CRI/A/31/81IN THE HIGH COURT OF LESOTHO In the Appeal of :MOLATO NTJANA Appellant vREX RespondentJUDGMENTDelivered 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,/2
-2-(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
-3-(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, 1981For Appellant : In Person For Respondent: Mr. Lenono