S v Cunningham

• Jurisdiction: South Africa
• Judge: Van Heerden JA, Vivier JA and Scott JA
• Judgment Date: 14 March 1996
• Citation: 1996 (1) SACR 631 (A)
• Hearing Date: 20 February 1996
• Counsel: A H Veldhuizen for the appellant R Berg for the State
• Court: Appellate Division

Scott JA:

The appellant, an unmarried accountant in his late thirties, was charged in the regional court with one count of murder, one count of attempted murder and three F contraventions under s 118 of the Road Traffic Act 29 of 1989. The charges arose out of a collision on 6 March 1993 between a motor vehicle driven by the appellant and two cyclists at the intersection of Main Road and Steenberg Road, Retreat, in the Cape. One of the cyclists died of his injuries; the other has been left with a paralysed arm. The statutory offences related to the appellant's failure to stop immediately after G the collision and his failure to ascertain the nature and extent of the damage and the injures sustained in the collision. The defence raised at the trial was one of so called 'sane automatism'. It was contended on behalf of the appellant that at the time of the collision and immediately thereafter he was acting in a state of automatism and that the prosecution had failed to prove a voluntary act on his part of the kind required for H criminal responsibility. The trial court rejected this defence but found that while the appellant had been negligent he had not acted intentionally as alleged by the State. On the count of murder he was accordingly convicted of culpable homicide, but acquitted on the count of attempted murder. He was also acquitted on the three statutory counts on the basis of his confused condition following the impact, which was a severe one. I He was sentenced to three years' correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977 and in addition to four years' imprisonment conditionally suspended for four years. In terms of s 55 of the Road Traffic Act his driver's licence was suspended for two years. J

Scott JA

A On appeal to the Cape Provincial Division the conviction was confirmed but the sentence was altered by the substitution of a period of two years' suspended imprisonment for the four year period imposed by the regional magistrate. In addition, the Court a quo added a proviso to the order suspending the appellant's driver's licence, authorising him to apply after three months for the cancellation of the suspension order 'on proof that he has fully recovered his mental health'. With the B necessary leave the appellant appeals to this Court against his conviction of culpable homicide. There was some doubt whether, in addition, leave had been granted against the sentence as altered, but on the assumption that it had, Mr Veldhuizen who appeared for the appellant in all three courts, abandoned the appeal against sentence. In my view he was correct in doing so. C

The collision and the manner of the appellant's driving were not in dispute. Where the collision occurred, Main Road runs from approximately north to south. Steenberg Road runs from east to west and joins Main Road on its western side to form a 'T' intersection. For a short distance on the southern side of the intersection Main Road D has two lanes for northbound traffic; the left lane is for traffic turning left into Steenberg Road; the right lane is for traffic travelling north through the intersection. Similarly, on the northern side of the intersection Main Road has two lanes for southbound traffic; the right lane being for traffic turning right and proceeding west into Steenberg Road and the left lane being for traffic proceeding south. The intersection is E controlled by traffic lights.

On 6 March 1993 at about 6.20 am the vehicle driven by the appellant approached the intersection from the south travelling at a speed which the witnesses described as being in excess of the speed limit. The traffic lights were red for vehicles travelling in Main Road. There was one stationary motor car in the right hand lane on the southern F side of the intersection. On the opposite side of the intersection two cyclists were in the right hand lane waiting for the lights to change before proceeding up Steenberg Road. (There were other cyclists and a motor car in the left lane.) The appellant hooted and then proceeded to overtake the stationary motor car and continue through the intersection on the incorrect side of the road and against the red light. His vehicle G collided with both cyclists in the right hand lane. The deceased's left leg was ripped off with the impact, leaving the appellant splattered with blood. The vehicle returned to its correct side of the road and continued on for several hundred metres before moving again onto its incorrect side of the road and apparently colliding with a refuse bin. H

When the police arrived on the scene the appellant was out of his motor car and was being held down by a number of bystanders, presumably to prevent him from leaving the scene. The appellant fiercely resisted their efforts to restrain him. With much difficulty the police managed to handcuff him and bundle him into the police van. While this was being done the appellant shouted and swore at them. According to one of the I policemen on the scene the appellant appeared to be confused and unable to explain what had happened. Once in the van he lay on his back and kicked the roof shouting to be let out and laughing. In due course he was taken to the police station where he appeared to quieten down. From there J

Scott JA

A he was taken to the district...