CRI/A/56/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of
ASSAH OEKESI Appellant
v.
REX      Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Justice F.X.Rooney

Mr. Ramodibedi for the Appellant        
Mr. Khauoe for the Crown
This appeal was allowed on the 5th February. The
Crown did not support the conviction.
The appellant was charged with reckless or negligent
driving contrary to Section 124 of the Road Traffic and
Transport Order 1970. It was alleged that on the 10th
January, 1979 along Phamola Road Maseru he recklessly or
negligently operated a motor vehicle LA 7385 and thereby
collied with another motor vehicle LA 5262.
There was extreme carelessness in the drafting of
the charge. The motor vehicle described as LA 7385
was not in fact driven by the appellant but by the complainant.
The appellant's vehicle was LA 5262. It would have been
more proper to have described the vehicles otherwise than
by their registration numbers as these do not indicate the
type of vehicle involved which is often a most pertinent
consideration. However, these careless defects were not
prejudicial to the appellant. The charge should have been
amended by the magistrate when the errors became apparent
in the course of the evidence.
2/ The main     

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The main confusion concerns the location of the
accident. According to the complainant, Mr Mokalanyane
(PW 1) he was driving along Phamola Road and as he
approached the Pitso Ground Road he indicated his intention
to turn right into the latter street. As he turned he
collied with the vehicle driven by the appellant which was
proceeding to overtake him.
Trooper Botsane (PW 2) went to Phamola Road following
the accident where he said he found the two vehicles. He
took measurements according to what he was told and produced
a sketch plan. It is this sketch plan which is the cause
of all the difficulty. It shows a road referred to as
Stadium Road with a road joining it at right angles called
Pitso Road. The alleged position of the motor vehicles
was shown on the sketch as on Stadium Road. There is no
reference at all to Phamola Road where this witness said
he found both vehicles.
No effort was made by anyone in the court below
to inquire into or elicit some explanation for this
discrepancy. The appellant in his evidence did not do much
justice to himself. He told the court "I was following
PW 1's vehicle. When we got to Phamola he indicated
a turn to the right." A defence witness was not asked to
clear up the mystery.
In his judgment the magistrate (C.M. Pali, Esq.)
treated the case as if the accident occurred at the junction
of Phamola Road and Pitso Ground Road. Having reviewed
the evidence he recorded that he believed the Crown's
evidence and he convicted the accused of negligent driving.
He did not specify the negligence of the appellant.
From a perusal of the record of the evidence and
having regard to the unexplained discrepancy as to the
place where the accident actually occurred, it is not
possible to state positively that the appellant was guilty
of any particular negligence. It may be that he should not
have overtaken the complainant's vehicle without first being
3/ satisfied    

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satisfied that it was safe so to do but, this is speculation
and cannot form a basis on which to uphold the conviction.
F. X. ROONEY
JUDGE
6th January, 1981
Attorney for the Appellant : M.M. Ramodibedi.
Attorney for the Crown : Mr. Khauoe.