High Court absolves BCC in case of drowned teen

By Mashudu Netsianda

The High Court has quashed both conviction and sentence against Bulawayo City Council (BCC) which was fined $600 for culpable homicide when a 15-year-old boy drowned after he slipped and fell into a pit in Pumula South suburb.

The pit was dug up in 1995 by council to extract gravel for road repairs and maintenance and over the years, it collected water during the rainy season.

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 a Bulawayo magistrate.

In papers before the court, BCC is the appellant while the State represented by Mr Khumbulani Ndlovu of the National Prosecuting Authority (NPA) was cited as a respondent.

BCC was last year convicted of culpable homicide and fined $600. This was after the 15-year-old boy from Pumula South suburb drowned in January 2017 in a pool of water at the council’s landfill site adjacent to Entembeni Road in Pumula South.

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 his part.

“It was not proved beyond reasonable doubt that the negligence of the appellant was the proximate cause of the death of the victim. However, on the facts of this matter, the State did not prove factual and legal causation. Accordingly, I would allow the appeal and set aside the conviction and sentence,” he ruled.

“Criminal liability can only be attributed to a person where that person’s conduct or lack of it is deemed to have been causative of that outcome. I am satisfied that in the present case, the appellant demonstrated its reasonableness by putting up a warning sign.

“The proximate cause of the death of the deceased in this matter was his voluntary act of stepping into the water when it was not safe to do so.”

Justice Makonese, however, urged BCC to take urgent steps to rehabilitate the gravel pits and prevent further deaths from occurring since they are close to residential areas. The Chronicle