Monyane v R (CRI/A 20 of 2000) [2000] LSCA 151 (28 December 2000)

CRI/A/20/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: S E M A NO M O N Y A NE Appellant vs R EX Respondent J U D G M E NT Delivered by the H o n o u r a b le M rs Justice K J G u ni on the 28th D e c e m b e r, 2 0 00 This matter c a me before me as an appeal against conviction a nd sentence, passed by T he M a s e ru Magistrate's Court. This appeal w as heard on 20th N o v e m b e r, 2 0 0 0. T he appeal succeeded a nd w as allowed. I then indicated that the reasons w o u ld be given later. T h e se are the reasons: T he accused w as charged with the crime of Contravening Section 90(1) of R O AD T R A F F IC A CT N 0 .8 of 1981. In that the said accused operated or drove a motor vehicle bearing Registration n u m b e rs A M 6 8 2, on the said public R o ad recklessly or negligently, as a result collided or k n o ck d o wn o ne Johannes Lelimo, a pedestrian and did c o m m it the crime as aforesaid. T he accused pleaded guilty and w as found guilty as charged and sentenced to (12) twelve m o n t hs imprisonment without an option of a fine. T he statement of agreed facts as appears on the record is as follows:- T he complainant w o u ld s h ow that on the day in question, he w as at Lekhaloaneng, from w o rk at about 7.30pm. He w as going to U P P ER T H A M AE w h e re he stays. He crossed the road after getting off the taxi. This taxi w as from Lithabaneng direction. He then noticed a taxi which c a me from t o wn and going towards Lithabaneng. This taxi w as driven at the high speed. T he complainant w as at the edge of the road. T he taxi knocked. T he accused immediately took the complainant and w e nt to Pitso G r o u nd Police Station. T h ey reported the matter to the police. T he police g a ve the complainant a m e d i c al f o rm referring h im to the hospital for m e d i c al attention. T he c o m p l a i n a nt w as e x a m i n ed by the D o c t or w ho reduced his findings into writing. T h e se are the entire facts of this case. T h e re are no particulars of negligence or recklessness alleged in the charge. T he trial court should h a ve b e en g u i d ed by its consideration of Section 90 (2), (3) a nd (4) of R O AD T R A F F IC A CT 1 9 81 w h i ch reads as follows:- "(2) Without restricting the ordinary meaning of the word "recklessly", any person w ho drives a vehicle in wilful or wanton disregarded for the safety of persons or property is deemed to drive that vehicle recklessly. (3) In considering whether an offence has been committed under subsection (1), the court shall have regard to all the circumstances of the case including but without prejudice to the generality of the foregoing the nature, conditions and use of the public road upon which the offence is alleged to have been committed, the amount of traffic which at the time actually w as or which could reasonably have been expected to be upon that road and the speed at and the manner in which the vehicle was driven. (4) A person [convicted] of an offence under subsection (1) is liable (a) in case of the court finding that the offence w as committed by driving recklessly to M 2 0 00 and 2 years imprisonment; or (b) in the case of the court finding that the offence w as committed by driving negligently, to M 1 0 00 and 1 year imprisonment. In the charge the section creating the offence m u st h a ve b e en read with the section providing the penalty for c o m m i t t i ng that offence. In our present case, the penalty section w as left out of the charge altogether. T h at is irregular. T he proper formulation of the charge in the present case, should h a ve included "Contravention of Section 90(1) R o ad Traffic A ct 1981 as read with sub-section (4) of the s a me A c t" Sub-section (2) has described the m e a n i ng of the w o rd "recklessly". T he driving of the m o t or vehicle by the accused, should h a ve been s h o w n, in the facts, as in the m a n n er described within the m e a n i ng of the w o rd "recklessly". In terms of sub- section (3) the court is obliged to have regard to all circumstances of the case, including :- 1. T he nature of the road 2. T he condition of the road 3. T he use of the road 4. T he a m o u nt of traffic reasonably, expected to be on the road or 5. W as actually on the road at the time of the accident 6. T he speed at w h i ch the traffic m u st travel on that road and the speed the offending vehicle travelled at the time of the committal of the alleged offence. In considering whether or not the offence charged under Section 90 (1) R O AD T R A F F IC A CT 1981 w as actually committed, the court m u st bear in m i nd all the factors described in sub-section (3). In our present