HB 114-18 SIMON MICHAEL MVUTO versus THE STATE

SIMON MICHAEL MVUTO

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

MATHONSI AND TAKUVA JJ

BULAWAYO 14 MAY 2018 AND 17 MAY 2018

 

 

Criminal Appeal

 

 

S Chamunorwa for the appellant

T Muduma for the respondent

 

 

            MATHONSI J:          The appellant was charged with culpable homicide as defined in section 49 of the Criminal Law Code, [Chapter 9:23], the allegations being that on 30 September 2015 and at the 258km peg along the Bulawayo–Victoria Falls road, he had driven a Famaco haulage truck pulling two trailers, unlawfully and negligently thereby causing the death of four passengers aboard a Higer bus belonging to Extra City with which he collided.  He was convicted following a full trial and sentenced to 9 months imprisonment which was suspended on condition he completes 315 hours of community service at Tshabalala Police Station in Bulawayo.  In addition he was prohibited from driving for 2 years and had his driver’s licence cancelled.

            The appellant was aggrieved and noted an appeal against both conviction and sentence.  His gripe with the conviction is that there was no evidence that he had encroached onto the lane of the oncoming bus.  Quite to the contrary it is the driver of the bus who had encroached onto his lane hereby causing a collision.  Regarding sentence, his view is that it is so severe it induces a sense of shock.

            The facts are that on the night of 30 September 2015, the appellant was driving a haulage truck ladden with 29,8 tonnes of coal along Bulawayo-Victoria Falls road headed in the direction of Bulawayo when he collided with the Extra City omnibus driven by Owen Zembe which was proceeding in the opposite direction at the 258km peg.  The two heavy vehicles had passed each 

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