Prosecuting a driver for murder in an accident in which a person was killed is very complicated, says the prosecutor who successfully prosecuted one such case in South Africa last year. Sanet van Rensburg successfully prosecuted taxi driver Percyval Matji for the murder of Pretoria school girl Bernadine Kruger after he was initially charged with culpable homicide.
Matji, sentenced in the Pretoria Magistrate's Court to 12 years imprisonment, killed Kruger in February 2009, while she was riding a scooter to school in Garsfontein. He knocked her off the scooter and the front wheel of the minibus drove over her, killing her instantly. He was convicted of the murder in September. "A case like this is more complicated than a normal accident case, because you have to prove objectively the mindset of the accused at the time of the incident," said van Rensburg. She said it had been a challenge prosecuting Matji, but that there was legal authority to support such a prosecution. Another taxi driver, Petros Mchunu, was convicted of murder and sentenced to 20 years in jail, later reduced to 12 years on appeal, after he ran over and killed a traffic cop near Benoni in 2003.
This week hip-hop artist Molemo Maarohanye, popularly known as Jub Jub, and co-accused Themba Tshabalala were charged with murder following an alleged drag racing accident in which four school children were killed and two were injured. The pair were allegedly dicing their Mini Coopers down Mdlalose Street between Protea Glen and Protea North at 2pm on Monday. They were allegedly under the influence of alcohol, when they ploughed into a group of pupils, killing Prince Mohube, 16, Phumelelo Masemola, 16, Mlungisi Cwayi, 19, and Andile Mthombeni, 16. They face four charges of murder, two of attempted murder and one each of reckless driving and drunken driving.
Prosecutor Liezl van Jaarsveld told the Protea Magistrate's court that the two were allegedly racing in a residential area with many pedestrians, on a two-way street during peak-hour traffic. The matter was postponed to March 17 for a bail application.
Legal experts this week said the more common charge of culpable homicide was based on negligence. Murder required intent. Criminal law expert Kobus van Rooyen said the driver of a car involved in a fatal accident might be charged with murder. He pointed out murder was the intentional killing of a person, when the killer knows of the possibility that the act is unlawful.
There are three types of intent - direct intent, indirect intent, and intent where the accused could have foreseen the possibility that someone could get killed, but nevertheless continued with the act. This is known as dolus eventualis, a concept first raised by the Appeal Court in 1964, when it held that if you pass another vehicle on a rise where there is a solid line and kill someone, this could justify the inference of intention by way of eventuality. "The state will have to prove that the driver of the vehicle foresaw the possibility that someone could be killed, but nevertheless continued. If the driver is not convicted of murder, the conviction could be an alternative charge of culpable homicide. Emma Sadlier, an associate at law firm Webber Wentzel, wrote this week that dolus eventualis, or "legal intention", existed where the accused did not "mean" for the unlawful act to happen, but foresaw the possibility it might, and proceeded anyway. In the latest matter, in order to prove that the accused acted with dolus eventualis, the prosecution would need to prove that the pair knew someone might be killed when racing through a busy suburb on a single lane road, allegedly under the influence of both alcohol and drugs - but reconciled themselves to this risk and recklessly proceeded anyway. Van Rensburg said success in such a case depended not only of the facts, but also whether one was able to prove dolus eventualis. "Proving the mindset of the accused is very difficult. For example, one would look at whether the person was driving on a public road, whether there are normally pedestrians on that road, whether the driver believed that if he was travelling at speed, he could stop in time if something happened, the time of day, visibility, audience attraction in a drag racing case, was it raining... you have to look at all the circumstances," said the prosecutor.
National Prosecuting Authority spokesman Mthunzi Mhaga said whether the prosecution could prove guilt or intent depended on the available evidence, which would inform a decision to push for the murder charge. He said the murder charge for killing someone in an accident could become the norm in South Africa. "If, upon assessment of available evidence, we are of the view that murder is a sustainable charge, we'll take a prosecutorial decision to charge with murder".
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