IN THE HIGH COURT OF LESOTHO
In the Appeal of:
SELLO KHATI APPELLANT
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.
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:
"The learned magistrate erred and or misdirected himself by conducting the proceedings as if the plea was one of guilty.
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.
The learned magistrate erred and or misdirected himself by not taking mitigating factors in favour of accused.
The sentence is too harsh and hence induces a sense of shock.
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
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.
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.
(4) A person (guilty) of an offence under subsection (1) is
(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
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.
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
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
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.
Mr. Mafantiri : For Appellant
Miss Makoko : For Respondent