IN THE HIGH COURT OF LESOTHO In the Appeal of:
MOFEREFERE HLAPISI Appellant
andTHE CROWN Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
24th day of February. 1995.
This is an appeal against the judgment of the
Subordinate Court of Mohale's Hoek which convicted the appellant on
charge of reckless driving.
The appellant had appeared before the court charged with
the crimes of Culpable Homicide and Contravention of Section 90 (1)
Road Traffic Act 1981 in the main and the
alternative charges, respectively. The body of the charge sheet
disclosed the following allegations:
Main charge: "In that upon or about
24th December, 1990 and at or near Maqhena Public Road
on the Main South I in Mohale's Hoek district the said
accused did unlawfully and negligently being the driver
of the motor vehicle No. F1284 on the said Public road did collide
vehicle No. E 2591, and cause the death of the following
"In that upon or about the 24th day of December,
1990 and at or near Maqhena on Public road, Mohale's Hoek district,
accused did unlawfully negligently or recklessly drive motor
vehicle No. F1284 on the said public road and collide with Motor
No. E2591 and as a result cause the death of:-
those were the passengers of Motor Vehicle No.E.2591 and
contravening the said law and also cause some
7. 'Nathabeng Molise".
When they were put to him, the appellant pleaded not
guilty to both the main and the alternative charges. The plea of not
accordingly entered. At the close of the trial, the
appellant was, however, found guilty of reckless driving as charged
in the alternative
charge. A sentence of M2,000 or 3 years
imprisonment was imposed by the trial court.
The appeal is based on a long list of grounds which may,
however, be summed up in that the conviction was against evidence and
weight of evidence.
It is common cause from the evidence that on the early
afternoon of the day in question, 24th December, 1990, the two
F1284 and E2591 were travelling in the opposite
direction along the Main South I public road when they collided
against each other
at a place called Maqhena in the district of
Mohale's Hoek. Consequently, eleven (II) of the passengers in vehicle
E2591, which was
a bus were killed whilst seven (7) other passengers
As to how that unfortunate accident occurred, the trial
court heard the evidence of P.W.3, Ts'epo Monki, who testified that
at the material time, the driver of the bus which was
travelling from Mohale's Hoek to Mafeteng. There was no other
or in front of him.
However, when he approached a place called
Maqhena, P.W.3 noticed three vehicles travelling towards
him i.e. from the direction of Mefeteng to Mohale's Hoek, They were a
followed by a van and a truck. As they approached, the truck
indicated intention to overtake the van and the car. It
swerved to its right hand side of the road. P.W.3
immediately flashed warning lights at the truck which swerved to its
left. As it
did so, the truck nearly collided with the van it had
been overtaking and again swerved to its right hand side of the road.
In order to avoid collision with the truck P.W.3 swerved
the bus to its extreme left band side of the road and at the same
brakes. The truck, however, continued moving to its
right hand side of the road until it collided with the bus which was
running outside the tar mark on its extreme left hand side of
the road. After hitting the bus the truck capsized.
-5-As a result of the accident P.W.3 fell over the
stairs of the driver's door which opened in the process.
He dropped to the ground. When he got up P.W.3 realised that he had
bleeding injuries on the head and the left knee. He was
subsequently transported to Mohale' s Hoek town where he made a
the police. He was referred to the hospital which, however,
treated him as an out-patient. P.W.3 specifically denied the
that, at the time the accident occurred, the bus was
driven by a certain Nkhetheleng who admittedly died in the accident
The evidence of P.W.3 that immediately before the
accident took place the truck was overtaking and had therefore, moved
from its correct
lane into the correct lane of the bus was confirmed
by Hlomelang Mohale, Thabang Mafojane and Mthemkholo Mochochoko who
as P.W.4P.W.5 and P.W.7, respectively, and told the court
that they were following the truck at the time the accident occurred,
therefore, witnessed how the accident happened.
'Makhabene Mofammere and 'Matumelo Khantsi who testified
as P.W.1 and P.W.2, respectively told the court that, on the day in
they were passengers in the bus. When they came to Maqhena
both P.W.1 and P.W.2 noticed the bus moving to its extreme
-6-left hand side of the road.
