IN THE HIGH COURT OF LESOTHO In the
Appeal of :
MOLISANA MOHLOTSANE Appellant
Delivered by the honourable Acting Chief Justice Mr;
Justice J.L. Kheola on the 27th day of October, 1986.
The appellant was charged before the Leribe subordinate
court with the offence of culpable homicide in that upon or about the
day of Augusts, 1985 and at Leabua Highway public road in the
district fo Leribe the appellant negligently drove a motor vehicle
with Registration Permit No. 039A-7472 and as a result collided
with a pedestrian one Nthabiseng Mote who sustained some injuries
which caused her death on the same day and did thereby negligently
kill the said Nthabiseng Mote.
In the alternative he was charged with negligent or
reckless driving in contravention of section 90 (1) of the Road
Traffic Act No.
8 of 1981. He was convicted on the alternative count
and sentences to a fine of M400.00 or twelve (12) months'
imprisonment and his
driver's licence was suspended for six (6)
months. He now appeals against both conviction and sentence-
The appellant's grounds of appeal were as follows:
That the learned magistrate erred in acceptingthe
police sketch plan.
That the magistrate erred in finding that theappellant
was driving at a very high speed.
That the magistrate erred to find that theappellant
was not able to control the vehiclewhen he approached the
That the magistrate erred in finding that theappellant
did not keep a proper look out,
That the sentence of M400.00 or twelve (12)months'
imprisonment as well as the suspensionof the appellant's
driver's licence is too highunder the circumstances.
On the 27th October, 1986 I allowed the appeal and
indicated that my reasons would follow at a later stage. The
following are the
Trooper Makhakhe is the police officer who attended the
scene of the crime and drew a sketch plan of the scene of the
have carefully examined the sketch plan and I do not
agree with Mr. Snyman that the sketch plan is inaccurate. If
Trooper Makhakhe was unable to point out the point of impact five
months after the accident,
it is not because the sketch plan is
inaccurate but it was because he and the court did not know how to
use it. There were four fixed
objects or points from which the point
of impact could be easily established even after several years as
long as those objects were
not removed. The objects were the western
end of the railings of the bridge, a tree on the northern side of the
road near the bridge,
the northern end of the tarmac and the southern
end. Trooper Makhakhe measured the
distances from three of the fixed points to the point of
impact but failed to measure the distance from the tree to the point
However, the point of impact could accurately be
stablished by using the three fixed points.
According to the sketch plan the point of impact is ten
(10) paces from the end of the bridge railings; it is three (3) paces
the northern edge of the tarmac and six (6) paces from the
southern edge of the tarmac.
The evidence was that on the 10th August, 1985 the
deceased was in the company of her mother ('Malisema), her
and six (6) other children. The age of the
deceased was eight (8) years but the ages of the other children were
not disclosed They
were travelling on foot from Matukeng to Hlotse.
They were walking. not on the tarmac, but on the southern side of the
road. It is
not clear how far from the tarmac they were. At same
stage before they came to Hlotse bridge the grandmother crossed to
side of the road because there was a foot path along the
road. The rest of the group remained on the other side of the road
walking towards the bridge from the west. The
grandmother was not directly opposite the others but was slightly
ahead of them on
the other side of the road.
When the group approached the bridge the deceased
suddenly ran across the road apparently intending to join her
grandmother on the
other side of the road. It is the grandmother's
evidence that at that stage she had already crossed the bridge and
the rest were
behind. The deceased was knocked down and killed by the
vehicle driven by the appellant which was travelling in an easterly
The collision took place on the
left lane about 3 paces from the edge of the tarmac.
None of the witnesses saw the vehicle as it approached the bridge.
evidence was that she could not see the vehicle because
she was attending to the younger sister of the deceased. Both
the mother of the deceased and her grandmother were of
the opinion that the appellant had no chance to avoid the accident
the child suddenly ran into the road.
The learned magistrate convicted the appellant on the
ground that he travelled at a very high speed and failed to keep a
out as well as failing to keep his vehicle under control.
He drew an inference that the vehicle was travelling at a high speed
the length of the brake marks before and after the impact.
Before the point of impact the brake marks are 11 paces long and
the point of impact they are 22 paces long. The learned
magistrate was of the opinion that the distance of 33 paces was too
and was proof that the vehicle was travelling at a high speed.
