Court name
High Court Main Division
Case name
Katjorokere v S
Media neutral citation
[2013] NAHCMD 90
Judge
Van Niekerk J
Ueitele J












NOT
REPORTABLE


REPUBLIC
OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK







REASONS FOR JUDGMENT


Case No. CA
20/2012





In the matter between:






HEROLD KATJOROKERE
........................................................................APPELLANT





and





THE
STATE
.............................................................................................
RESPONDENT






Neutral
citation:
Katjorokere v The State (CA 20-2012) [2013]
NAHCMD 90 (5 April 2013)







Coram: VAN NIEKERK J et UEITELE J


Heard: 23 July
2012


Delivered: 23
July 2012


Reasons: 5 April
2013





Flynote:
Criminal law
– Culpable homicide arising from driving of
motor vehicle – Duties of driver turning right and following
driver set out.






Criminal
procedure ­
– Duplication of convictions – In case
where two counts involved – Court should not consolidate counts
for purposes of conviction – If sufficient evidence Court
should convict on one count and acquit on the other.



REASONS
FOR JUDGMENT






VAN
NIEKERK J (UEITELE J concurring):





[1] On 23
July 2012 after hearing argument in this appeal, we upheld the appeal
against conviction and sentence and made an order that the
magistrate’s conviction on counts 1 and 2 (consolidated) be
substituted with verdicts of not guilty. The reasons for this order
now follow.





[2] The
appellant was charged in the magistrate’s court of Karibib on
two charges: (i) culpable homicide arising from the alleged negligent
driving of a motor vehicle; and (ii) c/section 80(1) of the Road
Traffic and Transportation Act, 1999 (Act 22 of 1999), as amended
(reckless or negligent driving.) After evidence was led the
magistrate was of the view that there was a duplication of charges
and the two charges were ‘consolidated for purpose of
conviction’. The magistrate convicted the appellant of culpable
homicide and sentenced him to 36 months imprisonment of which 12
months were suspended for three years on condition that the appellant
is not convicted of culpable homicide or a c/sec 80(1) of Act 22 of
1999 committed during the period of suspension.





[3] The
appellant, who was represented in the court below by Mr Burger, filed
a notice of appeal against the conviction and sentence on the same
day. The magistrate granted bail pending the outcome of the appeal.
Some time later the magistrate left the employ of the State. She had
provided reasons for the conviction, but none for the sentence
imposed.





[4]
Unfortunately parts of the mechanically recorded proceedings could
not be properly transcribed as the recording was indistinct in many
instances. However, at our suggestion, the appellant and the
respondent agreed before us that the summary of the evidence made by
Mr Burger in the Court a quo should form the evidential basis
for the adjudication of the appeal where the transcribed record, read
with the magistrates contemporaneous notes, is lacking.





[5] The
particulars of the charge in count 1 are that the appellant
unlawfully and negligently killed Michael Muukua, a passenger in the
appellant’s vehicle, on 3 August 2003 when the appellant tried
to overtake another vehicle travelling in the same direction, while
the driver of that vehicle had indicated that he intended turning
right. In the process the appellants hit the other vehicle on the
right rear end, which caused the appellant’s vehicle to leave
the road and overturn several times during which incident the
deceased was killed. The appellant pleaded not guilty to the charges.





[6] The
evidence presented indicates that the accident occurred on a straight
stretch of road between Karibib and Usakos in the direction of
Swakopmund. The appellant was travelling in a Mazda bakkie behind a
Toyota Condor driven by Mr Talavera, who testified for the State. At
a certain place on the right next to the road there is a spot where
travelling motorists may stop their vehicles to have a rest. About 1
kilometre from the resting place there is a sign indicating that the
resting place is to the right and the distance to the resting place.
At about 100-150 metres from the resting place, there is an exit to
the right, leading to a gravel track along which the resting place
may be reached. At the time of the accident there was no sign to
indicate this exit. The resting place is not on the same level as the
road, but much lower. There is a second exit to the right, also
leading to the resting place, but this is about 60 metres past the
resting place. There is no sign indicating the exit, which is about
where the accident occurred. On the road surface there were no
barrier lines indicating that overtaking is forbidden when one
travels from Karibib towards Usakos, the direction in which the two
vehicles were travelling.





