KOMBI OWNERS CAN BE SUED FOR WORKERS’ ACTIONS - JUDGE

MBABANE – “Public transport operators ought to properly train their workers on customer care because ultimately, they are legally liable for the actions of their employees.”

These sentiments were shared by Judge Bongani Sydney Dlamini, when he sentenced to eight years each, the kombi driver and conductor, who were accused of pushing out of a moving kombi a female passenger, who later died. Three years of their sentences were suspended for a period of two years, on condition that they are not found to have committed a similar offence. Their sentencing came after they were found guilty of culpable homicide.

Oscar Methula and Machawe Ndwandwe pushed Thubelihle Maphanga, after she demanded E2 from the conductor, who had given her mother E6 change instead of E8. Maphanga was pushed out of the speeding kombi and landed on the tarmac. The incident happened on November 16, 2016.
The court said, in the country, the legislature gave the sentencing court the power to consider compensation and restitution for loss or damages suffered as a result of criminal conduct.

   The judge said this, however, would not be an ideal case to invoke the provisions of Section 321 of the Criminal Procedure and Evidence, 67 of 1938. Section 321 (1) provides that: “If any person has been convicted of an offence which has caused personal injury to some other person, or damage to or loss of property belonging to some other person, the court trying the case may, after recording the conviction and upon an application made by or on behalf of the injured party, forthwith award him compensation for such injury, damage or loss.” Judge Dlamini stated that, as a substitute to Section 321 of the Act, the family of the deceased, in particular the minor child left behind, was at liberty to consider filing a civil claim against the owner of the Toyota Quantum on the basis of vicarious liability, flowing from the negligible actions of the duo of the driver and the conductor.

Prevented

The sentencing comes after they were previously found guilty of culpable homicide. “There is no sentence that can bring back the life of the deceased. Her death was uncalled for and could have been prevented.” Maphanga was travelling with her mother, Busisiwe Dlamini, in a Toyota Quantum on the day of the incident. Busisiwe told the court in her evidence that the conductor, Ndwandwe, started collecting bus fare when they passed William Pitcher Teacher Training College. According to Busisiwe, she paid for both of them with a E20 note and the conductor gave her E6 instead of E8.

Busisiwe was speaking on her cellphone and when she was about to put the money given to her by the conductor in her handbag, her daughter, Maphanga, held her hand and informed her that the change was E2 short.  Ndwandwe is said to have ignored their protest and indicated that he had given Busisiwe the correct amount. Busisiwe alighted at Canaan, past Fairview, and waited for her daughter to alight as well. Maphanga declined to alight and demanded the E2 from Ndwandwe. Her mother requested her to get off the vehicle but she refused, arguing that kombi drivers and conductors were used to short-changing commuters and the practice had become a norm.

Busisiwe said the kombi took off at high speed and she had to jump out of the way to avoid being knocked down. The witness informed the court that her daughter was still on board and was standing behind the seat usually occupied by conductors. “The kombi sped to Mpholi, which is the final destination. The evidence of PW1 (Busisiwe) was that she, together with Tengetile Shongwe and Nomzamo Dlamini, who had also alighted from the kombi, waited for the kombi to return from Mpholi.

“The kombi had taken off with the deceased and later came back moving at high speed. PW1 thought the kombi would not be able to stop, looking at the speed at which it was travelling. “Immediately after passing them while they were standing in the opposite direction, the witness saw the deceased falling off from the kombi, while it was being driven at high speed. After a while, the witness saw the plastic bags which were being carried by the deceased also being thrown out of the kombi,” reads the judgment. Maphanga died a week after the incident. Methula and Ndwandwe were charged with murder. They were accused of having acted in common purpose to kill Maphanga. Judge Dlamini sentenced the duo of Methula and Ndwandwe yesterday, after he had previously found them guilty of culpable homicide. The court suspended two years of the sentence for a period of two years, on condition that the pair did not commit a similar offence.

Closure

“The court can only hope that the family finds closure and accepts the unfortunate fate of their family at the hands of the accused persons,” said Judge Dlamini. During their trial, they both pleaded not guilty. At the close of the Crown’s case, they applied to be acquitted and discharged. However, their application was dismissed. In their defence, Ndwandwe told the court that he gave Busisiwe E8 and not E6. He said Busisiwe was talking on her cellphone when he gave her the money. The conductor told the court that he told Maphanga that he had given her mother E8 as change and told her to check again.

He submitted that at Canaan, Busisiwe alighted but Maphanga refused to do so. He informed the court that Maphanga told them that they were crazy and she would show them who she was. According to Ndwandwe, the kombi continued on its journey with Maphanga still on board. He informed the court that at Canaan Bus Stop, when the kombi was returning from Mpholi, Maphanga opened the door and jumped out while the kombi was moving.
Ndwandwe and the kombi driver, Methula, argued that there was no evidence that Maphanga fell from the moving vehicle through an act or omission of one or both of them.

However, a number of witnesses for the Crown told the court that Maphanga was standing behind Ndwandwe’s seat when the kombi left Canaan Bus Stop to Mpholi and even when it returned, before she fell out. The driver denied that the kombi was travelling at high speed. He said it was travelling at 60km per hour. “Even if the court can accept that indeed the kombi was travelling at 60km per hour, it still baffles the mind how any right thinking person can seek to jump out of a moving vehicle at this speed. This narration is improbable and it defies logic and reason,” said Judge Dlamini.
The court concluded that elements of common purpose were established in this matter.

The judge said Methula, as the driver, had more responsibility in ensuring that disputes and misunderstandings arising in the transportation of members of the public were resolved in a proper manner. The responsibility of the driver, according to the court, started when he drove off from Canaan Bus Stop wit Maphanga still on board. Judge Dlamini said the driver had the responsibility of engaging Maphanga’s mother and Ndwandwe with a view of resolving the dispute involving the E2. Principal Crown Counsel Elsie Matsebula represents the Crown, while Nosisa Hlophe appears for Methula and Ndwandwe in the matter.

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