Culpable homicide – Appellant’s motor vehicle colliding with another motor vehicle resulting in death of three occupants of that other motor vehicle – Appellant convicted of culpable homicide – Magnitude of tragedy not to obscure true nature of culpability being negligent driving – Negligent driving – what amounts to – Factors taken into account in arriving at appropriate sentence – Four years’ imprisonment, one-half of it suspended, imposed by lower court appropriate in all the circumstances – State’s appeal against sentence and the appellant’s appeal against conviction and sentence dismissed.
CASE NO. CA 34/2005
IN THE HIGH COURT OF NAMIBIA
In the matter between:
HARRY SIMON APPELLANT
THE STATE RESPONDENT
PARKER, J; MANYARARA, A.J.
2007 May 21-22
2007 July 9
PARKER, J; MANYARARA, A J:
 The appellant appeared in the Regional Court at Walvis Bay on one count of culpable homicide, with two alternative charges of reckless and/or negligent driving and inconsiderate driving, and a second count of exceeding the speed limit. He pleaded not guilty.
 The court found that there was a duplication of charges in the count of exceeding the speed limit and negligent driving and the trial proceeded in respect of the charge of culpable homicide only. The appellant was convicted on this charge and sentenced to four years’ imprisonment of which two years are suspended. He appealed against the conviction and sentence and the State also appealed against the sentence as too lenient. An application to amend the notice of appeal by adding further grounds of appeal was subsequently filed, accompanied by an application for condonation of the late filing of the additional grounds. Ms Rakow for the State did not oppose the application, condonation was granted and the hearing on the merits proceeded.
The appellant has appealed against both the conviction and sentence, and the State against sentence. For the sake of neatness and completeness, this judgment deals with both the appeal by the State and the appeal by the appellant.
 The particulars of the offence were that upon or about 21 November 2002 at or near the main road between Walvis Bay and Swakopmund at or near Langstrand the accused did unlawfully and negligently kill Ibe de Winter, Frederic de Winter and Michelle De Clerk by driving his vehicle and colliding with the deceaseds' Nissan vehicle.
 The particulars of negligence were enumerated as -
travelling at a speed which was excessive in the circumstances;
failing to keep a proper lookout in the circumstances;
failing to stop or act reasonably when an accident or collision seemed imminent; and
travelling on the wrong side of the road.
The relevant portion of the appellant's statement in terms of section 115(1) of the Criminal Procedure Act 51 of 1977 outlined his defence as follows:
"The sole cause of the collision was the wrongful, unlawful and negligent driving of the driver of the said Nissan vehicle who encroached, drove unexpectedly and suddenly into the lane wherein I drove, occasioning the collision."
 It will be seen that the defence defined the issues to be proved by the State as –
Whether the appellant drove negligently and, through his manner of driving, caused the deaths of the deceased; or
Whether the vehicle in which the deceased were traveling suddenly encroached into the appellant’s path and, faced with the sudden emergency, the appellant had no opportunity of stopping or otherwise avoiding the collision.
 The elements of culpable homicide are set out in S v Burger 1975 (4) SA 877 (A), the head note, as follows:
Culpable homicide is the unlawful, negligent causing of the death of a human being.
Basically there must be some conduct on the part of the accused involving dolus (such as an assault), or culpa (such as an operation by a surgeon without due care, or the driving of a motor vehicle without keeping a proper look-out).