[7] Mr
Talavera testified that he normally rests at this resting place,
although he usually does when he travels in the opposite direction,
i.e. from Swakopmund. On this particular day he already put on the
vehicle’s indicator about 150 metres before the second exit.
When he first looked into the rear view mirror he did not notice any
vehicle. Near the exit Mr Talavera was slowing down and braking to
turn right. He noticed a sedan vehicle behind him about 30 metres way
which was also slowing down. It was not safe for any vehicle from the
back to maneuver into the space between the sedan and the Condor. He
thought it was safe to turn right. While looking into the rear view
mirror and travelling at a slow speed, he saw the appellant’s
vehicle for the first time while he (Mr Travera) was turning to the
right. At this stage the appellant was already overtaking his
vehicle. He made the deduction that the appellant was busy overtaking
both the sedan and the Condor at the same time and insinuated in
evidence that the appellant was travelling at quite a speed. He tried
to swerve back to the left lane, but the collision occurred, the
Mazda hitting his vehicle on the right side at the passenger door.





[8] Mr
Claasen testified that he was travelling at about 120 km per hour
when the appellant overtook him. The appellant went back to the left
lane. About 200 – 250 metres away Mr Claasen observed a
vehicle, which later turned out to be the Condor. He saw that the
appellant indicated that he wanted to overtake the Condor. He then
observed a lot of dust and when he reached the place where the dust
was, he observed that an accident had taken place involving the
Condor and the appellant’s vehicle. At the scene he observed
the right indicator of the Condor flashing. He did not observe the
indicator earlier.





[9] These
were the only two eye witness accounts for the State.





[10] The
appellant testified. The relevant part of his evidence for purposes
of the appeal is to the effect that at a distance of about 80 metres
from the Condor he indicated that he wanted to overtake by putting on
the vehicle’s right indicator. About 30 metres from the Condor
he observed that it was safe to overtake and went into the right hand
lane. At this stage the appellant was driving between 120 and 130 km
per hour. As he was about in line with the Condor’s right rear
wheel, the Condor moved into the right hand lane. The appellant was
not aware of any exit at that point. He never saw that the Condor’s
indicator was flashing. He applied brakes, but collided with the
Condor. In the witness box he explained that although he saw that the
Condor was driving slower than he was, he did not think that it would
be turning to the resting place as there was no sign at that place
and because they had already passed the resting place. He denied any
negligence on his part.





[11] The
appeal is based on several grounds. It is not necessary to deal with
all of them. The relevant grounds are that the trial magistrate erred
in law and/or in fact –






5. In finding that the
Appellant drove the vehicle negligently or recklessly and that the
evidence of State witness Talavera should be accepted, whereas:



5.1 the evidence of State
witness Talavera was contradicted in a material respect by State
witness Claasen insofar as it related to the presence and involvement
of a third vehicle and the Appellant overtaking two vehicles at once;







5.2 There is no corroboration in
the evidence of the State witness Claasen for the evidence of
Talavera that he had his indicator on well in advance of the accident
(whereas Claasen observed the indicator of the Appellant at the time
that the Appellant took steps to overtake the vehicle driven by
Talavera);







5.3 The evidence is that there
were no road traffic signs, road markings or any other sign or
indication that it was unsafe to overtake the vehicle of Talavera, or
any evidence that there were barrier lines or road traffic signs
prohibiting overtaking and no other evidence that it was unsafe for
the Appellant to overtake the vehicle at that particular place on the
road.







6. In accepting the evidence of
Talavera and the prosecution as satisfactory in all material
respects.







7. In rejecting the Accused’s
evidence as:







7.1 not being reasonably
possibly true;



7.2 false beyond reasonable
doubt; and



7.3 inherently untrue.”





[12] Mr
Botes, who appeared on behalf of the appellant, submitted that
Mr Talavera’s evidence is contradicted in material respects by
the other State witness, Mr Claasen. Mr Talavera testified that Mr
Claasen’s vehicle was following him closely and that the
appellant, immediately before the collision attempted to overtake
both vehicles, whereas Mr Claasen stated that, after the appellant
overtook him, there was about 200-300 metres between the appellant’s
vehicle and that of Mr Talavera. The magistrate merely mentioned this
inconsistency, but did not deal with it further, nor did she indicate
which version she accepted and why. She also did not deal with Mr
Claasen’s evidence that he did not observe Mr Talavera
indicating his intention to turn right, (he did see the appellant
indicating his intention to overtake), whereas Mr Talavera stated
that he already did so 150 metres before the exit. If he did so,
there was, in my view, no reason for Mr Claasen not to have noticed
it. The trial magistrate only referred to the fact that after the
collision occurred, Mr Claasen saw the Condor’s indicator was
‘still’ flashing. This fact alone does not mean that Mr
Talavera did give timeous indication of his intention to turn right.
The magistrate merely accepted Mr Talavera’s version of events
without properly analysing the evidence. In my view the magistrate
erred in her assessment, such as it is, of the evidence presented by
the State.





