R v Sacco

• Jurisdiction: South Africa
• Judge: Holmes J and Jansen J
• Judgment Date: 25 February 1958
• Citation: 1958 (2) SA 349 (N)
• Hearing Date: 19 February 1958
• Court: Natal Provincial Division

B Holmes, J.:

This is an appeal against conviction and sentence on a charge of contravening sec. 109 (a) of Ord. 26 of 1956 (Natal) (negligent driving).

The only Crown witness was the complainant, who was injured by a motor car driven by the appellant. For the defence, the appellant gave evidence, and he called a constable who put in a plan of sorts. It was C common cause in argument before us that the material facts could be taken as follows:

On the evening of 7 March 1957 the complainant, an elderly European woman, was crossing West Street, Durban, from South to North, in the company of a young man who was on her left. They reached the centre white line and stood there, facing North, waiting to continue their D crossing. The appellant was driving up West Street from the East, that is to say the couple had crossed his half of the street, and the complainant's right side was towards him. The appellant did not hoot but the complainant had seen him approaching. The appellant was driving at a speed of 25 miles an hour, and was 4 feet from the centre white line E - he was in the right hand side traffic lane of his half of the road. His parking lights were on. It was a clear night. There was a fair amount of traffic in both directions. He saw the complainant and her companion standing on the white line when he was 25 to 30 feet from her. Accordingly he slowed down to 15 m.p.h. He did not ease over to his left as there was a car in the traffic lane on his left. When the appellant F was 10 - 12 feet from them, the complainant started moving backwards, apparently being pulled by her companion. The latter's reason for doing this is not known, for he later disappeared. The appellant braked hard, to the speed of a walking pace, but the complainant collided with the side of his car, about a foot from the end of the bonnet. The appellant pulled up, and the complainant was found lying alongside his car, which G was still 4 feet from the centre white line. The car was not damaged, but the complainant was hurt.

The grounds of appeal, as originally filed, were:

'1.

The conviction was against the weight of evidence.

2.

The evidence disclosed that the accused did not drive recklessly or negligently.

3.

The evidence disclosed that the accused (a) kept a proper look-out, H (b) drove at a reasonable speed. (c) drove a safe distance away from the complainant, and (d) did all that was reasonably possible to avoid a collision.

4.

The evidence disclosed that the accused could not reasonably have foreseen that the complainant would step backwards into the course of the accused's car.'

In spite of the pointed use of the word 'foreseen' in para. 4 of these grounds, the magistrate said in para. 3 of the facts found proved:

'Accused was negligent in that he passed the complainant at a distance which

Holmes J

was not reasonably sufficient to allow for any unforeseen movement on the part of the complainant.'

(The italics are mine).

In my view this was clearly a misdirection (and the subsequent grounds of appeal take this point) because the standard of care of a reasonable man is concerned with the foreseeable, not with the unforeseen. In his A reasons, the magistrate refers to the case of R v Clark, 1924 NPD 343. It is true that at p. 346 DOVE-WILSON, J.P., said of the motorist's duty to the pedestrian:

'His duty was . . . to pass him at a distance reasonably sufficient to allow for any unforeseen and sudden movement or stoppage on the part of the deceased.'

B But I think it is clear that the learned JUDGE-PRESIDENT used the word 'unforeseen' per incuriam: indeed he stated the proposition thus at p. 350

'His duty is to take due care that any such alteration as may reasonably be expected shall not result in a collision'.

(The italics are mine).

C I shall deal later with the question whether this misdirection by the magistrate caused a failure of justice.

The final paragraph of the magistrate's reasons concludes as...