The Herald (Harare)

15 April 2013

Zimbabwe: Peter Ndlovu Acquitted

Bulawayo Bureau — Soccer legend and Warriors assistant coach Peter Ndlovu, who was facing culpable homicide charges over the death of his elder brother, Adam and a female passenger, Ms Nomqhele Tshili, in an accident involving the car he was driving, was on Friday acquitted at the close of the State case.

Ndlovu at one time broke down as he gave evidence in which he denied responsibility for the road accident that claimed the life of Adam and Ms Tshili.

His lawyer, Mr Harrison Nkomo, applied for discharge at the close of the State's case.

Ndlovu (39), of 7 St Lawrence Road in Parklands, Bulawayo, whose business address was given as MAP Brothers, corner Fort Street and 4th Avenue, pleaded not guilty, arguing that the accident was a result of a tyre burst.

In his ruling, Victoria Falls magistrate Mr Archbald Dingana said the State had failed to prove a prima facie case against Ndlovu.

"In this case what is of particular interest is that the Investigating Officer, Constable Victor Mavhunga summoned the experience of experts who are the accident evaluator and the forensic scientist to provide their expertise when rules of evidence are very clear that indications in a criminal case are supposed to be done by eye witnesses or parties involved in the accident," said the magistrate.

"In this case a Cst Nsingo, who was not an eyewitness made the indications. One wonders how he could make an indication and as such Cst Mavhunga's accident sketch plan was made on assumptions.

"In my view, the accused was alive and they could have waited for him to make indications. To call him two months later was tantamount to telling him what had happened rather than getting his indications. In this view the accident sketch plan falls out of system."

Mr Dingana also said the State's case was weakened by the fact that the accident evaluator, whose expertise was much needed in this case could not draw a sketch plan, but left the job to Cst Mavhunga, who is not an expert in that area.

"Even if Cst Mavhunga's sketch plan had been admitted in court, he failed to measure the distance from where the vehicle veered off the road to where it finally rested, which could have helped establish the speed at which the accused was driving.

"In my view, it was not Cst Mavhunga's duty to explain the speed because he was not there. That puts a dent in the State case as negligence relating to speeding could not be established."

The magistrate also said the evidence of the forensic scientist Mr David Zuze, was irrelevant to the case because of the way the police handled the case of tyres.

He said the police would have ensured that Ndlovu was there when they removed the wheels for forensic examination.

"There was no rush to do so, they could have waited for the accused or contacted his relatives who could have summoned a lawyer since the accused was in a coma. The Vehicle Inspection Department, which is impartial said the wheels had Hankook tyres but evidence by the forensic scientist revealed that he received Hankook and Continental tyres.

"The question is — where did the Continental tyre come from? The scientist gave evidence very well that he examined wrong tyres and that makes his evidence irrelevant in this case," said Mr Dingana.

He said although Cst Lovemore Tipugara was articulate in his evidence, the issue of speeding was out of question because he (Cst Tipugara) failed to calculate the speed in which the vehicle was travelling.

"There is no law that says the accused should put missing inks in the State case. The State has failed to prove that there was no tyre burst in the accident and it is my belief that there was a tyre burst and in that view the accused's application is proper before this case and therefore, the accused is found not guilty and discharged," said Mr Dingana.

The charges against Ndlovu were that on 16 December last year, he was driving his BMW X5 registered as Nuddy GP.

He allegedly failed to negotiate a curve at the 417km peg along the Bulawayo-Victoria Falls Road near Lupinyu Business Centre in Victoria Falls and the vehicle veered off the road killing Tshili on the spot while Adam, died on his way to Victoria Falls Hospital.

Ndlovu was being accused of failing to take proper control of the vehicle and to stop when an accident seemed imminent resulting in the crash.

The State was represented by area prosecutor, Miss Namatirai Ngwashi.

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