IN THE HIGH COURT OF LESOTHO
In the Appeal of
ALEXANDER AKHOSI TSIAME Appellant
Delivered by the Hon. Acting Mr. Justice M. Lehohla on the 10th day of March, 1988.
The appellant was convicted by Resident Magistrate. T.Y. of contravention of section 90(1) of the Road Traff c Act No. 8 of 1981. He was found guilty of negligent driving.
He had pleaded not guilty to a charge alleging that on 1st July 1586 at or near Ha Mohlaetoa in T.Y. along a public road he wrongfully and unlawfully drove a motor vehicle D-2331 recklessly or negligently with the result that his vehicle collided with a motor vehicle D-2196.
Upon conviction he was sentenced to pay a fine of M120 or to serve a prison term of six months in default of payment of the fine. His driver's licence was suspended tor six months in terms of section on 108(1) (a) (1) of the said Act.
The appellant appealed to this court on the grounds that
The conviction is not supported by evidence,
The sentence is harsh,
The evidence of the investigating officer P.W.2 is to the effect that P.W.1 was the
prime cause of the crime,
P.W.1 was not warned as on accomplice.
The Court's inquiry went beyond the proper limits.
Further grounds are served pending availability of the record.
The facts of this case fall within a very narrow compass, namely that P.W.1 Khosi Mapeshoane was the driver of a motor vehicle D 2196 on 12th August 1986. He was driving in the direction from T.Y. Post Office towards Ha Mohlaetoa. The time was at out 5.00 p.m. when he sew a vehicle driven by the accused (now appellant ahead of him in the same direction. He first saw this vehicle when it was about a hundred yards ahead of his. P.W.1 testified that he was moving at an average speed of between 40 and 50 km p.h. and had seen the vehicle ahead of him flash its rear brake lights and incline to the left verge of the road. Thereupon P.W.1 signalled by mechenical means i.e. indicators fitted to his vehicle that he intended overtaking the vehicle ahead of him from the right. When P.W.1 was about drawing level with appellant's vehicle the latter lurched to the right obstructing P.W.1's path. P.W.1 swerved more to the right in on endeavour to ovoid a collision but appellant vehicle seemed to be bent on not only effecting but completing a U-turn whereupon his vehicle bashed into P.W.1's left side door. In his effort to avoid the collision which on all accounts could have been worse P.W.1 drew his vehicle to the right until it hit against fence poles outside the road some thirty three paces away from the point of impact with appellant's vehicle, and only than managed to bring it to rest there.
P.W.1 hod only obtained his licence in April 19 but had been in practice for two years before then relying on his learner's licence during that period.
Police came to the scene of the accident and P.W.2 an investigating officer formed the opinion that
both parties deserved to be charged with contravention of the aforesaid section of the Act.
Mr. Pitso for the appellant submitted in argument that no substantative evidence was led to support the conviction at the trial court because the only eye witness P.W.1 was indirectly a complainant. He urged that some independent evidence ought to have been led by the crown, failing which it cannot properly be said the crown proved its case beyond a reasonable doubt at the end of the day.
He pointed out that it was P.W.1's fault to try to overtake the vehicle ahead of him without having waited and observed the manoeuvres executed by appellant's vehicle. Thus Mr. Pitso submitted that P.W.1 failed to observe that appellant was making a U-turn and therefore his failure resulted in the collision for which P.W.1 ought to have been charged. Counsel for appellant relied on a statement by P.W.2 under cross examination that he had charged the two drivers of the vehicles which had collided. He submitted that the trial court erred in rejecting the defence evidence in favour of that of P.W.1 especially when P.W.2's evidence in port supported the defence evidence that P.W.1 too was to blame. He complained that the trial Court did not give reasons why it believed the crown evidence and disbelieved that of the defence. It is however common knowledge that an appellate court ought to warn itself that the fact that some item does not appear in the reasons given by the trial court does not mean that it was not considered. What the appellate court is concerned with is whether a reasonable court properly having weighed the evidence before it could have come to a different conclusion
Mr. Pitso made much of the fact that P.W.1's vehicle only come to stop after being obstructed by poles supporting the fence surrounding the charge office at T.Y.. He submits that this was an indication that P.W.1 failed to control his vehicle. He insisted that P.W.1 should have been declared an accomplice witness.
Indeed as Mr. Mdhluli for the crown observed
the defence proposition that P.W.1 should have been declared an accomplice is a startling one. In order for one to be an accomplice it ought to be shown not only that he was involved in the commission of the offence but that he acted in concert with fellow perpetrators in the commission of the offence. There ought to be shown that he was a willing party and participant who conspireding the act that results in the commission of the offence, In other words there ought to be clear proof that his mind was at one with the minds of the participants in the crime. But if one is to assume that that what was meant by this was that P.W.1 contributed to the offence then each of the parties would properly have been charged separately for the role he played in contributing to the offence through his own negligence. I need hardly emphasise that the defence's concept of what constitutes negligence escapes me.
What seems to me to be a straightforward tale is what was supplied by P.W.1 to the trial court. At page 2 he shows that while appellant was driving ahead of him he observed him (appellant) swerve his vehicle to the left and apply his brakes as if to stop. P.W.1 is very candid and open about the fact that he indicated by flicking his indicators to the right to show that he was overtaking appellant's vehicle and to effect this he had to increase speed, As Mr, Mdhluli put it "when one overtakes ones has to do it briskly and not to fall into a lethargic trance."
