Magistrate Charmaine Barnard has begun her judgement in the Burry Stander accident case

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By Johan Pretorius

More than two years after Olympian Mountain Bike ace Burry Stander’s death in Marine Drive, Shelly Beach, judgement has finally begun on charges, including manslaughter, against the driver of the taxi into which he crashed at an intersection.

In the Port Shepstone magistrate’s court, magistrate Charmaine Barnard began delivering judgement this morning and reviewed the evidence the court considered when  considering judgement.  Before proceeding with the actual verdict of guilty or not guilty, she adjourned the court until later in the morning.  eHowzit will post the verdict and possible sentence as soon as it becomes available.

PREVIOUS REPORTS:

The State and Defence delivered their closing arguments in the trial of the taxi driver involved in the crash that killed Olympian mountain biker Burry Stander in the Port Shepstone Regional Court on Tuesday.

State Prosecutor Christelle Rossouw pointed out that the accused, Njabulo Nyawose, has been charged with culpable homicide, alternatively reckless or negligent driving in contravention of the National Road Traffic Act, alternatively inconsiderate driving, as well as failing to obey a road traffic sign.

She said the issues in dispute were: a. whether the accused was negligent when he turned into Stott Street from Marine Drive in Shelly Beach on 3 January 2013, causing Stander to slam into his Quantum Taxi from the front. b. whether there was a causal connection between such negligence and the death of Stander and c. Whether the accused intentionally crossed the barrier line when he turned.

Prosecutor Rossouw argued that all three the above points were valid, and quoted from previous similar court cases to support her argument. Other elements of her argument were that the accident occurred in broad daylight, and she said from evidence it was clear that nothing was obstructing the view of the accused.

Even in his own testimony he said he could see all the way to Tyner’s Bottle Store, where some vehicles were executing U-turns coming back towards him.

From the accused’s version it was clear that the accused was trying to avoid the stationary traffic on Marine Drive by turning right across a barrier line into Stott Street, which in terms of the Road Traffic Act, was an illegal act, after, according to evidence led, he had overtaken several vehicles to get to the intersection.

The Prosecutor cited several other factors which, according to the State, proved that the court had no option but to find the accused guilty on all the charges.

For the defence, attorney Xolile Ntshulana argued that the accused should be acquitted on all the charges, and he gave a list of reasons, amongst others that there was no road sign prohibiting motorists turning into Stott Street. Motor vehicles turn into this road freely, he said.

He pointed out that a senior Protection Services official confirmed that it was not illegal to turn into Stott Street.

Mr. Ntshulana said the accused could not be faulted, because of the circumstances prevailing at the time, his sight ahead was impeded. He did not see or recognise the cyclist sometime prior to the collision until shortly before he collided into his taxi.

This presented him no meaningful opportunity to avoid the collision, on his part, by either stopping or applying brakes, which he in fact did, but too late.

The accused had no duty to keep a better look out to guard against over-speeding possible vehicles or cycles which might enter the intersection without letting him complete his turn onto Stott Street.

He asked the court to find it was possibly true that the deceased was travelling faster than the maximum speed (45 KPH) estimated by an expert. Because the deceased was travelling at high speed, and was looking down, as one witness testified, it would have been impossible for him to avoid a collision.

There was no evidence that the deceased took any evasive action, despite evidence that he was in a position to do so, and should have taken some steps to that effect, and accordingly he was the author of his own misfortune and thereby solely responsible for the collision.

Judge Charmaine Barnard will deliver her judgement on 17 April.

EARLIER REPORTS:

A significant turn of events occurred during the trial of minibus taxi driver Njabulo Nyawose in the Port Shepstone magistrate’s court on Thursday.

He is accused of causing the death of Olympian mountain biker Burry Stander and is facing a charge of manslaughter.

After the evidence of a senior HCM official earlier in the morning (see previous reports), defence attorney Xolile Ntshulana asked Magistrate Charmaine Barnard to view a video recording of the events leading up to the accident on the corner of Marine Drive and Stott street in Shelly Beach on 3 January 2013, when Nyawose turned into Stott Street and Stander slammed into his Toyota Quantum, coming from the front.

This was a significant change in the strategy of the defence, because initially Ntshulana opposed the admissability of the video because of what he termed ‘its dubious origin.’

Magistrate Barnard told him he should understand that she could not only view the video, because if she did, it would have to be admitted as evidence.  Ntshulana said he understood, and the court adjourned for the viewing.

