THORNGROVE residents have taken the Bulawayo City Council to court following the death of a 16-year-old boy who drowned while swimming with friends in a pool dug by the local authority to extract quarry. SILAS NKALA STAFF REPORTER
The residents were accusing council of negligence after it failed to seal the pool. Council’s director of engineering services Simela Dube, who was represented by lawyer Norman Mangena, appeared before Bulawayo magistrate Crispen Mberewere facing a charge of culpable homicide.
Prosecutor Jeremiah Mutsindikwa said the now deceased, Nqobizitha Ncube, and his friend went to the unprotected pit that was filled with water on January 21 2013 at around 3pm and started swimming resulting in Ncube drowning. In the council’s defence, Mangena said the boys had put themselves in danger by swimming at an undesignated place.
“The place is not a public site. The boys had to walk to the bush for 5km to swim at the pit,” he said. “Their willingness to walk for that long shows that even if that pit was not there they would have gone somewhere to swim.
“There is clear evidence that their actions were voluntary. A 11-year-old is said to have refused to swim, but the 16-year-old entered (the pool) to swim.
“Your worship, this shows that they could have gone somewhere if that pit was not there.”
Mangena said the statement by one Caroline Tendai who said she and her friend had seen the boys swimming and tried to chase them away without success showed that people knew it was a private place.
He said council could not have prophesied that there would be boys swimming at an undesignated pool and therefore the local authority could not be blamed for negligence.
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“I would like to ask the State how many dams, rivers and ponds are out there unguarded and unfenced?
“All over the years, signs have been put by council at such places but (the) end up being removed by people,” Mangena said.
“But you find people baptising each other in those dams and when fatality occurs, they blame council.”
He said the boys had planned to swim and no one would have stopped them.
“It is their voluntary conduct to swim that resulted in death. The deceased was 16 when he died and that means he was able to choose what he wanted to do,” he said.
Mangena sought for withdrawal of the case before plea, but this was challenged by the State.
Mutsindikwa said the court should not make a ruling before trial as it was proper that a plea be made and the matter goes for trial before it could be proved that the State’s case was weak or not.
He accused Mangena of trying to mislead the court to make a ruling before plea.
The matter was remanded to April 10.
