IN THE HIGH COURT OF LESOTHO
In the matter between:
REASONS FOR JUDGEMENT
On 12th February 2001 I disposed of this appeal and intimated that reasons would be filed in due course. These now follow.
On 3rd January 2000 the appellant appeared before the Maseru Subordinate Court of the Senior Resident Magistrate charged with the offence of contravening section 90 (1) of the Road Traffic Act 1981, it being alleged that on or about 5th August 1999 and at or near Lithabaneng in the district of Maseru, he unlawfully and recklessly drove a taxi with registration numbers
AC863 and as a result collided with another motor vehicle with registration numbers AN 170 driven by a certain Antwi Ransford.
When the charge was put to him, the appellant pleaded guilty. The Public Prosecutor accepted the plea of guilty tendered by the appellant and outlined the evidence he had in his possession.
The facts (these were admitted as correct by the appellant), disclosed by the evidence outlined by the prosecutor, were briefly that at about 8.00a.m. on 5th August 1999 the appellant was driving his taxi registration numbers AC 863, along the Main South 1 public road in the direction from the center of Maseru City towards Mafeteng whilst the complainant was at the same time driving his private motor vehicle with registration numbers An 170 in the opposite direction i.e. from the direction of Mafeteng to the center of Maseru City.
When he passed at a place called Lefikeng, in the area of Lithabaneng, the appellant noticed passengers who were waiting at a taxi stop on the other side of the road. They were waiting for taxis going towards the center of Maseru City from the direction of Mafeteng. The appellant immediately took
a "U" turn and proceeded to the stop on the other side of the road to pick up the passengers who were waiting there.
It maybe mentioned (hat the place, where the appellant was travelling at the time he noticed passengers waiting on the other side of the road, was a blind rise. The appellant could not, therefore, see the vehicles travelling in the opposite direction. Moreover, there was a road sign, on the side of the road, warning that a "U" turn was not allowed.
As the appellant was maneuvering the "U" turn and before he could reach the taxi stop on the other side of the road, the complainant's motor vehicle suddenly appeared from the blind rise and collided with his taxi. The traffic police subsequently came and attended the scene of accident. They, at the same time, took notes from which they prepared a sketch plan - exhibit "A".
According to exhibit "A", the road where the collision occurred was tarred, straight and going uphill. The weather was a bright sunshine. There were skid marks indicating that the complainant, who was going down hill, had applied the brakes of his motor vehicle for a distance of 26 paces before colliding with the appellant's taxi, on the left lane of the road, as one
travelled in the direction towards the center of the Maseru City. The appellant's taxi AC 863 had its rear left panel damaged whist the whole front panel of the complainant's motor vehicle AN 170 was damaged. After both the complainant and the appellant had given their explanations on how the accident had happened, the traffic police charged the latter as aforesaid.
In accordance with the provisions of section 240(1)(b) of the Criminal Procedure and Evidence Act, 1981, the trial magistrate considered the facts disclosed by the evidence, outlined by the public prosecutor, and returned a verdict of guilty as charged. A sentence of two (2) years imprisonment was imposed. The appeal was, on 11th January 2000, lodged against both the judgment and the sentence.
It is significant to observe that at the time he turned his taxi to the right and proceeded towards the taxi stop, on the other side of the road, the appellant was, according to the evidence, going uphill and approaching a blind rise. There was no suggestion that the appellant took a right turn, well aware that he was doing so in the face of other traffic going from the opposite direction and did not, therefore, care whether or not the accident occurred. The appellant, in my view, drove his taxi negligently in that he took a right turn
at the time he approached a blind rise and could not, therefore, see or know whether or not there were other vehicles approaching the blind rise from the opposite direction. Assuming the correctness of my view, the appellant was negligent but not reckless in his driving. That being so, he ought to have been convicted of negligent driving instead of reckless driving. However, at the time this appeal came for hearing, I was told that the appeal against the judgment was being abandoned and only the appeal against the sentence was being pursued. I could not, therefore, deal with the appeal against the judgment.
As regard the sentence, the trial court was told that the appellant had no record of previous convictions. He was, therefore, a first offender. In addressing the trial court, in mitigation of his punishment, the appellant told the court that:
"The taxi job puts us in trouble, when you see passengers you turn right there. If you don't you won't do any work for the day. Our employers don't like that."
It was argued, before this court, that in sentencing the appellant to serve a term of two (2) years imprisonment, as he did, the trial magistrate did not take into account the factor, which the court was invited to consider in mitigation of punishment, namely that the appellant had no previous convictions and was, therefore, a first offender.
The trial magistrate's reasons for sentence were very brief. I can do no better than quote them in full:
"Road accidents especially by taxi drivers are a menace to this nation. The carnage that is caused by this sort of driving has to come to an end.
Sentence: 2 years imprisonment."
It is important to observe that in his reasons for sentence the trial magistrate made no mention that, in imposing the punishment that he meted out to the appellant, he took into account any factors to which the court was invited to consider, in mitigation of sentence. For that reason, I came to the conclusion that the argument that in sentencing the appellant to serve a term of two (2)
years imprisonment, as he did, the trial magistrate had not considered what had been said in mitigation of punishment, was well taken. In fairness to her, the crown counsel also submitted that the present case was a proper case where the court could interfere with the sentence imposed by the trial magistrate and give a lenient sentence.
The sentence of two (2) years imprisonment imposed by the trial magistrate was accordingly set aside, on appeal, and substituted by the sentence of one-year imprisonment.
22nd December 2003
For Appellant : Mr Matooane
For Respondent : Miss Makoko