IN THE HIGH COURT OF LESOTHO In the
WILSON HLEHLETHE Appellant
VR E X Respondent
Delivered by the Hon. Sir Peter Allen on the 20th day
of August, 1987
The appellant lorry driver was convicted on two counts
of traffic offences on his own plea on 28 October 1986 by a
class at Teyateyaneng in Berea District. The
appellant was sentenced to a fine of M400 or in default, imprisonment
for 15 months
and his driving licence was suspended for six months.
He paid the fine and he has appealed against the sentence only.
The charge sheet shows the appellant as being 45 years
old. The three counts are as follows:-
" Count 1 - The said accused is charged with a
crime of culpable homicide. In that upon or about 18th June 1986 at
or near Ha
Molemane in Berea District the said accused (did)
unlawfully drive a motor vehicle D1608 negligently and killed one
being a passenger in a vehicle to wit A8954.
Alternatively - The said accused is charged with an
offence of contravening Section 90(1) of Road Traffic Act No.8 of
1981. In that
upon or about
/the 18th ...
the 18th June 1986 at or along North 1 Public Road near
Ha Molemane in Berea District the said accused did wrongfully and
drive a motor vehicle D1608 negligently or recklessly upon
the said public road and as a result did collide with a motor vehicle
A8954 and then killed one Ts'eliso Taeli a passenger therein.
Count 2 - The said accused is charged with an offence of
contravening Section 90(1) of Road Traffic Act No.8 of 1981. In that
or about the 18th June 1986 and at or along North I public road
near Ha Molemane in Berea District the said accused did wrongfully
and unlawfully drive a motor vehicle D1608 upon the said public road
negligently/or recklessly and as a result did collide with a
vehicle A8954 and thereby did injure one Tsuelle Albert and Thabo
Morahanye passengers, therein.
Thus, the first count, of culpable homicide, was the
most serious of the three. Inside the alternative count, under
is a further alternative of either reckless driving or
negligent driving. Reckless driving is by the far the more serious of
two and it carries a maximum sentence under S.90(4)(a) of a fine
of M2,000 or 2 years imprionment; whereas the maximum sentence for
negligent driving is a fine of M1,000 or 1 year imprisonment under S.
The second count is similar to the alternative count
(above) but it concerns the injuries to the two passengers.
When the plea was taken in the lower court the appellant
was not prepared to admit culpable homicide, but he pleaded guilty to
much lesser offence of negligent driving in the alternative
count. In count 2 he also pleaded guilty to negligent driving. The
accepted the pleas and gave the court the facts.
On 18 June 1986 the deceased Taeli was driving a motor
car No. A8954 which belonged to Barclays Bank. He was returning from
Maseru having conveyed money to the bank branch at TY. His
escorts in the car were Private Tsuelle of the R.L.D.F. and Trooper
of the R.L.M.P.
At around 1.30 p.m. the car was being driven at some
speed on the road known as North I. When it was near St. Agnes, where
a sharp curve in the road, it met two large lorries
approaching from the other direction. The second lorry was D1608
driven by the
appellant who started to overtake the front lorry while
they were both still on the curve. When the bank car reached them the
lorries were side by side and there was no space left on the
road.. The car driver applied his brakes but the car and lorry
The driver and both escorts in the car were all
injured. The driver died of his injuries in hospital two weeks
later. The soldier
broke his left thigh bone and the policeman had
head and hand injuries. The bank car was very badly damaged.
The appellant was represented by Mr. Maqutu in this
appeal and in the lower court. At first the prosecution facts were
the magistrate on the ground that the appellant's
lorry had overtaken the other lorry and had then returned to its own
side of the
road by the time the collision occurred. So the two
passengers were called to testify. Private Tsuelle stated that the
in fact side by side at the time of the collision and
Tpr. Morahanye confirmed this.
/I do not ...
I do not know why the defence disputed this point since
there would most probably not have been any collision if the vehicles
on their correct sides of the road at the time. I am satisfied
that the facts were as stated by the prosecution.
In both the lower court and here on appeal against
sentence Mr.' Maqutu submitted that the appellant's driving was
rather than reckless and that he was not guilty of
culpable homicide. Mr. Maqutu added that the resultant death of the
not be emphasised otherwise the verdict should have
been culpable homicide. He,further submitted that the fine 'of M400
was so harsh
and excessive that it induced a sense of shock and that
this Court should intervene and reduce it. The Crown supported the
as it stands.