When proceedings were resumed, Magistrate Barnard said the video showed, inter alia, that although Stander was alongside a car approaching the intersection, the car overtook him and he should have been visible when he reached the intersection.  Earlier in the trial, Nyawose testified that his vision was obscured by a white Audi coming from the front, and that he did not see Stander.

The trial has adjourned to 24 March for closing arguments.

EARLIER REPORT:

The trial of the minibus taxi driver who was involved in the accident on 3 January 2013 in which Olympian mountain biker Burry Stander was killed, was resumed in the Port Shepstone magistrate’s court this (Thursday) morning.

In the witness stand before magistrate Charmaine Barnard was HCM Community Services Law Enforcement Superintendent Sfiso Ngcaku, who was called by attorney Xolile Ntshulaka for the defence.

During his testimony, the argument mainly revolved around the question whether Njabulo Nyawose broke the law when he turned right into Stott Street from Marine Drive, crossing a solid white line, into the path of Stander, who collided with his Toyota Quantum and was killed instantly.

Superintendent Ngcaku told the court that he was familiar with the spot where the accident happened, and pointed out that there were solid white lines at the intersection.

This meant that there could be no overtaking…he regarded it as a ‘no-overtaking’ line. Because there were no signs prohibiting a right turn, it was perfectly legal to turn right where the taxi did.

State Prosecutor Christelle Rossouw, however, told the court that the Superintendent was wrong, and did not understand the Road Traffic Act.

She quoted from the act, and stated that motorists could cross a solid line to turn in only three instances: to reach a piece of land or property on the other side, to gain access to another road by going via a property, or to avoid an obstruction.

Ms. Rossouw said the act was quite clear on this issue: crossing a barrier line to turn into a side road or intersection, was illegal.

The trial will be resumed on Friday afternoon.

EARLIER REPORT:

Taxi driver Njabulo Nyawose told the Port Shepstone Magistrates Court last Friday that he was raciallly abused, threatened and pulled by the shirt by members of the public after the accident on 3 January 2013 in Marine Drive which killed mountain bike icon Burry Stander.

He told the court that he was waiting at the scene of the accident after moving his vehicle out of the way of other traffic, as requested by a previous witness, Mr. Reggie Govender.  An elderly gentleman approached Stander, who was lying on the ground, and called him by the name.  He was crouching over Stander, and then came to me. ‘He asked me who had caused the accident. I told him that the cyclist had crashed into the left front door of my Quantum.  He then wanted to know who the driver of the taxi was. I told him it was me. He then grabbed me by the shirt and pushed me towards the rails on the side of the road.’  Nyawose said at that stage Mr. Govender intervened and advised him to move away from the scene.

Nyawose testified that he was in a very bad emotional state, and cried when he heard that Stander had passed away.  A white lady tapped him on the shoulder and told him not to cry.  Subsequently, two white men alighted from vehicles that moved into the intersection from Stott Street and went to the spot where Stander was lying.  “They then came to me in a rush. I made an attempt to get away, but was backed up against a wall.  Mr. Govender again intervened, and other people told the men to go away. One of the people who had rushed towards me, told me I did not deserve to live, and said I was a k****r.  F**k you, f**k you, you k****r, he said.  He then left.”

Another man threatened to go home to fetch his fire-arm to come and shoot him.  Nyawose was then taken to the police station for a statement.

The trial is to be resumed on Thursday.

EARLIER REPORT:

The taxi driver who is accused of causing the death of South African mountain bike icon Burry Stander, said in the Port Shepstone Magistrate’s court on Friday he did not see him approaching from the front.

Njabulo Nyawose was in the dock before Magistrate Charmaine Barnard, and gave evidence on what happened on 3 January 2013 when Stander slammed into his Quantum minibus taxi at the Stott Street intersection in Marine Drive, Shelly Beach.

Nyawose told the court that at about five o’clock in the afternoon he was returning home to Gamalakhe from Port Shepstone when he encountered extremely heavy traffic in the Shelly Beach area of Marine Drive, to such an extent that cars were moving extremely slowly, bumper to bumper, probably because of an accident further on.

When he got to the intersection at Stott Street, the vehicle in front of him moved on; he switched on his indicator lights and prepared to turn right.

In the process, he saw vehicles in front of him, travelling in the same direction as he was, making u-turns to come back to Stott Street.

He allowed a car to turn into Marine Drive, and two cars passed him from the front – the second one, a white Audi. When the Audi had passed him, he turned.

He heard a loud bang coming from the left front window side of his vehicle.  He stopped, and alighted from the taxi.

