The authorities have put the brakes on charging motorists who have caused fatal accidents with murder.
This comes after the conviction and sentence of taxi driver Jacob Humphreys, 57 – one of the National Prosecuting Authority’s test cases – was set aside by five judges of the Supreme Court of Appeal (SCA) on Friday.
Humphreys’s 10 murder convictions were overturned and replaced with culpable homicide, his convictions for attempted murder were set aside all together and his 20-year jail sentence was replaced with eight years.
NPA Western Cape spokesman Eric Ntabazalila said they would no longer be charging people with murder unless they could prove a direct intention to do so.
“This judgment defines the law and guidelines on how the NPA prosecutes such cases… Other cases will be dealt with as culpable homicide unless it can be proved there was an intention to kill.”
This had been a test case and there were no other cases in the Western Cape, Ntabazalila said, where someone involved in a deadly motor vehicle accident had been charged with murder.
Humphreys was at the wheel on August 25, 2010 when an oncoming train smashed into his taxi, killing 10 children and injuring four.
He had overtaken a queue of cars waiting to cross the railway line at the Buttskop crossing in Blackheath and ignored warning signals, including a lowered boom.
The Western Cape High Court convicted him on the basis of dolus eventualis (indirect or legal intent), finding that he had foreseen the children’s death as a possible consequence of his actions.
The SCA could not fault this conclusion.
This case, however, lacked a distinguishing feature of dolus eventualis – that Humphreys had brought himself to accept the consequences of his conduct.
While Humphreys had been ”flagrantly” negligent, Judge Fritz Brand, who wrote the judgment, said there was no evidence that Humphreys’s life was immaterial to him and that he had reconciled himself with the possibility of his own death.
“What must follow from this is that he had not reconciled himself with the occurrence of the collision or the death of his passengers either. 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,” the judgment read.
Humphreys had also successfully carried out the manoeuvre he executed on the day of the crash on previous occasions, which had probably led him to the “misplaced sense of confidence” that he could do it again.
Humphreys’s attorney, Anver Titus, said the outcome was a victory not only for his client, but for all drivers.
Similar cases where drivers had been involved in fatal accidents convicted for murder – such as the one against musician Molemo “Jub Jub” Maarohanye – now stood a good chance of being successfully challenged if they chose to take it on appeal, said Titus.
The NPA, said criminal law attorney and expert William Booth, would now have to fully justify its decision to charge and try a motorist for murder.