CRI/A/97/82

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

XAVERI
CHEMANE MATATA Appellant

v

REX

Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 16th day of
February 1983

The
appellant was charged with three offences :

1. Culpable
   Homicide,

   
   

2. Failing
   to stop after an accident c/o to s.l22(l)(a) of the Road Traffic and
   Transport Order 15 of 1970 read with s.135,

   
   

3. Failing
   to render assistance to the injured person contrary to s. 122(c) of
   the Order read with s. 135.

   
   

He was
convicted on all three counts on his own purported plea of guilty and
sentenced to two years imprisonment "all counts
taken as one for
the purpose of sentence".

The
appellant appealed against his conviction on count I on the grounds
that the outline of the case by the public prosecutor did
not
disclose any fact from which the magistrate could infer he was
negligent or reckless as to make him guilty of culpable homicide.
In
fact the prosecutor said nothing on this point. Mr. Peete for the
Crown, rightly in my view, does not support the conviction
on the
principle enunciated in R. v. Monyane 1980(2) LLR 309 at 311 and
numerous other cases cited therein. I do not feel disposed
to order
the magistrate to enter a plea of Not Guilty and proceed with the
trial on this charge. There are no sound reasons in
this case why I
should put the appellant in jeopardy since the facts on the other two
counts were

2

admitted
and indeed were common cause. As far as these were concerned Mr;
Peete for the Crown agrees with G.N. Mofolo that to sentence
an old
man of 61 (now 62) to go to prison for two years is harsh and serves
no useful purpose. He had spent three weeks in custody
when awaiting
trial.

After the
accident the appellant disappeared. The police were unable to trace
him and it is now established that the appellant himself
was so full
of remorse that he proceeded to the traffic police and voluntarily
admitted to them he was involved in that particular
accident 18 days
previously. He explained that he panicked and was afraid that if he
stopped a mob will descend on him and beat
him up or kill him. Of
course if this was the case he should have gone to report earlier
because if fear and panic there was it
must have subsided after a day
or two.

Nevertheless
I do consider the custodial sentence, in the circumstances, excessive
and not in accordance with real and substantial
Justice and it is
hereby set aside and substituted by a cumulative sentence of a fine
of R500 or 6 months imprisonment in default
of payment. The appellant
has been given time to pay the fine by instalments and the Registrar
should see to it that if these are
not paid timeously a warrant of
arrest and committal warrant be issued.

CHIEF
JUSTICE

16th
February 1983

For
Appellant : Adv. G.N. Mofolo

For
Respondent: Mr. Peete