THE High Court has set aside conviction and sentence
against Bulawayo City Council (BCC) which was fined $600 for culpable homicide
after a boy from Magwegwe suburb was electrocuted while standing near a street
tower light.
The ruling by Bulawayo High Court judge Justice Martin
Makonese, who was sitting with Justice Maxwell Takuva during a criminal appeals
court, follows an application by BCC challenging its conviction and sentence by
Bulawayo magistrate Ms Gladmore Mushove.
In papers before the court, BCC through its lawyers Coghlan
and Welsh Legal Practitioners, is the appellant while the State represented by
Mr Khumbulani Ndlovu of the National Prosecuting Authority (NPA) was cited as a
respondent.
BCC, which was represented by its electro-mechanical
engineer Mr Mente Ndlovu, was last year convicted of culpable homicide by Ms
Mushove and fined $600. This was after a boy from Magwegwe suburb was in
December 2013 electrocuted to death after he touched a live power cable while
standing near a BCC tower light at Induba playground.
Justice Makonese ruled that BCC could not be held liable
for the death of the boy, arguing that there was an act of negligence on the
part of the deceased which led to his death.
“The appellant was not the sole cause of the deceased’s
death. It can’t be disputed that the Zimbabwe Electricity Transmission and
Distribution Company (ZETDC) had no role at all in ensuring that electricity
supply is safely distributed. In the result, it is this court’s view that the
conviction and sentence cannot be sustained. Accordingly, it is ordered that
the appeal succeeds and conviction and sentence are set aside,” ruled the
judge.
According to papers before the court on December 5, 2013,
Shepherd Mgcini Mpala of Magwegwe suburb went to Induba playground in Iminyela
suburb to play a social soccer match with his friends.
After his team had been knocked out of the tournament, he
decided to stand near a tower light to watch the game.
He was electrocuted after he got in contact with a live
power cable at a tower light close to Induba football pitch.
In its heads of argument, BCC through its lawyer Mr Norman
Mangena, said the lower court erred and misdirected itself by convicting the appellant,
arguing that there was no basis of attributing negligence and consequently
culpable homicide to the council. “It is submitted that, in its judgment, the
court a quo actually acknowledged the issue of vandalism hence negligence could
not in the circumstances be attributed to the appellant who was not responsible
for vandalism. The magistrate erred by concluding that the appellant was
negligent on the basis of the evidence given, which clearly showed the
deceased’s own contribution to his fate through holding to and swinging on the
cable, as well as the vandalism of the same cable, was wrong,” argued Mr
Mangena.
The State did not oppose the application. Chronicle
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