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.