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 ....

- 2 -

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. On
the 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)

- 3 -

2. 
   when the accused's vehicle tried to
   overtake the
   other bus, a van appeared
   suddenly from the direction of
   Mafeteng

   
   

3. 
   as the van appeared the accused swerved
   his bus out
   of the road and

   
   

4. 
   the accused's vehicle was driven at a
   very 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 on
the 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

- 4 -

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