CRI/APN/33/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of

THABISO
DAVID MLONYENI Applicant

V

THE
MAGISTRATETY Respondent

JUDGMENT

Delivered
by the Hon Chief Justice Mr Justice T S Cotran on the 22nd day of
June 1984

The
applicant appeared before a magistrate of the first class sitting at
TV charged with culpable homicide, alternatively with reckless

driving contrary to s 90(1) of the Road Traffic Act 1981 (Act 8 of
1981) He was found guilty of culpable homicide and fined M450
or 2
years imprisonment in default of payment The applicant's driving
licence was suspended for one year He works as a driver and
is
employed by Astoria Bakery

An
application for review was lodged in terms of Rule 50 of the High
Court Rules to set aside the conviction sentence and order
on the
following grounds –

1. The
   magistrate did not allow the applicant to put certain questions to
   the main witness and that had the magistrate allowed those
   questions
   there would not have been sufficient evidence

   
   

to convict

2. That
   the applicant was not allowed to lead evidence by calling on his
   behalf two witnesses which he had intended to call

   
   

2

The
applicant in his founding affidavit averred that he did not have a
fair trial because he was being continuously "interferred
with
and interrupted" by the magistrate

The
application was resisted by the Crown.

Upon
receipt of a copy of the proceedings the applicant made a
supplementary affidavit "amplifying" his first In this
the
applicant attacked the magistrate further adding, in effect, that the
public prosecutor was in league with the magistrate The
applicant
avers that his complaints were not reflected in the record of
proceedings either because it was silent on what had actually
taken
place, or because the record states somethings that had not taken
place

The
magistrate, the public prosecutor and a policeman (who made a sketch
of the scene of the accident) filed affidavits They all
deny the
applicant's allegations of harassment or bias

I am
satisfied from the affidavits that the applicant's general complaints
about the magistrate and the prosecutor have not been
made out

There is,
however, something which worries me quite considerably, viz, whether
there was in fact evidence justifying conviction
It is necessary to
go into the merits of the case

The
deceased Sets'oana was a little school girl aged about 8 years, the
daughter of a police sergeant and she was walking with a
group of
school children who were on both sides of the road after having
attended a football match Phemo Mokone (P W 1), a school
teacher, was
accompanying these children on a clear

3

sunny day
It was a happy occasion and the children were singing The road (which
was the main TY Maseru road not far away from an
L E C School) was
straight at that stretch

The
accused was driving a truck and he had two passengers next to him Mr
Phamo Mokone says he first saw the accused's truck when
it was 50
paces away from him The deceased girl was 30 paces away from him It
would seem therefore that some only 20 paces separated
accused's
truck from the deceased girl when the accident occurred (according to
this witness) but the accused says it was only
6 paces

It was
common cause that the girl, for some unexplained reason, crossed from
one side of the road to the other It should be emphasised
that there
were school children on both sides The main witness, in chief, said -

"The deceased crossed the road to the other side She was running
When the child was about to get off the tarred road that
vehicle hit
her"

The width
of the tarmac road was 9 paces so it would seem as if the accused was
very close, that is, nearer 6 paces than 20

In cross
examination by the accused the witness said –

"Q Were there children on my left at the time the vehicle hit
the child?

A I was aware there were children on your left

Q Did the children from whom Sets'oana left get into the road?

A I saw as if there was a child who tried to catch her as she left I
heard other children say 'Jo there is a vehicle and it is
close'

Q Was it close as they said so?

A At the time I heard that noise it was at the time the vehicle hit
the child"

4

The
applicant could not have been convicted of the charge unless his
negligence was so gross as to justify criminal punishment The
fact
that he killed the little girl is not per se evidence of criminal
negligence since she quite obviously was unaware of his
approach and
the other girls tried, in vain, to warn her, or to stop her from
going out of her side to cross the road The kind
of injuries the girl
suffered, in fact, support the accused's story She was not run over
but succumbed to her death from an injury
to her skull and the brain
when she hit, or was hit, from the side

This is
the kind of case where the magistrate himself should have urged the
prosecutor to locate one of the two other eye witnesses
who were in
the accused's cab and should have granted at least one adjournment
meru moto

There
does appear to have been an inspection in loco but the magistrate's
observation should be reflected on the record and it must
be based on
viva voce evidence of the witnesses before him This girl literally
jumped in front of the accused's vehicle and I would
need stronger
evidence than a surmise by Mr Phemo Mokone that the accused was
speeding to such an extent that he thought "perhaps
the children
would clear from the road" If the magistrate believed that this
had truly occurred he would not have simply fined
the accused but
jailed him.

It is
unsafe to allow this conviction to stand The conviction, sentence and
order are accordingly set aside

CHIEF
JUSTICE

22nd June
1984

For
Applicant Mr Redelinghuys

For Crown
Mrs Bosiu