S v Qeqe

• Jurisdiction: South Africa
• Judgment Date: 08 June 2012
• Citation: 2012 (2) SACR 41 (ECG)

S v Qeqe
2012 (2) SACR 41 (ECG)

2012 (2) SACR p41

Citation	2012 (2) SACR 41 (ECG)
Case No	CC 37A/2011
Court	Eastern Cape High Court, Grahamstown
Judge	Grogan AJ
Heard	June 8, 2011
Judgment	June 8, 2012
Counsel	N Henning for the state.; C Schüring for the accused.

Flynote : Sleutelwoorde

Murder — Mens rea — Intention to kill — Dolus eventualis — What constitutes — Accused, as driver of motor vehicle, executing dangerous manoeuvre, H fully aware and reckless of danger it posed to those in vicinity in general and in particular to those killed when vehicle struck them — Accused can in legal sense be said to have 'consented' or 'reconciled himself' to or 'taken into the bargain' fact that persons in vicinity might be struck by vehicle and killed — State of mind of accused in such circumstances amounting to dolus eventualis — Accused guilty of murder of those struck and killed by I vehicle.

Headnote : Kopnota

Where the driver of a motor vehicle, with the objective of evading police officers who are pursuing him in order to effect an arrest, executes a dangerous manoeuvre with the vehicle, fully aware and reckless of the danger that such action posed to those in the vicinity in general and, in particular, to the J

2012 (2) SACR p42

A persons who were killed when the vehicle struck them, the driver (the accused in the present case) can in the legal sense be said to have 'consented' or 'reconciled himself' to or 'taken into the bargain' the fact that the persons in the vicinity might be struck by the vehicle and that they might be killed. In those circumstances, the state of mind of the accused driver at the time can properly be described as amounting to dolus eventualis and his conduct can be held to have unlawfully caused the death B of his victims and he was therefore guilty of the crime of murder. [*] (At 51i – 52c.)

Cases cited

S v Chretien 1979 (4) SA 871 (D): applied C

S v De Bruyn en 'n Ander 1968 (4) SA 498 (A): dictum at 506 in fin – 507B applied

S v Dube 1972 (4) SA 515 (W): distinguished, but dictum at 520G – H applied

S v Naidoo and Others 2003 (1) SACR 347 (SCA) ([2002] 4 All SA 710): dictum in para [28] applied D

S v Ngubane 1985 (3) SA 677 (A): dictum at 685F – H applied

S v Nhlapo and Another 1981 (2) SA 744 (A): applied

S v Shaik and Others 1983 (4) SA 57 (A): considered

S v Swanepoel 1983 (1) SA 434 (A): applied.

Case Information

E Criminal trial on a charge of murder.

N Henning for the state.

C Schüring for the accused.

Judgment

Grogan AJ: F

On 1 June 2010 a Fiat Uno motor vehicle, registration CMD 503 EC, slewed across a sidewalk, which I will term 'sidewalk A', at the T-junction of Phantse and Ntlana Streets in Bedford. The vehicle traversed Ntlana Street, mounted and crossed the sidewalk on the other side (sidewalk B), and came to a halt after penetrating a wire fence bordering an abutting property. The dead bodies of three young children G were left on the scene, one on sidewalk A, the other two on sidewalk B. The three occupants of the car ran onto the property aforementioned and were arrested soon afterwards, after being molested by onlookers.

It is common cause that the accused was driving the vehicle concerned H and that the vehicle struck one of the children on sidewalk A. It is also common cause that the Fiat Uno had been stolen a short while before by the accused and the two passengers in the vehicle, and that at the time a police van was in hot pursuit.

2012 (2) SACR p43

Grogan AJ

The accused is charged with theft, count 1, with three counts of murder, A counts 2, 3 and 4, and with reckless and negligent driving, count 5. He has pleaded guilty to the first and fifth counts, and not guilty to the second, third and fourth. The state contends that the accused is guilty on all three counts of murder because he foresaw that his action would or could result in the death of persons on the scene. B

The accused admits that his vehicle struck the child on sidewalk A, but claims that she ran from an adjoining property just as the vehicle was passing. He denies that the Uno struck the two children on sidewalk B and says that he has no idea how they were killed.