According to P.W.1 she also noticed, at the same time,
the truck which was travelling in the opposite direction moving to
right hand side of the road before colliding with the
bus. She lost consciousness and did not know what happened
next thing she found herself in Mohale's Hoek
hospital where her right leg had been amputated.
P.W.2 made no mention of the movement of the truck at
the time she noticed the bus moving to its extreme left hand side of
She, however, testified that after she had noticed the bus
moving to its left hand side, she apparently fainted, presumably as a
result of the accident. It was only when she regained consciousness
that P.W.2 realised that both the truck and the bus had overturned
the left side of the road as one travelled in the direction towards
Mafeteng. Thereafter, she was transported to Mohale's Hoek
where she was admitted and discharged on the following day.
To the extent that the two vehicles collided on the left
hand side of the road, as one travelled towards Mafeteng which side
therefore, the correct side of the bus, the evidence of P.W.1
P.W.2 corroborated, in my opinion, that of P.W.3, P.W.
4, P.W.5 and P.W.7.
P.W.9, Ishmael Mokhoabane, testified that, on the
day in question, he was travelling in an Isuzu vehicle
with registration numbers F1236 along the Main South I public road.
travelling in the direction from Mafeteng to Mohale's Hoek. He
was following a van, red in colour. A truck was coming behind him.
When he was at a place called Maqhena the truck, which was travelling
fast, overtook him. It then indicated intention to overtake
van, ahead of him. At that time the truck and the van went out of his
view. Thereafter P.W.9 heard a loud noise from the
direction in which
the truck and the van had disappeared.
It was only when he came within its view that P.W.9
noticed that the truck had collided with a bus and the two vehicles
had, in the
process, overturned on the extreme right hand side of the
road as one travelled in the direction from Mafeteng to Mohale'a
P.W.9 was not, therefore, in a position to tell the court how
the accident had happened.
According to him, P.W.9 stopped his vehicle, alighted
and went to render assistance. P.W.3, whom he knew to be the driver
of the bus,
requested to be transported to Mohale's Hoek police
however, turned down the request and told P.W.3 to help
the people who had been badly injured in the accident. It was only
people had arrived at the scene of accident that he
transported P.W.3 to Mohale's Hoek police station.
It is perhaps convenient to mention, at this juncture,
that the evidence of P.W.2 and P.W.9 that as a result of the accident
the bus and the truck had overturned was denied by P.W.4, P.W.5
and P.W.7 who testified that only the truck, and not the bus, had
overturned. As it will be shown in a moment, the evidence of P.W.4,
P.W.5 and P.W.7 was confirmed in that regard by the police officers
who came to the scene of accident shortly after the accident had
happened. P.W.2 and P.W.9 were probably mistaken in their evidence
that the bus had also overturned in the accident.
Sergeant Matoetoe and Lieutenant Mofolo testified as
P.W.6 and P.W.8, respectively. They assured the court that on the day
24th December, 1990, they were on duty at Mohale's Hoek
police station. They confirmed that they received a report following
they proceeded to a place called Maqhena along the Main South I
public road in the district of Mohale's Hoek.
On arrival at Maqhena, P.W.6 and P.W.8 found a truck and
a bus with registration numbers F1284 and E 2591, respectively,
in a road accident. The two vehicles were on the left hand
side of the road as one travelled in the direction from Mohales'a
to Mafeteng. Only the truck and not the bus had, however,
overturned in the accident. Some people had been killed whilst others
injuries in the accident. A number of people had already
gathered at the scene of accident and were rendering help. The two
officers also assisted by transporting the casualties to
Mohale's Hoek hospital where a medical doctor apparently afforded
treatment and conducted post mortem examinations on the
injured and the dead bodies of the deceased, respectively. The
the post mortem examination reports were, by consent,
handed in from the bar as exhibits.
