‘Brakes did not fail’

2013-07-24 00:00

TAXI driver Khululeka Gwala (23) will spend at least two nights in jail awaiting sentencing for causing the deaths of 15 passengers on September 30, 2011.

Gwala, who was charged with murder, was convicted of the lesser charge of culpable homicide in respect of each of the deaths yesterday, and not guilty of four counts of attempted murder. The case was postponed to tomorrow for sentencing procedures to start.

Acting High Court Judge Piet Bezuidenhout however declined to extend Gwala’s bail till then.

He agreed with state advocate Candy Kander that without pre-judging the matter, there is a possibility that Gwala could go to jail for his crimes.

He said that since the case was not being postponed for a long time, he saw no reason to order that Gwala’s bail be extended until Thursday, even though he had adhered to his bail conditions to date.

The judge found that Gwala’s actions in crossing a double-barrier line on a blind corner, and driving at high speed along the fast lane of oncoming traffic, were “grossly reckless”.

When he did so, the cars he overtook were backed up bumper to bumper for about a kilometre from the robot.

Bezuidenhout said the evidence established that Gwala drove recklessly and dangerously without any regard for the safety of his passengers or other road users.

Gwala also admitted the taxi was overloaded. It should carry 15 passengers and a driver, but on that day had 20 occupants.

He found that Gwala subjectively foresaw that his actions would cause a collision.

However, in light of a recent Supreme Court of Appeals ruling dealing with similar facts, the judge said he could not find Gwala guilty of murder and attempted murder.

To do so the court would have to find that Gwala had not only reconciled himself to the idea that his passengers would be killed, but also that he had reconciled himself to his own death.

He said the evidence showed that Gwala had tried to avoid colliding with the oncoming truck.

In doing so, he’d swerved left, first hitting a car in the queue on Bambatha Road in the Copesville area.

His taxi and the approaching truck then both veered left and right, trying to avoid one another, before colliding.

The taxi was pushed down an embankment and the truck went over it.

“It would appear to me that the accused was therefore not indifferent as to whether he would die or not. From the evidence there is some indication that if the truck had not gone left, the taxi may have avoided it. Therefore, the accused did not reconcile himself with his own death or his passengers,” he said.

Acting Judge Bezuidenhout rejected Gwala’s evidence that the accident was caused by the taxi’s brakes failing.

He accepted the evidence of brakes expert Laurence Merchant, who said that although some of the taxi’s brakes were defective, they definitely did not fail or “fade”, and were not the cause of the crash.

Merchant disagreed “one hundred percent” with Gwala’s claim that when he’d stepped on the brakes, there were no brakes just prior to the crash.

Bezuidenhout said Merchant clearly had vast experience, and no criticism could be levelled against his evidence.

Gwala on the other hand was “not a good witness”. He often didn’t answer questions directly, had no answer or evaded questions.

“His evidence of how he tried to avoid a collision is highly improbable,” he said.

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