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THE National Prosecuting Authority's decision to charge people with murder instead of culpable homicide when death has resulted from car accidents has caused a lot of confusion in many quarters.
People are accustomed to culpable homicide being the only charge preferred against people involved in such incidents because motor vehicle collisions are usually considered to be "accidents" - as people believe that no one sets out to crash his car, resulting in death.
Indeed, many continue to question the rationale and sustainability of this aggressive stance while some are expressing scepticism on whether it will yield the desired results.
Even within the NPA there are different opinions on this approach, as can only be expected in an institution of lawyers.
But I can guarantee you it was preceded by an intensive and interrogative consultative process led by Advocate Menzi Simelane, the national director of public prosecutions (NDPP).
According to the Criminal Procedure Act, the prosecution is at liberty to prefer any charge as long as it has reliable and admissible evidence to substantiate it.
The prosecution is also at liberty to design and apply any prosecutorial strategy in its bid to present a formidable case.
Prosecutors are therefore within their rights to explore all legal avenues to deal with whatever legal loophole appears in our endeavour to administer justice.
The NPA's aggressive stance is informed by three factors: legal principle, sentencing incentive and the need to ensure social responsibility among motorists.
The charge of culpable homicide requires negligence, which simply means the prosecution must prove that the conduct of the driver/accused was careless in causing the collision that resulted in death.
The prosecution does not need to prove that his act was deliberate.
An accused who is convicted of this charge is usually given a fine or suspended sentence which is non-custodial.
It is only in rare cases of extreme negligence where the accused would be given a direct term of imprisonment.
This does not sit well with members of the community because a non-custodial sentence where a life has been lost is considered to be lenient and inappropriate for such an offence.
The public is unaware that the conduct of the motorist/accused lacks the required element of intention to cause such death.
Public frustration on this score is understandable in view of the soaring rate of deaths on our roads, which seem to go unabated despite many drivers being prosecuted.
How do we then explore the criminal law to address this challenge?
A murder charge requires direct and indirect forms of intention to be sustained in court.
The approach is that in those instances where we can prove that a motorist's conduct is such that it can be inferred that he had some form of intention to cause the death of the deceased, then a murder charge is appropriate.
A clear example is the case of the motorist currently serving 18 years in Bisho for murder instead of culpable homicide.
He was running away from the police and ended up ploughing into pedestrians and killing four.
Under normal circumstances, he would have been charged with culpable homicide but the state proved that, when he exceeded the speed limit to avoid the police, he clearly foresaw the possibility of not being able to control the vehicle, that there may be pedestrians on the road or on the pavement and that he may collide with them and that they might die.
Although he was alive to this possibility, he nevertheless reconciled himself with that eventuality and went ahead with his actions.
This form of intention is referred to as dolus eventualis in Latin. It simply means that a person foresaw the possibility of the result of his action but reconciled himself to that possibility.
The NDPP always says the duty of a prosecutor is not to secure a conviction but to present the facts before court in a fair and unbiased manner and the conviction will come as a natural cause.
In preferring murder charges over culpable homicide, we at the NPA do not deviate from this important principle.
We are prosecutors, and not persecutors, hence each case will be dealt with on its own merits as cases differ.
But our society has degenerated to a level where some drivers have total disregard for human life.
We cannot sit back and watch society decay when we have a legal and constitutional remedy to protect a constitutionally entrenched right to life.
The answer to the question whether this remedy is sustainable is therefore a resounding YES.
Just look at the two cases of the Pretoria taxi driver who is serving eight years for murder after colliding with a motor bike and the Bisho accused serving 18 years for murder.
With the festive season approaching, we will be more aggressive in our approach to irresponsible drivers because the importance of human life can never be over emphasised.
We hope that the public will support our stance as we all have the interests of the road users at heart.