[13] Mr
Botes submitted that Mr Talavera did not, before he executed
the right hand turn, establish whether it was safe and opportune to
do so and that he failed to keep a proper lookout. I agree entirely.
From his own version it was clear that when he looked in his rear
view mirror just before and while executing the turn, he saw the
appellant’s vehicle (and Mr Claasen’s vehicle, for that
matter) for the first time. By then it was already too late. In my
view he was negligent.





[14] In
this regard the following statement in Mabaso v Marine & Trade
Insurance Co. Ltd
1963 (3) SA 439 (D) at 440H-441A, although
stated in the context of an allegation that the overtaking driver
should have hooted, remains apposite:






Anyone who has travelled
on modern highways must appreciate that faster cars will seize the
opportunity to overtake and pass slower cars when the road is clear
ahead and the drivers of slow moving cars have long since learned to
expect to be passed without warning in these circumstances. If every
fast moving vehicle was obliged to hoot before overtaking the
cacophony of sound coming from busy national roads would be so
continuous and deafening that the warning given by sounding a hooter
in a genuine emergency would be lost in the general din. The passing
motorist is entitled to assume that the slower traffic being
overtaken will continue in its course on the left of the road, and
the hooter should only be used to warn such a driver if he manifests
an intention to stray from his proper course. Unless some emergency,
making it necessary to give a specific warning arises, the overtaking
car should remain mute. In the present case an emergency only arose
when the Opel started to move to its right. At that stage a warning
hoot could not have prevented an accident.’



[15] In Keunin, NO v London and Scottish Assurance Corporation Ltd
1963 (3) SA 609 (N) the Court stated the following (at 612E-G) in
regard to the applicable legal principles where one vehicle follows
another:



It seems to me that any
change of direction or a reduction of the speed of a vehicle in
traffic must disturb the regularity of the flow of that traffic, and,
considering first the situation of the leading vehicle, it is
consequently essential that the driver of it intending so to change
his direction or to reduce his speed should ensure that the condition
of the traffic allows this; he must select an opportune moment for
doing so and carry out his manoeuvre in a reasonable manner. A signal
of his intention is an indication, therefore, that he will carry it
out only at an opportune moment and in a reasonable manner. This
postulates that he informs himself of the state of the traffic, not
only to ensure that he does not inopportunely and unreasonably cross
the path of a following vehicle, but also that he does not incommode
it by a reduction in the speed of his vehicle which may require the
following vehicle suddenly to reduce speed or stop or to change
course to right or to left.’





[16] In R
v Miller
1957 (3) SA 44 (T) Dowling J stated the following in
regard to the same situation (at 50A-E):






‘……[G]enerally
speaking, the motorist may not assume that his signal for a
right-hand turn has been observed simply because he has given an
adequate signal. In my opinion this is correct in principle. The
motorist must make sure that he can execute a right-hand turn without
endangering either oncoming or following traffic. Generally speaking
he can only do this by properly satisfying himself that such traffic
has observed and is responding to his signal, or that it is
sufficiently far away or slow-moving not to be endangered ……….



……..[I]t is in my
opinion quite practicable for a motorist by the use of a properly
adjusted rear-view mirror to notice whether a following car was close
behind and travelling at such a speed that it may be endangered by a
right-hand turn and whether it was responding to a signal either by
moving to the left or by decelerating, while at the same time keeping
a safe look-out in respect of oncoming and other traffic. If this
cannot be done in particular circumstances, the turn should not be
executed at all. It is a manoeuvre inherently dangerous in its nature
unless executed with scrupulous care.’






[17] Ms
Husselman, who opposed the appeal on behalf of the respondent,
submitted that, even if Mr Talavera were negligent, one must not lose
sight of the fact that Mr Talavera’s guilt or innocence is not
at stake in the appeal. In this respect she is, of course, correct.
However, the fact that he may or may not have been negligent is
relevant, as it has a bearing on his credibility, i.e. does he have
reason to give a version favourable to himself while laying the
responsibility for the collision and the death of the deceased on the
appellant? Furthermore, the fact and degree of Mr Talavera’s
negligence is relevant in assessing the appellant’s negligence,
if any, and his degree of blameworthiness.