Having heard these arguments of Mr. Maqutu, 1 can only
say that 1 completely disagree with all of them. In my opinion the
was wrong to have accepted the appellant's pleas of guilt
to the lesser offences; The appellant, by his appallingly thoughtless
and dangerous driving, caused the death of another man and serious
in-juries to two others. There is no excuse for such behaviour
there is no way in which the court can or should forget the
consequences of his actions. They must be taken into consideration.
The fact that the appellant was convicted of negligent
driving does not reduce his responsibility for the other man's death.
magistrate properly considered it and he added this:
" This cannot be taken lightly, but public rood
users should be sure that they do the right thing at the right time.
lives should not be destroyed and then let the accused
leave the court with a minor fine, to rejoice his
glory of using the public (road) as if it was his
road own private road and killing people like pests."
Mr. Maqutu objected to this and submitted that the
magistrate had let his righteous anger "becloud his judgment",
Schrereiner J.A. in R v Marg 1961(1) S.A. 231. In my
opinion the magistrate was perfectly justified in expressing his
anger in this case, and he did not go too far.
The appellant overtook another lorry on a blind bend
thus blocking the whole road. Any driver, of even slight experience,
terrible danger to others of doing this sort of thing. Such
a driver is a complete menace on the road because he shows an utterly
selfish disregard for the safety of others. .
I am surprised that the appellant appealed against a
mere fine which, in my view, was inadequate and far too lenient a
In a review order which I made in March this year, R v
Moorosi, Review Order No. 11/87, the facts were very similar. The
overtook another vehicle and collided with an approaching
vehicle resulting in three deaths and several injuries. He was
convicted of culpable homicide and yet fined only M200 or 9
months imprisonment. I found the sentence much too lenient in the
and I quashed the fine and left the imprisonment to
stand as the only appropriate sentence.
/In that ...
In that case I referred to the words of Lawton C.J. in R
v Guilfoyle (1973)2 All ER 844, which I repeat here:
" Cases of this kind fall into two broad
categories; first, those in which the accident has arisen through
or mis judgment; and secondly those in which
the accused has driven in a manner which has shown a selfish
disregard for the safety
of other road users or of his passengers, or
with a degree of recklessness."
In Moorosi's case I held that, because of the deaths
caused by his driving, a custodial sentence was more appropriate than
I am still of that opinion in cases of this type.
It is true that Moorosi was convicted of culpable
homicide whereas this appellant has been fortunate enough to be
convicted only of
negligent driving, but the main difference between
the offences and the effect of them is in the maximum sentences
facts still have to be taken into account and negligent
driving may be considered to be less or more serious according to the
of that driving. In this case it resulted in a death and
so a prison sentence or, at least, something like the maximum fine of
should have been considered, in my opinion.
The actual fine of only M400 was, as I have said, much
too lenient and the appellant should have been advised not to appeal
it but, rather, he should have got down on his knees and
thanked God for such mercy. I certainly do not intend to reduce the
But I note that the Crown has not asked for it to be
Finally, I must consider an important matter concerning
this sentence which neither party has referred to in Court. The
was convicted on two counts on the charge sheet and so it
was a necessary requirement that he be sentenced separately on each
Instead of doing this the magistrate recorded the following:
" Sentenced to M400 or 15 months; as this all
happened at a single instance, it is for both counts."
Thus there was only one sentence for two convictions.
This is called an omnibus sentence and it is completely unlawful.
always be a separate sentence for each count on which a
conviction is recorded.
The magistrate clearly and mistakenly intended the
sentence to cover both offences so I shall not add anything to it.
But the error
in the record must be corrected. Consequently the
onmibus sentence is set aside and I substitute for it first a
fine of M400
or 15 months imprisonment on the alternative count
and secondly, a fine of M400 or 15 months imprisonment on count 2.
are to be non-cumulative and the prison sentences are
concurrent. Otherwise this appeal is dismissed.
P.A.P.J. ALLEN JUDGE
20th August, 1987
Maqutu for the Appellant
Mdhluli for the Crown
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