IN THE
HIGH COURT OF LESOTHO

In the
Matter Between:

REX

V

LEHLOHONOLO
LEBONE

Review
Case No. 180/04 CR 1416/2004 (Maseru)

Review
Order No. 19/04

REVIEW
ORDER

DELIVERED
BYTHE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 22nd SEPTEMBER, 2004

It is not
competent for the court to impose the severer sentence than the one
stipulated by the statute.

This
matter has been forwarded to this court for an automatic review in
terms of Section 66 of the Subordinate Court Act 58 of 1958
as
amended.

1

This
accused was charged with the crime of CULPABLE HOMICIDE and
alternatively with CONTRAVENTION OF SECTION 90 (l)(4)(a) and (b)
of
ROAD TRAFFIC ACT NO.8 OF 1981. The charge as appears on the charge
sheet reads as follows:-

Annexure
"A"

"
That the said accused is charged with a crime of culpable homicide.

In that
upon or about the 23rd January, 2003 at or near ha 'Nelese along Main
South I public road in the district of Maseru, the
said accused did
unlawfully drive motor vehicle AF 202 recklessly or negligently on
the said public road and as a result hit a
pedestrian and caused his
death to wit, one Maloisane Mohapeloa.

Alternatively

That the
said accused is guilty of contravening the Provisions of section
90(l)(4)(a)(b) of Road Traffic Act No.8 of 1980. In that
upon or
about the 23rd January, 2003 and at or near ha "Nelese along
Main North I public road in the district of Maseru the
said accused
did unlawfully drive motor vehicle AF 202 recklessly or negligently
on the said public road and

2

as a
result knocked down a pedestrian to wit, one Maloisane Mohapeloa and
thus the said accused did commit an offence as aforesaid".

The
accused pleaded guilty to the alternative charge. The public
prosecutor accepted the plea which the court accordingly recorded.

FACTS

The
statement of the agreed facts by the parties disclosed the following
factors. On the date and at 8.30 a.m. and at the place
of the scene
of the alleged crime, the accused was driving a motor vehicle
registration number AF 202. This motor vehicle was a
taxi. He was
driving along the Main South I - from Maseru to Roma.

The
accused was driving his motor vehicle behind other South bound motor
vehicles. When this amount of traffic was at Ha 'Nelese
the accused
proceeded to overtake the taxi infront of the taxi he was driving. He
proceeded to travel on the left hand side of
the motor vehicle that
he was overtaking. This is illegal because it is not permitted by the
law to overtake the vehicle in front
of you on the left hand side. As
a result of this illegal maneuver the motor vehicle which the accused
drove was now traveling
near the edge or outside the road. The
deceased is the pedestrian who at that time was pushing the
wheelbarrow as he walked outside
the road. The accused with his motor
vehicle traveling in that fashion hit and killed this pedestrian.

3

This
pedestrian at the time he was hit by the motor vehicle driven by this
accused was two (2) paces from the road where the motor
vehicles
should be, and were traveling except the accused's motor vehicle. The
accused picked up this pedestrian even though he
appeared dead and
rushed him to the hospital where he was definitely pronounced dead by
the medical doctor.

The
police officer who had been called to attend to that accident scene
made a sketch map of that scene. After investigating the
matter the
officer cautioned and charged the accused accordingly. The sketch map
of the accident scene was read and produced before
the court by the
consent of the accused.

MEDICAL
EVIDENCE

The
postmortem examination report was read and produced before the court
also by consent of the parties. The cause of death of the
deceased
was due to intracranial and nitrabodminal haemorrhage.

SENTENCE

The
accused was properly convicted as pleaded in accordance with these
facts. The problem arose as regards sentence. He was sentenced
to pay
a fine of M3000.00 or failing which to go to prison for a period of
three years.

4

The
sentence stipulated in sub-section (4)(b) is as follows: The person
found guilty of driving negligently under Subsection (1)
is liable to
be sentenced as :-

"90 (1) (4) (b) in the case of the court finding that the
offence was committed by driving negligently, to M1000 and 1 year

imprisonment"

In the
present case the sentence imposed exceeds the maximum penalty
provided for by the statute under which the accused was convicted.

The Magistrate's discretion in sentencing where the parliament in its
wisdom has seen it fit to temper with that discretion, must
be
exercised within the four walls of the statute which makes provision
for the penalties to be imposed when there has been a contravention

of that statute. The accused was convicted of Contravening Section
(90)(l) as read with Subsection (4) (b) ROAD TRAFFIC ACT 1981.
In
terms of this statute where the court finds that the offence was
committed by driving negligently the accused person must be
sentenced
to a fine of M1000.00 Maloti or one year imprisonment. The court
cannot impose a more severe sentence than the one provided
for by the
statute. It is not competent for the court to go beyond the powers
set out in the statute.

5

There are
always reasons why the court imposes a severe or lenient sentence.
The court is moved to adopt the lenient or harsh treatment
of the
accused by the factors which are presented before it. So far the
factors which appear on record for sentencing are the accused

person's appeals for leniency. The accused made serious allegations
about his treatment of the family of the deceased.

The
accused lied when in mitigation of his sentence, he told the court
that he assisted the deceased person's family with the burial

expenses. This was denied by the family which was in fact annoyed by
this false allegation.

When the
accused was asked by the court to explain his reason for lying, when
it became apparent that he did not help the family
of the deceased as
he alleges, he could not explain. The Magistrate was, in my view,
correctly annoyed by the accused person's
attempt to hood wink her.
The Magistrate was again correct by showing her displeasure at such
an attempt to improperly influencing
her by imposing a severe
sentence. The only problem with the sentence imposed is that it
exceeds the sentence stipulated by the
statute which makes provision
for the punishment of the accused who is convicted of negligent
driving.

6

Had the
parliament not interfered with the exercise of the discretionary
powers of the court in this circumstances the attitude
adopted by the
Magistrate would be wholly justified.

The
Law-maker-in the form of the Parliament had seen it fit to restrict
the discretionary powers of the court. Therefore the court
is obliged
to exercise it discretion within the four walls of the statute. The
statute provides an appropriate sentence in the
case where the court
finds that the offence was committed by driving negligently. The
court must apply the statute fully, in its
totality.

Review
Order

Section
69 subsection (2) (a) Subordinate Court Act 58 of 1938 empowers the
reviewing officer to: "(a) alter or reverse the
conviction or
reduce or vary the sentence of the court which imposed the punishment
" THEREFORE TOE SENTENCE IS ALTERED TO
TOE ONE SET OUT IN
SUBSECTION (4) (b) TOE ACCUSED IS SENTENCED TO M1000.00 OR 1 YEAR
IMPRISONMENT.

7

KJ. GUNI

JUDGE

CC. The
Chief Magistrates.

The Magistrates - Maseru.

O/C Police-Maseru.

O/C Prisons - Maseru.

CID Headquarters - Maseru.

Director of Public Prosecutions.

Director of Prisons.

8