Taxi driver Jacob Humphreys was not killed by the community nor fled the country while previously out on bail, the Western Cape High Court heard on Wednesday.
Johann Engelbrecht, for the defence, said Humphreys should, therefore, again be granted bail while awaiting a decision by the Supreme Court of Appeal (SCA) in Bloemfontein.
The SCA recently granted Humphreys leave to appeal both his conviction and sentencing.
He is serving an effective 20 years in jail after being convicted of murder following a taxi accident on August 25, 2010 at the Buttskop level-crossing in Cape Town.
While taking children to school, Humphreys overtook a row of cars, ignored safety signals, and proceeded over the tracks.
A train hit the taxi, killing 10 of the children. Four others were seriously injured.
Engelbrecht said the State could not claim there would be a public outcry if bail was granted or that his client would run away.
“The applicant is still alive despite being released (having his bail reinstated)... in December 2011. There was no public outcry,” he said.
Judge Rob Stelzner said he believed the flight risk had increased since Humphreys' sentencing.
“There's now a flight risk (after) having spent some time in prison and having a lengthy sentence (ahead of him).”
Engelbrecht said the judge should not over-rely on the seriousness of the crimes nor the assumption that the sentence was set in stone.
He said there was a good chance the SCA would make a different finding on both conviction and sentencing, based on the fact that leave to appeal was granted.
The 10 murder charges could then be changed to culpable homicide and the four attempted murder charges would fall away.
“If the SCA finds no recklessness or gross negligence there's not going to be a custodial sentence,” Engelbrecht said.
“(Trial Judge Robert) Henney brushed off the evidence of the accused that he cannot remember anything after he fell in line behind the last vehicle... the accused must receive the benefit of the doubt at this stage.”
Susan Galloway, for the State, said there was no possibility that the sentence would be reduced to non-custodial.
“It's not speculation to say this... it's an educated prediction...if the court considers (SCA) judgments from 1941 to 2005 regarding reckless or negligent driving.”
It would be highly improbable to prove that Humphreys had not wilfully been reckless in his actions.
She said the parents of the victims had suffered enough and were waiting “with bated breath” for justice in this matter.
Judgment was reserved. – Sapa