CRI/S/9/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

V

MAPONYANE
LETSIE

REASONS
FOR JUDGMENT,

Filed by
the Hon. Acting Mr. Justice J.L. Kheola on the 5th February, 1985.

The
accused has been committed for sentence by this Court in terms of
section 293 of the Criminal Procedure and Evidence Act 1981.
He had
appeared before a magistrate of Third Class charged with (a) culpable
homicide, alternatively, contravening section 90(1)
read with
subsection (4) of the Road Traffic Act No. 8 of 1981 and (b)
contravening section 28(1) of the Road Traffic Act No. 8
of 1981. He
was found guilty of culpable homicide in (a) and guilty as charged in
(b). The learned magistrate was of the opinion
that greater
punishment ought to be inflicted for the offence than she has power
to inflict. The main reason why she committed
the accused for
sentence by this Court was that she was of the opinion that he
deserved a heavier punishment in order to deter
other small boys of
his age from taking risks of driving motor vehicles without driver's
licences.

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The
learned magistrate also ielt that "the rate at which accidents
occur in Maseru has reached such alarming proportions that
stringent
sentences are now expected by the general public from the Courts
where it is fatting. (See Mokhachane Moshoeshoe v Rex,
CRI/A/56/83
(unreported)).

The
accused pleadad guilty to the main charge in count 1 and guilty as
charged in count 2. The public prosecutor accepted the plea
and
stated the facts disclosed by the evidence in his possession in the
following terms:

"Crown evidence would show that on 23.7.84 at about 11.35 a.m
accused was driving a motor vehicle with Reg. No, A6539 along
Maseru
- Mafeteng public road. Accused was driving into Maseru from Mafeteng
direction, and along that side members of Lesotho
Paramilitary Force
were trotting. Accused parked his vehicle on side of the road to pick
up a passenger and thereafter returned
into the said public road.
Accused then collided with one member of L.P.F , Tumelo Seetsi
Accused thereafter swerved to the right
and collided with an oncoming
vehicle from Maseru. His vehicle then passed and collided with a
pedestrian David Matsoso who was
on the extreme right of the road and
overturned below the bridge.

One
'Mapaulina a passenger in accused's vehicle died on the spot when the
vehicle overturned. Accused left his vehicle there and
ran away. He
never reported the accident to the police until on 18.8.84 when he
was arrested He had no driver's licence and had
been instructed by
his employer to drive the taxi

I agree
with the finding of the Court a quo that the accuser was negligent in
that he failed to

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keep a
proper look out If he had kept a proper look out he would have seen
the person who was running on the left lane of the road
before he
attempted to enter into that lane He also failed to satisfy himself
that it was safe to enter that lane before he did
so (S v. Van der
1978(3) S.A. 366 Having knocked down that person the accused did not
stop his vehicle but swerved to the right
lane where his vehicle
collided with another vehicle travelling in the opposite direction.
It passed and knocked down another pedestrian
before falling down the
bridge and a passenger was killed.

It has
often been held that if the activity in which a person is engaged
requires skill, he will be guilty of negligence if his
failure to
guard against another persons death is due to his (accused's)
deficiencies in skill because the reasonable man undertakes
only
tasks for which he is qualified. (R. v. Swanepoel, 1945 A.D 444 at p.
447, R. v. Du Toit, 1947 S.A. 141 at p. 145 - 6) In
the present case
the accused did not have a driver's licence and lacked the necessary
skill and was negligent to undertake the
driving of a motor vehicle.
Mr. Kolisang for the accused argued that the death of the deceased
who was a passenger in the vehicle
of the accused was not foreseeable
I disagree with him because negligence in criminal cases is judged by
the objective test. A
reasonable man would have foreseen that by
driving a motor vehicle when he is not qualified to do so, he was
likely to be involved

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in an
accident and that his passengers or pedestrians or people in other
vehicles were likely to be killed. (R. v. Motaung, 1968(2)
S.A. 172)
The death of the deceased was therefore reasonably foreseable.

Mr
Kolisang submitted that the accused drove the taxi as a result of
obedience to orders of his master and was therefore not guilty
He
referred me to General Principles of Criminal Law through the cases
by Visser and Voster at page 186. Unfortunately most of
the cases
referred to concerned obedience of orders by soldiers in the armed
forces It is accepted that in civilian life a person
may stand in
such a relation of subjection to another that he may in certain
circumstances be bound to obey orders given to him
by such other
person. The accused will be excused from liability provided the crime
is not a serious one (R v Sadowsky, 1924 T.P.D.
504). The position of
a civilian who obeys unlawful orders by his master was clearly
defined by Colman, J., in S. v. Shepard, 1967(4)
S.A. 170 (W) in the
following words:

"It seems to me , a civilian accused who was acted illegally in
response to the direction of his employer or of a senior co-employee

cannot escape the consequences of his conduct if he knew that what he
was being ordered to do, was unlawful. It is by no means
an unusual
occurrence that a crime against an employer is committed by his
senior or Junior employee, acting in concert; often,
no doubt, the
junior employee is directed by his senior to perform the unlawful
act; that may be a mitigating factor in favour
of the

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junior, but it is unthinkable that

for that reason alone, he should be immune from punishment for doing
what he knew to be wrong." (My underlining).

The
accused in the present case knew that driving a motor vehicle without
a driver's licence was unlawful. For that reason alone
the defence of
obedience to orders is not available to him because he did not bona
fide believe that the order was lawful. See
Visser & Voster,
supra, at page 182.

Sentence:-

I have
taken into account that the accused is a first offender and that he
is only a young man of about 22 years of age. He was
acting under
orders of his master.

Count 1 :
R250 or 12 months' imprisonment.

Count 2 :
R70 or 5 months' imprisonment.

ACTING
JUDGE.

5th
February, 1985.

For Crown
: Mr. Seholoholo

For
Defence : Mr. Kolisang.