CRI/A/45/80

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

LEHLOHONOLO PHEKO Appellant

v
REX Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Justice F.X. Rooney on the 6th day
of January, 1981.

On the 8th December, I allowed this appeal and set aside
the conviction of the appellant on a charge of culpable homicide and
the
sentence of a fine of M90 or 5 months imprisonment in default.
The Crown represented by Mr.Khauoe did not support the conviction.

The main count against the accused alleged that on the
3rd August, 1979 on the Leabua Highway in the Maseru District he did
unlawfully
and negligently kill one 'Mabotlenyana Rats'iu a child of
about 11 years of ago by knocking her down with a motor vehicle LA
5855.
There was an alternative charge of reckless or neglegent
driving contrary to the section 124(1) of the Road Traffic and
Transport
Order 1970. The appellant pleaded not guilty to both the
main and alternative charge.

It is recorded that the appellant then made the
following formal admissions as follows :

"Accused states that on the date in question:- I
was driving the vehicle in question at the same spot. I admit that I
collided
with the deceased as stated on the charge sheet and as a
result of which she died. I admit that the deceased was correct
person who
was examined by the doctor who is coming to give evidence
before this Court. I admit to the sketch plan made by the police in
my
presence being handed in as evidence.

Public prosecutor: Presents the sketch map as evidence
in this case and it is marked exhibit "A"

Public prosecutor requests that accused should say
whether he admit to the fact that the traffic was highly populated
that day. Accused
admits the fact as stated."

2/

- 2 -

The term "highly populated" with reference to
traffic is not very precise, but, I assume that what was being
admitted was
that at the time the accident took place, there was
heavy traffic on the road in question.

Notwithstanding the admission already recorded the
public prosecutor deemed it necescary to call as his only witness Dr.
Patrick Takatso
Shale who carried out a post-mortem examination on
the body of the deceased on the 7th August, 1979. As a result of this
examination
he formed the opinion that death had occured four days
prior to his examination and that it was due to a ruptured liver and
diaphram,
the result of a road accident. In addition there was a
fracture of a left femur and a broken tooth. The doctor was
cross-examined
by the appellant whose questions were directed to
establishing that Dr. Shale was not very experienced in this branch
of pathology.
He admitted that he was qualified in 1978 and that when
he performed the post-mortem examination, he was still an intern at
the Queen
Elizabeth II Hospital at Maseru. He was unable to say hew
soon after the collision death resulted.

The Crown then closed its case. There is no note on the
record which indicates that the magistrate applied her mind to the
terms of
section 172(3) of the Criminal Procedure and Evidence
Proclamation. In Rex v Ndala Kumalo (Review Order No. 38/79,
unreported) I
said of this section "This is one of the most
important rules of our criminal procedure because no man should be
obliged to
answer when he has no case to meet. The section should
never be regarded an an empty formula and the record of any trial is
not complete
without an indication that the judicial officer has
considered the section and complied with its terms " and "I
take the
view that in every case whore an accused appears in person,
the trial court has the duty to consider at the end of Crown case the
evidence against him as if an application for discharge under section
172 (3) had been made. Thereafter the preciding officer should
note
on the record of the proceed­ings that the section has been so
considered." Since I made this observations on the 8th
November,
1979, I have read large number of records of trials in Subordinate
Courts, but, I regret to note that section 172(3) of
the Criminal
Procedure and Evidence Proclamation continues to be ignored by most
magistrates.

3/ The accused ...

- 3 -

The accused gave evidence in his defence. I do not
propose to examine thus evidence in detail. It is sufficient to say
that the accused
was travelling in a line of vehicles when he saw the
deceased coming from the right side crossing the road at a distance
of about
20 paces, she was running. The accused said he swerved his
vehicle and applied his brakes, but, this action failed to avoid his
hitting
the child. At no time did the accused admit that he was
negligent in the driving managment or control of his vehicle. In her
reasons
for judgment the magistrate said .

" Accused in this case has brought no evidence of
a single witness to come and corroborate his evidence thus proving
his rebuttal
of the Crown case on the balance of probabilities since
he failed to bring eye witnesses to the effect that deceased was the
one
who has been negligent and that he could not have avoided
colliding with her."

It is obvious from the above that the learned magistrate
placed upon the appellant the onus of proving on a balance of
probabilities
that he was not neglegent. This was a serious
misdirection. Nowhere in her reasons for judgment has the magistrate
set out precisely
or unequivocally the nature of his negligence.
While it is true that a duty of a special vigilance and care on the
part of the motorists
arises where he sees or ought to see in the
road a child who indicates an intention of crossing ( Borean, N.O. v
Shield Insurance
Co. Ltd, 1967(3) SA 701) no absolute liability
arises. (Hendricks, N.O. v Marine & Trade Insurance Co. Ltd.
1970 (2) SA 73).
Time and again magistrates appear to apply the
principle of res ipsce loguitur whenever they are confronted with a
case in which
a motorist has had the misfortune to strike down a
child. It is an altogether incorrect approach as this doctrine has no
place in
Criminal Law. (per Landsdown J.P. in R. v Jass 1939 E.D.L.
249).

In the above circumstances, it was not possible for this
Court to uphold the conviction.

F.I. ROCKET

For
Appellant : In person

For
Crown : Mr. Khauoe.