eHowzit carried a summary of the closing arguments in the trial of the taxi driver involved in the Burry Stander accident yesterday. These were presented in the Port Shepstone Regional Court on Tuesday by State Prosecutor Christelle Rossouw and defence counsel Xolile Ntshulana, ending a court case lasting more than two years. For those who want to take note of the finer details of the evidence given during the trial, and the opposing arguments, we post both in full, and we thank the parties for making the documentation available. Magistrate Charmaine Barnard will deliver her judgement on 17 April.
For the State:
For the defence:
IN THE MAGISTRATE COURT FOR THE DISTRICT OF PORT SHEPSTONE
HELD AT PORT SHEPSTONE – CASE NO: B1578/13
In the matter between
STATE Versus NJABULO NYAWOSE – ACCUSED
ACCUSED’S CLOSING HEADS OF ARGUMENT
The crux of the state case is that the accused wrongfully caused or contributed to the death of the deceased by negligent driving of his taxi which thereby collided with the deceased who died as a result. Essentially the manner of driving which the state contends constitute culpable homicide under the charge is that the accused, whilst driving a taxi (NPS 62179) along Marine Drive executed a right turn in front of the on-coming cyclist, the deceased, into Stott Street by crossing a solid barrier line, which prohibited such turns.
It is common cause that;
- The accused drove the taxi on R620 Marine Drive on 3 January about 5pm;
- That he executed a right turn in front of the oncoming traffic, by crossing a solid barrier center line, into Stott Street;
- In the process of executing a right turn, a collision between the taxi driven by the accused and the bicycle ridden by the deceased ensued when cyclist collided into the left front passenger door of the taxi;
- The deceased sustained traumatic blunt head injury inter alia from the collision as a result of which he died on the scene.
Determination of the alleged negligent driving on the part of the accused requires consideration of the following issues pertaining to his driving conduct:-
- Was he prohibited by law to execute a right turn into Stott Street and if so whether he was aware of the prohibition;
- Was the accused’s act of crossing solid barrier center line illegal;
- Was the accused’s timing of the right turn opportune;
- Did the deceased’s manner of driving cause or contribute to the collision.
ONUS OF PROOF
4.1 I submit that in criminal proceedings, it is trite law that the onus is on the state to
prove beyond reasonable doubt that the accused committed the offence charge with. In order to execute this burden the state must satisfy all the elements of the offence beyond reasonable doubt. It is submitted that, in its anxiety that no accused should be punished for a crime without proof of his guilty, our common law deliberately places the burden of proving every disputed issue, save insanity on the prosecution.
THE STATE V MDLALOSE 1989 (1) PH H 32 (A)
4.2 I direct this honorable court to the case of R V DIFFORD 1937 AD 370 AT 373
where the court held “if the accused gives an explanation even if the explanation is
improbable, the court is not entitled to convict unless it is false. If there is any
reasonable possibility of his explanation being true, then he is entitled to an
4.3 Similarly in R V M 1949 AD 1023 AT 1027
It was held that:
“ the court does not have to believe the defense story, still less does it have to
believe it in all its details, it is sufficient if it thinks that there is a reasonable
possibility that it may be substantially true”.
4.4 In S V KUBEKA 1982 (1) SA 53 HW
The judge said “the test whether there is a reasonable doubt as to the accused’s
Guilt is not whether I subjectively disbelieve him I need not even reject the state’s
case in order to acquit him. I am bound to acquit him if his evidence may be true”.
4.5 In the case of STATE V MDLALOSE 1989 (1) PH H 32 (A)
Held that “ if the court is not presented with sufficient reliable information to make a
fairly accurate assessment possible, then the uncertainty must endure for the benefit
of the accused, not against him”.
The state must prove all the disputed elements of the charge “beyond reasonable doubt” and in order to satisfy this onus it must establish or show that:-
- (a) Right turns from Marine Drive into Stott Street are prohibited by law;
- (b) Crossing a solid barrier center line in order to enter into Stott Street is illegal;
- (c) the timing of the accused’s right turn into Stott Street was inopportune.
- (d) Such negligence was the cause of the accident, not the speed of the cyclist or deceased.
WAS HE PROHIBITED BY LAW TO EXECUTE A RIGHT TURN INTO STOTT STREET?
In order to prove this, the state relied merely on the solid barrier line in Marine Drive across the face of Stott Street which it argues means that right turn into Stott Street are illegal and therefore prohibited.
