CRI/A/22/2000

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:

SELLO
KHATI APPELLANT

And

REX
RESPONDENT

REASONS
FOR JUDGMENT

On 9th
February 2001 I disposed of this appeal and intimated that reasons
for my decision would be filed, in due course. These now
follow.

The
appellant had appeared before a magistrate, with First Class Powers,
charged with the crime of contravening S.90(l) (4) of the
Road
Traffic Act, 1981, it being alleged that, on or about 10th May 1999
and at or near ha Mabote, along the main North 1 public
road, in the
district of Maseru, he recklessly or negligently drove a taxi with
registration numbers AK193 and, as a result, collided
with another
vehicle with registration numbers D2350.

2

When it
was put to him the appellant pleaded not guilty to the charge.
Witnesses were called to testify for either side. At the
end of the
day, the appellant was found "guilty as charged" and
sentenced to serve a term of two (2) years imprisonment.
It was
ordered that the appellant's driving licence be suspended for two
years.

The
Appeal was "against the whole judgment (conviction and
sentence)" on the following grounds:

-1-

"The learned magistrate erred and or misdirected himself by
conducting the proceedings as if the plea was one of guilty.

-2-

The learned magistrate erred and or misdirected himself in law by not
explaining the rights of the accused fully to him as accused
was not
represented.

-3-

The learned magistrate erred and or misdirected himself by not taking
mitigating factors in favour of accused.

-4-

The sentence is too harsh and hence induces a sense of shock.

-5-

Appellant reserves his right to file further grounds of appeal on
receipt of a reasoned written judgment."

Where a
plea of guilty has been tendered, the procedure set out under section
240(1) of the Criminal Procedure and Evidence Act,
1981 is followed.
That was not, the procedure followed in the instant case. There is,
therefore, no substance in the first ground
of appeal namely that the

3

learned
magistrate erred and/or misdirected himself by conducting the
proceedings as if the plea was one of guilty.

It is
clear from the record of proceedings that the appellant was afforded,
and did use, the opportunity to cross-examine the crown
witnesses;
give evidence in his defence; address the court on the verdict and in
mitigation of his sentence. Although it is true
that the record of
proceedings did not specifically reflect that the trial magistrate
explained his rights to him, I was convinced
that the appellant was
made aware of those rights and, to that extent, he suffered no
prejudice in this trial. There was, therefore,
no substance in the
second ground of appeal.

It is
trite law that the question of sentence is a matter for the judicial
discretion of the trial court. Where the trial magistrate
had given
due consideration to the factors raised in mitigation of the
appellant's punishment but deemed that the maximum term
of
imprisonment prescribed by Parliament was, in the circumstances of
the case, an appropriate sentence, I did not agree that the
trial
magistrate had misdirected himself in imposing the maximum term of
imprisonment which, in its wisdom, Parliament had prescribed.
There
was, in my finding, no substance in the third and fourth grounds of
appeal.

It is
worth mentioning that at the commencement of the hearing of this
appeal, Mr. Mafantiri, counsel for the appellant, told the
court that
he was abandoning the appeal against the conviction, he would,
therefore, argue only the appeal against the sentence.

4

However,
the court pointed out that S.90 (1) (4) of the Road Traffic Act, 1981
under which the appellant had been charged in the
court a quo had two
offences viz. (i) reckless driving and (ii) negligent driving for
which there were two distinct punishments.
The section reads, in
part:

"90 (1)A person who drives a vehicle on a public road recklessly

or negligently is guilty of an offence.

(2)...........................................

(3)...........................................

(4) A person (guilty) of an offence under subsection (1) is

liable-

(a) In the case of the court finding that the offence was committed
by driving recklessly, to M2000 and 2 years imprisonment,
or

(b) in the case of the court finding that the offence was committed
by driving negligently, to Ml000 and 1 year imprisonment."

The Court
had, therefore, difficulty with the verdict of "guilty as
charged" returned by the trial magistrate. Did that
mean the
appellant was convicted of reckless driving or negligent driving? For
that reason the court insisted that it be addressed
not only on the
question of sentence but on the question of conviction as well. After
the addresses both counsel conceded that
the verdict of "guilty
as charged" returned by the trial magistrate was umbiguous and
could not, therefore, be allowed
to stand.

The facts
disclosed by the evidence of the complainant, Mosala Nkone Molatsoli,
were briefly that, on the morning of 10th May 1999,
he was driving
his vehicle along the Main North 1 public road in the direction from
Khubetsoana towards lakeside or the center
of Maseru City. As he

5

approached
the M.M. Security building next to a "T junction of the road
leading from Maqalika dam or the Agric farm, the appellant's
taxi
entered into the main road, without stopping at the "T"
junction. In the process, the appellant's taxi crushed into
his
vehicle before traversing across the road and ploughing into the
fence on the left side of the main North 1 public road, as
one
travelled from the direction of Khubetsoana towards lakeside.