According to P.W.8, he and the appellant revisited
the scene of accident two days later. In the presence of the
took the measurements and prepared a sketch plan which
he handed in as exhibit and part of his evidence in the trial. The
was subsequently caution and charged as aforesaid by P.W.6,
In his defence, the appellant confirmed that in the
afternoon of 24th December, 1990 he was driving
the truck F1284 along the Main South I public road and
was travelling in the direction from Mafeteng to Mohale's hoek. As he
the place called Maqhena he was following a van. He then
noticed the bus E2591 coming from the opposite direction i.e. from
Hoek towards Mafeteng. After crossing a culvert the bus
travelled on its wrong side of the road. The van which was in front
truck moved to its extreme left hand side of the road. In
order to avoid collision with the on-coming bus, the appellant
his truck to its extreme right hand side of the road.
However, the bus also swerved to its extreme left hand side of the
in the process collided with the truck which was already
running outside the tar mark on its extreme right hand side of the
As a result of the accident only the truck overturned.
According to him when he got out of his truck the
appellant heard many people screaming in the bus. He went there to
On arrival at the bus he noticed that the driver
thereof was leaning on the steering wheel already dead. The driver's
door of the
bus could not open and a truck had to be used to pull it
In all material respects the evidence of the appellant
was corroborated by D.W.2, Chabana Hlapisi,
who was his companion in the truck. However, in his
testimony D.W.2 told the court that the accident occurred in the
by the appellant before the bus could cross, and not
after it had crossed, the culvert.
It is significant to note that apart from the appellant
and D.W.2 none of the witnesses who testified in the trial mentioned
of a culvert in the vicinity of the place where the
accident occurred. According to the appellant and D.W.2 the accident
on a bend. Although that was denied by both P.W.2 and
P.W.3 who testified that the road where the accident occurred was
it may be mentioned that in their testimony P.W.6, P.W.7
and P.W.8 corroborated the evidence of the appellant and D.W.2.
the sketch plan which was admittedly prepared in the presence
of the appellant and handed in as exhibit by P.W.8 showed that the
place where the two vehicles had collided was a bend. No culvert of
any sort was shown on the sketch plan.
Be that as it may, both the appellant and D.W.2 denied
the evidence that immediately before the accident took place, the
truck was overtaking in the face of an oncoming bus.
However, considering it in its entirety, the trial
magistrate rejected as false the defence's denial and accepted as the
prosecution evidence that immediately before the accident
took place the bus, which was travelling from the direction of
Hoek, moved to its extreme left hand side of the road in
order to avoid collision with the appellant's truck which was
as it approached from the opposite direction and was,
therefore, moving on its wrong lane of the road.
Subsections (3) and (4) of Section 60 of the Road
Traffic Act. 1981 provide, in part:
"(3) Before overtaking, every driver shall make
(c) the lane he is about totake is clear
(4) A driver of a motor vehicle shall not overtake other
traffic proceeding in the same direction on a public road when:
(b) on bends; or
The prosecution evidence that, at the time the accident
occurred, the bus was travelling on the
extreme left hand side of its correct lane of the road
in order to avoid collision with the truck which was overtaking and,
moving on its wrong lane of the road was confirmed by
P.W.1, P.W.3 P.W.4, P.W.5 and P.W.7. Although the appellant end D.W.2
it, the evidence against their denial was, in my view, simply
overwhelming. There was, therefore, nothing unreasonable in the trial
magistrate finding, as she did, that the accident occurred on a bend
as the truck was overtaking in the face of the oncoming bus
consequently moved to its extreme left hand side of the road in an
attempt to avoid a collision.
On the authority of the above cited subsections of
Section 60 of the Road Traffic Act, 1981 the trial magistrate
found, and rightly so in my opinion, that the appellant who was
admittedly the driver of the truck, was reckless
in his driving. The
trial magistrate considered the question of discrepancies in the
evidence and came to the conclusion that whatever
existed were not of such a nature as would entitle the accused to an
acquittal. I agree.
The appellant cannot, in the circumstances, be heard to
say the conviction was against evidence and
the weight of evidence. This, in my view, disposes of
the grounds of appeal.
-14-In the result, the appeal is dismissed.
24th February, 1995.
For Appellant : Mrs Kotelo For Respondent: Mr.
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