CRI/A/41/88

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:-

LIKANO
TSIU..............Appellant

vs

REX

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

The
appellant was convicted of negligent driving and sentenced to pay a
fine of M60-00 or to imprisonment for a period of two months.
His
driver's licence was suspended for six (6) months. He appealed
against the conviction on the ground that the court a quo erred
in
finding that the accident occurred as a result of appellant's
negligent driving.

The first
Crown witness was one Thabo Khabo (P.W.1). He told the court that on
the night of the 19th October, 1985 he and other
five drivers were
driving tractors along the Main North 1 public road at Lekokoaneng.
One of the tractors had a puncture and

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as a
result of overturned and fell into a yard. All the tractors were
parked on the left side of the road i.e. on the northern side
outside
the road. The tractors had their lights on. He put a warning sign (a
triangle) behind the last tractor at a distance of
about 53 paces
from the tractor. He suggested to their employer who was travelling
with them in a truck that they should go home
and fetch a chain with
which they could pull the tractor that had overturned.

They
fetched the chain and parked the truck outside the road in such a way
that its lights were facing towards the yard and not
towards the
on-coming traffic, P.W.1 says that as soon as he came out of the
truck he saw an on-coming vehicle and remarked to
his employer that
its headlights were too bright. At that time it was about 400 to 500
yards away. As he started fastening the
chain to the tractor one of
the drivers of the tractors shouted at him and said he should ran
away. Immediately after that a vehicle
knocked him down. He fell into
the yard next to the road. He denied that the truck was parked inside
the road and that its bright
lights were on.

The
evidence of Mr. Khabo Moabi (P.W.2) is the same with that of P.W.1 on
all material points of the case.

P.W.3
Sergeant Thamae testified that he arrived at the scene of the
accident at about 10.00 p.m. He found accude's car, a truck
and two
tractors. He attempted to take measurements but failed to do so
because the appellant was drunk and very violent.

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He
decided to guard the vehicles until the following morning when a
sketch plan of the scene of the accident was made. It was handed
in
Court as Exhibit D. All the vehicles were outside the road. The point
of impact is outside the road and was pointed out by both
P.W.2 and
the appellant as well as by P.W.1 when he returned from the hospital.
He was shown a warning sign though he did not show
it on Exhibit D.
It was put on the tarred part of the road.

The
appellant gave evidence in the court a quo and admitted that his
vehicle collided with a tractor which was parked on the side
of the
road. He says that when I came to the Veterinary Clinic I saw the
bright lights of an on-coming traffic. I was on my left
side of the
road. I showed him that his lights were too bright by deeming (sic)
my lights for several times but there was no response
whatsoever. He
told the court that as he came closer to the on-coming vehicle he
reduced his speed and to avoid an accident he
moved to the extreme
left side of the road. At that time his passenger warned him that
there was an accident ahead of them and
that if he could stop he must
do so. The passenger said there was a person lying down. He saw that
there was a tractor on the side
of the vehicle that was on his lane.
He had passed another tractor where a man was lying next to it and he
decided to stop his
vehicle between the vehicle and the tractor which
was facing towards him. When he swerved to the left his vehicle hit
the bumper
of the vehicle and passed and collided with the tractor.
He denies that there was any warning sign put on the tarmac.

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It was
submitted that the truck was parked at a blind spot. This is not
correct, the rise was over 50 metres from the scene of the
accident.
{See page 14 of the record). The evidence of Liphapang Malefetse
(D.W.2) is the same with that of the appellant. He told
the court
that he drew the appellant's attention to the fact that there had
been an accident because he had seen two tractors on
the left side of
the road and a man lying down. When they got near the vehicle with
bright lights on their side he noticed that
it was stationary and the
appellant tried to avoid it but in vain.

Mr.
Matsau, attorney for the appellant, submitted that if there was a
warning sign at all on the road the appellant's car would
have
knocked it down or run it over. He submits further that the
probability is that the truck had its bright lights on in order
to
provide enough light so that they could pull out the tractor. The
truck had straddled the appellant's side of the road or it
was so
close to the road and had its bright lights blinding the appellant,
immediate reasonable reaction was to move out of the
road and hence
collision with the tractor and then with the truck.

There is
evidence by Sergeant Thamae that when he arrived at the scene of the
accident a warning sign was there and that ho guarded
the vehicles
until the following morning when photographs were taken. The
photographs were handed in court as Exhibits A,B and
C. Exhibit A
shows the truck,part of appellant's car, a building and a warning
sign on the tarmac. According to Exhibit A

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the truck
was not on the tarmac but on the gravel part of the road; it was
facing towards a building and even if its lights were
bright they
could not have blinded a driver of an on-coming vehicle because they
faced away from the road. Exhibit B shows the
position of the truck,
the appellant's car and the tractor taken from a different angle. It
confirms appellant's evidence that
in his confusion he veered to the
far left between the truck and the tractor because he was under the
wrong impression that the
truck was going in the opposite direction.