With respect the learned magistrate is not correct. The length
of the brake marks depends on a number of circumstances. The first
one is the condition of tyres. If they were
worn out and smooth the
distance will be longer than in the case of new tyres.
The second one is whether the brakes were working
properly on all the four wheels. If only the brakes of the rear
wheels worked properly
the brake marks will be long. Without expert
evidence as to the condition of the brake system as a whole the
learned magistrate was
not justified to make any inference adverse
to the appellant from the distance of the
brake marks. So his finding that the vehicle was
travelling at a high speed must not be allowed to stand. See Cooper
South African Mother Law, 1st. edition, page 791-799.
The courts have laid down that a high standard of care
is necessary on the part of motorists when children of tender years
the road (Naidoo v. Rex, 1932 N.P.D. 343, Rex v.
Mitchley, 1939 E.D.L, 225). It is absolutely important that the
ages of the children who were on or at the side of the road when the
approached them should be disclosed. The special degree of
care expected of a motorist rises according to the ages of the
the younger the children are the more care he is expected
to exercise. In the present case the deceased was eight (8) years
She was not walking alone but was in a group of five children
and two adults excluding her grandmother who was already on the other
side of the road. We know that one child was her younger sister. The
other children could be of any age under eighteen (18) years
because that is the definition of a child in the Children's
Protection Act '(930.
The position of the deceased in the group should also
have been clearly stated; was she in the middle of the group, infront
all or behind them? If she was behind them the appellant
ought, to have seen her and contemplated the possibility that she
behave in a stupid way and dash into the road. This was a very
remote possibility because the grandmother of the deceased was not
directly opposite the group but was. about twelve (12) yards ahead of
them and had already crossed the bridge. (See lines 14, 25-28
7 of the record). The appellant could not reasonably have foreseen
that the deceased would cross the road at that point in
an attempt to
join someone who was already on the other side of the bridge. In
other words there was nothing to indicate that the
grandmother was a
member of the group from which the deceased suddenly dashed and tried
to cross the road.
Although it was estimated that the grandmother was about
twelve (12) paces ahead of them, I am of the opinion that she was
than twelve paces. The width of Hlotse bridge is more than
double twleve paces, in addition to that the collision took place
ten (10) paces from the bridge.
The duties of a driver when approaching children was
accurately stated by Selke, J. in R. v. Pillay, 1951 (2) P.H.
0.12 (N) when he said:
"...the drivers of vehicles, and especially of fast
vehicles such as motor vehicles, should exercise
especial vigilance and care when in the proximity of young children.
But it is also
the case that the exact degree of vigilance and care
necessary depends on the particular circumstances. For example, there
my opinion, all the difference beteen the conduct which is
required of the driver of a motor vehicle when he encounters young
in the roadway, or at the side of the road exhibiting an
apparent intention to cross, or playing a game in the course of which
are running about, on the one hand, and on the other hand, where
he drives along the road and children are standing quietly on the
pavement or sidewalk, and are not showing any indication of
attempting to cross or run into the road. The magistrate says that
duty of especial vigilance and care in the circumstances is
absolute, and that an accused cannot be exonerated by merely saying
he could not avoid the accident, for this would be tantamount to
saying that no accident involving children running into the road
avoidable. With respects I am unable to agree with this reasoning.
That there is always some degree of special vigilance and care
children are concerned may be acknowledged without question, but, as
I said before, it seems to me that the extent of it must
the particular circumstances,"
In the present case the group of children and adults
were just walking alongside the road. They made no indication that
to cross the road. If they were just standing near the
road, one would probably say that the appellant ought to have paid a
attention to them and brought his vehicle under control in
case one of them did a stupid thing.
The learned magistrate formed the opinion that the
appellant failed to keep a proper look out but came to the conclusion
guilty of negligent driving and not of culpable
homicide. He based his finding on the ground that
"The child has contributed to her death, and
because of her negligence also it could not be said that the accused
was the proximate
cause of the deceased's death."
I do not agree with the finding that the appellant was
in any way negligent in the driving of the vehicle- The Crown failed
the speed at which the vehicle was travelling just before
the collision. The learned magistrate was not entitled to draw an
from the length of the brake marks that the vehicle was
travelling at a high speed.
For the reasons stated above I allowed the appeal
against both conviction and sentence.
J.L. KHEOLAACTING CHIEF JUSTICE.
5th January, 1987.
For Appellant - Mr. Snyman For Crown - Miss
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