HIGH COURT OF LESOTHO
R E X
by the Hon. Sir Peter Allen on the 20th day of August, 1987
appellant lorry driver was convicted on two counts of traffic
offences on his own plea on 28 October 1986 by a magistrate first
class at Teyateyaneng in Berea District. The appellant was sentenced
to a fine of M400 or in default, imprisonment for 15 months
driving licence was suspended for six months. He paid the fine and he
has appealed against the sentence only.
charge sheet shows the appellant as being 45 years old. The three
counts are as follows:-
" Count 1 - The said accused is charged with a crime of culpable
homicide. In that upon or about 18th June 1986 at or near
in Berea District the said accused (did) unlawfully drive a motor
vehicle D1608 negligently and killed one Ts'eliso
Taeli being a
passenger in a vehicle to wit A8954. Alternatively - The said accused
is charged with an offence of contravening
Section 90(1) of Road
Traffic Act No.8 of 1981. In that upon or about
the 18th June 1986 at or along North 1 Public Road near Ha Molemane
in Berea District the said accused did wrongfully and unlawfully
drive a motor vehicle D1608 negligently or recklessly upon the said
public road and as a result did collide with a motor vehicle
and then killed one Ts'eliso Taeli a passenger therein.
Count 2 - The said accused is charged with an offence of contravening
Section 90(1) of Road Traffic Act No.8 of 1981. In that upon
the 18th June 1986 and at or along North I public road near Ha
Molemane in Berea District the said accused did wrongfully
unlawfully drive a motor vehicle D1608 upon the said public road
negligently/or recklessly and as a result did collide with
vehicle A8954 and thereby did injure one Tsuelle Albert and Thabo
Morahanye passengers, therein.
first count, of culpable homicide, was the most serious of the three.
Inside the alternative count, under 5.90(1), there
is a further
alternative of either reckless driving or negligent driving. Reckless
driving is by the far the more serious of the
two and it carries a
maximum sentence under S.90(4)(a) of a fine of M2,000 or 2 years
imprionment; whereas the maximum sentence
for negligent driving is a
fine of M1,000 or 1 year imprisonment under S. 90(4)(b).
second count is similar to the alternative count (above) but it
concerns the injuries to the two passengers.
plea was taken in the lower court the appellant was not prepared to
admit culpable homicide, but he pleaded guilty to the
offence of negligent driving in the alternative count. In count 2 he
also pleaded guilty to negligent driving. The
prosecutor accepted the
pleas and gave the court the facts.
June 1986 the deceased Taeli was driving a motor car No. A8954 which
belonged to Barclays Bank. He was returning from TY to
conveyed money to the bank branch at TY. His escorts in the car were
Private Tsuelle of the R.L.D.F. and Trooper
Morahanye of the R.L.M.P.
1.30 p.m. the car was being driven at some speed on the road known as
North I. When it was near St. Agnes, where there
is a sharp curve in
the road, it met two large lorries approaching from the other
direction. The second lorry was D1608 driven
by the appellant who
started to overtake the front lorry while they were both still on the
curve. When the bank car reached them
the two lorries were side by
side and there was no space left on the road.. The car driver applied
his brakes but the car and lorry
driver and both escorts in the car were all injured. The driver died
of his injuries in hospital two weeks later. The soldier
left thigh bone and the policeman had head and hand injuries. The
bank car was very badly damaged.
appellant was represented by Mr. Maqutu in this appeal and in the
lower court. At first the prosecution facts were disputed
magistrate on the ground that the appellant's lorry had overtaken the
other lorry and had then returned to its own side
of the road by the
time the collision occurred. So the two passengers were called to
testify. Private Tsuelle stated that the lorries
were in fact side by
side at the time of the collision and Tpr. Morahanye confirmed this.
I do not
know why the defence disputed this point since there would most
probably not have been any collision if the vehicles were
correct sides of the road at the time. I am satisfied that the facts
were as stated by the prosecution.
the lower court and here on appeal against sentence Mr.' Maqutu
submitted that the appellant's driving was merely negligent
than reckless and that he was not guilty of culpable homicide. Mr.
