CRI/A/46/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
THABANG APELL Appellant
v. REX Respondent
JUDGMENT
Delivered by the Hon. Justice F.X. Rooney on the 16th day of February, 1981.
Mr. K. Sello for the Appellant Miss Surtie for the Crown.
On the 11th September, 1980 the appellant appeared before Mr. N.G. Mohale sitting at Maseru charged with reckless or negligent driving contrary be section 124 of the Road Traffic and Transport Order 1970. The charge alleged that on the 8th August 1978 at or near Matala along the Maseru/Mafeteng Road, he drove a motor vehicle LA 7203 and as a result the said motor vehicle hit one Mojela Pepileng, a pedestrian.
The appellant pleaded guilty. His plea was accepted by the prosecutor who elected not to give evidence, but, to outline the facts of the case. The relevant portion of these facts as recorded is as follows
" On the 8.8.78 the accused was driving a passenger bus LA 7203 normally called "Jealous Down" along Maseru Mafeteng Public Road, there was another vehicle driven along the same direction with LA 7203. The name of the vehicle,a passe-nger bus, was Linotsi. Both Linotsi and Jealous Down travel between Maseru and Mokhalinyane's the accused and the driver of Linotsi were racing along Maseru/Mafeteng Public Road.
2/When ....
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When accused's vehicle tried to overtake the other bus, Linotsi, a van appeared suddenly from the direction of Mafeteng (the opposite direction). As the van appeared the driver, the accused swerved his bus out of the road. There were a number of people standing near the road at a bus terminus (sic) near Matala's. One Mojela Pepileng was among the group.
The vehicle LA 7203, went to the direction of where the pedestrians were and struck Mojela Pepileng and as a result Mojela sustained serious injuries on the forehead, on both eyes and a lenear fructure (sic) on the frontal bone. The accused's vehicle was driven at a very high speed such that when it struck Mojela, the pedestrian, it threw him to a distance of about 12 paces ahead and the vehicle stormed at a distance of about 25 paces away from the point of collision."
The prosecutor went on to describe the very serious injuries, sustained by the pedestrian.
A verdict of guilty as charged was entered by the magistrate, who omitted to indicate at that time whether he found that the conduct of the appellant amounted to recklessness or negligence. The appellant was sentenced to two months imprisonment. He had not been represented at the trial, but, in the afternoon of the date of his conviction, Mr. Sello appeared before the court and on his application the appellant was released on bail.
The appeal is against both conviction and sentence. It is submitted that on the evidence outlined by the prosecutor no recklessness or negligence against the appellant has been proved. Onthe procedure authorised by Section 235 of the Criminal Procedure and Evidence Proclamation 1938 (as amended) the acceptance by the accused of the statement of facts presented by the prosecutor is equivalent to a formal proof of these facts. It has been held in many cases in this Court that if the statement of facts as accepted by an accused does not disclose that an offence was committed then the accused is entitled to an acquittal (R. v. Kofo Chali R.O. 15/73 unreported and Jacob Dlamini & Another v R.CRI/A/46/47/78 unreported).
The prosecutor's statement is sadly devoid of detail. However, he alleged
(a) that the accused and the driver of Linotsi were racing along the Maseru/Mafeteng Road,
3/ (b)
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when the accused's vehicle tried toovertake the other bus, a van appearedsuddenly from the direction of Mafeteng
as the van appeared the accused swervedhis bus out of the road and
the accused's vehicle was driven at avery high speed.
From the judgment of the magistrate, it appears that he believed that the accused and the other bus driver were involved in a sort of race, probably in the competition for passengers. I do not think this conclusion was Justified having regard to the statement made by the prosecutor, who said that both vehicles were racing along the road, but, who did not say that they were racing against each other.
A more difficult aspect of the case is the failure of the prosecutor to explain the sudden appearance of the van coming in the opposite direction. If it was a clear straight road the van should have been seen by the appellant. If there was a bend onthe road the appellant should not have attempted to overtake. On the other hand the van may have debouched from a side road or a gate. Nobody is entitled to interpret the words of the public prosecutor in a manner unfavourable to the accused if an alternative explanation is possible. All that can be said is that when the appellant tried to overtake the other bus his path was impeded by the presence of a van coming in the opposite direction. The appellant swerved his bus out of the road. It was not stated whether this was to the right or to the left, although the probabilities are that it was to the right.
What can be said is that the appellant was driving at a high speed and that it was this factor which caused him to "swerve his bus out of the road". Although, as I have said, there were deplorable deficiencies in the prosecutor's statement of facts, I an satisfied that taking it as a whole, it does establish that the appellant was negligent in that he was driving at a speed which was too fast in the circumstances.
4/ The verdict
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The verdict recorded by the magistrate was defective in that it did not specify the offence with which the accused was found guilty. This can be rectifed and I bring in a verdict of guilty of negligent driving which is in accordance with the judgment the magistrate prepared after the appeal had been filed.
In dealing with sentence the magistrate said of the appellant "a reasonable man of his skill would not have driven at a high speed or would not be involved in a race". His finding that the appellant was in fact engaged in a race was not justified by the facts. This error must have influenced the magistrate in deciding to impose a custodial sentence upon the appellant.
The magistrate quite correctly complained about the inordinate length of time which was allowed to pass between the date of the accident and the date of the trial. The appellant has to wait another six months for his appeal to be heard. I have found that the appellant was negligent in that he drove his bus at an improper speed and I cannot take the case against him any further. In the circumstances I set aside the sentence of imprisonment imposed in the Subordinate Court and I substitute a fine of M25 or one months imprisonment in default of payment.
F.X. ROONERY JUDGE
16th February, 1981.
attorney for the Appellant : Mohaleroe,Sello & Co. Attorney for the Crown : Miss Surtie