CRI\A\17\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ALBERT
BUSHMAN Appellant

and

REX

JUDGMENT

Delivered
by the Honourable Mr Justice J.L. Kheola on the 13th day of May of
1993.

The
appellant appeared before the Subordinate Court for the district of
Maseru charged with culpable homicide resulting from negligent

driving of a car; alternatively contravention of section 90 (1) read
with subsection (4) of the Road Traffic Act No.8 of 1981.

He
pleaded not guilty but at the end of the day he was found guilty of
culpable homicide and sentenced to a fine of M100-00 or ten
months'
imprisonment.

P.W.1
Molipa Mosi testified that he and

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the
deceased had been walking along the road just before they decided to
cross. Before they started crossing he looked around and
noticed that
there was no vehicle coming from either side. There were vehicles at
the robots which were at what is now the traffic
circle. He was
walking fast. When he was in the middle of the road he looked back to
see where the deceased was. He had just jumped
over the guard-rails
on the eastern side of the road.

When he
got to the edge of the road he heard the sound of a collision. He
looked back and saw that the vehicle had knocked down
the deceased.
He had fallen down. The vehicle was facing towards the western side
and its front part was over the white line in
the middle of the road.
He put down his parcels and went back to the deceased. He noticed
that he was bleeding through his nostrils,
ears and mouth. The
accused alighted from his vehicle and rendered assistance to the
deceased who was still alive at the time.
Another vehicle which

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had been
following the accused's vehicle arrived. The deceased was conveyed to
the hospital in that vehicle. He died three days
later.

According
to medical evidence the deceased had a fracture of the left parietal
bone with intracranial bleeding. The cause of death
was head injury.

P.W.2
Fako Monaheng testified that on the day in question he was driving
his vehicle and following the accused's car. He saw a pedestrian

crossing the road infront of the accused's car. That first pedestrian
crossed the road without any problems. Another pedestrian
ran into
the road following the first one, but unfortunately he was knocked
down by the accused's vehicle.

The
accused did not reduce speed before his vehicle collided with the
deceased. He did not apply his brakes because he (the witness)
did
not see any brake lights

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indicating
that the car was stopping. He did not know whether the brake lights
were functioning or not. He says that after the collision
the accused
did apply his brakes because he saw the vehicle skidding and changing
direction until its front part was over the white
line in the middle
of the road.

Trooper
Mokhoromeng arrived at the scene of the accident just after it had
occurred. The sketch plan of the scene of the accident
which he made
shows that the brake marks on the tarred road were twenty-two paces
long just before the point of impact. In other
words the evidence of
Trooper Mokhoromeng contradicts that of P.W.2 who says that the
vehicle of the accused only started skidding
after the collision. I
am of the view that the evidence of Trooper Mokhoromeng is more
reliable than that of P.W.2 who was driving
his vehicle and could
not, under normal circumstances, have observed the details that
appear in his evidence.

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The
explanation of Che appellant in his evidence is a simple one. He had
stopped his vehicle at the robots at Thabong. When he drove
his
vehicle in the direction of N.T.T.C. he saw a group of pedestrians
approach the road from the left. When they came to the edge
of the
road they stopped and looked up and down the road. When he was very
close to them one of them suddenly crossed the road.
The appellant
says that he was too close to stop or avoid him. Although he put on
the brakes as fast as he could and swerved to
the other lane, the
left front of the car hit him. He came over the bonnet and hit the
windscreen before he fell into the right
lane. He estimates that he
was driving at a speed of between 50 and 60 kilometres per hour. He
says that he remembers vaguely that
there was someone who crossed the
road before deceased attempted to do so.

The court
a quo came to the conclusion that the appellant was negligent on the
grounds that he was driving at a very high

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speed and
that be failed to swerve to the extreme right to avoid the collision.
She stated that a driver should regulate his speed
so as to be able
to stop within the range of his vision because for a driver to travel
at a speed which does not allow him to stop
within the range of his
vision means that he will be travelling over a section of the road
which his eyes have not seen. She referred
to R. v. After 1941 O.P.D.
161 at 172 and R. v. McHabon 1960 (2) P.H. 015.

The area
through which the appellant was driving is a built up area. It is
also common cause that there were a number of pedestrians
around. The
court a quo found that the appellant was travelling at an excessive
speed. I am of the view that the finding of the
court a quo is
correct. P.W.2 who was travelling along the same road and following
the appellant's car estimates that the appellant
was travelling at a
speed of between 60 and 70 kilometres per hour. He was not asked how
he estimated the speed or whether he was
relying on his own speed

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because
he was following the appellant's car.

P.W.1
says that when he crossed the road he was walking fast. When he came
to the middle of the road he looked back and saw the
deceased. He had
jumped over the quard-rails and had just entered the road. When he
(P.W.1) got to the edge of the road he heard
the sound of a
collision. He looked back and noticed that a vehicle had knocked down
the deceased. According to the sketch plan
drown by P.W.3 the road
was eleven paces wide. It is clear from the evidence of P.W.1 that
the deceased was actually following
him because when he was at the
middle of the road the deceased was just entering into the road. If
the appellant was not travelling
at an excessive speed he would have
seen the deceased as well as P.W.1 to have stopped in time or to have
swerved to the extreme
right lane. The speed was therefore excessive
in the circumstances of this case.

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It is
also clear that the accused was not keeping a proper lookout. He
ought to have seen the deceased as soon as he entered into
the road.
He ought to have avoided the deceased by swerving to the extreme
right.