[18] In
considering the seventh ground of appeal I can do no better than
quoting from Mr Botes’s heads of argument where he stated in
support of the submission that the magistrate erred in not finding
that the appellant’s version is reasonably possibly true (the
insertions and omissions are mine):






28.1 There were no road
traffic signs, nor road marking[s] or any other sign or indication
that it was unsafe to overtake the vehicle of Talavera.







28.2 There were no barrier lines
or road traffic signs prohibiting overtaking on that stretch of road.







28.3 There was no other
acceptable evidence that it was unsafe for the appellant to overtake
the vehicle of Talavera, at that particular place on the road.







28.4 The collision occurred …….
on an open stretch of road where …. Talavera had a clear view
of the road behind him.







28.5 On the evidence of the
appellant, corroborated by the evidence of the State witness,
Claasen, appellant, after overtaking Claasen’s vehicle,
gradually pulled away from Claasen’s vehicle and travelled for
a distance of approximately 250 to 300 meters behind the vehicle of
….. Talavera.







28.6 Appellant, in approaching
the vehicle of …… Talavera, indicated his intention to
pass on the right hand side by the use of his indicator and by moving
to the right hand lane. In doing so, appellant did everything that
any reasonable driver should have done when such a drier intends to
overtake a slower moving vehicle on our national roads.







28.7 The sole cause of the
collision was the failure of …. Talavera to keep a proper
lookout for oncoming traffic and/or passing traffic before he
executed a right hand turn at, to say the least, an inopportune
moment. If ….. Talavera …had exercised his duty of
care, he would have noticed the approaching vehicle of the appellant,
would have notice the right hand side indicator of the said vehicle
and would have refrained from turning right into the path of
appellant’s vehicle.’





[19] Ms
Husselman submitted that the appellant should at least have
slowed down behind Mr Talavera’s vehicle and first have
attempted to ascertain why the vehicle was travelling slowly and what
its intentions are. In this regard the Keuning case, supra,
states (at 613F-G) [the insertions and omissions are mine]:






In relation to the
following vehicle,
Premier
Milling Co. Ltd v Bezuidenhout

[1954 (4) SA 625 (T)] ………… states that
the duty of the driver of it is to pay regard to the signals or
indications that the leading vehicle is about to turn; this clearly
postulates that he must keep a look-out in the expectation of the
possibility of such a signal or indication being made or given;
failure in these duties is negligence on his part, as is also the act
of overtaking the leading vehicle in unreasonable disregard of the
fact that its driver has shown that he is about to turn, as he is
entitled to do, subject to the safeguards I have stated.’





[20] The
safeguards to which the learned judge refers at the end of the
quotation are those quoted in paras. [15] and [16] supra in
relation to a driver intending to turn right.





[21]
Bearing the duties of the following driver in mind, it is my view
that the only way in which Mr Talavera could have indicated his
intention, was by putting on the right indicator or using a hand
sign. On the version of the appellant and Mr Claasen there is doubt
that he did so until perhaps the very last moment when it was too
late. The appellant said that they had already passed the resting
place and there was no indication that there was a road exiting and
leading towards the resting place at that part of the road. He did
not think that the Condor was about to turn right. Taking all the
facts into consideration, his version is reasonably possibly true. On
his version he acted reasonably in the circumstances.





[22] The
result is, then, that the appeal against the conviction should be
upheld on the basis of the grounds set out in paragraph 5 of the
notice of appeal.





[23] If
the State had proved its case, there would have been a duplication of
convictions. The magistrate should then not have ‘consolidated’
the two counts as she did, but have convicted the appellant on count
1 and acquitted him on count 2 to avoid a duplication of convictions.
It is therefore not sufficient to merely set aside the conviction,
but the Court should make an appropriate order in respect of count 2
as well.





[24] In
the result we made the following order:






1. The appeal against conviction and sentence succeeds.



2. The magistrate’s conviction on count 1 and 2 (consolidated)
is substituted with verdicts of not guilty on count 1 and count 2.

















_________________


K van
Niekerk


Judge











I agree.














_________________


S F I
Ueitele


Judge





























APPEARANCE





For the
appellant: Adv L C Botes


Instr. by
Kinghorn Associates








For the
respondent: Ms I O Husselmann


Office of
the Prosecutor-General