Since it places a number of issues out of contention, I begin by C quoting the explanation made by the accused in respect of his plea to the counts of murder. This is exh C.

'I admit that when we arrived in Bedford we were chased by the police and eventually made an accident with an unfortunate and horrendous consequence. I was the driver of the Uno. When we spotted the police D vehicle I immediately realised that I was in big trouble and tried to get away. In an attempt to evade arrest I drove to (sic) fast to the extent that I at times drove recklessly. My speed was far too high and since the car was not powerful I drove around corners as fast as I could so as not to loose (sic) too much speed or power. It was around lunchtime and we were driving around in the location on narrow tarred roads. At one E stage I tried to cut a corner by driving over the gravel sidewalk. I noticed a child and immediately turned away from the child and applied the brakes. Unfortunately it was too late and I hit the child with the side of the car. The car skidded right over the road and mounted the opposite sidewalk. The child died tragically as a result of the motor vehicle accident. The indictment alleges that I caused the death of three F children, I have no knowledge how the death of the other two children occurred. I was absolutely terrified and arrested and assaulted by members of the community before my formal arrest by the police. It was never my direct intention to cause the death of the said child.'

This statement indicates why the accused pleaded guilty to count 5. G It would also be consistent with a plea of guilty, in respect of at least one of the deceased, to a charge of culpable homicide. The statement indicates that, on his own version, the accused was driving 'way too fast' at 'around lunchtime' in a residential area on narrow roads, that he drove around corners as fast as he could, that his main concern was to 'get H away' and that he attempted to 'cut a corner' by crossing a sidewalk before the fatal collisions occurred. No reasonable person, whom I take to be relatively law-abiding, would drive in such a manner in a populated, built-up area. It goes without saying that the fact that the accused was attempting to escape arrest did not entitle him to drive in the reckless fashion thus described or in any way justify such conduct, I nor does the fact that he was 'absolutely terrified', presumably of the consequences of being caught in a stolen vehicle, in any way diminish his culpability. The accused was being pursued by police officers lawfully bent upon apprehending him because he was driving a stolen vehicle. There can be no doubt that on his own version the accused was guilty of at least one offence of culpable homicide (that is, committing a negligent J

2012 (2) SACR p44

Grogan AJ

A act that caused the death of the deceased). I understood counsel for the defence, Mr Schüring, to concede as much. There is also no doubt that, if the car driven by the accused indeed struck all three children, that he is guilty of three such offences.

However, the state has chosen to charge the accused with three counts of B murder. This court must therefore determine whether the evidence led is sufficient to prove beyond reasonable doubt the elements of the offence of murder, that is, that the accused unlawfully and intentionally caused the death of each of the deceased. As I have indicated, the accused denies that he caused the deaths of two of the deceased, and claims in respect C of the other that he lacked the requisite intention. Should it be found that the accused in fact caused the deaths of all three of the deceased, it must still be determined whether he had the necessary intention in respect of each of them.

Much evidence has been led in this matter concerning the immediate D background to the incident I have just described, and its aftermath. To my mind, this testimony is relevant only insofar as it casts light on the immediate circumstances in which the fatal incident occurred, the state of mind of the accused just before it happened, whether the accused caused the death of the children whose bodies were found on sidewalk B, and, perhaps, on the credibility of the respective witnesses.

E I turn now to the evidence as it relates to each of these issues. The state led the evidence of four witnesses, the two police officers who pursued and apprehended the accused, the investigating officer subsequently assigned to the case, and one of the passengers of the Uno.

F Constables M Mandongana and M Lindani were the arresting officers. They each testified that they were assigned to intercept the stolen vehicle, which was reported to be driving from Adelaide, where it was stolen. The Uno was first spotted in Cradock Street in central Bedford, coming in the direction opposite to that which the police vehicle was travelling. Constable Lindani, who was the driver of the police van, G executed a U-turn and followed the Uno, which picked up speed and turned into...