The brake
marks found by Trooper Mokhoromeng tell their own tale. They were 22
paces long (about 66 feet). I had the opportunity
to refer to the
stopping distances at different speeds for testing automobile brakes
and stopping distances with four-wheel brakes
which appear on page
415 of Negligence in Delict by Macintosh and Norman-Scable-4th
edition. The stopping distance with a four
wheel brakes vehicle
travelling at a speed of 35 miles per hour is 68.2 feet. I have
estimated that 35 miles is about 75 kilometres
because a kilometre is
.6214 mile. The brakes of the appellant's vehicle were apparently
functioning properly because as soon as
he saw the deceased from a
distance of about 66 feet he applied them and the wheels were
immediately locked and the vehicle skidded

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all that
distance until it collided with the deceased. I do not agree with the
appellant that he was travelling at a speed of 50
kilometres per hour
when he saw the deceased enter into the road. At that speed his
vehicle would have stopped about 34.7 feet
from the spot where the
brake marks started.

I have
assumed that the appellants car, as all modern care are, was a
four-wheel brakes vehicle and that they were working properly
at
about 60% efficiency. I have relied on the length of the brake marks
that even if the brakes were not working at 60% efficiency,
they
effectively stopped the wheels from rolling 66 feet from the point of
collision. In Negligence in Delict -supra - at pages
254-255 the
learned authors say:

"In moat cases where the question to be decided is whether the
driver of a motor-car applied his brakes to stop hie car within
a
reasonable distance, it is vital to the issue to know

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whether his car is one with fourwheel brakes or one with two-wheel
brakes, and also to ascertain the approximate speed at which
the
party concerned was travelling. From these data it is possible to
gather, from the Table of Stopping Distances (see Schedule
"A",
post, p.415) whether he has exercised careful and adequate control
over his car in the particular circumstances.
Conclusions in this
respect must, perforce, only be approximate, for when tests are made
as to the ability of a driver of a motor-car
to stop his car within a
given distance, any exceptional skill of the driver, and the fact
that the driver was not suddenly or
unexpectedly tested, should be
borne in mind in applying the result of the test (Bezuidenhout v,
Berman, 1929 O.P.D. 148). The
court will, of course, not take
judicial notice of the table, so that stopping distances will have to
be properly proved, either
by calling an expert witness oneself, or

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by eliciting the facts in cross-examination of the driver whose car
is alleged to have been involved in the accident, as was done
in
Dickinson v. Galante.1949 (A) S.A. 1034 (S.R.) and Heneker v. Royal
Insurance Co. 1954 ($) S.A. 606 (A.D.). Such tables should,
however,
be circumspectly used, and a reasonable allowance should be made for
a 'reaction time' (Pretoriue v. African Gate &
Fence Works, 1939
A.D. at 575; R. v. Phillips, 1949 (2) S.A. 671 (0) at 677; Sutherland
v. Banwell, 1938 A.D. at 482; Steyn v.
Nunes, 1951 (3) S.A. 96 (T) at
99; Heneke v. Royal Insurance Co., 1954 (4) S.A. 606 (A.D.) at 613).
This allowance for reaction
time should not be made, however, where
from the facts of the case it appears that the driver ought to have
been aware of the danger
long before he did, in fact, appreciate it
(Sutherland v. bunwell, 1938 A.D. at 482 and 484)"

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In his
evidence-in-chief and under cross-examination the appellant says that
he was travelling at a speed of about 50 kilometres
per hour when he
saw the deceased at a distance, of about 5-10 metres enter into the
road. This part of his evidence cannot be
true because the brake
marks on the road clearly indicate that he saw the deceased from a
distance of about 66 feet ahead of him.
He applied the brakes. If an
allowance is made for reaction time and the time the brakes actually
started working, the appellant
actually saw the deceased a few
seconds before the tyres started smearing the tarred road with their
colour.

I am of
the view that this is a proper case in which the stopping distances
shown above should be applied because the evidence was
elicited from
the appellant as to the speed at which he was travelling. His
evidence was found to be false when the aforesaid stopping
distances
were taken into account. The evidence of P.W.2 who was following the
appellant is to the effect

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that the
latter was travelling at a speed of seventy kilometres an hour. That
evidence is, to some extent, confirmed by the length
of the
brake-marks found at the scene of the accident.

I have
already stated above that I am of the view that the appellant was
negligent in that when he saw the deceased enter into the
road he
failed to swerve his vehicle to the far right because there was no
vehicle on the right lane. He failed to exercise reasonable
care to
avoid the collision when he had a good opportunity to do so.
According to the sketch plan of the scene of the accident
drawn by
Trooper Mokhoromeng the point of impact (x) was six paces from the
western edge of the road and five paces from the eastern
edge of the
road. That means that when the deceased was hit by the appellant's
car he was already in the right lane, he had already
crossed the
white line in the middle of the road. The brake-marks clearly
indicate that the vehicle of the appellant went straight
to the
pedestrian

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and only
swerved to the right too late to avoid a collision with the deceased.
A reasonable and prudent driver of a motor vehicle
would have
exercised reasonable care and would have swerved to the right in time
to avoid the collision.

It may
well be that the deceased was also negligent by running into the road
without exercising reasonable care but that cannot
exonerate the
appellant who has also been found to be negligent.

For the
reasons stated above the appeal is dismissed.

J.L.
KHEOLA

JUDGE

13th May,
1993.

For
Appellant - Dr. Tsotsi

For Crown
- Miss Mckitimi