Evidence before court clearly showed:
- there is no road sign against right turns in the intersection or its vicinity but only a stop sign. Mr Parker acknowledge this in his report;
- Motor vehicles freely and regularly turn from marine drive into Stott Street. Mr Parker and the court made their own independent observation of this practice during their in loco visits to the scene. This is indicative of the fact that there is no such prohibition, to the motorist’s knowledge;
- According to Mr Ngcaku’s evidence, that single solid barrier line in the intersection of Marine drive and Stott Street operates against overtaking only and does not prohibit right turns.
Pertaining to “No-overtaking/No-crossing Road Markings”, the following is stated in the New Official K53 Manual, Road Traffic Management Corporation
“Both of the two markings above are regulatory markings and must be obeyed.
The No Overtakaing single line (left above) means you may not cross it to overtake another vehicle, but are allowed to cross it to access property or to avoid a stationery obstruction, provided it is safe to do so.
The No crossing double-line (right above) means you may not cross the lines at all, for any reason.”
See extract from the New Official K53 Manual, Department of Transport
It is submitted Mr Ngacku’s understanding of the road markings is consistent with the above interpretation and the court must accordingly find that there is no prohibition against right turns into Stott Street and that the accused was entitled to turn into Stott Street as he did.
WAS THE ACCUSED’S ACT OF CROSSING SOLID BARRIER CENTER LINE ILLEGAL?
Crossing a single barrier line operates as a “no overtaking rule” and accordingly a motorist is allowed to cross a solid barrier line in order to gain direct access to the land on the other side of the line and this constitute an exception to the “no overtaking rule” which prohibits such crossing ordinarily.
It is submitted the court must therefore find that, by virtue of the accused crossing the solid barrier center line in order to gain direct access to Stott Street, in terms of his right of right-turning into such road, by crossing the said barrier line the accused acted lawfully, under an exception to the general rule against “overtaking” because he was not overtaking but right-turning.
Evidence by Sergiopolis that the accused overtook several cars in a backed up traffic, missed the turn, reversed and then turned into Stott Street must be rejected because he is the single witness to this “overtaking” and no other state witness saw it, especially Mr Fourie and R Govender. These allegations are either excessively exaggerated or simply an innocent mistaken observation or vendetta or malice motivated by race.
WAS THE TIMING OF THE ACCUSED’S RIGHT TURN OPPORTUNE?
The accused version is that, whilst driving along marine drive in back to back traffic, he indicated his intention to turn and when it was safe to turn after yielding to the oncoming traffic he turned right into Stott Street and in the process the deceased suddenly collided into the left front passenger door of the taxi.
I submit that the timing of the accused turning after he waited for sometime was correct. The deceased was traveling at a high speed covering 11 meters per second according to Mr Parker.
A driver turning to the right must signal his intention clearly and avoid turning until an opportune moment presents itself. The accused’s evidence that he was travelling in a north-bound back to back traffic in Marine Drive, indicating his intention to turn into Stott Street whilst stationery at the intersection waiting for the oncoming traffic to first pass was never challenged by the state but rather confirmed by other state witnesses and therefore must be accepted by the court. The fact that the accused waited for oncoming vehicles before he could start turning indicate that the he observed a proper lookout and he was moving from a stationary position.
The accused was entitled to assume that, once he proceeds to turn into the path of the oncoming traffic in the intersection, other driver (including the deceased) approaching the intersection will enter the main road when it is safe to do so, that is after he had already completed executing his turn. He had no duty assume otherwise.
Whilst he was stationery at Marine Drive signaling his intention to turn, he chose not to turn because he was not satisfied that an opportune moment had presented itself and therefore was aware it would be unsafe to turn. It is submitted accused evidence (corroborated by R Govender) there were cars passing by him as he was stationery (in fact an Audi and SUV went pass prior to him turning) and that he yielded to a Ford entering intersection from Stott Street) is evidence to show the accused was conscious of his duties as a right-turning driver, applied himself to such duties and was paying attention to the traffic.
As there was no approaching vehicles nearby the intersection for a time (or entering marine drive from Stott street), an opportune moment presented itself for a safe right-turn and the accused was entitled to avail himself of this “opportune movement” by executing a right-turn into Stott street and therefore acted reasonably.
I submit that the deceased found the accused already in the intersection completing the turn and collided with his motor vehicle on the left passenger door. In the circumstances the deceased would have collided even with a stationary vehicle because he was driving fast and looking down.
It is submitted that both the location of the point of contact (left front passenger door of the taxi) and the immediate point of impact (see photo 12.4, showing the taxi had already entered into Stott Street) evidences that, on a balance of probabilities, at the time the accused executed a right turn there was “room enough between him and the approaching vehicles to allow him to complete the manoeuvre safely” but for the likely high speed on the part of the cyclist.
