CRI/A/43/87
IN THE HIGH COURT OF LESOTHO
In the Appeal of:
WILSON HLEHLETHE Appellant
V
R E X Respondent
JUDGMENT
Delivered by the Hon. Sir Peter Allen on the 20th day of August, 1987
The 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 and his driving licence was suspended for six months. He paid the fine and he has appealed against the sentence only.
The 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 Ha Molemane 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
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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 A8954 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 or about the 18th June 1986 and at or along North I public road near Ha Molemane in Berea District the said accused did wrongfully and unlawfully drive a motor vehicle D1608 upon the said public road negligently/or recklessly and as a result did collide with a motor vehicle A8954 and thereby did injure one Tsuelle Albert and Thabo Morahanye passengers, therein.
Thus, the 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).
The second count is similar to the alternative count (above) but it concerns the injuries to the two passengers.
When the plea was taken in the lower court the appellant was not prepared to admit culpable homicide, but he pleaded guilty to the much lesser 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.
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On 18 June 1986 the deceased Taeli was driving a motor car No. A8954 which belonged to Barclays Bank. He was returning from TY to Maseru having 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.
At around 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 collided.
The driver and both escorts in the car were all injured. The driver died of his injuries in hospital two weeks later. The soldier broke his left thigh bone and the policeman had head and hand injuries. The bank car was very badly damaged.
The appellant was represented by Mr. Maqutu in this appeal and in the lower court. At first the prosecution facts were disputed before the 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.
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I do not know why the defence disputed this point since there would most probably not have been any collision if the vehicles were on their correct sides of the road at the time. I am satisfied that the facts were as stated by the prosecution.
In both the lower court and here on appeal against sentence Mr.' Maqutu submitted that the appellant's driving was merely negligent rather than reckless and that he was not guilty of culpable homicide. Mr. Maqutu added that the resultant death of the driver should not be emphasised otherwise the verdict should have been culpable homicide. He,further submitted that the fine 'of M400 was so harsh and excessive that it induced a sense of shock and that this Court should intervene and reduce it. The Crown supported the sentence as it stands.
Having 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.
The fact that the appellant was convicted of negligent driving does not reduce his responsibility for the other man's death. , The magistrate properly considered it and he added this:
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" This cannot be taken lightly, but public rood users should be sure that they do the right thing at the right time. Other people's lives should not be destroyed and then let the accused leave the court with a minor fine, to rejoice his glory of using the public (road) as if it was his road own private road and killing people like pests."
Mr. 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.
The appellant overtook another lorry on a blind bend thus blocking the whole road. Any driver, of even slight experience, knows the terrible danger to others of doing this sort of thing. Such a driver is a complete menace on the road because he shows an utterly selfish disregard for the safety of others. .
I am surprised that the appellant appealed against a mere fine which, in my view, was inadequate and far too lenient a punishment.
In a review order which I made in March this year, R v Moorosi, Review Order No. 11/87, the facts were very similar. The accused overtook another vehicle and collided with an approaching vehicle resulting in three deaths and several injuries. He was properly convicted of culpable homicide and yet fined only M200 or 9 months imprisonment. I found the sentence much too lenient in the circumstances and I quashed the fine and left the imprisonment to stand as the only appropriate sentence.
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In that 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 of other road users or of his passengers, or with a degree of recklessness."
In Moorosi's case I held that, because of the deaths caused by his driving, a custodial sentence was more appropriate than a fine. I am still of that opinion in cases of this type.
It is true that Moorosi was convicted of culpable homicide whereas this appellant has been fortunate enough to be convicted only of negligent 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.
The actual fine of only M400 was, as I have said, much too lenient and the appellant should have been advised not to appeal against it but, 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.
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Finally, I must consider an important matter concerning this sentence which neither party has referred to in Court. The appellant was convicted on two counts on the charge sheet and so it was a necessary requirement that he be sentenced separately on each count. Instead of 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."
Thus there was only one sentence for two convictions. This is called an omnibus sentence and it is completely unlawful. There must always be a separate sentence for each count on which a conviction is recorded.
The magistrate clearly and mistakenly intended the sentence to cover both offences so I shall not add anything to it. But the error in the 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.
P.A.P.J. ALLEN
JUDGE
20th August, 1987
Mr. Maqutu for the Appellant
Mr. Mdhluli for the Crown
