Rex v Swanepoel

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 13 March 1945
• Citation: 1945 AD 444
• Hearing Date: 28 February 1945

Davis, A.J.A:

The applicant was found guilty by the assistant magistrate of Boksburg of culpable homicide. He was sentenced to pay a fine of £40 or to undergo three months' imprisonment with hard labour, half of which, namely, £20 or six weeks' imprisonment with hard labour, was suspended for a period of two years on condition that he remained of good behaviour during that time. He appealed to the Transvaal Provincial Division: his appeal was dismissed, but the magistrate's sentence was struck out and a sentence of four months' imprisonment with hard labour and, a suspension of his driving licence for a period of 12 months, was substituted. He applied to the Transvaal Provincial Division for leave to appeal and this was refused; he now applies for leave from this Court. Upon the application, the whole matter was argued, counsel on both sides intimating that, in the event of leave being granted, they did not wish to add anything to their arguments. For the reasons which will appear from this judgment, leave must be granted, I shall proceed to consider the appeal itself.

The principal facts, as found by the magistrate, were as follows.

Davis, A.J.A.

Shortly before half past one on the afternoon of 23rd October, 1943, the deceased, an elderly woman of 63 years of age, was crossing Commissioner Street, Boksburg - tarred road, 44 feet wide, with a 30 mile speed limit - from south to north. She started to walk obliquely, half facing east, but, when she had come some little distance into the street, she hesitated momentarily and looked up it, when she appears to have seen the accused on his motor cycle approaching from the east. She then changed her course and walked quickly straight across: she did not run. The accused was driving a 3 1/2 horse power Gillet motor cycle from east to west in Commissioner Street. There were a few cars parked in the street, but there was no other traffic. Before he entered the intersection of Berg Street, that is to say when he was something over fifty yards from where the deceased was crossing, the accused, who was travelling along the left hand side of the street at a speed of at least 45 miles an hour, swerved slightly towards the north to avoid the car of the witness van der Westhuizen, which was parked opposite to his house, and continued on this route. (I shall return to the question of speed later.) He subsequently applied his brakes, leaving brake marks for the whole remaining distance of 41 feet, and finally, at a point 14 1/2 feet from the northern pavement, he hit the deceased. She was thrown to the ground, sustained serious injuries, including a fractured skull, from which she died in hospital four days later. The motor cycle, I should add, came to rest some nine and a half feet from the point of impact. The accused said in evidence that he, was on his way home at a speed of 25 to 30 miles an hour. He saw the deceased when she came clear of a car at the side of the road. He hooted and put on his brakes: she stopped "for a few seconds". He assumed that she was letting him pass and he continued to ride, so as to pass in front of her, with his brakes on: his speed when he first put on his brakes was under 20 miles per hour. She then started to run and ran into him. The magistrate rejected his evidence; he based his findings on the evidence of the only eye-witness, van der Westhuizen, who was sitting on his stoep on the north side of the street, some 70-yards or, so to the east of the spot where the deceased was injured, and whom he accepted as "obviously unbiased and truthful in his assertions." He came to the conclusion that

"the accused travelled at an excessive speed or not a reasonable speed having regard to all the circumstances, because it was

Davis, A.J.A.

quite impossible for him to pull up or avoid colliding with any object which he should have expected there if he had kept a proper lookout, and which he could easily have avoided but for his speed, improper lookout and resultant inability to stop".

I agree with the Transvaal Provincial Division that, in regard to the conviction, this appeal could have no reasonable prospect of success, and this portion of the case can be dismissed somewhat briefly. As to speed, there is the direct evidence of van der Westhuizen, I shall later give my reasons for thinking that his actual estimate of the speed of the accused is not to be relied upon: but he was found to be a truthful witness and the impression made on him that it was too fast can be accepted. The evidence of van der Westhuizen also shows that the deceased did not run, that there was nothing to obscure the view of the accused and that, if he did not see the deceased earlier than he says that he did, then he cannot have been keeping a proper lookout. The evidence of the accused in no way accounts for the accident; and it in no way accounts for the brakes being kept full on for the whole distance of 41 feet. If the deceased "stopped for a few seconds", that space of time, even at the law speed at which he says he was travelling, was more than was necessary for him actually to pass her - it would have taken him, at twenty miles per hour, under a second and a half to do so. A man who is already travelling slowly does not attempt to pass well in front of a person who is stationary on the other side of the road, and whom he expects to remain so, with his brakes full on the whole way. Nor does he account for not swerving still further away from her: at the point of impact there was still very nearly five yards between her and the north pavement. The inference is in my opinion irresistible that he was travelling too fast, or was not keeping an adequate lookout, or both. There may well also have been some degree of unskilfulness involved, and, of course, impertia culpae adnumeratur: (Inst. 4-3-7). Even taking into consideration...