CRI/A/56/83

IN THE HIGH COURT OF LESOTHO
In the Appeal of
:

MOKHACHANE MOSHOESHOE Appellant

v

REX Respondent

JUDGMENT

Delivered by the Hon. Acting Chief Justice, Mr. Justice
M.P. Mofokeng on 17th October 1983

The appellant (who will be referred to as the accused in
this Judgment in order to maintain the nomencleture in the Court a
quo) was charged before the Subordinate Court Maseru with
contravention of section 90(1) of the Road Traffic Act No,8 of 1981
in that
he operated a motor vehicle recklessly or negligently as a
consequence of which a collision occurred with another vehicle
belonging
to the complainant. He pleaded not guilty but after a
lengthy trial he was found guilty or was sentenced to pay a fine of
M100 (hundred
maluti only) and in default of payment to undergo
imprisonment for a period of five(5) months. He now appeals against
that judgment.

The facts,, in the bearest outline, are that the
accused's motor vehicle was parked near the Government Garage
-complainant was at
that moment driving his motor vehicle along the
main road in the direction of East to West. When he was near or
passing ;the Traffic
Department offices and was approaching the place
where the accused's motor vehicle was parked, and was now almost
close to where
it was, the accused's motor vehicle joined the road on
which the complainant's motor vehicle was travelling. As it entered
the

/road,

-2-

road,
It took a U-turn. A collision occurred.

At the close of the Crown's case the law is that unless
the court considers that there is no evidence that the accused
committed the
offence charged in the charge or any other offence of
which he might be convicted thereon, the Court shall ask the accused
whether
he intends to adduce evidence in his defence and if he
answers in the affirmative, he may then proceed to address the Court
for the
specific purpose of outlining the nature of the defence
evidence and he shall then examine his witnesses and put in and read
any
documentary evidence which is admissible (s.175(3) and (4) of the
Criminal Procedure and Evidence Act 1981). There is no endorsement
as to whether the accused was asked the initial question, but I have
no doubt it was done. It will be realised that according to
our law
there seems to be no written law which provides the order in which
the witnesses for the defence shall be called. For an
example, the
law in England was and still is as it obtains in this country and yet
in practice it has been decreed by the Courts
(and it has become law)
that the accused shall give evidence first before he calls any of his
witnesses, (Rex v Manamolela & Others. 1982(1) LLR in
which the English decisions have been followed). In fact the English
position was quite clear as early as 1911 in
the case of R. v
Morrison, where Lord Alverston, C.J. is reported as having said :

"That observation was interposed in the course of
argument and was obiter, but it is an authoritative statement which
this court
reiterates and endorses as correctly stating the law."

(R. v Smith(Joan), 1968(2) All E.R. 115 at 116.
By interpretation that is also part of our law (see Lesotho
Electricity Corporation v Forrester(2). 1978(1) LLR 100 at pp
112-113). However, for a contrary approach which is now embodied in
the law of the country per se that accused must first
adduce evidence before his witnesses is found in the Republic of
South Africa (s.l5l(b)(i) of C.P.A., see also Van der Merwe,
Paizes
and St.Q Keen : EVIDENCE. 1983 Ed p.322).

The time of the collision was between 4.30 p.m. and

5 p.m..

-3-

5 p.m.. That is during the time when Government offices
close and civil servants go home. It is common knowledge that Maseru
is
a big town with a heavy vehicular population. The traffic at that
particular time in the afternoon is at its highest peak. A person
who, therefore, joins a busy road, such as Moshoeshoe road, and takes
a U-turn is at the least guilty of error of Judgment. This
is
putting it at its mildest. The various versions of what happened were
as many as the witnesses. However, there was an honest
witness (Mr.
Mohapeloa) for the defence who candidly said he never saw the two
motor vehicles before the collision. When he came
out the collision
had occurred. The other witnesses were too ashamed to do the same.
The learned magistrate saw all the witnesses.
She observed them.
She, on legal grounds accepted the complainant's version and rejected
that of the witnesses on behalf of the
accused. (Takalimane v
Rex, CRI/A/35/83 dated 13th August 1983 at page 11). I find
myself unable to disturb such a finding.

Coming back to the act of the accused in not only
joining the road along which the complainant's vehicle was travelling
but at the
same time making or taking a U-turn was an act of the
highest irresponsibility. He might have been in a great hurry to go
and convey
fee-paying passengers, I don't know. Certainly he was in
a hurry. As a result he just pulled out where he had parked his car
and
without looking properly as to the state of the traffic, he
literally leaped into the road without any warning to other users of
the road.

Negligent driving has been defined simply as failure to
exercise reasonable care in driving a vehicle. (Cooper &
Bamford: South African Motor Law, (1965 Ed) p. 314). That is
what the accused did on the day in question putting it at its
mildest. Perhaps
what was irksome was the fact that the accused was
unrepresented (although of quite sufficient intelligent). Speaking
for myself,
he is extremely lucky in that the learned magistrate took
such a lenient view of the case.

The penalty prescribed by law for an accused convicted

/of

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of negligent driving is "M1000 AND 1 year
imprisonment (s.90(4)(b)). It makes one almost jump out of ones
skin. However, s.57(2)
of the Interpretation Act says that the word
"AND", where more than one penalty is prescribed for an
offence, shall mean
that the penalties may be inflicted Alternatively
or Cumulatively. (My underlining).

The sentence is quite adequate and again the learned
magistrate was too lenient. The rate at which accidents occur in
Maseru has reached
alarming proportions. Stringent sentences are now
expected by the general public from the Courts where it is fitting.
The Courts
have issued too many unheeded warnings.

The appeal is dismissed.

ACTING CHIEF JUSTICE
17th October 1983

For Appellant : In Person For Respondent: Mrs. Bosiu