According
to him, the complainant sustained injuries as a result of the
collision. He was rushed, for medical treatment, to Queen
Elizabeth
II hospital where he was admitted and hospitalized for five (5) days.

Tpr.
Moalosi testified as P.W.2 and told the court that on the day in
question, 10th May 1999, he was on duty at ha Mabote Police
Station,
here in Maseru, when he received a certain information. Following the
information, he proceeded to the scene of accident.
On arrival, he
found the taxi AK193 and vehicle D2350 which were involved in a
collision. His enquiries revealed that the appellant
was the driver
of the taxi AK193, whilst the driver of vehicle D2350 was the
complainant who had already been rushed to the hospital
for medical
treatment of the injuries he had sustained, as a result of the
collision.

According
to him, Tpr. Moalosi then proceeded to inspect the scene of accident.
At the time of inspection, he took down notes from
which he
subsequently prepared a sketch plan. The sketch plan was handed in as
exh. "A" and part of his evidence.

6

According
to exh. "A", vehicle D2350 had been travelling on its
correct lane of the road, along the main North 1 public
road, in the
direction from Khubetsoana towards lakeside, when taxi AK 193 entered
into the public road, from a "T" junction
of the road
leading from Maqalika dam or the Agric farm, without stopping at the
"T" junction. As it did so, taxi AK193
collided with
vehicle D2350 before traversing across the public road and plunging
into the fence of the M.M. Security premises,
on the left side of the
main public road as one travelled in the direction towards lakeside
or the center of the Maseru City. The
road where the accident had
occurred was tarred and straight; and the weather was a bright
sun-shine. There was, therefore, nothing
to obscure the vision of the
appellant. The inspection of the two vehicles revealed that the
brakes of taxi AK 193 were not functioning.
It had its front and rear
bumbers damaged. Vehicle D2350 had its driver's door, grill,
windscreen and bumber damaged.

In his
defence, the appellant testified from the witness box and, in a
nutshell, told the court that his taxi AK193 had, indeed,
collided
with the complainant's vehicle D2350, in the manner described by the
crown witnesses. However, that was an accident and
he had no
intention to cause the collision. Under cross-examination, the
appellant told the court that, at the time of the collision
he had
been travelling at the speed of 50km an hour and going up-hill.

There was
evidence, which was not disputed, that the appellant's taxi AK193 had
faulty brakes. It was his duty to see to it that
the brakes of his
taxi were in good conditions whilst operating it on public roads. He
failed to do so and, as a result, was unable
to control his taxi in
time to avoid collision

7

with
another vehicle which was travelling on its correct lane of the road.
Furthermore there was undisputed evidence, adduced by
the appellant,
that when the accident occurred he had been driving his vehicle at
the speed of 50 km hour. In his judgment the
trial magistrate found
that the cause of the accident was because the appellant had been
driving at an excessive speed and, therefore,
recklessly.

I was
unable to agree that driving a vehicle at the speed of 50km an hour
was driving it at an excessive speed or recklessly. In
my view, the
appellant was, at the most, driving his vehicle negligently in that
he operated it on the public road whilst it had
faulty brakes.
Consequently, 1 set aside the verdict of "guilty as charged"
returned by the trial magistrate and substituted
it by that of
"guilty of negligent driving."

In
sentencing him the trial magistrate said he had taken into account
the fact that the appellant had no record of previous convictions.
He
was, therefore, a first offender, the trial magistrate also took into
consideration all the factors to which the appellant had
invited the
court to take into account, in mitigation of his punishment.
Notwithstanding the factors which were taken into consideration
for
the benefit of the appellant, the trial magistrate deemed
contravention of section 90 (1) (4) of the Road Traffic Act, 1981
so
serious an offence that he sentenced him (appellant) to serve a term
of two (2) years imprisonment, with no option of a fine,
and made an
order that appellant's driving licence be suspended for two (2)
years.

It is to
be observed, however, that two (2) years imprisonment is the maximum
imprisonment penalty prescribed by Parliament where
a person

8

has been
convicted of reckless driving. Where the conviction is that of
negligent driving, Parliament has prescribed a maximum imprisonment

penalty of one (1) year. In the instant case, the verdict returned by
the trial magistrate has been set aside and substituted by
that of
guilty of negligent driving. The sentence imposed by the trial
magistrate has likewise been set aside and substituted by
that of one
(1) year imprisonment, I was not prepared to interfere with the order
of suspension made by the trial magistrate.

In the
result, the appeal was dismissed.

B.K.
MOLAI

JUDGE

4/12/03

Mr.
Mafantiri : For Appellant

Miss
Makoko : For Respondent