Maqutu added that the resultant death of the driver should
emphasised otherwise the verdict should have been culpable homicide.
He,further submitted that the fine 'of M400 was so
excessive that it induced a sense of shock and that this Court should
intervene and reduce it. The Crown supported the
sentence as it
heard these arguments of Mr. Maqutu, 1 can only say that 1 completely
disagree with all of them. In my opinion the prosecutor
was wrong to
have accepted the appellant's pleas of guilt to the lesser offences;
The appellant, by his appallingly thoughtless
and dangerous driving,
caused the death of another man and serious in-juries to two others.
There is no excuse for such behaviour
and there is no way in which
the court can or should forget the consequences of his actions. They
must be taken into consideration.
that the appellant was convicted of negligent driving does not reduce
his responsibility for the other man's death. , The
properly considered it and he added this:
" This cannot be taken lightly, but public rood users should be
sure that they do the right thing at the right time. Other
lives should not be destroyed and then let the accused leave the
court with a minor fine, to rejoice his glory of using
(road) as if it was his road own private road and killing people like
Maqutu objected to this and submitted that the magistrate had let his
righteous anger "becloud his judgment", to quote
Schrereiner J.A. in R v Marg 1961(1) S.A. 231. In my opinion the
magistrate was perfectly justified in expressing his righteous
anger in this case, and he did not go too far.
appellant overtook another lorry on a blind bend thus blocking the
whole road. Any driver, of even slight experience, knows
danger to others of doing this sort of thing. Such a driver is a
complete menace on the road because he shows an utterly
disregard for the safety of others. .
surprised that the appellant appealed against a mere fine which, in
my view, was inadequate and far too lenient a punishment.
review order which I made in March this year, R v Moorosi, Review
Order No. 11/87, the facts were very similar. The accused
another vehicle and collided with an approaching vehicle resulting in
three deaths and several injuries. He was properly
culpable homicide and yet fined only M200 or 9 months imprisonment. I
found the sentence much too lenient in the circumstances
quashed the fine and left the imprisonment to stand as the only
case I referred to the words of Lawton C.J. in R v Guilfoyle (1973)2
All ER 844, which I repeat here:
" Cases of this kind fall into two broad categories; first,
those in which the accident has arisen through momentary inattention
or mis judgment; and secondly those in which the accused has driven
in a manner which has shown a selfish disregard for the safety
other road users or of his passengers, or with a degree of
Moorosi's case I held that, because of the deaths caused by his
driving, a custodial sentence was more appropriate than a fine.
still of that opinion in cases of this type.
true that Moorosi was convicted of culpable homicide whereas this
appellant has been fortunate enough to be convicted only
driving, but the main difference between the offences and the effect
of them is in the maximum sentences involved.
The facts still have to
be taken into account and negligent driving may be considered to be
less or more serious according to the
consequences of that driving.
In this case it resulted in a death and so a prison sentence or, at
least, something like the maximum
fine of M1,000 should have been
considered, in my opinion.
actual fine of only M400 was, as I have said, much too lenient and
the appellant should have been advised not to appeal against
rather, he should have got down on his knees and thanked God for such
mercy. I certainly do not intend to reduce the sentence.
But I note
that the Crown has not asked for it to be enhanced.
I must consider an important matter concerning this sentence which
neither party has referred to in Court. The appellant
on two counts on the charge sheet and so it was a necessary
requirement that he be sentenced separately on each count.
doing this the magistrate recorded the following:
" Sentenced to M400 or 15 months; as this all happened at a
single instance, it is for both counts."
there was only one sentence for two convictions. This is called an
omnibus sentence and it is completely unlawful. There must
a separate sentence for each count on which a conviction is recorded.
magistrate clearly and mistakenly intended the sentence to cover both
offences so I shall not add anything to it. But the error
record must be corrected. Consequently the onmibus sentence is set
aside and I substitute for it first a fine of M400
or 15 months
imprisonment on the alternative count and secondly, a fine of
M400 or 15 months imprisonment on count 2. The
fines are to be
non-cumulative and the prison sentences are concurrent. Otherwise
this appeal is dismissed.
Maqutu for the Appellant
Mdhluli for the Crown
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