IN THE HIGH COURT OF LESOTHO.. .
In the Appeal of:
REASONS FOR JUDGMENT .
Filed by the Honourable Mr. Justice F.X. Rooney on the 10th March 1980.
On the 5th June 1978 appellant was convicted of negligent driving contrary to Section 124 of the Road Traffic and Transport Order 1970. He was sentenced to pay a fine of R30 or 3 Months. imprisonment suspended for 3 years on condition that he was not convicted of a similar offence during the period of the suspension.
The accident which gave rise to the prosecution occurred on the 20th June 1977. The appellant appeared before the magistrate to face the charge on the 4th June 1979. This was a simple case in the cause which the Crown called two witnesses, the schoolgirl who was knocked down and injured and the trooper who investigated the matter, and produced a plan of the scene of the accident. I do not understand why two years elapsed between the incident and the appellant'S trial.
On the 6th March 1980 I dismissed the appeal against conviction, but, made an alteration in the sentence. These are my reasons for that decision.
The appellant was driving a Kombi van from West to East along Kingsway, Maseru. There is a pedestrian crossing near Ralikoro's store. The complainant Liako Lerotholi said that she started to cross the road at the pedestrian crossing. She was following some women. She said that there were no vehicles on the road. She did not remember being struck down. She found herself in hospital with injuries to her head, left thigh,
left side and right knee. Although Liako had no clear recollection of the accident she insisted that she was on the pedestrian crossing, that she had looked for traffic before crossing, but, she did not see any. She denied that she walked into the appellant's vehicle,
2 Trooper Lephole/....................
Trooper Lephole was on the scene shortly after the accident. He met the appellant, who indicated the point of impact which was "beyond the pedestrian crossing. Unfortunately, the trooper did not consider it necessary to measure the distance between the zebra crossing and the point of impact, although he recorded other measurements which were of little assistence.
Had the appellant chosen to remain silent at the trial, it is possible that he might have been acquitted. However, he gave the Court his version of the accident and this he did with commendable condour.
The appellant was following another motor vehicle. He was driving slowly and he saw people cross the road at the pedestrian crossing. He she
did not see Liako before was struck by the left of his vehicle, because she came on to the road "in a manner which he did not notice". The impact damaged the left stop light or indicator. He stopped his van about 12 paces from the point of impact. He supposed that he did not look to the left side of the road before the collision.
In a criminal trial the Court is not concerned with contributory negligence. Liako's failure to observe the traffic on the road which she was about to cross does not provided the appellant with a defence if he was himself negligent (R.V. TUTTON 1926 N.P.D.235).
The magistrate found the appellant guilty of negligent driving on the basis that he had failed to keep a proper look out. I was unable to say that on the evidence before him the magistrate was wrong in reaching that conclusion. Had the appellant seen Liako before the collision he may not have been able to avoid hitting her, but different consideration would apply to the assessment of the appellant's negligence in such circumstances. As things stand he ought to have seen Liako and he did not do so.
I varied the sentence to read:-
Appellant is sentenced to pay a fine of M30 which sentence is suspended for 3 years from the 20th June 1977 on condition that the appellant is not convicted of an offence involving negligent or reckless driving committed during the period of suspension. I take the view that in minor offences it is unnecessary to impose a term of imprisonment in default of payment of a fine. Apart from imprisonment there are in existence adequate methods of ensuring payment of fines• (See Sections 298 (2) and, 299 of the Criminal Procedure and Evidence Proclamation.)
3. The original/..
The original order of suspension was stated to enduse for 3 years, that is five years from the date of the accident. This is far too much and has varied accordingly.
It is not correct to suspend the sentence or conviction, on condition that an accused is not convicted of "a similar offence". This is too vague or expression and it may give rise to debate as to what offences were contemplated in the original order. (S.V. Mothobi 1972 (3) S.A. 841).F.X. ROONEY
JUDGE 10th March 1980
For Appellant: Mr, Maqutu For Respondent: Mr. Peete.
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