S v Nxumalo

• Jurisdiction: South Africa
• Judge: Corbett JA, Hoexter AJA and Botha AJA
• Judgment Date: 18 May 1982
• Citation: 1982 (3) SA 856 (A)
• Hearing Date: 11 May 1982
• Court: Appellate Division

Corbett JA:

B This in an appeal against sentence. The appellant was convicted by a regional magistrate of culpable homicide and of operating on a public road a public motor vehicle in respect of which there was no certificate of fitness in force, in contravention of s 77 (1) of Ord 21 C of 1966 (T). Appellant appealed to the Transvaal Provincial Division ('TPD') against both his conviction and sentence on the charge of culpable homicide and against the sentence imposed in respect of the conviction of having contravened s 77 (1) of the Ordinance. The TPD dismissed his appeal in regard to the conviction and sentence for culpable homicide, but reduced the sentence on the other conviction. D With the leave of the Court a quo, appellant now appeals to this Court only against the sentence imposed with reference to the conviction for culpable homicide. This sentence is four years' imprisonment.

The charge of culpable homicide arose from a traffic accident involving a bus, of which appellant was the driver at the time of the accident. E The facts are substantially common cause and may be summarised as follows.

On the day in question, 18 September 1978, appellant was instructed by his employer, the owner of a number of buses, to drive the bus in question to Soweto in order to transport a number of schoolchildren to some destination not disclosed by the evidence. At that stage appellant F had been working for the bus-owner for three months. Some of this service had been in Newcastle. He had previously also driven buses between Pretoria and Mabopane, but never in Johannesburg. Before appellant set out upon his journey his employer came to the bus and removed the certificate of fitness, which, it seems, was by then out of G date. Appellant remonstrated and asked his employer how he could proceed to drive the bus without the certificate. The employer told him, in effect, that if he wished to keep his job he had better drive the bus. Appellant stated in mitigation that at the time he also raised with his employer the fact that the brakes of the bus were not working satisfactorily, but that he was compelled by the aforementioned threat H to take the bus out onto the road. This averment appears to have been accepted by the regional magistrate. There is indeed some confirmation of its correctness. In answering questions put to him by the trial court in terms of s 115 (2) of the Criminal Procedure Act 51 of 1977, appellant stated that the brakes worked that morning, but that the brake-fluid container was only half full. Appellant's employer accordingly gave him R10 to purchase brake-fluid and instructed him to top up the container. He did so after picking up the schoolchildren in Soweto; and this fact is substantiated by the evidence of a State witness, one Sekhute, a schoolteacher, who was also in the bus at the time of

Corbett JA

the accident. I might add, however, that, according to the evidence of another State witness, Warrant Officer Jordaan, a mechanical expert in the employ of the South African Police, the bus in question was equipped A with pneumatic, or vacuum brakes and that such a system did not require brake-fluid. Jordaan suggested that the container topped up by appellant may have been part of the clutch system. But nothing turns on this issue.

The main State witness was the aforementioned Sekhute. He described how, B after the bus had left Soweto, with himself and about 58 schoolchildren aboard, and after appellant had purchased brake-fluid and topped up the container, they proceeded and eventually drove along Christiaan de Wet Avenue, in Roodepoort. During the course of the journey Sekhute had noticed that appellant was having trouble with the brakes of the bus. In C order to bring the bus to a standstill at traffic lights and stop signs appellant had to pump the footbrake and at places he had to make use of the handbrake as well. Sekhute's evidence proceeds:

'Ek het hom toe gevra hoe lyk dit asof die bus vir hom moeilikheid gee. Toe sê hy ja, die remme werk nie so goed nie.'

D In a locality known as 'Ellen's Nek' the road descends steeply, with a number of sharp bends. It is a single carriage-way, the upward and downward lanes being separated by a continuous white line. Appellant's bus commenced the descent at a relatively slow speed. (Another State witness, Bushney, estimated the speed of the bus at...