Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to February 2024/1953/Volume 3: 1 ­ 302 (July)/R v
SCHOONWINKEL 1953 (3) SA 136 (C)

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R v SCHOONWINKEL 1953 (3) SA 136 (C)

1953 (3) SA p136

Citation 1953 (3) SA 136 (C)

Court Cape Provincial Division

Judge Steyn J

Heard March 11, 1953

Judgment March 11, 1953

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Criminal law ­ Persons, liability of ­ Epilepsy ­ Driver on a charge of culpable homicide suffering from fit at time of collision ­ Evidence
exonerating driver from criminal responsibility ­ Not a D case falling under provisions of Mental Disorders Act, 38 of 1916, read with sec. 219 of
Act 31 of 1917.
Headnote : Kopnota
Where, on a charge of culpable homicide against the driver of a motor­car as the result of a collision with another car in which a passenger was
killed, the defence showed that at the time the accused was suffering from an epileptic fit and his mind was a blank, and that E the nature of
the epilepsy from which the accused was suffering was such that he would normally not have realised the dangerous consequences attending
upon him in the driving of a motor­car, having only had two previous minor attacks, the last of which was a considerable period before the
collision,
Held, that this evidence exonerated the accused from criminal responsibility. R v Victor, 1943 T.P.D. 77, distinguished.
F Held, further, that the provisions of the Mental Disorders Act, 38 of 1916, read with section 219 of Act 31 of 1917, were not applicable.
Trial on a charge of culpable homicide before a Judge and assessors. The facts appear from the reasons for judgment.
G T. E. Kleynhans, for the accused.
E. W. Holden, for the Crown.
Judgment
STEYN, J.: The accused, who is charged with the crime of culpable homicide, was the driver of a motor­car along the Bredasdorp­Swellendam H
road on the 1st September when his car collided with a car driven in an opposite direction by a Mr. Pieter Roux, who had as passengers his
(Roux's) wife and a young lady named Marieta Dowling. The collision was head­on near Remhoogte, where there is a slight slope in the road. Mr.
Roux was well on his proper side of the road and the accused was well on his wrong side, and the evidence ­ which has not been contradicted ­
is to the effect that for a distance of about 30 paces the accused drove his car along on the wrong side, the right wheels being more or less

1953 (3) SA p137

STEYN J
parallel to the right hand side of the road and the spoor marks indicating that he was proceeding straight on towards the oncoming car driven
by Mr. Roux. So that, on the evidence placed before the Court, the manner in which the accused drove the car was virtually suicidal, i.e., if he
was driving the car in a normal state of mind.
A Now, from the fact that the collision obviously occurred when the accused was on his wrong side of the road and the further fact that as a
result of that collision Mr. Roux and also his wife met their deaths, it is clear that a verdict of culpable homicide would have been justified B
unless there were other circumstances which exonerated the accused from criminal responsibility. In this particular case my assessors and I
have found that there were exonerating circumstances.
It would appear ­ and the Crown has not disputed the evidence ­ C that immediately prior to the collision the mind of the accused became
quite blank because the accused had an epileptic fit of a type which was described by Dr. MacGregor as psychomotor epilepsy and which he
says is a minor form of epilepsy. According to Dr. MacGregor a patient may be attacked without prior warning of an attack coming on and the
patient D would himself not realise the potential dangers inherent in his being subject to this form of attack, unless his attention had been
especially drawn thereto. The doctor was advised as to the evidence given by the accused ­ e.g., that he could not remember what had
happened whilst E he was driving the car a few hundred paces immediately before the collision, though he remembered that just after he got
out of his own car after the collision he spoke to one or two people; that he refused to render assistance to the unfortunate Mr. Roux, who was
then still alive and had to be taken out of the car; and that he told Mr. Lockwood, F who was immediately behind Mr. Roux in another car, that
he was on the right side of the road, etc ­ but he, the doctor, testified that these facts are wholly consistent with a conclusion that the
accused was at the time emerging from an epileptic attack. As I have said before, the Crown has not disputed it, and we are satisfied that at
the time G when the collision occurred the accused was suffering from an epileptic fit, that his mind was then a blank, and that therefore he is
exonerated from criminal responsibility for his negligent driving as such at the time of the collision.
But Mr. Holden, who appeared for the Crown, has referred us to the case H of R v Victor, 1943 T.P.D. 77, where the driver of a motor vehicle
was also subject to epileptic fits and the Court on appeal sustained the conviction by a magistrate on the ground that the negligence which the
accused there committed was not so much in the driving of the vehicle, but in his driving at all, knowing of his physical disability. But the facts
in Victor's case are very different from the facts here. In Victor's case the accused had been charged and convicted of reckless or negligent
driving on a