case, there are no facts alleged in order for the court to determine whether or not an offence has been committed. W h at speed w as the accused's m o t or vehicle travelling? H i gh speed. This is no answer. T he speed limit on that road is not mentioned. T he speed at w h i ch the accused's m o t or vehicle w as travelling cannot be satisfactorily described only as "high speed" T he speed limit on that road should have b e en s h o w n. T he speed at w h i ch the accused's m o t or vehicle w as travelling at the time of the accident m u st also be s h o w n. It is only the comparison b e t w e en the speed limit on the road and the speed at w h i ch the accused's m o t or vehicle together with the a m o u nt of traffic there at the time that a definite determination of the m a n n er in w h i ch the accused drove his m o t or vehicle can be m a d e. There m u st be facts w h i ch s h ow the court that the accused drove his motor vehicle wilfully or wantonly in total disregard of the safely of other users of the road. This conclusion cannot be reached without the facts. T he plea of guilty by itself does not specify nor describe the alleged recklessness or negligence. In n u m e r o us cases w h i ch c o me before this court, on review, it has b e en persistently pointed out that the public prosecutors, must, in outlining the facts of the case, w h e re an accused has pleaded guilty to the charge, put before court, all the facts w h i ch undoubtedly disclose the c o m m i s s i on of the offence charged. R ex v M O L I K E NG R E V I EW O R D ER N o .6 of 1986, R ex v T A N K I SO P I T SO R E V I EW O R D ER No 17 or 1986, Rex v M O E K E T SI R A J O A NE R E V I EW O R D ER No. 21 of 1986. Without there being facts which describe the manner of recklessness or negligence of the accused, the conviction is unsupportable. There is a further irregularity where an accused who is charged with two offences, one in the alternative of the other, is found guilty as charged. The accused's plea of guilty must be to one or the other of the two alternatives. It cannot be to both. In terms of sub-section (4)(a) and (b) it is very clear that driving recklessly is a different and separate offence from driving negligently. There is a different and separate penalty for driving recklessly under sub-section 4(a). There is another separate penalty under sub-section 4(b) for driving negligently. Therefore the accused cannot be properly found guilty as charged in this circumstances. The trial court should have specified exactly what the accused is found guilty of between driving recklessly or driving negligently. Rex v SECHABA QATU 1991- 1996 LLR page 1332. The accused was wrongly convicted. It is for these reasons that the conviction was quashed. S E N T E N CE T h e re are no reasons given for sentence. T he learned magistrate h as failed to s h ow the factors if any, w h i ch influenced h im to pass the type of sentence that he i m p o s ed u p on the accused. Sentencing of an accused is discretionary, up to the limit that is i m p o s ed by the statute in this particular case Section 90 (4) R O AD T R A F F IC A CT 1 9 8 1. T he learned magistrate w as obliged to find the accused guilty of o ne or the other of the t wo alternative charges. In the exercise of his discretion the learned magistrate should h a ve followed the dictates of Section 90 ( 4) (a) or (b) d e p e n d i ng on the t y pe of the offence the accused is convicted of. H ad the accused b e en f o u nd guilty of reckless driving, the m a x i m um penalty in t e r ms of 90 (4) (a) should h a ve b e en M 2 0 00 or 2 years I m p r i s o n m e n t. H ad the accused b e en f o u nd guilty of driving negligently, the m a x i m um penalty should h a ve b e en either M 1 0 00 or 1 year I m p r i s o n m e n t. H ow the learned magistrate c a me about with the sentence of ( 1 2) twelve m o n t hs t e rm of i m p r i s o n m e nt without an option of a fine is a total mystery, b e c a u se the learned magistrate g a ve no reasons for the said sentence. It is of p a r a m o u nt importance that the accused is informed by the court w hy the particular penalty is f o u nd to be appropriate in his or her case. M A T H A BO M O J E LA v R ex 1 9 77 L LR at 3 2 4. T he learned magistrate m u st h a ve b e en influenced by certain a nd particular considerations to pass the type of sentence w h i ch he i m p o s ed u p on this accused. W hy then d o es the learned magistrate d e ny the accused to k n ow those reasons? He h as a right to k n o w. W i t h o ut the reasons the sentence is unsupported a nd m u st be set aside. K J. G u ni J U D GE 20th N o v e m b e r, 2 0 00 M r. Nchela for: M r. H o e a ne for: Respondent Appellant