S v Mampa

• Jurisdiction: South Africa
• Citation: 1985 (4) SA 633 (C)

S v Mampa
1985 (4) SA 633 (C)

1985 (4) SA p633

Citation	1985 (4) SA 633 (C)
Court	Cape Provincial Division
Judge	Van Heerden J and Rose Innes J
Heard	August 5, 1985
Judgment	August 5, 1985

Flynote : Sleutelwoorde

Criminal law — Culpable homicide — Charge of — Two B persons killed in the same motor accident — Court holding that improper to charge accused with two counts of culpable homicide — Single charge should make reference to both deceased.

Headnote : Kopnota

The accused had been convicted in a magistrate's court of two C charges of culpable homicide. The charges arose from a motor accident in which two passengers in the car in which the accused was driving were killed. The Court on review held that the accused's conduct could not be separated into different acts and that he should have been charged with one count of culpable homicide in which reference was made to both the deceased persons. The conviction was accordingly set aside and D replaced with one conviction in respect of both deceased.

Case Information

Argument on review. The facts appear from the reasons for judgment.

A de V le Grange for the State.

J Shortt-Smith for the accused at the request of the Court.

Judgment

E Rose Innes J:

This matter came on automatic review from the magistrate's court. It was referred for argument on the following question.

"If the driver of a motor vehicle by his negligence causes the death of two of his passengers, is he correctly convicted of two charges of culpable homicide, or should F there be only one charge in which reference is made to both the deceased?"

The accused was charged with two charges of culpable homicide both arising from a motor accident on 27 March 1982 near Orchard in the district of Worcester. There was a third charge of contravening s 50(1) of the Road Traffic Ordinance 21 of G 1961 (C) in that accused drove the motor car involved in the accident without being the holder of a driver's licence.

Accused pleaded guilty to all three charges. In the plea proceedings he admitted that he was the driver of a motor car in which the two deceased were passengers. He admitted that as a result of his failing to keep a proper lookout he belatedly became aware of a sharp bend in the road ahead of him, was H unable to negotiate the bend, applied the brakes of his motor car suddenly, skidded on the gravel verge of the road and collided with a tree at the side of the road beyond the bend. Both passengers died as a result of injuries sustained in the collision. Accused further admitted that he held no driver's I licence. He was found guilty as charged on all three charges.

The magistrate took the two charges of culpable homicide together for the purpose of sentence. He imposed a fine of R400 or 200 days' imprisonment of which R200 or 100 days' imprisonment was suspended for five years on condition that accused was not convicted of culpable homicide or any offence of which violence to the person of another is an element, J committed during the period of suspension, and for which the

1985 (4) SA p634

Rose Innes J

A accused was sentenced to imprisonment without the option of a fine. Accused was further fined R60 or 30 days' imprisonment on the charge of driving without a licence.

The rule or practice against an improper splitting or duplication of charges of convictions has its origin in South B Africa in R v Marinus (1887) 5 SC 349, which was a case of the successive breaking of a stable and theft of a horse and breaking of an adjoining coachhouse and theft of harness. The majority of the Court considered the accused's conduct to be one continuous criminal transaction which should be punished once and should not be punished twice by the imposition of sentences on both charges. The objection of the Court to the C duplication of the convictions and sentences was that the magistrate's court thereby evaded the limitation upon its jurisdiction in respect of punishment. It imposed two sentences which cumulatively exceeded the maximum sentence which it would have been empowered to impose had it imposed one sentence for one offence, as it should have done. The rule against splitting D of charges is also aimed at preventing the prejudice and injustice to an accused, even where no question of jurisdiction arises, of being charged, convicted or sentenced for several offences where he has committed but one, or what should be regarded as substantially one crime or criminal transaction although his conduct may technically have constituted several offences. The rule stems from the natural repugnance everyone E has to anyone being punished twice for what amounts to one and the same wrong. The same considerations find expression in the rules governing the defences of autrefois acquit or convict where an accused pleads that he has previously been charged and acquitted or convicted of the same or substantially the same F crime and should not be made to face once again the same predicament and jeopardy of a trial, conviction and punishment.

In the present matter the trial court for the purpose of sentence took the two convictions of culpable homicide together and imposed a single sentence, so that the accused did not suffer the injustice of a duplication of punishments. The G circumstance, however, that two convictions are taken together for the purpose of sentence does not cure the prejudice of an improper duplication of convictions. S v Ndlovu1962 (1) SA 108 (N); S v Xulu 1973 (1) PH H25 (N). Hence the question on review whether accused was properly convicted on two counts of culpable homicide.

In Ex parte Minister of Justice: In re R v Moseme1936 AD 52 the Court reviewed the many decisions which followed upon R v H Marinus (supra) and said:

"It seems to me, therefore, correct to say that the rule or practice against splitting of charges which has grown up during the last half century, amounts to this, that where the accused has committed only one offence in substance, it should not be split up and charged against him in one and the same trial as several offences."

I The difficulty in applying the rule is to decide whether in a particular case the accused's conduct constituted "one offence in substance". In some cases an improper splitting of charges is obvious. For example, where on a charge of an offence there are competent verdicts of lesser offences which are necessarily encompassed by the greater offence, as on a charge of murder J where an accused may be found guilty of assault with intent to do grievous bodily harm, or common assault, it would obviously

1985 (4) SA p635

Rose Innes J

be wrong to charge him with separate counts of all three of A these offences and to convict and sentence him separately on each count, since commission of the greater offence necessarily includes commission of these lesser offences. To do so would obviously be to convict and punish the accused several times for the same wrongdoing. Cf R v Mabengu 1914 EDC 21 and R v B Viljoen and Others 1923 AD 90. A splitting of charges is not always so apparent. An accused may commit a single act which constitutes several offences as in the example already given of murder which necessarily involves the offence of assault, but a single act may also constitute several offences where the commission of one does not necessarily involve the commission of the others. In the present case, for example, the accused's act of driving a motor car constituted the offences C of negligent driving in contravention of the Road Traffic Ordinance, culpable homicide, and driving without a driver's licence. Then again, the commission of several acts by an accused may constitute a crime which necessarily also...