CRI/A/10/85

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

MOLIKO
RAMOLAHLOANE

v.

REX

JUDGMENT.

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 12th day of August, 1985

The
appellant was charged before the Mohale's Hoek magistrate's court
with the offence of contravening section 90 (1) of the Road
Traffic
Act No.8 of 1981. It was alleged that on the 23rd July, 1983 and at
or near Tutulung in the district of Mohale's Hoek the
appellant
operated a motor vehicle No. F 0455 upon Mafeteng - Mohale's Hoek
road recklessly or negligently and as a result his
vehicle collided
and damaged another motor vehicle No DVR 490T. He was found guilty of
negligent driving and sentenced to R50-00
or three (3) months'
imprison­ment suspended for twelve (12) months on certain
conditions.

The Crown
evidence was to the effect that the complainant was driving his motor
vehicle Reg. No DVR 490T going in the direction
of Mohale's Hoek. He
was following another vehicle with Reg. No. OZ 219. The two vehicles
were still travelling on their correct
side of the road (the left
side) when they approached the top of a blind rise. All of a sudden
the appellants vehicle appeared
on the top of the rise travelling on
the wrong side of the road and coming straight towards vehicle OZ 219
The driver of OZ 219
flashed the headlights in an attempt to warn the
appellant that he was travelling on the wrong side of the road but
the appellant's
vehicle did not change its course. The driver of OZ
219 swerved to the right and managed to avoid a collision. The
complainant

2

was not
so lucky. He says that when OZ 291 suddenly swerved to two he thought
it was overtaking another vehicle but he immediately
saw that
appellant's vehicle was coming straight towards him He swerved to the
right but unfortunately the appellant also swerved
in that direction
and the two vehicles collided on the middle of the road.

The
appellant's version of what happened slightly differs from the
Crown's version. He told the trial Court that when he came to
the too
of the blind rise he met with vehicle OZ 219 and he noticed that it a
moving in a zigzag course. He swerved to the right
in order to avoid
head-on collision. Immediately after passing OZ 219 he suddenly saw
complainant's vehicle on its correct side
of the road. He swerved to
the left but unfortunately the complainant also swerved in that
direction and the two vehicles collided
on the left lane of the road.
One of the Crown witnesses, 'Malineo Marakabei (P.W.4) who was in the
vehicle crew by the appellant
confirmed the appellant's story that
the vehicle OZ 219 was zigzagging when they first saw it

In his
reasons for judgment the learned magistrate disbelieved too appellant
and found that he was travelling on the incorrect side
of the road
and that he was the sole cause of the collision. In R.v M., 1946 A.D.
1023 at p. 1027 Davis, A.J.A. put the criminal
standard of proof in
these words

"....... the court does not have to believe the

defence story, still less does it have to believe it in all its
details, it is sufficient if it thinks that there is a reasonable

possibility that it may be substantially true."

In the
present case the trial court has rejected the story of a defence and
yet one of the Crown witnesses corroborated the appallant
In his
judgment the learned magistrate does not say anything about an
evidence of P.W.4. By overlooking this piece of evidence
adouced by a

3

Crown,
which is favourable to the defence. I am of the view that the trial
court misdirected itself If the learned magistrate had
not completely
ignored that piece of evidence but had commented on the evidence and
the demeanour of P.W.4 and then disbelieved
her, it would be
difficult for me to set aside his findings of fact.

It seems
to me that the defence of the appellant was that commonly known as
sudden emergency created by a third party A man who,
by another's
want of care, finds himself in a position of imminent danger, cannot
be held guilty of negligence merely because in
that emergency he does
not act in the best way to avoid the danger (Boughey v Bredell, 1904
T S 394). In his reasons For judgment
the learned magistrate blames
the appellant for not turning to his correct side immediately after
passing the first vehicle. I
do not think that this is a fair
criticism because we do not know how far complainant's vehicle was
from OZ 219 All what we have
been told is that they were following
each other. The appellant said that immediately after passing the
first vehicle he saw the
complainant's vehicle and did what any
prudent driver would have done and swerved back to his correct side
of the road I cannot
blank him for having made that decision nor can
I blame the complainant for having decided to swerve to the right,
because at that
stage he was under the impression that the
approaching vehicle would remain on the incorrect side of the road
until collission
appeared imminent and inevitable He was therefore
justified to swerve to the right (Nell v Pitt, 1925 T P D. 178)

I have
come to the conclusion that the defence story may reasonably possibly
be true The appeal is allowed and the conviction and
sentence imposed
by the trial court are set aside

J L
KHEOLA

JUDGE

13th
August, 1985