The expert, Mr Parker, concedes in his evidence and report that the accused pulled from a stationery position and therefore would have been travelling at a low speed relative to that of the cyclist. See paragraph 1.31 of his report for this finding.
It is submitted that prior to executing the right-turn, the accused was only called upon to take precautions against reasonable foreseeable contingencies and therefore was under no duty at the time to guard against the reckless driving (high speed) of the deceased cyclist in the prevailing circumstances, because drivers expect and are entitled to expect reasonableness rather unreasonableness from other road users.
WAS THE ACCUSED KEEPING A PROPER LOOKOUT?
It is submitted the accused did not have a clear and unobscured sight of the deceased who approached the intersection from a distance of 100 meters, not travelling on a designated cyclists ‘path(but pedestrian pavement), along a gentle curve towards the intersection. His view ahead, according to his unchallenged evidence, was largely obscured by the cars travelling in front of which some made“u-turns”(corroborated R Govender and video evidence ) and the approaching traffic, particularly the station wagon ahead on the right side of the cyclist and parallel to which he was riding on the opposite side, conceded by Mr Parker at paragraph 1.4.3.
Refer to photos 12.5(1b) – 12.5(1e).
I submit that the main issue is whether the accused drove his vehicle negligently, if so whether such negligence was the cause of the deceased death.
S V VAUSE 1997 (2) NPD SACR 395
In this case Mr X, the accused was initially standing still at Stott Street and then proceeded to join the road. The motor cycle came very fast out of nowhere and collided with his motor vehicle and died.
The court held that “court failure to consider the deceased negligence in relation to the cause of the collision resulting in the deceased death constituted an irregularity which entitled the court to interfere with the verdict.
In this case it is the accused version that there were motor vehicles he had to wait for before he could start turning. Further that there were other vehicles that were making u-turns before and opposite Tyners bottle store. It is therefore clear that those vehicles turning might have obstructed accused’s vision to the motor cycle that was traveling on the pavement parallel to the vehicles traveling at the same direction. The speed of the bicycle is seen in the video handed in and also the cars making u-turns at Tyners bottle store.
DID THE ACCUSED TAKE REASONABLE STEPS TO AVOID THE COLLISION?
The accused could not be faulted, because of the circumstances prevailing at the time which impeded his sight ahead, for not having seen or recognized the cyclist sometime prior to the collision until shortly before he collided into his taxi, which present him with no meaningful opportunity to avoid the collision, on his part, by either stop or applying brakes which in fact he did but late.
He had no duty to keep a better-look out to guard against over-speeding possible vehicles or cyclists who might enter the intersection without letting him complete his right turn into Stott Street .(since this was unexpected)
But he was entitled to assume that once he proceeded to turn any reasonable driver or cyclist approaching the intersection thereafter will obey and allow him to complete his manoeuvre safely and only enter when it is opportune and safe to do so.
DID THE STATE PROVE RECKLESS OR NEGLIGENT DRIVING “BEYOND REASONABLE DOUBT”?
The State adduced no evidence whatsoever to show, beyond reasonable doubt, that
- the cyclist stood out and was clearly visible to all prudent right-turning drivers notwithstanding the prevailing traffic conditions at the time (peak hour, a road accident ahead of the intersection, back to back traffic, cars in front making “u-turns”, in front of the accused, a station wagon ahead on the right side of the cyclist, cyclist not travelling on a designated cyclists path and approaching on a gently curve;
- it was “inopportune” and thereby unsafe for the accused to execute a right-turn into Stott street at the time he did, except to rely that on the fact that he drove across a barrier line when he turned, a manouevre which evidence showed was not prohibited as alleged by Mr Parker but permissible;
- there was evasive action remained available to the accused at the time which action could have help avoid the collision.
Accordingly the court must find that there is no room for any contributory negligence on the accused’s part and that in fact the deceased was solely to blame for the collision. The deceased will need 12 meters to apply the brakes. He was traveling at 11 meters per second. According to Mr Fourie the deceased took about 4 seconds from Tynners Bottle store to the intersection at Stott Street.
WAS THE DECEASED TRAVELLING AT A REASONABLE SPEED?
Mr Parkers evidence is that immediately prior to collision the deceased was cycling at a speed between 30-45 km/h (average of 35 km/h) and that the two drivers should been identifiable and observable to each other within a distance of 100m from the intersection.