First he saw a bicycle lying in the road, and then when he moved around to the other side, Stander was lying in the road, with blood on one of his temples.

That was when he realised that Stander must have collided with his Quantum.

When questioned, Nyawose said he did not see Stander approach at all, and that he must have been travelling at a considerable speed.

He continued his evidence in the afternoon.

EARLIER REPORT:

The trial of Njabulo Nyawose, the taxi driver who is accused of causing the death of mountain bike Olympian Burry Stander, was resumed in the Port Shepstone Magistrate’s Court on Thursday.

It was postponed from November last year because the accused could not afford his attorney’s legal fees, and Magistrate Charmaine Barnard said at the time if he could not afford a legal representative by February, Nyawose would have to conduct his own defence. The trial had been dragging on for too long,. and it was time for closure for everybody concerned.

His legal counsel, attorney Xolile Ntsulaka, has undertaken to represent him pro bono.

The only witness the whole day was the motorist immediately in front of Nyawose’s taxi, Mr. Reggie Govender. He related in detail what he saw on the afternoon of 3 January 2013 when a minibus taxi travelling from Port Shepstone turned right into Stott Street from Marine Drive in Shelly Beach, into the path of Stander, who was coming from the direction of Shelly Beach. Stander hit the taxi on its left front side, and was killed instantly.

Previous witnesses in the trial testified that Nyawose had overtaken vehicles in the right hand lane and turned right into Stott Street, using two movements to complete the turn, when Stander hit him.  Nyawose’s defence counsel maintained that his vision was obstructed by a white vehicle coming from the front, which he was waiting to pass, before he turned. Previous arguments, inter alia, centred around the question whether Stander and the driver could see each other, the speed at which Stander was travelling, and whether the driver could turn right over a solid white line.

Yesterday Mr. Govender described in detail how he saw the collision.  He did not see Stander come from the front, but in his rear view mirror he saw Stander hit the taxi, which had turned right with its indicators flashing.  Govender said two cars coming from the front, one a ‘big white car’, had come past him from the front immediately before the accident. When they passed him, Stander must have been ‘behind one of the cars on the left hand side’.

The witness told the court he had wanted to turn right into Sott Street himself because of the ‘heavy bumper-to-bumper’ traffic. He had, however, left it too late, but when the accident occurred, he decided to make a U-turn, which he did, and drove back to the accident scene.  Stander was lying in the road. When he got there, he asked the driver to move his vehicle to make way for his and other vehicles to get into Stott Street.  The taxi driver did so, parked his taxi in Stott Street, and he parked his car right behind him.   Mr. Govender said he could not speak to Nyawose because the driver was emotional and crying constantly.  At the accident scene initially there were himself and ‘an off-duty Protection Services guy’.  He told the court he phoned the police and the traffic department.

While they were at the scene, waiting for the police and Protection Services people to arrive, ‘an elderly man, who obviously knew Stander, came from the Port Shepstone side, over the bridge’. He grabbed Nyawose by the shirt and used vulgar language.  Motorists moving into Marine Drive from Stott Street ‘who obviously knew the deceased’ shouted and verbally abused Nyawose. One used the ‘k’ word, and another said ‘I’m going to get my gun and when I come back, I am going to shoot you’.

During Mr. Govender’s testimony, State Prosecutor Christelle Rossouw asked him numerous questions on a point of clarification. When she cross questioned him, she wanted to know what the relevance of some of his statements was. She asked him to re-explain some of his evidence.  She pointed out that a previous witness, Mr. Josh Fourie, was also at the accident scene, and related what he saw.  Prosecutor Rossouw asked him why he did not mention this. Mr. Govender said Fourie was not at the accident scene, and when asked by Rossouw whether Fourie was lying, Govender said ‘yes’.

Both Magistrate Barnard and the Prosecutor pointed out what they regarded as inconsistencies in Govender’s testimony relating to his movements on the road after the accident, and asked him to clarify certain points. Rossouw referred to previous evidence that the taxi had overtaken cars before turning right, Mr. Govender said this was not true, because the Quantum had been right behind him all the time while travelling from Port Shepstone.

Referring to previous witness Fourie, prosecutor Rossouw asked Mr. Govender why Fourie would lie to the court. She wanted to know what Govender had against him.  ‘Would it surprise you, Mr. Govender, that Fourie told the court he had not seen the impact? Or that he did not implicate the driver of the taxi?’  Govender replied that it did surprise him.

The trial will be continued today.

 

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