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

2

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.

3

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