It is submitted if Mr Parker is correct in his estimation that the deceased was approaching the intersection at the speed of 35 km/h immediately prior the collision, having observed the taxi at least some 50m away (either stationery indicating to turn right or whilst in the process of turning right), the deceased would been in a position to take appropriate evasive action like apply brakes timeously and stop his bicycle, pull it to the side or completely swerving to the side. Had he done so, on this version by Mr Parker, he could have simply avoided colliding to the taxi and his failure to do so rendered the deceased highly negligent and caused the collision.
It is submitted a lot of uncertainties exist regarding what speed the deceased was travelling at the time and Mr Parker estimation is unsafe to rely on the basis his estimate variation between his reconstructed speed (30km-45km, and sometimes at 35-45) present with a significant gap to make it reliably safe; the bicycle was never tested only the taxi was tested.
Is there suggestive evidence of overspeeding?
It is submitted the court must find it is reasonably possibly true that the deceased was infact travelling at higher speed than the maximum speed (45km/h) reconstructed by Mr Parker in that, having seen the taxi in his approaching path in time (as he should have if he kept proper lookout), there is little doubt that he would have been in a position to avoid colliding to the taxi but failed to do so and it only remains to be inferred by the court that his failure to avoid the collision in such circumstances was probably due to him travelling at high speed immediately prior to the collision. The evidence of Mr Fourie that the deceased was looking down must not be ignored as it is material.
It submitted the cumulative effect of the following objective consideration render it more probable than not that that the deceased was travelling at speed higher than 45km/h at the time of the collision:
- (a) According to MrFourie, the deceased was travelling at full speed when he came across him and greeted him;
- (b) Apparent extent of physical damage to the bicycle (a top range racing bicycle) is consistent with serious impact, which may only be due to the cyclist’s high speed as the taxi, per Parkers findings, was travelling relatively slow;
- (c) That the police and Mr Parker apparently “overlooked” conducting forensic examination on the bicycle itself and it is submitted this warrants an adverse finding against the state.
It is submitted a greater duty to employ careful and cautious speed whilst approaching the intersection rested on the part of deceased and such duty was imposed by very particular circumstances commonly prevailing at the time, namely :-
- (a) there are no cyclist-designated facilities in Marine Drive wherein he was travelling. Mr Parker observes this at par 12.6.4 of his report;
- (b) The deceased was cycling on an ordinary pedestrian pavement, during a peak hour period and accordingly pedestrian and vehicular traffic ought have been a concern to him;
- (c) The occurrence of accident which partly accounted for the back to back traffic on the day and the several frustrated motorist which “u-turned” within his approaching view must have caught his attention and thereby regulated his speed accordingly;
- (d) He was approaching a busy intersection in which north-bound motorist from marine drive regularly or constantly executed right turns into Stott Street and, given he travelled the road regularly as he owned a shop nearby, he was aware of this and ought to proceeded with caution;
DID THE DECEASED KEEP PROPER LOOKOUT?
Most certainly cyclists have every right to be in the roadway…but they too have an obligation to behave reasonably and observe rules of the road. They are required to observe road signs and traffic signals and keep proper lookout. They cannot simply put their heads down and ride hell for leather, as if approaching the notional finishing line in a race.
The deceased according to the state version, Mr Fourie was that the deceased was driving at a full speed looking down or his head was facing down. The issue of speed is corroborated by Mr Parker (which is 45KM per hour). A bicycle with no engine traveling at 45 KM per hour is a very high speed.
On Mr Parkers evidence, it is clear that the intersection concerned would have been visible to the deceased within distance of at least 50m of his approaching path (see photo 12.5.1(g)) and the average speed of 35km/p required a stopping distance of 10m on average (par 188.8.131.52) for the bicycle.
It is submitted that, on the foregoing reconstructed version, if the deceased kept a proper lookout when approaching the intersection:-
- (a) he would have observed the taxi at least some 50m away either indicating to turn or already in the process of turning right and take steps to regulate his driving accordingly;
- (b) he would have had sufficient distance and time to bring his bicycle to a stop, pull it to the side or swerve completely, in if he was not over speeding. Had he done so, he could have simply avoided colliding to the taxi and his failure to do so rendered the deceased highly negligent; and the sole cause of the accident.
- (c) he would have been aware of the taxi which was already in the intersection completing its manouevre when he collided to it. Had he regulated his driving to allow the taxi to complete its right turn before entering the intersection, as he was obliged to, he could have avoided colliding to the taxi as he did.
DECEASED TOOK NO EVASIVE ACTION
There is no evidence that the deceased did anything to avoid the collision despite clear evidence suggesting he was in a position to do so and should have taken some steps to that effect, and accordingly he is the author of his own misfortune and thereby solely responsible for the collision.