P.W.1 suddenly realised that the vehicle ahead of him was effecting a U-turn. He was in the circumstances justified in swerving to the right. So much did he do so that he ended at the fence.
It was never denied that appellant made a U-turn after initially swerving to the left. Nor was it denied that he applied his brakes when he inclined to the left What is clear is that indeed appellant was not charged with making a U-turn. The charge is based on the fact that in making his U-turn he effected a dangerous manoeuvre.
Brazenly appellant states at page seven of the record when it was put to him
"Before you take a U-turn you have to be sure that there is no vehicle behind or in front of you - ? You are wrong, for I can take a U-turn when I like to do so if I see a vehicle well behind me."
Indeed if appellant saw the vehicle well behind him he should have pondered before taking a U-turn whether it was safe to Mo so rather than content himself with the fact that because he saw the vehicle behind him then he was at large to effect a U-turn regardless of the consequences that might follow, if by stopping in his tracks an accident could have been avoided.
Another amazing feature of this case is that there was no allegation that appellant did not carry out the acts ascribed to him the logical end of which was the collision.
The position in law is that a driver taking a U-turn has a duty to ensure that it is safe to take it before embarking on that manoeuvre Appellant did not tell the Court a quo how he indicated that he was making a U-turn. Despite the advanced stage reached in technology no device has been mode in motoring that shows distinctly that a driver is not only turning right but is making a U-turn. The only means to be employed which leaves no doubt that a driver is making a U-turn is the use of his arm and hand.
As to Manoeuvres section 63 provides that
"A driver of a vehicle wishing to perform a manoeuvres on a public rood, shall first make sure that he can do so without risk of endangering or impeding other road
users travelling behind or ahead of him or about to pass him, having regard to their position, direction and speed. Before turning or before a manoeuvre involving moving laterally, a driver of a vehicle shall give clear and sufficient warning of his intention by means of direction indicators, or failing this, by giving an appropriate
hand signal and shall continue to do so throughout the manoeuvre."
Section 66(2) provides that
"A driver of a vehicle .........who desires to turn to the right shall indicate by means of direction indicators .......... his intention to turn and shall not effect such turning unless he can do so without obstructing or endangering other traffic,"
It stands to reason then that a driver who wishes to execute a U turn is not freed from taking care that his doing as does not endanger other traffic. Indeed it seems to me that he has to take even greater care than one making a lateral turn to ensure that he does not only endanger other traffic but also does not obstruct it, because a lateral turn involves taking plus or minus ninety - degree turn whereas a U-turn involves no less than a hundred and eighty - degree turn, so clearly to effect it at least twice as much care is required as effecting a lateral turn.
P.W.1's evidence was impressive that he observed the vehicle ahead of him all the time. He was not caught unawares with the sudden bang that is usually referred to by drivers in collision cases as if the other vehicle in such circumstances materialised from nowhere. It is on this basis that I endorse Mr. Mdhluli's submission that P.W.1's conduct cannot be faulted. It is indeed unfair to say that P.W.1 was driving too fast.
P.W.2 says P.W.1 was negligent as well. This amounts to no more than an empty opinion for there is no basis for her opinion in that regard. The public prosecutor did not agree with her and rightly discarded her baseless opinion. The public prosecutor charged only the appellant. In doing so he exercised his powers correctly.
Reference to South African Criminal Law and Procedure Volume 111 by Milton and Fuller shows at page 664 that -
"Negligent driving may ............... consist in the failure to drive with that degree of care and skill which a reasonable man would have exercised. The standards of skill and care expected of a driver do not oblige him to foresee every possibility of harm which may arise from his driving. If the possiblity of harm is perhaps foreseeable but so remote or fanciful (as)not to occur to the mind of a reasonable mem then driving cannot be said to be negligent by reason of the failure to guard against such possibilities."
The above quotation is in favour of P.W.1's position as against that of the appellant. P.W.1 could not have foreseen that accused would effect this unfortunate manoeuvre. Yet appellant seems to gloat at the fact that P.W.1's vehicle was stopped by the police fence when P.W.1 effected a sudden lurch to the right on apprehending immediate danger posed by appellant's vehicle against all expectation obstructing his path while P.W.1 had just accelerated in order to over take appellant's vehicle.
The submission is well grounded that appellant's driving was the proximate cause of the accident.
The sentence was manifestly inadequate but neither the judge who authorised that this appeal be set down for hearing gave warning that should the appeal be dismissed sentence was likely to be enhanced nor did the crown act in terms of relevant sections of the C.P. & E. to give notice to the appellant that application would be made to Court for the enhancing of the sentence.
The appellant too erred by thinking that he could at any stage and without leave of court and notice to the other side withdraw any of its grounds of appeal as he attempted to do in respect of the appeal on sentence. In view of the wanton disregard for the safety of other road users I cannot see why appellant was not convicted of reckless driving. See CRI/A/55/83 William Mabote vs Rex (unreported) where Mofokeng J. resolved that once a criminal appeal has been set down ..............it cannot unilaterally be withdrawn by the appellant,
See also CRI/A/22/86 Gerard H. Phohlo vs Rex (unreported) at pages 1 to 4.
The application to withdraw ground two is refused. I am however not inclined to increase sentence. Appeals against conviction end sentence are dismissed,
30th March, 1988.
For Appellant Mr.Pitso
For Respondent Mr. Mdhluli.
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