CRI/S/9/85
IN THE HIGH COURT OF LESOTHO
In the matter of
REX
v.
MONAHENG TS'EPHE
JUDGMENT
Delivered by the Hon. Mr. Justice J.L. kheola on the 5th day of August, 1985
The accused appeared before the Maseru Subordinate Court of second class charged with culpable homicide. It was alleged that on the 19th April, 1984 and along the Maseru - Mafeteng public road the accused negligently drove a motor vehicle with Reg. No. A 0199. As a result of such negligent driving his vehicle collided with another vehicle with Reg. No. CYS 544T killing four passengers in the latter vehicle, to wit, Maretholoane Tauhali, Litsabako Sello, Raphael Tauhall and Fallang Hlalele In the alternative, the accused was charged with the offence of reckless or negligent driving in contravention of section 90 (1) read with (4) of the Road Traffic Act No.8 of 1981.
The accused pleaded guilty to the main charge.
The public prosecutor stated the facts of the case in terms of section 240 of the Criminal Procedure and Evidence Act 1981. The facts were that on the night in question at about 11.00 p m. the accused was driving his motor vehicle travelling from Maseru to Mafeteng. When he came to Tsoaing bridge the vehicle in which the deceased persons were travelling had stopped at the stop sign on the side of the bridge. Because Tsoaing bridge has a single carriageway the Road Department has found it necessary to erect stop signs on both sides of the bridge so that vehicles approaching the-bridge from Maseru and Mafeteng directions
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must stop before entering the bridge. Vehicle CYS 544T was just pulling out from the stop sign when the accused's vehicle - which was apparently travelling at a high speed - collided with it from the rear. On impact the two vehicles burst into flame and the four deceased persons were burnt to death
The trial magistrate found the accused guilty of culpable homicide and committed him for sentence by this court in terms of section 293 of the Criminal Procedure and Evidence Act 1981. She felt that a greater punishment ought to be inflicted for the offence than she has power to inflict She was probably under the impression that because four people had died in the collision the accused ought to be punished heavily. This may be true because in passing sentence the court must take into account human lives that have been lost But the most important thing is the nature of negligence - whether it was gross negligence.
Mr Khauoe, for the accused, submitted that the evidence did not clearly state in what sense the accused was said to have been negligent. He contended that the accused's vehicle could have been following the deceaseds' vehicle when the latter suddenly stopped. Even if this had been the case the law is that in following a vehicle ahead of him the driver of a car ought to adjust his speed and the intervening space between his car and the vehicle he is following so that he is able to pull up or swerve in the event of a sudden stoppage on the part of that vehicle (Abdool v. Slade, 1931 N P D.4) In any case, in the present case the facts (which were admitted by the accused) were that the vehicle infront of the accused's vehicle had actually stopped at the stop sign and was just starting to move when the accused's vehicle struck it from behind and pushed it and rammed it into the rails of the bridge. I agree with the learned magistrate that impact itself shows that the accused was travelling at a high speed If he had been travelling at a normal speed in the circumstances of this case he ought to have seen the other vehicle in time to pull up before the collision.
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A driver of a vehicle at night must drive at a fairly low speed because his vision is limited to the distance illuminated by his headlights The distance will depend on the condition of the lights which require regular focussing by a qualified motor mechanic. If the accused's vehicles headlights were in good working condition and he had kept the right intervening space between his vehicle and the vehicle infront, the collision would not have occurred because he would have seen the other vehicle in time to pull up before the collision Alternatively I am of the opinion that the accused was not keeping a proper look-out
For the reasons given above I am of the view that the accused was properly convicted and I confirm the conviction
The last point I would like to make very clear is that before any person is committed for sentence by this Court the trial court must make a finding on the age of the accused because under section 293 only persons "whose apparent ages exceed 18years' may be committed in custody to the High Court for sentence In the present case the learned magistrate made no finding concerning the age of the accused She entirely relied on the age appearing on the charge sheet In his statement of the facts the public prosecutor did not say anything about the accused's age. If the defence counsel had not stated in his address to the Court that at the time of the commission of the offence the accused was 20 years old, I would have had no alternative but to return this case to the trial court to make its finding (Rex v. Mokechane 1977 L L.R 16). Sentence - R300 or 18 months' imprisonment.
J.L. Kheola
JUDGE
5th August, 1985.
For Crown Miss Moruthoane
For Defence Khauoe