CRI/A/31/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MOLATO NTJANA Appellant
v
REX      Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 14th day of October 1981

The appellant was convicted of negligent driving contrary
to s.124(1) of the Road Traffic and Transport Order No.15 of
1970. He was fined M60 or 3 months imprisonment in default of
payment. The fine has been paid.
The appellant who prosecuted his appeal in person
submitted that the lady magistrate who tried the case was biased
because he had a civil dispute with her husband. The magistrate
in her reply denies bias and says that the appellant has a
dispute with her father-in-law about a house with which she was
not in the least concerned. The accused, however, never asked
the magistrate to recuse herself and his allegations are not
supported by an oath. I think I can, with confidence, dismiss
this ground of appeal as baseless.
The particulars in the charge sheet do not say in what
manner the appellant was negligent, but the facts were these :-
Appellant was driving a van C 351 on the road from
Mohale's Hoek to Quthing with a load of sheep. He was driving
on his left side of the road. Behind him, probably unknown to
him, there was a truck No. F 0633, driven by one Boki Thabo
Kala(PWl) who testified that he wanted to overtake. He added:
(a) that the road in front of him was clear
of oncoming traffic,
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(b)     that it was wide enough to permit his safe
passage though there was a slight slope,
(c)     that he used his horn to alert the driver of
the vehicle in front of him(in fact the
appellant)that he proposed to overtake.
During this manoeuvre the appellant allegedly swerved to
his right suddently. Kala says he also swerved to his right to
avoid a major collision but the two vehicles touched each other.
Kala immediately stopped whilst the appellant continued. The
appellant says he stopped only because some people in front
signalled him to stop. He walked back to where Kala had stopped.
Kala says they had a conversation about the accident during which
the appellant alleged that he did not hear the collision and was"
unaware that anything was amis. In fact the appellant's vehicle
seems to have sustained only a scratch and Kala's vehicle only
minor damage to its left mudguard. Kala says that the appellant
said, by way of explanation, that he swerved right to avoid a
"bump" that became visible in front of him as he was driving.
A labourer in the vehicle driven by Kala(Moeletsi Molaoa-
PW2) was sitting or standing in the back but his sight was not
directed to the road in front of him. He says he heard the
sound of a collision and on looking noticed that his own driver
(Kala) had brought the vehicle to a halt on the extreme right of
the road near a donga. A van (the appellant's) was in front.
When the latter stopped he saw the appellant and Kala conversing.
He supports Kala that the horn was sounded.
A policeman (Trooper Rasebolelo-PW3) says that on
receiving information he went to the scene and took some
measurements. Kala and the appellant agreed on the position
where the impact took place. He observed the width of the road
which was 5.6 meters. There was a slight slope. The map he
drew showed that the road curved gently but he thought it was
possible and safe to overtake if all was clear in front. He
noticed that though accused's van had a cabin rear mirror, it
lacked an outside wing mirror. The van was loaded and observing
rear traffic would have been difficult without an outside mirror.
The appellant had denied that there was a collision at all
(but admitted to a near collision) and denied he swerved to his
right to avoid a bump. There was no hooting, or if there was,
that he heard it. He says that Kala should not have tried to
overtake at that spot because
(a) the road was narrow and did not permit easy
overtaking,
/(b) that it

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(b)     that it was attempted on a slope and a curve,
(c)     that it was raining at the time and the road
(a gravel one) was wet and water flowing on it.
He also attacked the evidence of the policeman saying it was not
him who arrived at the scene but someone else.
The duties of the overtaking driver (Kala's) and those of
the driver being overtaken(appellant's), are summarised in
Cooper and Bamford South African Motor Law Chapter 31 at pp 519-
529. The authorities cited seem to confirm that an overtaking
driver owes more duties of care than the driver being overtaken.
But where there is a conflict in the evidence between the
testimony of the prosecution witnesses and the accused and his
witnesses, if any, the trial court is in a better position to
gauge their credibility.
The magistrate made an inspection in loco at the
appellant's request. Her observations of the area are recorded
at page 16 of the typed record. It is clear that this confirmed
her opinion that if Kala's version" of what happened was true,
which she did accept as true, the appellant was indeed negligent.
I am loathe to interfere in this assessment.
The appellant's grounds lists several other complaints
none of which I find to be of substance.
I am not persuaded that the magistrate misdirected
herself and the appeal against conviction must be
accordingly dismissed.
The case, however, was very borderline and I think that
the sentence errs on the side of severity. I would reduce it
to a fine of R25(or 2 weeks imprisonment) and since the fine
has been paid I order that R35 be refunded to the appellant.

CHIEF JUSTICE
14th October, 1981
For Appellant : In Person
For Respondent: Mr. Lenono