Bloemfontein - In a carefully argued verdict delivered on Friday, five Supreme Court of Appeal (SCA) judges have, in a unanimous judgment, clarified the grounds necessary to find offending drivers guilty of murder – rather than culpable homicide.
The ruling, which elicited shocked and horrified responses from affected families, was made on Friday in an appeal lodged by taxi driver Jacob Humphreys to challenge his murder convictions arising from the deaths of 10 children being transported in his taxi.
The court set aside his murder convictions, replacing them with culpable homicide, and reducing his sentence from an effective 20 years to just eight.
Humphreys operated a shuttle service for schoolchildren in Eerste River. On the day of the crash in August 2010, he ignored lowered booms over the Buttskop level crashing, and collided with a train.
In December 2011, the Western Cape High Court convicted him of 10 counts of murder and four of attempted murder, finding that he subjectively foresaw the death of his passengers as a possible consequence of his conduct.
He was convicted on the basis of dolus eventualis (indirect or legal intent), but took the case on appeal.
Parents sobbed on Friday, accusing the justice system of having little regard for the value of the young lives lost, as the news spread quickly.
The judgment, written by Judge Fritz Brand, said the test for dolus eventualis was twofold: whether the person foresaw the possibility of the death of his passengers as a possible consequence of his conduct, and whether he reconciled himself with that possibility.
Judge Brand said he could not fault the high court’s conclusion that Humphreys subjectively foresaw the death of his passengers, but said the question was whether Humphreys took the consequences that he foresaw “into the bargain”.
“First, I believe common sense dictates that if (Humphreys) foresaw the possibility of fatal injury to one or more of his passengers – as I found he did – he must by the same token have foreseen fatal injury to himself … But there is no indication on the evidence that (he) valued his own life any less than the average person, or that it was immaterial to him whether or not he would lose his life,” the judge said.
It could not be said that Humphreys had reconciled himself with the possibility of his own death.
“In short, he foresaw the possibility of the collision, but he thought it would not happen; he took a risk which he thought would not materialise.”
On the evidence that Humphreys had dodged the booms on previous occasions, Judge Brand said this probably contributed to a “misplaced sense of confidence that he could safely repeat the same exercise”.
On Friday night Wits University criminal law expert Stephen Tuson said the judgment spelt out clearly what was necessary for a murder conviction in accident cases.
He believed it would force the departments of justice and transport to “put the brakes on” any decision to prosecute motorists for murder.
“It will be the rare exception,” he predicted.
In spite of the fact that the decision could affect authorities’ efforts to reduce road carnage, Tuson said he viewed it as “a positive step”.
“They (prosecuting and transport authorities) were on a wrong mission. And the SCA’s put it right,” Tuson added.
Criminal law attorney William Booth said that the decision meant prosecuting authorities would have to “very carefully” consider the evidence before deciding to charge motorists with murder.
“It’s very difficult to prove intent in these kinds of cases,” he said.
However, Western Cape Transport and Public Works MEC Robin Carlisle expressed disappointment last night, warning that unless the consequences were severe.
It would very difficult to change the reckless and irresponsible behaviour on the roads, he added.