“How is any of this justice?” This was a burning question asked by Divine Swartz following the death of her son Imitha in December.

The 13-year-old died following a string of complications after suffering severe head injuries when struck by a car last year. The driver was initially charged with reckless and negligent driving, but after the boy’s death this was changed to culpable homicide.

Swartz has also been left with medical costs of almost R700 000.

She is also irate over the fact that the suspect in this case had not appeared in court since the accident on 7 August.

And all too often cases of culpable homicide are never even heard in court, but eventually just disappear off the court rolls.

Legalities of a culpable homicide

Paarl Post turned to the expertise of Advocate Nathan Johnson, the Control Prosecutor at Paarl Magistrates’ Court. He was asked why culpable homicides are such tough cases to crack.

“Number 1 – you are dealing with a level of negligence. Who was negligent, and to what degree? How much negligence can I contribute or prove with each party before I make a criminal case?

“Criminal courts do not necessarily deal with negligence. That’s generally handled by a civil court which then deals with proportional damages.”

Johnson says even though the court only has to prove 1% of negligence have to be fair before making an arrest. “We don’t arrest and then investigate in risk of having a case thrown out of court; we investigate and then arrest.”

For Johnson, the tendency in South African courts is that most cases initially get postponed for “further investigation”.

“Where have you heard of such ludicrous behaviour? Presume innocence until proven guilty – I have to prove your guilt before arresting you. What happens in court is merely a formality to see if an impartial judge rules in favour of my argument or the defence’s.”

Johnson said all accident-related investigations involve a level of negligence – the challenge lies in proving whether the negligence was unavoidable.

“People dealing with these kind of cases are welcome to take the matter to civil court in which the K53 guidelines will be applied and you could sue for damages. But that won’t necessarily be tolerated in a criminal court run by taxpayers’ money.

“I am not here for the victim, I’m here for the truth at the end of the day.”

Police’s lack of investigative power (or will)

Johnson believes there are more issues than that on the prosecution’s side, “the other reason why culpable homicides take long is because officers don’t get training.

“Police officers can’t investigate these type of matters – they don’t know how to cordon-off a scene; they don’t know what questions to ask suspects. If they did – then why does a matter come to us for decision?”

He says that officers attending such scenes collect general information and leave the rest for prosecution to fill the gaps.

“That’s why these cases drag on so long, because we are prosecutors and investigators. Police don’t receive the proper training within their six months of college to do thorough field work.”

A media inquiry focusing on this topic was sent to local police stations that deal with high volumes of culpable homicide cases, namely Paarl, Franschhoek and Klapmuts police stations.

Paarl police spokesperson Capt Louise du Plessis was the only one to respond. She said that among all the different culpable homicides, “most incidents are road accidents and pedestrian incidents. Hit-and-runs and drunk/negligent driving occur minimally.”

What protocol is to be followed by police when approaching a culpable homicide scene?

“The scene needs to be cordoned-off immediately; assessment of injuries has to be made; relevant role players need to be contacted and witnesses have to be identified.”

What are the initial challenges faced when arriving at the scene?

“Unfortunately, the public are always present at a scene before police and social media is used by the community to distribute news which is often sensationalised and not at all relevant to what happened,” said Du Plessis.

“Witness statements are of the utmost importance especially if all parties are deceased or seriously injured. The details of all witnesses to the scene need to be obtained and the investigation officer needs to take statements of each one.

“The court decides which witness statements are most relevant to the investigation.”

What is most critical when working with a hit-and-run situation versus a drunk driving/negligent incident?

“Hit-and-run incidents (where the driver of the vehicle has fled from the scene) require the identification of the vehicle,” Du Plessis said.

“Drunken driving is to ensure that the driver of the vehicle is taken for blood samples as soon as possible.”

She added that it is a challenge to obtain sufficient evidence to prove negligence.

“The biggest problem is that pedestrians do not abide to road rules. They do not make use of pedestrian crossings and take considerable risks on roads with busy traffic.”

When a family has to deal with the passing of a loved one in a motor vehicle or pedestrian incident,” Du Plessis explained, “the family will not have answers immediately with regard to the investigation and most culpable homicide cases take up to a year before it is court-ready.

“Often family members are also informed that no prosecution will occur as ‘intent’ or ‘negligence’ cannot be proven.”

Tips when involved/witnessing a culpable homicide

Johnson gave some tips to keep in mind if an unfortunate event has occurred and to ensure there is due diligence in the investigation to follow:. “Hold back any emotions and get control of the scene immediately;. Stop everything, call the police and emergency services;. Take everyone in the vicinity’s statements and contact details and identify solid witnesses;. Get engaged – talk to police/officials who arrive, take their names, contact details as well as police vehicle serial number/number plate.”

Have more concerns like these? Send an email to Heleen.Rossouw@paarlpost.co.za