HIGH COURT OF LESOTHO
by the Hon. Mr. Justice B.K. Molai on the 24th day of February. 1995.
an appeal against the judgment of the Subordinate Court of Mohale's
Hoek which convicted the appellant on the alternative
appellant had appeared before the court charged with the crimes of
Culpable Homicide and Contravention of Section 90 (1) of
Traffic Act 1981 in the main and the alternative charges,
respectively. The body of the charge sheet disclosed the following
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
district the said
accused did unlawfully and negligently being the driver of the motor
vehicle No. F1284 on the said Public road did collide with
vehicle No. E 2591, and cause the death of the following people:
"In that upon or about the 24th day of December, 1990 and at or
near Maqhena on Public road, Mohale's Hoek district, the said
did unlawfully negligently or recklessly drive motor vehicle No.
F1284 on the said public road and collide with Motor Vehicle
E2591 and as a result cause the death of:-
were the passengers of Motor Vehicle No.E.2591 and contravening the
said law and also cause some
were put to him, the appellant pleaded not guilty to both the main
and the alternative charges. The plea of not guilty
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
appeal is based on a long list of grounds which may, however, be
summed up in that the conviction was against evidence and the
common cause from the evidence that on the early afternoon of the day
in question, 24th December, 1990, the two vehicles viz.
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 suffered injuries.
As to how
that unfortunate accident occurred, the trial court heard the
evidence of P.W.3, Ts'epo Monki, who testified that he was,
material time, the driver of the bus which was travelling from
Mohale's Hoek to Mafeteng. There was no other vehicles behind,
front of him.
when he approached a place called Maqhena, P.W.3 noticed three
vehicles travelling towards him i.e. from the direction
to Mohale's Hoek, They were a car followed by a van and a truck. As
they approached, the truck indicated intention
to overtake the van
and the car. It simultaneously 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.
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 time
brakes. The truck, however, continued moving to its right hand side
of the road until it collided with the bus which was
outside the tar mark on its extreme left hand side of the road. After
hitting the bus the truck capsized.
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.
got up P.W.3 realised that he had sustained bleeding injuries on the
head and the left knee. He was subsequently transported
to Mohale' s
Hoek town where he made a report to the police. He was referred to
the hospital which, however, treated him as an
specifically denied the suggestion that, at the time the accident
occurred, the bus was driven by a certain
Nkhetheleng who admittedly
died in the accident and not by himself.
evidence of P.W.3 that immediately before the accident took place the
truck was overtaking and had therefore, moved from its
into the correct lane of the bus was confirmed by Hlomelang Mohale,
Thabang Mafojane and Mthemkholo Mochochoko who
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
therefore, witnessed how the accident happened.
Mofammere and 'Matumelo Khantsi who testified as P.W.1 and P.W.2,
respectively told the court that, on the day in question,
passengers in the bus. When they came to Maqhena both P.W.1 and P.W.2
noticed the bus moving to its extreme
side of the road.
to P.W.1 she also noticed, at the same time, the truck which was
travelling in the opposite direction moving to its extreme
side of the road before colliding with the bus. She lost
consciousness and did not know what happened thereafter. The
thing she found herself in Mohale's Hoek hospital where her right leg
had been amputated.
made no mention of the movement of the truck at the time she noticed
the bus moving to its extreme left hand side of the road.
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
on the left
side of the road as one travelled in the direction towards Mafeteng.
Thereafter, she was transported to Mohale's Hoek
hospital where she
was admitted and discharged on the following day.
extent that the two vehicles collided on the left hand side of the
road, as one travelled towards Mafeteng which side was,
the correct side of the bus, the evidence of P.W.1 and
corroborated, in my opinion, that of P.W.3, P.W. 4, P.W.5 and P.W.7.
Ishmael Mokhoabane, testified that, on the day in question, he was
travelling in an Isuzu vehicle with registration numbers
the Main South I public road. He was 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 the red 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
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
overturned on the extreme right hand side of the road as one
travelled in the direction from Mafeteng to Mohale'a
Hoek. P.W.9 was
not, therefore, in a position to tell the court how the accident had
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
requested to be transported to Mohale's Hoek police station. P.W.9,
turned down the request and told P.W.3 to help the people who had
been badly injured in the accident. It was only after
many people had
arrived at the scene of accident that he transported P.W.3 to
Mohale's Hoek police station.
