CRI/A/77/79

IN THE HIGH COURT OF LESOTHO In the Appeal of :

MOLIKUOA TUMANE Appellant

v
REX Respondent

Reasons For Judgment

Filed by the Hon. Judge Mr. Justice M.P. Mofokeng on the 22nd February, 1980.

The appeal in this matter has already been dismissed and conviction was confined for reasons which follow.

Appellant was convicted in the Subordinate Court of negligent driving contrary to section 124(1) of the Road Transport and Traffic Order 15 of 1970. He was sentenced to pay a fine of M50 or in default of payment to undergo imprisonment for a period of five (5) months. He now appeals only against his conviction.

It is common cause that; appellant was the driver of vehicle with registration LX 2817 on the 25th February, 1979; that Raphiri Faku (hereinafter referred to as the complainant) was the driver of vehicle LA 6306 and that the two vehicles collided at the place mentioned on the charge sheet on the 25th February 1979. The question for the decision by the learned magistrate was whether the said collision occured as a result of the negligence of the appellant.

According to the evidence of the complainant, the two vehicles collided on his side of the road at or near a T-junction. This evidence is corroborated by the evidence of two crown witnesses. The investigating traffic officer corroborates these witnesses in regard to the point of impact. The appellant and his witnesses alleged

/that the

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that the collision took place after the appellant had turned into the road i.e. had passed the said T-junction. Appellant also contended that when the collision occured, he had the right of way.

It was never disputed that the vehicle driven by the appellant was found by the traffic police officer, who drew the sketch plan, where it came to rest after the collision. Equally the place where appellant's vehicle came to rest after the collision was never disputed. The important question to be answered was; where did the collision take place. The learned magistrate has accepted the evidence of the crown witnesses in regard to where the collision took place and also conducted an inspection in loco. His obser­vations were not disputed. He came to the conclusion that the appellant did not have a right of way at the T-junction and that he should have waited until the vehicle driven by the complainant had passed before turning into the road. The learned magistrate also accepted that the collision occured before appellant's car had reached the T-junction. According to the evidence before him he found proved that appellant's vehicle was on the wrong side of the road at the material time. The learned magistrate also observed that the curve at the junction was a gentle one and that a driver who drives diligently should have been able to see approaching traffic. It was then found that appellant was negligent because

1. he drove on his incorrect side of
   the road;

2. he did not give way to the vehicle
   driven by the complainant who had
   the right of way,

3. he did not keep a proper look-out
   and thus failed to observe the
   approaching vehicle driven by the
   complainant.

In driving his vehicle, therefore, the appellant did not exercise the degree of care and skill required of diligens paterfamilias.

/Regard being ....

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Regard being had to the evidence before me the appellant found It extremely difficult to advance any argument as to why this Court should say that the findings of the learned magistrate were, in law, in-correct. The learned magistrate's conclusion, in my view, cannot be faulted. I cannot see any other conclusion he could have reached other than that the appellant was patently negligent. There was absolutely no doubt about that. He was accordingly properly found guilty of the offence of negligent driving.

It is ordered that the appeal deposit be forfeited to the Crown.

JUDGE.
22nd day of February, 1980.

For Appellant : In Person
For Respondent : Mr. Mdhluli.