Court name
High Court
Case name
S v Simon
Media neutral citation
[2007] NAHC 48



HARRY SIMON



CASE NO.: CA 134/2005



HARRY SIMON vs THE STATE






2007 JULY 9




PARKER, J; MANYARARA, AJ






Criminal law    
-       





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.











REPORTABLE      
        
        
        
        
        
CASE NO. CA 34/2005




IN THE HIGH COURT OF NAMIBIA




In the matter between:




HARRY SIMON APPELLANT




and




THE STATE RESPONDENT




Coram:  
        
PARKER, J; MANYARARA, A.J.





Heard on:       
        
2007 May 21-22



Delivered on:   
        
2007 July 9




APPEAL JUDGMENT:




PARKER, J; MANYARARA, A J:




Introduction




[1] 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.




[2] 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.




[3]     
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 Offence




[4] 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.




[5] 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.




[6]     
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."




[7] It will be seen that the defence defined the issues to be proved by the State as –


        



(a)     

Whether the appellant drove negligently and, through his manner of driving, caused the deaths of the deceased; or




(b)     
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 Law




[8] The elements of culpable homicide are set out in S v Burger 1975 (4) SA 877 (A), the head note, as follows:




"(i)    
Culpable homicide is the unlawful, negligent causing of the death of a human being.




(ii)    
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).




(iii)   
Such conduct must cause the death of the deceased.





(iv)    
In addition there must be
culpa in the sense that the accused ought reasonably to have foreseen the possibility of death resulting from such conduct. This is because culpable homicide is the unlawful, negligent causing of the death of a human being.




(v)     
It follows from the foregoing that causation of death, even as the result of an unlawful act which is criminally punishable, is not of itself sufficient to constitute the crime of culpable homicide. To disregard the additional requisite of the reasonably foreseeable possibility of resultant death, would be to re-instate the doctrine of
versari in re illicita.




(vi)    
If an accused does foresee – as distinct from ought to have foreseen – the possibility of such resultant death and persists in his conduct with indifference to fatal consequence (or if he actually intends to kill) the crime, would be that of murder. Having regard to the requirements of foresight and persistence, the dividing line between (a), murder with
dolus eventualis and (b), culpable homicide, is sometimes rather thin."




[9] In