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 both
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.
Matoetoe and Lieutenant Mofolo testified as P.W.6 and P.W.8,
respectively. They assured the court that on the day in question,
24th December, 1990, they were on duty at Mohale's Hoek police
station. They confirmed that they received a report following which
they proceeded to a place called Maqhena along the Main South I
public road in the district of Mohale's Hoek.
arrival at Maqhena, P.W.6 and P.W.8 found a truck and a bus with
registration numbers F1284 and E 2591, respectively, involved
road accident. The two vehicles were on the left hand side of the
road as one travelled in the direction from Mohales'a hoek
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
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
medical and the
post mortem examination reports were, by consent, handed in from the
bar as exhibits.
to P.W.8, he and the appellant revisited the scene of accident
two days later. In the presence of the appellant he
measurements and prepared a sketch plan which he handed in as exhibit
and part of his evidence in the trial. The appellant
caution and charged as aforesaid by P.W.6,
defence, the appellant confirmed that in the afternoon of 24th
December, 1990 he was driving
F1284 along the Main South I public road and was travelling in the
direction from Mafeteng to Mohale's hoek. As he approached
called Maqhena he was following a van. He then noticed the bus E2591
coming from the opposite direction i.e. from Mohale's
Mafeteng. After crossing a culvert the bus travelled on its wrong
side of the road. The van which was in front of
his truck moved to
its extreme left hand side of the road. In order to avoid collision
with the on-coming bus, the appellant swerved
his truck to its
extreme right hand side of the road. However, the bus also swerved to
its extreme left hand side of the road and
in the process collided
with the truck which was already running outside the tar mark on its
extreme right hand side of the road.
As a result of the accident only
the truck overturned.
to him when he got out of his truck the appellant heard many people
screaming in the bus. He went there to render assistance.
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 open.
material respects the evidence of the appellant was corroborated by
D.W.2, Chabana Hlapisi,
his companion in the truck. However, in his testimony D.W.2 told the
court that the accident occurred in the manner described
appellant before the bus could cross, and not after it had crossed,
significant to note that apart from the appellant and D.W.2 none of
the witnesses who testified in the trial mentioned the
existence of a
culvert in the vicinity of the place where the accident occurred.
According to the appellant and D.W.2 the accident
took place 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 straight, 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. Indeed, 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.
as it may, both the appellant and D.W.2 denied the evidence that
immediately before the accident took place, the appellant's
overtaking in the face of an oncoming bus.
considering it in its entirety, the trial magistrate rejected as
false the defence's denial and accepted as the truth the
evidence that immediately before the accident took place the bus,
which was travelling from the direction of Mohale's
Hoek, moved to
its extreme left hand side of the road in order to avoid collision
with the appellant's truck which was overtaking
as it approached from
the opposite direction and was, therefore, moving on its wrong lane
of the road.
(3) and (4) of Section 60 of the Road Traffic Act. 1981 provide, in
"(3) Before overtaking, every driver shall make sure that
lane he is about to take is clear far enough ahead .........
driver of a motor vehicle shall not overtake other traffic
proceeding in the same direction on a public road when:
prosecution evidence that, at the time the accident occurred, the bus
was travelling on the
left hand side of its correct lane of the road in order to avoid
collision with the truck which was overtaking and, therefore,
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 denied
evidence against their denial was, in my view, simply overwhelming.
There was, therefore, nothing unreasonable in the trial
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.
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
the question of discrepancies in the evidence and came to the
conclusion that whatever discrepancies existed were not
of such a
nature as would entitle the accused to an acquittal. I agree.
appellant cannot, in the circumstances, be heard to say the
conviction was against evidence and the weight of evidence. This,
my view, disposes of the grounds of appeal.
result, the appeal is dismissed.
Appellant : Mrs Kotelo
Respondent: Mr. Ramafole.
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