CRI/A/34/88

IN THE HIGH COURT OF LESOTHO

In the matter between:-

LEBOHANG MONAPHATHI Appellant

and REX

J U D G M E N T

Delivered by the Honourable Mr. Justice J.L. Kheola
on
the 14th day of July, 1989.

The appellant was convicted of negligent driving by the
Subordinate Court of First Class of the district of Berea. He was
sentenced
to a fine of M50 or 3 months' imprisonment. He is obviously
appealing against the conviction only because the sentence was
ridiculously
lenient.

His grounds of appeal are as follows:-

"1. The Court has ignored the cardinal feature of

the Crown evidence that there was no consistence, no
agreement in most vital aspects of the evidence.

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2. 
   The complainant and P.W. 2's demenour was such
   that
   they should not have been believed on any
   aspect of the case.

   
   

3. 
   The complainant was the cause of the accident in
   that
   he was intoxicated and confused by his own

   
   

admission.

4. 
   The evidence of the complainant is not consisten
   with
   a person who kept a proper look out and
   complainant was the cause
   of the accident.

   
   

5. 
   The fact that the investigating officer did
   not
   disclose the spot where she pointed was the point
   of
   impact is not only irregular but amounts to that
   the Crown has
   not proved its case beyond a reason­
   able doubt."

   
   

The complainant testified that at about 11.00 p.m. on
the 14th June, 1986 he was driving his car along the Main North 1
public road
going to TY. He was accompanied by a lady whose name he
has forgotten because he apparently gave her a lift when he found her
near
Lakeside Hotel. When he came to Lekokoaneng he saw another
vehicle ahead of him travelling in the opposite direction. He was
travelling
at a speed of about 40 km, per hour because he was going
up a slope. He observed that the vehicle coming down the slope was in
a
very high speed arid was moving on the right side of the road, i.e.
it was on the wrong side of the road and was coming straight
towards
him. He kept his side of the road and did nothing to avoid the
accident till the two vehicles collided. Before the collision
occurred the two drivers had both dimmed the headlights. On the
following morning the drivers of the two vehicles went to the scene
of the accident and showed the police two different points of
impacts. The police officer who attended the scene of the

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accident made a sketch plan of the scene of the accident
and marked as X2 the point of impact pointed out by the complainant,
and
as X1 the point of impact pointed out by the appellant.

Under cross-examination the complainant changed his
version that the other vehicle was coming straight towards his
vehicle and that
he did nothing to avoid the collision but said that
the other vehicle was moving in zigzags as it approached him. He
denied that
he was drunk when the accident occurred.

Limakatso Letlatsa was a passenger in the complainant's
car. She deposed that when they came to Lekokoaneng she saw an
on-coming vehicle
which was moving in zigzags. She made the remark to
the complainant about the on-coming vehicle moving in zigzags but
before he answered
her there was a bang. She sustained some minor
injuries as a result of the collision between the two vehicles.
Before the collision
their vehicle had kept its left side. She denied
that she met the complainant at Lakeside Hotel, they actually met at
China Garden
Restaurant at about 8.00 p.m. She denied that the
complainant was drunk that night. She also denies that the lights of
the on-coming
vehicle were dimmed.

Police Woman Mokhele attended the scene of the accident
and made a sketch plan, Exhibit "A". Her evidence is to the
effect
that the complainant showed her a point of impact different
from that shown by the accused. She did not believe both of them

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and formed her own opinion as to what was the point of
impact. She, however, did not mark her own point of impact on the
sketch plan.
If I may be allowed to disgress I must point out that
when a policeman attends a scene of a crime his own observa­tions
are of
paramount importance and must appear in his sketch plan or
report.

In most car accidents the debris which fall from the
vehicles on impact give a rough idea of where the collision took
place. It is
the duty of the traffic policeman to mark on his sketch
plan where he found the debris. The debris are objective factors
which, taken
together with other factors, help the court to come to
its own conclusion concerning the point of impact. I do not agree
with the
learned magistrate that a policeman who attends a scene of
accident should not form his own opinion, relying on objective
factors
as to where the point of impact is. It is not-enough for him
to mark what he is told by the two drivers who are already building
their defences.

I shall now come back to the evidence of the defence.
The appellant's version of what happened is that as he was coming
down the slope
at Lekokoaneng he saw another vehicle at the curve
further down the slope. When he came near it he dimmed the
head­lights. At
that time that vehicle moved to its' incorrect
side of the road; he flickered the headlights for a long time. He
suddenly noticed
that the other vehicle was already too near and that
it would not be safe to move out of the road. He then switched

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on bright lights and the complainant swerved to his
correct side of the road but it was too late and a collision
occurred. He says
that when he saw the car of the complainant he was
driving at a speeds of between 80 and 90 km. per hour and that when
the collision
occurred he had reduced his speed to between 70 and 80
km per hour. The complainant swerved to his correct side when he
(appellant)
was bout 7 paces from him.

Under cross-examination the appellant admitted that
before collision he never applied his brakes and that even if the
complainant
had not swerved to his correct side he (appellant) would
still have collided with him because he was driving at a speed of
between
70 km. and 80 km. per hour. He says that it was a misjudgment
on his side that he could still pass despite the fact that the
complainant
was on the incorrect side.

