adminVulindlela Ndlovu (30), of No 56 Gladstone Road, Bellevue, had pleaded not guilty to three counts of culpable homicide but was last Friday convicted by senior Bulawayo provincial magistrate Mrs Thobekile Mkhosana-Matibe.
Half his sentence was suspended for five years on condition that he does not within that period commit a similar offence.
The court further prohibited him from driving any class of motor vehicle for the next two years.
Ndlovu breathed a sigh of relief when his lawyer, Mr Brighton Ndove of Marondedze, Mukuku, Ndove and Partners successfully applied for bail pending appeal.
Mrs Mkhosana-Matibe granted him $100 bail and ordered him to surrender his passport to the Clerk of Court.
In his Notice of Appeal, Ndlovu through Mr Ndove, is arguing that the trial magistrate erred in finding that the motor vehicle that he was driving swerved from side to side due to excessive speed as this was not proved beyond a reasonable doubt.
He further argued that the magistrate misdirected herself in failing to appreciate the fact that the sole cause of the accident and the resultant death of the trio was an encroaching vehicle and not as result of excessive speed, failure to keep the vehicle under proper control and not a failure to stop or act reasonably when an accident seemed imminent.
Mr Ndove argued that in sentencing the appellant, the magistrate overlooked that an encroaching vehicle disturbed his client’s driving and that when he applied breaks, he swerved to the left to avoid colling with the other vehicle.
“The court completely ignored to consider community service as an appropriate sentence despite guidelines from superior courts for her to do so everytime a court considers a custodial sentence below 24 months,” he argued.
It is their contention that a superior court can set aside the conviction or alternatively impose a non-custodial sentence.
The prosecutor, Mrs Grace Zhou told the court that on 2 May 2009, at around 5:15pm, Ndlovu was driving along Matopos Road heading north into the city.
When he was approaching the intersection of 15th Avenue, his vehicle started swerving from side to side due to speeding and as a result his vehicle veered off the road and rammed into a group of people injuring several of them and killing three.
The particulars of negligence that were proved by the State are that Ndlovu was travelling at a speed which was excessive, failed to keep his vehicle under proper control and that he failed to stop or act reasonably when an accident seemed imminent.
Online Reporter