I submit that the state dismally failed to prove its case beyond reasonable doubt. The state witnesses contradicted themselves in many material respects. Mr Fourie testified that the accused motor vehicle was following or behind him at all material times until they reached the intersection at Stott Street. He saw him indicating to turn right. Mr Sergiopolis testified that he saw the accused overtaking many vehicles before the intersection at Stott Street, driving on the oncoming traffic. That the accused missed the turn reversed and turned at Stott Street.
This is a clear contradiction on the state version which is very material. The witnesses lied and therefore must not be believed. It is very dangerous to use their evidence. Mr Fourie said there were no oncoming traffic from Shelly Beach therefore nothing would have obscured the vision of the accused. Mr Parker testified that he believed there were vehicles from Shelly Beach and mentioned and mentioned a station wagon.
As consequence of his failure to keep proper look out, the deceased deprived himself of an opportunity to take evasive action which could and should have taken, had he applied himself to it and entered the intersection when it was unsafe to do so and point of contact (on front left passenger door of the taxi) and point of impact (located at the point where the two roads intersect) shows the accused taxi was about to complete his turn, hence recklessness of the deceased.
DECEASED SOLEY TO BLAME FOR THE COLLISON
I submit that the deceased was the sole cause of the collision in that he was traveling fast, the accused already completed the turn and the deceased did not look up ahead of the intersection.
- ACCUSED VERSION
The accused version that, whilst stationery indicating to turn right, there was oncoming traffic for which he waited for before turning, including an Audi & Station wagon, is inherently possibly true and must be accepted. This aspect of his version was supported by R Govender and Mr Parker, especially the presence of a station wagon.
So Parker contradicted the evidence of Fourie and Sergiopolis on this issue, who maintained falsely there were no such cars.
- ACCUSED’S RIGHT TO A FAIR TRIAL
The accused right to a fair trial was compromised in the case and this point is illustrated by the following:
- a) Charge of culpable homicide in the charge sheet was a broad “fishing expedition” on the state part which did not disclose at all what particular driving conduct of the accused which constituted reckless driving;
- b) Biased investigation of the case. Deceased bicycle was excluded from forensic examination by Parker and police. So evidence which could have possibly exonerated the accused or somehow supported his version was left out. No explanation given by Parker why this omission. Adverse inference appropriate to be drawn that this evidence was left out because it showed the deceased was speeding at time of impact;
- c) Biased witness account, especially by the expert, Mr Parker, a self-confessed avid cycle and who, along with other state witnesses and members of the public, ordinarily viewed the deceased as an international hero and thereby with whom they naturally sympathized. It is interesting that his report does not implicate the deceased even with a slightest degree of fault, all blame being the taxi driver’s.
- d) Media and public interest generated by the case, clearly along racial lines pitting a careless black taxi driver against an adored white international cyclist, explains the cause for bias and the pressure exerted on the state to find someone to blame for the death, persecute him regardless of the prospects of success but counting on public pressure and possible court sympathy. It is hoped that the Court will rise above these untainted and pronounce itself judiciaslly on the matter
- e) Contradictions in the state case on its own were not clarified or followed up in the same vain as the accused’s version. The accused version in fact was corroborated by Mr Parker, video evidence, Mr Govender and in some degree by Mr Fourie.
- f) The pressure put by the deceased family put to the DPP after the prosecutors in Port Shepstone withdraw the charges against the accused. Thereafter the matter had been micro-managed at high level and fast tracked above all other matters. The perception of the justice system in South Africa in the eyes of public is vital.
In the result the court must find that that: there is no sufficient evidence adduced by the state which, beyond reasonable doubt, showed, that there was room for any degree of blame or fault on the accused’s part and that in fact the deceased was solely to blame for the collision.
I submit that the state failed to apply to prove its case beyond reasonable doubt. It failed to prove that the accused drove his motor negligently and such negligence was the cause of the death of the deceased. In this case the speed of the deceased was the sole cause of the collision. This is evident by many factors including the condition of the bicycle after the accident.
The court must therefore acquit the accused as his version is true or reasonable possible true. All the witnesses for the state never witnessed the collision therefore the court has no evidence to make up a true, honest and objective finding as to how the accident happened. All the evidence before court has been either mistaken observation, lies or speculation.
Alternatively if the court find the state case to be possible true too, it must note that it has two versions before itself therefore must acquit the accused without rejecting the state’s version as was held in the above mentioned decided cases or authorities.
DATED AT PORT SHEPSTONE ON THIS 23 DAY MARCH 2015
XOLILE NTSHULANA ATTORNEYS
COURT HOUSE STREET