S v Andhee

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Smalberger JA, Marais JA and Scott AJA
• Judgment Date: 23 November 1995
• Citation: 1996 (1) SACR 419 (A)
• Hearing Date: 14 November 1995
• Counsel: M J D Wallis SC for the appellant J Du Toit for the State

Smalberger JA:

On the evening of 6 December 1991 Mrs Faldielah Nair and her 13-year-old daughter Tasneen ('the deceased') were crossing Mountbatten Drive in Reservoir Hills, a suburb of Durban, on their way home from a supermarket. They H stood on the traffic island in the centre of the road waiting for vehicles from their left to pass before completing their crossing. One of the vehicles, travelling at speed, mounted or encroached upon the island. It collided with the deceased, injuring her fatally. The vehicle stopped, the driver alighted from it, went to the front of his vehicle, returned to the driver's door and glanced at the deceased who was lying on I the road behind the vehicle. He then re-entered his vehicle and drove away, ignoring the deceased's mother's pleas for help.

As a sequel to these events, the appellant, a medical practitioner, was charged in the magistrate's court, Pinetown with (1) culpable homicide; (2) a contravention of s 118(1)(b) of the Road Traffic Act 29 of 1989 ('the Act') (failing, as the driver of a vehicle involved in an accident, to ascertain J

Smalberger JA

A the nature and extent of any injury sustained by any person injured in the accident); (3) a contravention of s 118(1)(d) of the Act (failing to ascertain the nature and extent of any damage sustained to any property); and (4) a contravention of s 118(1)(c) of the Act (failing to render assistance to any injured person). He was also charged (count 5) with defeating or obstructing the course of justice, arising from B allegedly false information which he later gave to the police that his vehicle had been stolen before the collision.

A protracted trial followed. The appellant persisted in his claim that his vehicle had been stolen and that he had not been driving it when the collision occurred. He testified that he had been at a party at the time. He called a number of witnesses to C support him. The trial magistrate disbelieved the appellant and his witnesses, and convicted him on all five counts. The appellant continued to protest his innocence. He did not give evidence in mitigation of sentence, and left it to his attorney to address the court on his behalf. In respect of count 1 the appellant was sentenced to a fine of D R6 000 or 12 months' imprisonment. On counts 2, 3 and 4 (taken together for the purposes of sentence) he was sentenced to nine months' imprisonment. A similar sentence was imposed on count 5. The magistrate ordered the sentences in respect of counts 2 to 5 to run concurrently. The effective period of imprisonment was accordingly nine months.

E The appellant appealed to the Natal Provincial Division against his convictions and sentences on all counts. Shortly before the hearing of the appeal, and after receiving advice from senior counsel, the appellant changed his stance. He conceded that he had been responsible for the collision. He abandoned his appeal against his conviction and sentence on count 1, as well as his conviction on count 2. He F proceeded with his appeal against his convictions in respect of counts 3, 4 and 5 (the latter to the extent that he claimed that he should only have been convicted of an attempt) as well as his sentences on those counts. His appeal was partially successful. His convictions on counts 2 and 3 were set aside; that on count 5 was altered to an attempt to defeat or obstruct the course of justice. The sentence of nine months' imprisonment on counts 2, 3 and 4 (previously taken together) was ordered to stand G as the sentence on count 2; the sentence on count 5 was confirmed. However, the Court a quo, which before the...