By A Correspondent| Top lawyer Professor Lovemore Madhuku has rescued a Harare motorist who rammed into Zimbabwe Defence Forces Commander, General Phillip Valerio Sibanda’s motorcade along Samora Machel Avenue last week.
The motorist Sinoia Desmond was sentenced to 12 months in jail for negligent driving but Madhuku who is also the President of the National Constitutional Assembly (NCA) party was able to argue for him to be granted bail pending appeal.
Assisted by Tawanda Takaendesa, Madhuku argued that the lower court “improperly exercised its discretion in respect of sentence in that an effective sentence of 12 months imprisonment is so manifestly excessive and so disturbingly inappropriate in all the circumstances of this case as not only to induce a sense of shock but also as an instance of an exercise in irrationality.”
Justice Webster Chinamhora of the Harare High Court said Sinoia Desmond’s appeal had bright prospects of success as he ordered him released on Z$50,000 bail.
Madhuku and Takaendesa also said having decided on an effective custodial sentence of less than 24 months, the magistrate grossly misdirected herself and erred at law in imposing a custodial sentence without giving serious consideration to a non-custodial sentence such as a fine or community service.
The lawyers said the Road Traffic Act (Chapter 31:11) provides for a penalty of a fine or imprisonment for the crime of reckless driving, but Mateko improperly exercised her discretion in imposing imprisonment with giving full consideration to the option of a fine.
Desmond’s trial heard that just before 5PM on August 23, he was driving on a side road parallel to Samora Machel Avenue going towards Msasa with one passenger.
Desmond failed to give way at the intersection of Samora Machel and Glenara Avenue and ploughed into the side of Sibanda’s Mercedes Benz driven by Mandlenkosi Mpofu.
General Sibanda was sitting at the back and on the left side which was impacted by Desmond’s vehicle. Sibanda’s aide, Squadron Leader Mark Pride Mangwende, was the other passenger in the Mercedes.
No-one was injured in the crash but prosecutor Caroline Mutimusakwa – who argued for a custodial sentence – said General Sibanda was “almost killed”, adding: “Desmond wanted to plunge the nation into mourning by killing the commander of the Zimbabwe Defence Forces.
“He was negligent for failing to observe a regulatory provision, failing to give way at a Give Way sign, travelling at a speed which was excessive under the circumstances and failing to stop or act reasonably when accident or collision seemed imminent.”