I do not propose to analyse the evidence in any detail
because the appellant has admitted facts which amount to negligence
on his
part. He has alleged that he saw complainant's vehicle coming
towards him on the incorrect side he flickered his lights for a long
time and realized that the complainant was not changing his course.
He did not reduce his speed by applying his brakes. He did not
swerve
to the other side of the road but drove straight towards another
vehicle until he collided with it. He says that the complainant
took
an evasive action too late. The question one may ask is why did the
appellant not swerve to the extreme left side of the road
or even
drive out of the road altogether. I am of the opinion that he did not
do so because he was driving at a very

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speed and failed to apply his brakes. A reasonably
careful driver would not have driven straight into an on-coming
vehicle even if
it were on the incorrect side of the road.

The point of impact pointed out by the appellant is
exactly on the middle of the road. If the appellant-had swerved to
the extreme
left side of the road at the same time that the
complainant was swerving to his correct side of the road there would
have been no collision. The appellant had the last chance
to avoid the collision but he apparently thought that by sticking
to his correct side of the road, while at the same time not reducing
his speed or actually pulling up, he was acting like a reasonably
careful driver. I do not agree with that. He was under an obligation
to take reasonable steps to avoid the collission. He did not take any
step and hoped that the complainant would return to his correct
side
of the road in time to avoid the collision.

Mr. Teele, counsel for the appellant, submitted
that an error of judgment is not negligence. He referred to Cooper
and Bamford: South African
Motor Law at page 246 where the learned
authors say:

"An error of judgment must be distinguished from
negligent conduct. Neither an error of judgment nor an unwise
decision is necessarily
proof of negligence 'unless accompanied by
conduct which is in some degree blameworthy'."

I agree with that statement of the law. However, the
facts of this case show that the appellant was negligent in that
while he hoped
that the complainant would return to his correct side
of the

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road, he failed to reduce his speed, he failed to move
to the far left of the road or even out of the road altogether- I
think the
last two things amount to a conduct which is in some degree
blameworthy and the appellant was, therefore, negligent.

I have come to the conclusion that the appellant was
ne­gligent on the assumption that his version is true that the
complainant
was travelling on the incorrect side of the road. The
trial court found that the complainant was driving on his correct
side of the
road and that the point of impact was that pointed out by
the complainant. On page 23 of the record there is an ambiguous
statement
by the trial court which reads, "on the 15th October,
1986 the court went to the scene of the crime in the presence of the
Public
Prosecutor, Attorney for the defence plus eight (8) other
disinterested people, it observed that the point of impact was on the
extreme
right hand side when facing TY northwards which is
complainant's side."

I say the statement is ambiguous because it does not say
what it observed that convinced it that the point of impact pointed
out by
the complainant was the correct one. This Court has written
many judgments warning magistrates that when they conduct an
inspec­tion
in loco they must record in detail their observations
on a piece of paper which shall be part of the record. The
observations must
be communicated to the parties as soon as the court
resumes its sitting. By so doing the parties are given the chance to
agree or
to disagree with such observations. The latest such case is
Molopo v. Rex, CRI/A/5/88 (unreported) dated the 13th June,
1988.

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In the instant case the learned magistrate has not
recorded his observations anywhere but he used them in his reasons
for judgment.
This was an irregularity.

In his statement of facts found to have been proved (p.
24 of the record, paragraph 5) the learned magistrate states tha­ne
believed
the complainant's pointing out of the point of impact during
the inspection in loco. It seems that when he says that he observed
that the point of impact was on the extreme right hand side when
facing TY northwards which is complainant's side, he means that
he
believed the evidence of the complainant and formed his opinion. He
could not have found anything at the scene of the collision
because
the accident occurred on the 14th June, 1986 and the inspection in
loco was done on the 15th October, 1986. It is common
cause that the
surface of the road was covered with loose gravel on which skidmark
and brakemarks could not remain for a long time.

The learned magistrate found that the complainant was
driving on his correct side of the road when the accident occurred
and that
just before the collision appellant's vehicle was moving in
zigzags and that he took no action to avoid a collision. I have no
quarrel
with those findings because the discrepancies pointed cut by
Mr. Teele in the evidence of the complainant and his lady
passenger are very minor and understandable because it was at
night,. The observations of a passenger may, in some cases, not be as
accu­rate as
those of a driver of a vehicle whose duty it is to
keep a proper lookout.

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One discrepancy is that the complainant said he met his
woman passenger at Lakeside while she said they met at China Garden.
It was
submitted that "this shows P.W.1's disposition towards
false­hood as being immense. I do not agree with that suggestion
because the complainant is a foreigner in this country. He does not
speak English but Swahili. It was not established for how long
he had
been in this country when the accident occurred. It may well be that
he does not know Maseru well. Lying about the place where
he picked
up his passenger would not affect the case in any way.

I agree with the trial court that there was no evidence
that the complainant was drunk on the night in question.

The complainant said that the appellant dimmed the light
while his passenger said that he did not. This point could be
important if
any of the two drivers alleged that he was blinded. by
the bright lights of the other vehicle. The passenger may be wrong or
mistaken
because she said that the vehicle "changed its lights."
I do not know what she meant by that.

I come to the conclusion that the irregularity committed
by the learned magistrate regarding the inspection in loco did not
result
in failure of justice. (Section 8 (2) of the High Court Act
1978).

In the result the appeal is dismissed.

J.L. KHEOLA
JUDGE

For Appellant - Mr. Teele 14 July,1989

For Crown
- Mr. Qhomane.