The Bulawayo High Court has set aside the conviction and sentence of a kombi driver whose vehicle ploughed into people at the illegal taxi rank on 6th Avenue, killing two pedestrians and injuring 15 passengers, ruling that the culpable homicide charge against him had been improperly framed.
Instead, the court ordered that Simbarashe Chokumanyara (28), of Emakhandeni, be tried afresh before a different magistrate.
Chokumanyara, who was represented by Kholwani Ngwenya of T.J. Mabhikwa and Partners, had been sentenced to 36 months in prison after being convicted of two counts of culpable homicide and negligent driving. He had already begun serving his sentence when he appealed to the High Court.
The appeal was heard on Thursday by Justice Munamato Mutevedzi, sitting with Justice Bongani Ndlovu.
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Under the original sentence, Chokumanyara received 24 months for each culpable homicide count, with 18 months on each count suspended for five years on condition that he did not commit a similar offence.
He was also sentenced to 12 months for negligent driving, with six months suspended, and was prohibited from driving for 24 months.
However, Justice Mutevedzi ruled that the State should have framed the two deaths, which occurred during the same incident, under a single culpable homicide count rather than charging Chokumanyara with two separate counts.
“A single act does not account for two. There should be one count, not two counts of culpable homicide,” said the judge.
“It has to be noted that the incident happened on the same occasion on a single day. The State was supposed to effect one charge of culpable homicide, not two counts.”
The judge said the defects in the charges meant the conviction and sentence could not stand.
“As such, all the counts are set aside and nullified,” Justice Mutevedzi said.
The court ordered that Chokumanyara be retried before a different magistrate.
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