S v Naicker

• Jurisdiction: South Africa
• Judge: F H Grosskopf JA
• Judgment Date: 27 November 1996
• Citation: 1996 (2) SACR 557 (A)
• Hearing Date: 14 November 1996
• Court: Appellate Division

F H Grosskopf JA:

This appeal concerns sentence only. The appellant was convicted in the regional court of culpable homicide resulting from negligent driving and sentenced to two years' imprisonment. His appeal against conviction and sentence was dismissed by the Natal Provincial Division. Leave to appeal to this Court against sentence was granted on C petition to the Chief Justice.

During the early evening of 13 November 1992 the appellant was driving a Ford Sierra motor vehicle ('the Sierra') in an easterly direction along the M7 Freeway between Pinetown and Durban. The M7 Freeway was a dual carriageway and the east bound carriageway consisted of three traffic lanes. the appellant was travelling in the centre lane behind a D Mercedes Benz motor vehicle ('the Mercedes'). It was alleged by the State that the appellant and the driver of the Mercedes were racing with each other and driving at an excessive speed, but the magistrate did not think that the evidence could justify such a finding at the end of the State case when he discharged the alleged driver of the Mercedes, who was accused E No 2 before the court, and the evidence given by the appellant thereafter took the matter no further.

The magistrate did however find that the appellant was driving at a high speed when the passed Mrs Cretten who was driving a BMW motor vehicle ('the BMW') at approximately 90 km/h in the same direction but in the left hand lane. Mr Cretten was a passenger in the BMW. The Crettens were F independent witnesses who both testified at the appellant's trial. Despite certain discrepancies in their respective versions the magistrate accepted their evidence. The magistrate was satisfied that the initial collision between the Sierra and the Mercedes occurred in the manner described by the Crettens. G

The appellant's account of the collision differed in material respects from that of the Crettens. The appellant's version was found to be improbable and untruthful and need not be restated.

According to Mrs Cretten the Sierra was behind the Mercedes in the centre lane when they passed her. The Sierra then moved over to the right H hand lane in order to pass the Mercedes, but was prevented from doing so by the driver of the Mercedes, who moved over to the right hand lane in front of the Sierra. When the Sierra moved back to the centre lane the Mercedes once again obstructed its passage by also moving over to that lane.

Having been prevented from passing the Mercedes in the two fast lanes I the appellant moved over to the left hand lane in an attempt to overtake it on the left. The appellant must have been aware of the risk of slow moving traffic in that lane. As it happened there was a huge tanker vehicle ('the tanker') in the left hand lane moving downhill at a slow speed. Mrs Cretten's evidence is that she saw the driver of the Sierra applying his brakes 'literally, as he moved into the [left hand] lane'. She later said that J

FH Grosskopf JA

'he had just entered the left hand lane' when she saw his brake lights A coming on. Allowing for reaction time it would appear that the appellant first became aware of the tanker as he entered the left hand lane. One must assume that he would probably not have moved into that lane if he had seen the slow moving tanker at an earlier stage.

Mrs Cretten described how the driver of the Sierra applied his brakes B and swerved to his right in order to avoid a collision with the tanker. She saw the Sierra going into a clockwise spin, skidding into the left hand side of the Mercedes which was still travelling in the centre lane and almost parallel to the Sierra. The Sierra then pushed the Mercedes over the south bound carriageway and onto the median strip separating the two carriageways. C

Mr Cretten's evidence is that the driver of the Sierra 'braked violently first . . . then he started to lose control of the vehicle'. He also saw the Sierra turning and going sideways into the Mercedes, forcing the Mercedes into the trees and bushes on the median. I should...