1953 (3) SA p138

STEYN J
public road in contravention of sec. 31 (1) (a) of Transvaal Motor Ordinance, 17 of 1931, and his defence was that he was not responsible for
his actions because he was at the time the victim of an epileptic seizure. He stated he was 28 years of age and had been driving a car for A
eight years. His health was normal except that occasionally he suffered from epilepsy. He had had attacks since the age of 14 or 15 and
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which was part of the warning; and at other times he had this feeling B without any attack. He had paid an unlicensed practitioner for four
 STEYN J
public road in contravention of sec. 31 (1) (a) of Transvaal Motor Ordinance, 17 of 1931, and his defence was that he was not responsible for
his actions because he was at the time the victim of an epileptic seizure. He stated he was 28 years of age and had been driving a car for A
eight years. His health was normal except that occasionally he suffered from epilepsy. He had had attacks since the age of 14 or 15 and
generally had what he called a 'warning feeling' five or ten minutes before an attack. There were, he said, times when he had a giddy feeling
which was part of the warning; and at other times he had this feeling B without any attack. He had paid an unlicensed practitioner for four
weeks' treatment and was told that he was cured. On the morning of the accident he had had an attack preceded by the usual warning. He
stated that he had never before had two attacks on the same day.
C In the present case the nature of the epilepsy from which the accused suffers is such that he would normally not have realised the
dangerous consequences attending upon him in the driving of a motor vehicle. The accused has only had two minor attacks, in one or both of
which he was in bed. There is no evidence that the accused knew that, D subject as he was to these fits, it would be dangerous for him to
drive a vehicle, and the last attack he had was a considerable period before the date of the collision. We are not satisfied that the accused
could or should have reasonably foreseen the danger of driving on a public road, even though he knew that he was subject to fits or that he
might E have another fit in the future, and we therefore find him not guilty of the crime as charged.
There remains the question whether the accused should be dealt with under sec. 29 (1) of the Mental Disorders Act, 38 of 1916, but it does F
not seem to me that this is a case where the defence endeavoured to set up a defence of insanity. In any event, even if such an endeavour
had been made, we are not satisfied that the accused was mentally disordered within the meaning of the Mental Disorders Act, bearing in mind
the definition contained in sec. 3 of the Mental Disorders Act, 38 of 1916. G The only class of person in which the accused can be deemed to
fall is class 7, which is that of an epileptic. But not all epileptics are mentally disordered; it is only a person suffering from epilepsy who is a
danger to himself or others or who is incapable of managing his own affairs. Within the ambit of that definition the accused does not fall, and it
seems to me, therefore, that the Mental Disorders Act, even as H read with sec. 219 of the Criminal Procedure Act, is not applicable. I may say
that, if it had been applicable, the case of Victor, supra, would have been a far stronger case for the application of the Mental Disorders Act,
and it was not applied there.
There is just one further point. At the hearing today Dr. MacGregor has expressed the firm opinion that hereafter the accused should not
continue to drive a motor vehicle. I have no power to cancel his licence, in view of the fact that he has been

1953 (3) SA p139

STEYN J
found not guilty, but the Administrator has that power under sec. 30 of the Motor Ordinance 15 of 1938, which is to this effect:
'Any certificate or licence issued under the provisions of this chapter may be suspended or cancelled by the Administrator upon proof to his satisfaction that the
holder of the certificate or licence is not or is no longer, owing to any physical or other defect or A infirmity or owing to addiction to the use of narcotic drugs or
to excessive use of intoxicating liquor, or for any other reason whatsoever, a fit and proper person to obtain or to hold a licence.'

Counsel for the accused has indicated that the accused will be quite prepared to hand his licence over to be dealt with under this particular
section of the Motor Ordinance, and we as a Court find that the accused, B on the evidence before us, should not be allowed to continue to
drive on a public road, and that therefore his licence ought to be either suspended or cancelled, depending on the degree of his present
infirmity, and I therefore express the hope that steps will be taken that the accused's licence be either suspended for such a period until C
there is conclusive proof that he is no longer subject to epileptic fits, or if there is no proof, that it should be duly cancelled, so that the
accused can be protected against himself and also so that the public may be protected from any foolish acts he may in the future undertake.
D Accused's Attorneys: Louw & Steyn.

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