Mashudu Netsianda, Senior Court Reporter
THE president of the Apostolic Faith Mission of Zimbabwe (AFM), Dr Aspher Madziyire, has taken the National Prosecuting Authority (NPA) and a Gweru magistrate to court challenging a decision to dismiss his application for discharge in a culpable homicide case.
Dr Madziyire is being accused of reckless driving which resulted in him fatally knocking down a cyclist.
The clergyman caused the death of Tymon Mangena through alleged negligence and driving at an excessive speed.
The accident occurred last year on April 1 along the Bulawayo-Gweru road.
In papers before the Bulawayo High Court, Dr Madziyire cited the NPA and Gweru magistrate, Mr Musaiona Shotgame, as the respondents.
He seeks an order nullifying a ruling by Mr Shotgame dismissing his application for discharge at the close of the State case.
He also wants the High Court to declare him not guilty and have him acquitted.
In his founding affidavit, Dr Madziyire, who is being represented by lawyers, Calderwood, Bryce Hendrie and Partners, said he was dissatisfied with the ruling of the lower court, arguing that it was fraught with gross irregularities.
“I wish to aver that this application is not premised on a simple fact that I do not agree with the determination of the magistrate but rather his decision is vitiated by gross irregularity. I am dissatisfied with the manner in which the proceedings were conducted which suggests that the magistrate was biased against me,” he said.
The man of God further argued that the refusal of discharge at the close of the State case by the magistrate was meant to bolster a weak State case.
“Similarly, as regards to the speed, the magistrate has disregarded the evidence placed before him and clear provisions of the law. The facts before him establish that the speed on the part of road at issue was 120km/hour for the type of vehicle I was driving and there were no traffic signals on the road that required me to reduce the speed, and the road ahead of me was clear,” he said.
Dr Madziyire said the magistrate did not consider provisions of section 58 of Statutory Instrument 573/73, which states that the yellow lane marks the edge of the road.
“This means that the cyclist and I were travelling in different lanes and road ahead of me was clear. Indeed it also means that there was a cycle track separate from my track on which the cyclist should have remained,” he argued.
Dr Madziyire said he did all he was reasonably expected to do to avoid the accident, including applying brakes.
The court heard that on April 1 in 2014 at around 4.21PM, Dr Madziyire was driving his car, a Toyota Land Cruiser along the Bulawayo-Gweru road.
On approaching the 284km peg, Dr Madziyire — who was travelling at an excessive speed —hit Mangena who was cycling in the same direction. The cyclist hit the windscreen and died on the spot after succumbing to multiple fractures and head injury.
Dr Madziyire’s car was impounded by Vehicle Inspection Department officials.
Mangena’s widow has filed an $82 000 lawsuit against Dr Madziyire for reckless driving which resulted in him knocking down her husband to death.
Melody Mudzingwa, through her lawyers Mutendi and Shumba Legal Practitioners, seeks $82 016 compensation for loss of support.