S v Birkenfield

• Jurisdiction: South Africa
• Judge: Schutz JA, Streicher JA, Mellunsky AJA
• Judgment Date: 27 March 2000
• Citation: 2000 (1) SACR 325 (SCA)
• Hearing Date: 20 March 2000
• Counsel: M G Kotze for the appellant. M G Mgudlwa for the State.
• Court: Supreme Court of Appeal

Melunsky AJA:

[1] This is an appeal against the sentence imposed on the appellant pursuant to his conviction for culpable homicide in the magistrate's court, Kempton Park. The magistrate sentenced the appellant to five years' imprisonment subject to the provisions of s 276(1)(i) of the Criminal Procedure Act, 55 of 1977. The sentence was reduced to H three years' imprisonment subject to the same provisions on appeal to the Transvaal Provincial Division of the High Court (Marais and Snyders JJ), which granted the appellant leave to appeal to this Court. G

[2] The facts giving rise to the conviction can be stated briefly. The appellant drove a motor cycle from west to east in Olienhout Street, Kempton Park on the night of 12 May I 1996. A young woman, Sally Clifford, was a passenger on the pillion seat. The appellant entered the intersection of Olienhout and Maroela Streets without stopping at a stop sign and collided with a pedestrian, Lesiba Malope, who was in the intersection. The motor cycle proceeded beyond the intersection and the passenger fell onto the road. About 70 to 80 metres east of the intersection the motor cycle collided with a tree. As a result of J the

Melunsky AJA

aforegoing the pedestrian and the passenger were killed outright, the appellant A sustained serious injuries and the motor cycle was effectively destroyed.

[3] Olienhout Street is a straight road in a built-up area. The intersection with Maroela Street is well lit and the light of the motor cycle was on. It is not disputed that the appellant could and should have seen the pedestrian. It is also clear that had he stopped B at the stop sign, as he was obliged to do, he would not have collided with Mr Malope. The evidence discloses, moreover, that the appellant travelled at a speed that was greatly excessive in the circumstances and that he had also failed to stop at an intersection immediately west of the Maroela Street crossing.

[4] It is not absolutely certain why Miss Clifford fell from the motor cycle but it seems to C be obvious that this was due either to the impact with the pedestrian or to the appellant's inability to control the vehicle properly immediately after the first collision. Miss Clifford was not wearing a helmet but there is no evidence which establishes that she would have survived had she worn some form of protective headgear. D

[5] The appellant suffered from amnesia as a result of his injuries and had no recollection of driving the motor cycle on the night in question. There is no doubt, however, that he drove in a manner that was grossly negligent, if not reckless. This was also the view of the magistrate. At the...