Reckless driving just like murder

2011-12-17 12:48

Kill someone with a gun, or drive recklessly and cause an accident in which a person dies – the end result is the same: you will be charged with murder.

This was the message the National Prosecuting Authority (NPA) sent out this week as a new “aggressive” policy began to yield results.

It entails charging extremely reckless drivers, who cause death, with murder.

On Tuesday, the Western Cape High Court found taxi driver Jacob Humphreys guilty of murdering ten children after his taxi collided with a train at the Buttskop level crossing, outside Cape Town.

Humphreys had overtaken a row of waiting cars and zig-zagged through lowered boom gates in a failed attempt to beat the train.

The murder charges against Humphreys were the result of a directive of the NPA two years ago, stating that where there is sufficient proof of extremely reckless driving and people are killed, prosecutors should charge drivers with murder and not culpable homicide or manslaughter.

Some convictions have already resulted in severe sentences.

Earlier this year, Sonwabo Geqe, a motorist fleeing from the police, was sentenced to eighteen years’ imprisonment for killing four pedestrians.

In Pretoria in 2009, Percyval Matji, the taxi driver who knocked sixteen-year-old Bernadine Kruger off her scooter and ran over her, was sentenced to twelve years in jail in Pretoria.

Several high profile cases where drivers have been charged with murder are pending, including that of musician Molemo “Jub Jub” Maarohanye, former Bafana Bafana player Bryce Moon and Sibusiso Langa, who allegedly killed five runners in Midrand.

Mthunzi Mhaga, a spokesperson for the NPA, said the new policy has caused a lot of confusion among members of the public, who consider car crashes to be accidents, in which the driver had no intention to kill.

How then do you make a lethal weapon of your motor vehicle?

In South African law, a person must intend to kill someone to be charged with murder.

It is different from the crime of culpable homicide, which entails causing someone’s death negligently, or in other words, where a person foresaw someone might die and didn’t take the necessary precautions to prevent it.

So to charge people with murder, prosecutors have relied on a special form of intention, called dolus eventualis, or subjective intention.

Jonathan Burchell, professor of criminal law at the University of Cape Town, said this was when a person “foresaw the possibility that death might come about and nevertheless took a conscious risk which caused death”.

This would include a driver?who foresees the possibility that their reckless driving might very well kill someone, but decides to carry on driving anyway.

Factors that prosecutors have taken into account in preferring murder charges in these cases have included: drinking and driving, overtaking on a blind rise, excessive speed, drag racing and trying to escape the police.

A murder conviction on the basis of subjective intent means a minimum sentence of fifteen years unless there were “substantial and compelling circumstances for a lesser sentence,” said Burchell.

But whether the NPA’s tough stance will serve as an effective deterrent to reckless drivers remains to be seen.

Lukas Muntingh, project coordinator for the Civil Society Prison Reform Initiative, said “while sentences imposed are getting longer and longer it has not deterred crime”.

“It’s not the severity of the punishment that acts as a deterrent, but rather the certainty that you’ll be caught.

“If you’ve been drinking at the bar and you know that the chances of getting stopped at a roadblock are 80%, you’re less likely to do it,” he said.

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