ‘Situations can arise where it is necessary to emphasize one factor at the expense of the other.’
As far as the appellant’s moral blameworthiness is concerned, it is quite high. The appellant ignored a warning from a traffic police officer to drive with consideration. There was evidence on record that following a complaint regarding his driving earlier that day, he was pulled off the road and warned about his driving conduct. Instead, of heeding the warning and obeying the law, the appellant completely ignored the warning. The court found that the appellant overtook on a blind rise when it was not safe to do so. Ignoring a police officer’s valid warning shows that the appellant did not respect the law and was therefore a danger to other road users. Counsel further argued that the court a quo was correct to find that the culpability of the appellant was very high because he needlessly causes the accident, expecting other drivers to give him way.
The appellant was found guilty of murder with dolus eventualis arising from a motor vehicle collision. This should not be equated with culpable homicide arising out of traffic collision. The present case goes beyond culpable homicide. The appellant was not merely negligent or reckless but went beyond that. Although most of the offences are charged as culpable homicide, it was argued that the time had come to look more seriously at drivers who caused road users harm and charge them with murder rather than culpable homicide. Counsel argued that the lower court took judicial notice of the prevalence of traffic collisions. Joschko lost three of her close family members. She also sustained injuries in the collision. She still had flashbacks of the collision and could not drive as a result. She was still undergoing therapy and had suicidal thoughts.
From the family of the victims who were in the appellant’s car the father of the deceased J C Horn when testified shared anguish of the loss of his child that he went through with the mother and brother of the deceased. Counsel argued that a sentence of direct imprisonment is an appropriate one under the circumstances.
Punishment being pre-eminently a matter for the discretion of the trial court, the powers of a court on appeal to interfere with the sentence are limited. Such interference is only permissible where the trial court has not exercised its discretion judicially or properly. This occurs when it has misdirected itself on facts material to sentencing or on legal principles relevant to sentencing. It would also be inferred that trial court acted unreasonably if:
‘. . . there exists a striking disparity between the sentences passed by the learned trial judge and the sentences which this court would have passed.’
See S v Van Wyk supra at 447.
According to the court a quo’s judgment on sentence, it considered the issues that are contested in the grounds of appeal by the appellant as pointed out by counsel for the respondent. It is not necessary for us to repeat them here. The appellant by requesting a fine coupled with a suspended sentence or community service in crimes of murder is trivializing the crimes. The court a quo considered that the crime of murder is a serious one, it considered the interest of society as well as the personal circumstances of the appellant and all other factors as pointed out by counsel for the respondent.
In applying the above legal principles regarding when an appeal court may interfere with the trial court’s judicial discretion, we are not satisfied that the court a quo misdirected itself in arriving at the sentences it imposed on the appellant. The overall sentence imposed by the court a quo is not inappropriate and does not induce a sense of shock. The appeal must therefore fail.
In the result, the following order is made:
- The appeal against conviction in respect of counts 1, 4 to 9 is dismissed.
- The appeal against sentence in respect of counts 1, 4 to 9 is equally dismissed.
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N N SHIVUTE
Judge
D N USIKU
Judge
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