Online Reporter
Sunday Mail Reporter
The High Court has overturned the conviction and sentence of a Mt Darwin man who was accused of running over and killing a mechanic while repairing a broken-down truck in Westview suburb in July.
Justice Lucy Mungwaru, with the concurrence of Justice Gibson Mandaza, set aside the conviction of Tafadzwa Sande and ordered a retrial on charges of culpable homicide and driving without a licence before a different magistrate.
Sande had pleaded guilty to both charges when he appeared in the Mt Darwin Magistrates’ Court.
He was fined US$100, with a default sentence of one month’s imprisonment for driving without a licence.
Additionally, he was sentenced to 24 months’ imprisonment for culpable homicide, of which eight months were suspended on condition of good behaviour. The remaining sentence was commuted to community service.
The incident occurred on July 23, in Westview, Mt Darwin.
Sande and five other men, including the deceased mechanic, Kendros Dambaza, were working on a non-functional DAF truck.
At approximately 10.30am, Dambaza instructed Sande to start the truck’s engine.
Standing outside the vehicle, Sande turned on the ignition without entering the cab or checking his surroundings.
Unbeknownst to him, the truck was in gear. When the engine roared to life, the truck lurched forward, running over Dambaza, who was working underneath the vehicle.
He was crushed to death, leading to Sande’s arrest and subsequent conviction.
Upon review, Justice Mungwaru identified several procedural and legal errors in the trial, pointing out that the charge of driving without a licence was defective, as Sande never physically operated the vehicle.
“The charge preferred against the accused is that he drove such a vehicle without a licence when in reality he did not even get inside the motor vehicle,” reads the judgment.
“He did not have control of the steering apparatus of the car. He simply started the engine of the motor vehicle on the instruction of the mechanic, whilst standing outside the truck.”
Justice Mungwaru said failure to check the correctness of a charge by the trial magistrate amounted to a serious misdirection.
“It does not follow that anyone who causes a motor vehicle to move must possess a driver’s licence,” she said.
“If it were so, it would mean that even those who are requested to assist in push-starting a car would be liable to driving it without a driver’s licence.
“In this case, the accused never drove the motor vehicle. It was wrong for the trial magistrate to ask the accused whether he drove the car because driving, from the definition in the Act, is a technical term that ought to have been explained to him in simpler terms.
“Being a self-actor and unaware of what driving entailed he accepted that he had driven the vehicle when he clearly had not.”
Justice Mugwaru criticised the handling of the culpable homicide charge, stating that the trial magistrate did not thoroughly establish the specifics of Sande’s alleged negligence.
“The essential elements which comprise the particulars of negligence were never fully canvassed and with sufficient particularity,” she said.
“At the point of conviction, it is evident that the negligent conduct that the accused is supposed to have engaged in was not known.
“It appears that even the trial magistrate did not know. This could not, therefore, have been a proper plea of guilty.”
Justice Mungwaru highlighted significant procedural lapses, including the magistrate’s failure to maintain a proper record of proceedings. She noted that the trial magistrate mistakenly referenced unrelated circumstances involving a collision at a T-junction, which had no bearing on the case.
“In between the proceedings the trial magistrate mentioned that the particulars of negligence are that the accused failed to keep a proper lookout because he was speeding and rammed into another vehicle at a T- junction,” she said.
“Those pronouncements were totally unrelated to the proceedings at hand and the trial magistrate conceded to that error. Unfortunately, the damage had already been done.
“I need not overemphasise that a failure by a magistrate to keep a proper record of proceedings constitutes a misdirection.”