The trial
court believed the Crown witnesses and came to the conclusion that
the accident occurred outside the road and that the
appellant was
negligent.

Mr.Matsau
submitted that there was no warning sign at all because if it was
there appellant's vehicle would have knocked it down.
It seems to me
that what is probable is that as the warning sign on Exhibit A
appears to have been very close to the edge of the
tarmac, the
appellant passed safely without running over it. At that stage he was
already being blinded by the bright lights of
what he thought was a
vehicle moving towards him. But the truth of the matter is that the
appellant was not blinded by any bright
lights because they were
facing away from the road. He saw the lights of the truck but because
of his negligent conduct of not
keeping a proper look-out he deciced
to leave the road and to pass on the other. side of the parked truck.

As proof
of appellant's negligence he was even warned by his passenger that
there was an accident. He did not see the two tractors

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which
were on the side of the road before he came to the truck. If he had
been a reasonably careful driver he would,have seen the
two tractors
and the man lying down and would have realised that there was an
accident and would have stopped before he collided
with the truck and
the tractor.

If the
appellant's version were to be taken as true, he would still be found
to have been guilty because he was blinded by the bright
lights of
what he thought was a moving vehicle and he "dimmed his lights
for several times but there was no response whatsoever".
The
question one may ask is: why did the appellant not stop other than
cover some distance without seeing where he was going? I
am of the
opinion that a distance of 50 yards was long enough for him to have
realized that it was dangerous for him to drive on
while he hardly
saw where he was going.

In S. v.
van Deventer, 1963 (2) S.A. 475 (A.D.) at 483 Ogilvie Thompson, J.A.
said:

"Nor does it, in my view, avail appellant that the deceased was
walking; towards appellant's car and was, not on the edge
of the
tarmac, but 5ft. 6ins. into the roadway. Such considerations are, of
course, very relevant in assessing negligence on the
part of the
deceased: but the present enquiry is primarily concerned with the
negligence of appellant. Once he became blinded,
appellant continued
to drive into what was for him a totally unseen stretch of road upon
which an obstruction, whether lighted
or unlighted might well be
present. No doubt the mathematical odds were considerably against
such an obstruction being present
in appellant's pathway precisely
during the period when appellant was travelling blinded: but, in my
judgment, a reasonably prudent
driver would not, under the
circumstances stated, have "taken a chance" the way
appellant did. For the possibility of
some obstruction being in
appellant's path once he was blinded would, in my opinion not have
been regarded by a reasonably prudent
person as one so remote as not
requiring to be guarded against. Having regard to the evidence in
relation to this

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particular road at this particular time, and bearing in mind that
appellant had been travelling for some distance with dipped lights,
I
am of opinion that appellant should have anticipated the possibility
of some obstruction - including a pedestrian - being in
his path and
that, accordingly, he should, immediately he was blinded, have
applied his brakes in order to minimise the danger
resulting from his
being rendered unable to see."

If the
appellant had been suddenly blinded by bright lights, the court would
have probably come to the conclusion that moving the
vehicle out of
the road was a reasonable thing to do. The appellant drove a distance
of about 50 metres dazzled by the bright lights
and not cleraly
seeing where he was going. A reasonably careful driver would have
stopped before he came to the truck. But as I
said earlier in this
judgment the evidence before the court proved beyond any reasonable
doubt that the lights of the truck were
facing away from the road and
that the collision occurred outside the road.

At the
trial a lot of time was spent on the question of whether or not P.W.1
was knocked down by the appellant's car and why no
medical evidence
as to the extent of his injuries was not led. I do not wish to decide
that issue because the appellant was not
charged with having knocked
down P.W.1 .

Mr.
Matsau submitted that the learned magistrate did not apply his mind
to the legal principle pertaining to the proximate cause
of an
accident. The learned magistrate ought to have first held that the
appellant had the opportunity to avoid the accident but
appellant
failed to do so through recklessness or negligence.

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I agree
that the learned magistrate did not give any reasons of judgement in
the true sense. All what he did was to give a short
summary of the
evidence of all the witnesses and then came to an abrupt conclusion
that "there is no reason why the court
should not believe/accept
the Crown witnesses! testimony." That in the end result the
appellant is found to have been the
proximate cause of the accident."

It is the
duty of a magistrate to give reasons for his findings. In the present
case the learned magistrate did not do so except
by saying I believe
the story of the Crown witnesses. I think he had to tell us why. He
had to give careful considera­tion
to appellant's version and
show that it is not reasonably possibly true. Be that as it may, I
have read the evidence and considered
it and have come to the
conclusion that the learned magistrate came to the right conclusion.

In the
result the appeal is dismissed.

J.L.
KHEOLA

JUDGE

14th
July, 1989.

For the
Appellant - Mr. Matsau

For the
Crown - Mr. Qhomane.