Mashudu Netsianda, Senior Court Reporter
THE High Court has absolved National Foods Limited after a worker at the Bulawayo branch was sucked into a more than two metres deep maize trolley and suffocated when a fellow worker opened the bottom valve to an underground storage area.
Domingo Ndlovu (26) was submerged under more than 20 tonnes of maize and died on the spot. National Foods Limited was taken to court by Ndlovu’s family who accused the milling company of causing his death by failing to ensure that safety standards were observed on its premises.
The incident occurred on March 17 in 2014 at the company’s premises at Steelworks industrial area in Bulawayo.
Bulawayo High Court judge Justice Martin Makonese set aside a decision by Magistrate Ms Gladmore Mushove under case number CRB1379/15 delivered on October 22, 2015.
Ms Mushove had dismissed an application by the company’s lawyers for a discharge at the close of the State case.
“The application for discharge at the close of the State case be and is hereby granted and the accused persons are found not guilty and acquitted,” ruled the judge.
The ruling by Justice Makonese follows an application for review by National Foods, its employee Cliton Ndlovu who was accused of causing the death of Ndlovu and Dube and Task Contractors, a company contracted by the milling firm.
In papers before the court, Ms Mushove and the Prosecutor-General were cited as the respondents.
The court heard that on March 17 in 2014 at around 5.15AM, Ndlovu who was employed by National Foods as an off-loader, was offloading maize from wagons. He had climbed on top of a wagon offloading maize when his workmate, Cliton, opened the outlet valve. Ndlovu was trapped under the maize and died on the spot.
A report was made to the police leading to the arrest of National Foods representative Kelvin Ncube, Cliton and a Dube Task Contractors representative who was not named in court. The company was charged for violating provisions of the Factories and Works Act while Cliton was charged with culpable homicide.
At the close of the State case, the applicants through lawyers Calderwood, Bryce Hendrie and Partners, applied for discharge on the grounds that the State had failed to establish a prima facie case against any one of them. The magistrate dismissed the application.
Justice Makonese said the decision by the magistrate was flawed and lacked logic.
“I have carefully examined the evidence placed before the trial magistrate and find that the decision to refuse a discharge at the close of the State case was clearly flawed. There was no basis for placing the accused persons on their defence and it is clear that the dismissal of the application for discharge was intended solely to strengthen the State case,” said the judge.
“It is my view that the decision of the court a quo is so outrageous in its defiance of logic that it calls for this court’s intervention in its use of review powers.”