Is the best defence re-offence?

July 1st, 2013
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Humphreys v S (SCA) (unreported case no 424/2012, 22-3-2013) (Brand JA)

By Chris Shone

The recent judgment in the Humphreys matter by the Supreme Court of Appeal (SCA) raises interesting and potentially controversial issues.

In short, the SCA in this matter set aside the finding and conviction of the court a quo on murder, substituting this with a finding of culpable homicide.

As a consequence, the appellant’s effective sentence of 20 years’ imprisonment for murder and attempted murder was reduced to eight years for culpable homicide, to a limited extent backdated. The question is: How and why did this happen?

The facts

The appellant, Jacob Humphreys, operated a shuttle service for school children. In August 2010 he was driving a minibus when, at a railway line crossing, the minibus was hit by an oncoming train, killing ten children and seriously injuring four others. This happened because, ignoring warning signals, Mr Humphreys overtook a queue of cars waiting to cross the railway line.

During December 2011 the Western Cape High Court convicted Mr Humphreys of ten counts of murder and four counts of attempted murder. In all, the sentence was 20 years’ imprisonment. The court found that he had acted with indirect intent, in that he had foreseen the possibility of harm, but had nevertheless taken a risk. Mr Humphreys appealed to the SCA on both the conviction and the sentence.

Dolus

The SCA judgment hinged on the meaning of the term dolus eventualis in relation to the facts of the case. For a murder conviction, dolus, (intent) is one of the essential elements. However, intent comes in different guises, namely:

  • Dolus directus, where the individual actually aimed to achieve a particular result.
  • Dolus indirectus, where the individual desires to achieve a particular result but is aware that, in doing so, a secondary result will inevitably follow. There is a primary intention but there is a possibility that, in achieving this, a different indirect result may follow.
  • Dolus eventualis, where the individual foresees the consequences of his or her actions but nevertheless proceeds, with the result that the foreseen consequences arise.

In legal parlance, dolus eventualis is equivalent to legal intent, which is sufficient for a conviction of murder. Culpable homicide requires negligence, not intent in any of the three guises. Absent intent, there cannot be a murder conviction. Absent negligence, there cannot be a conviction of culpable homicide.

Dolus eventualis

In the Humphreys matter, dolus eventualis was relevant. The test for dolus eventualis is twofold: First, did the individual subjectively foresee the possibility of the consequences of his or her actions (in the case of Mr Humphreys, the death of the children) and, secondly, did he or she reconcile him- or herself with this possibility.

On the first element, the SCA found against Mr Humphreys, confirming the judgment of the court a quo.

The SCA agreed with the court a quo and found that ‘no person in his right mind can avoid recognition of the possibility that a collision between a motor vehicle and a train may have fatal consequences for the passenger of the vehicle’.

It is the second element of the test that became significant in the appeal to the SCA. That is, did Mr Humphreys reconcile himself with the foreseen possibility?

Mr Humphreys was the driver of the minibus. Therefore, did he foresee the death of the children, and his own death, by ignoring the warning signs, jumping the queue and crossing the railway track? Was it immaterial to Mr Humphreys that he, too, could have been killed by this action? Could this be inferred from his conduct? Legally speaking, could it reasonably be inferred that he subjectively foresaw that the train would hit the minibus with the resultant consequences?

The SCA

The SCA concluded that no such inference could be drawn from the facts. To do so would be tantamount to a finding that Mr Humphreys had taken his own death into the bargain or must have been ‘indifferent as to whether he would live or die’. The SCA found that Mr Humphreys did not contemplate his death or that of the children. He had not, therefore, reconciled himself with the fact that a collision with the train was inevitable.

What the SCA concluded was that, in jumping the queue to cross the railway tracks as he did, he took a risk that he did not think would materialise. He did not believe, subjectively, that a train would hit the minibus.

Significantly, the SCA had an additional basis for finding that Mr Humphreys did not meet the requirements of dolus eventualis. The SCA found that, as Mr Humphreys had previously performed this ‘queue jumping’ and crossing manoeuvre successfully, it would appear that he could subjectively be confident that he would do so again. The consequences had not, subjectively, been foreseen. That he was clearly wrong did not detract from the fact that, for the purposes of the second element of the test for dolus eventualis, he had not reconciled himself with the possible consequences of his actions. Mr Humphreys had succeeded in crossing in such a manner before, at least twice, so he believed he could do so again. He was clearly wrong. However, this was sufficient to exclude a finding of intent on the basis of dolus eventualis – which is sufficient to avoid a conviction on a charge of murder, so the SCA concluded.

Analysis

The obvious question is whether the judgment would have been different had Mr Humphreys not previously jumped the queue successfully. It appears so. His ‘success’ in the court was based on the fact that he had succeeded with ‘queue jumping’ previously. However, what if he had never done this before?

If the first element of the test for dolus eventualis would have been met, objectively speaking, as it undoubtedly would have been, then it would appear that the second element would not have been met.

In short, it appears that Mr Humphreys’ previous ‘success’ in ‘queue jumping’ counted in his favour. Thus, a murder conviction was not possible, despite there being ten dead and four seriously injured children.

In a subsequent case, local soccer player Bryce Moon was facing charges of murder, alternatively culpable homicide; attempted murder; driving under the influence; and reckless and negligent driving. This was as a result of an incident in which he knocked down a pedestrian. Mr Moon claimed he had swerved to avoid hitting another pedestrian, but the deceased ran into the road and hitting her was unavoidable. The Humphreys decision appears to have saved Mr Moon from a murder conviction.

Mr Moon was convicted of culpable homicide and acquitted on the other char­ges. Thus, dolus eventualis had no role to play. Sentence was a fine of R 60 000 or two years’ imprisonment. His driver’s licence was suspended for six months. Mr Moon has, however, been granted leave to appeal.

No doubt lawyers for South African musician Molemo ‘Jub Jub’ Maarohanyhe and Themba Tshabalala, who were convicted of murder and attempted murder after a motor vehicle collision they were involved in left four dead and two seriously injured, will be studying the Humphreys judgment to see if the 25-year sentence consequent on the murder convictions of their clients can be set aside. No doubt, they will focus on the fact that their clients had never committed such an act previously.

That is, there was no intent; certainly not in terms of dolus eventualis. They may well argue that there was no dolus under any of the three guises and, therefore, a conviction on a charge of murder cannot stand. They may argue that the collision was due to negligence, which is insufficient for a murder conviction.

If this argument is correct, Mr Maarohanyhe and Mr Tshabalala should have been found guilty of culpable homicide, not murder, and their convictions on the charges of murder should therefore be set aside and replaced with ones of culpable homicide, at a lesser sentence.

Conclusion

It almost appears that the best defence to a murder charge may, in fact, be prior conduct, which itself could have constituted an offence. This surely cannot be correct. But that is the law as it stands.

Chris Shone BCom BProc LLM Cert Admin of Estates Cert Adv Corporate and Securities Law Dip Insolvency Law Cert Advanced Insolvency Law PG Cert Advanced Taxation Cert Pension Fund Law (Unisa) MBA (Wits) is an advocate in Cape Town.

This article was first published in De Rebus in 2013 (July) DR 54.