CRI/A/27/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MOEKETSI
MOKHOTHU Appellant

v

REX
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice F.X. Rooney on the 25th day of October. 1982.

Appellant
in Person

Mr.
Khauoe for the Crown.

The
appellant was convicted by Mrs. N.M. Mokuena of an offence contrary
to section 90 (1) of the Road Traffic and Transport Order
1970, in
that he failed to stop a motor vehicle before a robot which at that
time indicated the colour yellow. (In fact the colour
is amber).

The
incident which gave rise to the court proceedings occurred on the 2nd
December, 1981. Two police officers gave evidence and
were vigorously
cross examined by the appellant who appeared in person. Only the
appellant gave evidence in his defence.

The
record discloses a certain confusion in the mind of Sgt. Lephole
(PW.1) as to the purpose of the amber sign. When he was asked
what
the distinction between the amber and red light was, he replied

"the yellow (amber) light instructs the cars faced with it to
stop, but the red does not instruct anything as those cars are

already stationary".

In
response to further questioning Sgt, Lephole admitted that there were
cars following that of the appellant. In re-examination,
the
prosecutor asked

2

the
following question :

"What should happen if the traffic lights turn yellow (amber)
while the car is already in the intersection?" The answer
was
"It's expected to go ahead".

The
evidence of the second Crown witness, Trooper Masoabi did not
contribute to a solution of the real issue before the court below.

In his
evidence the appellant explained that when he was approaching the
robots, the driver of a vehicle in front of him applied
his brakes
sudden]y and so much so that he had to swerve to avoid the danger of
running into him. The appellant pointed out that
the car immediately
behind him might have collided with his car if he did not proceed to
cross in the face of the amber robot.

Cross-examined by the prosecutor, he explained the failure to stop at
the cross line in the following terms

"Because I would block oncoming traffic and further because the
traffic light was yellow (amber) and it allowed me to go ahead."

It was
put to the appellant that it was wrong to go against the amber light
to which the appellant replied.

"I was right because I avoided the collision which could have
occurred."

There
were more questions directed to the same point expressed in different
ways, but, as will be seen the appellant was correct
if he considered
it unsafe to stop at the robot having regard to the traffic behind
him.

The
magistrate set out in a written statement the facts found to be
proved and her reasons for convicting the appellant. In the
course of
this document, she examined the testimony of the witnesses and she
quoted portion of Regulation 168(1) of the Road Traffic
and Transport
(Amendment) No.2 1978. She also went to the trouble to quote extracts
from a book on the law of Collisions by Isaac
Leveson.

3

In common
with the prosecutor and the police witnesses the magistrate failed to
pay due regard to the proviso to Regulation 168
(1) which reads

"Provided that if the vehicle is so close to the stop line when
amber appears after green that the stop cannot be made safely,
the
driver may proceed cautiously against such amber indication".

Having
regard to the evidence in this case, the proviso was all important.
Before the appellant could be properly convicted the
prosecution had
to prove that the proviso did not apply. It was a misdirection on the
part of the magistrate to have considered
the evidence without regard
to the proviso. She did not apply her mind to the question as to
whether the appellant could have stopped
at the cross line without
danger to any other vehicle approaching the robots.

The
incident complained of took place at 7.30 a.m. on a working day and
there was plenty of traffic in the vicinity. The appellant's

explanation as to why he crossed while the light showed amber may
well have been true and consequently he was entitled to be given
the
benefit of the doubt.

This
appeal is allowed and the conviction and sentence are set aside.

F.X.
ROONEY

JUDGE

25th
October,1982.

Attorney
for the Respondent: Law Office.