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[2021] ZAKZPHC 54
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S v Biyela (CCD16/2020) [2021] ZAKZPHC 54 (18 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU
NATAL DIVISION, PIETERMARITZBURG,
NORTH
EASTERN CIRCUT, MTUNZINI
Case
No. CCD16/2020
In
the matter between:
The
State
and
Minenhle
Siboniso
Biyela Accused
JUDGMENT
Lopes
J,
[1] The
accused in this matter, Minenhle Siboniso Biyela (‘Mr Biyela’)
has been charged with one count
of murder, in that on the 20
th
October 2019 and in the Nyamazane area in the District of Maphumulo,
he murdered Siphakamiso Clement Mzobe. He is also charged
with
robbery with aggravating circumstances of a Canik 9mm Parabellum
pistol and a cellular phone from Mr Mzobe during the attack
upon him.
Both
of the counts are read with the provisions of s 51 and Part I and
Part II respectively of Schedule 2 to the
Criminal Law Amendment Act
1997
.
[2] In
the indictment it is alleged that Mr Biyela and Mr Mzobe were known
to each other, because Mr Mzobe was
the neighbour of Mr Biyela’s
grandmother. At the time of the incident Mr Mzobe owned the Canik 9mm
pistol and a cellphone.
It is alleged that prior to the incident Mr
Biyela and one Khanyisani Nkosi (‘Mr Nkosi’) decided to
rob Mr Mzobe of
his pistol and other valuables. On the evening of
Sunday, the 20
th
October 2019, they concealed themselves in an outside toilet and kept
a look-out for Mr Mzobe as they knew that he would walk that
way in
order to reach his home. When he approached them, they exited the
toilet and accosted him at gunpoint, whereupon they shot
him. Mr
Mzobe died at the scene of his gunshot wounds. Mr Biyela and Mr Nkosi
then took possession of Mr Mzobe’s pistol and
cellular phone,
and they fled the scene. It is alleged that they acted in concert and
in the furtherance of the execution of a
common purpose in committing
the murder and robbery.
[3] At
the outset of the trial Mr Biyela pleaded not guilty and made a
statement in terms of
s 115
of the
Criminal Procedure Act, 1977
, the
facts contained in which were admitted in terms of
s 220
of the Act.
[4] Mr
Biyela pleaded not guilty and recorded the following summary of
events:
(a)
During
October of 2019 he was visited by his friend Khanyisani Nkosi whilst
he was staying at his grandmother’s home. He had
invited Mr
Nkosi to stay with him at home at Maphumulo because he had been
experiencing some personal problems. Mr Biyela’s
grandmother
was Phambakile Mhlongo. Although the statement in terms of
s 115
records that his grandmother is Nomathemba Irene Mhlongo, that was
clearly an error because, although she is a grandmother or relation
of Mr Biyela, the grandmother he intended to refer to was Phambekile
Mhlongo.
(b)
On
the 20
th
October
2019, Mr Nkosi suggested that they go to a nearby shop. They
proceeded on their way to do so. On the way it started raining
and Mr
Biyela and Mr Nkosi took shelter in an outside toilet.
(c)
At
that stage Mr Nkosi became alerted to the fact of a person
approaching and said that he wanted to rob that person of his
firearm.
(d)
Mr
Biyela protested that Mr Mzobe was his neighbour and that Mr Nkosi
must not do that. At that stage Mr Biyela was not aware that
Mr Nkosi
was himself carrying a firearm.
(e)
They
thereafter continued on their journey to the shop. Whilst walking
there, they came across Mr Mzobe. This was at night with
no light
shining. However, Mr Mzobe recognised Mr Biyela and they greeted each
other.
(f)
Suddenly
Mr Nkosi started shooting Mr Mzobe who fell to the ground. Mr Nkosi
then removed Mr Mzobe’s firearm and cellphone
from his person.
(g)
Mr
Biyela became afraid of Mr Nkosi because of what he had witnessed,
and when Mr Nkosi instructed Mr Biyela that they should leave,
he did
so, and they went to his grandmother’s home.
(h)
The
next morning Mr Nkosi instructed Mr Biyela to leave with him and go
to Umlazi. Mr Biyela did so because he was afraid to disagree
with Mr
Nkosi who had killed his neighbour. Mr Biyela was also afraid of the
reaction of the community.
(i)
At
Umlazi, Mr Nkosi instructed his friends to kill Mr Biyela, presumably
lest he betray them. The friends of Mr Nkosi then shot
Mr Biyela in
the leg, but he managed to escape.
(j)
Mr
Biyela denied having told Mr Nkosi that Mr Mzobe carried a firearm.
(k)
He
also denied ever having seen Mr Nkosi with a firearm. The first time
he saw the firearm was when Mr Nkosi drew it to shoot Mr
Mzobe.
[5] The
grandmother of Mr Biyela, Phambekile Mhlongo, testified that Mr
Biyela was her grandson and had come to
stay at her home. He had
brought with him Mr Nkosi. They slept in what was described as Ms
Nene’s RDP house, outside the
premises.
[6] According
to Mrs Mhlongo, Mr Biyela and Mr Nkosi came and went during a period
of approximately two weeks,
whereafter Mr Mzobe was murdered and they
left the premises the next morning. Mr Biyela and Mr Nkosi were in
the company of Mrs
Mhlongo at her home on the night of the 20
th
October 2019 at approximately 5:00pm. Mr Mzobe then left. Mrs Mhlongo
made no secret of her dislike of Mr Nkosi, describing him
as a rogue
and a criminal. She was also clearly sceptical of Mr Biyela’s
suggestion that they were going to a shop when Mr
Mzobe was attacked.
When it was suggested to her that Mr Biyela was not aware that Mr
Mzobe discharged his firearm from time-to-time,
she suggested that he
was ‘playing games’.
[7] Another
twelve State witness testified. No evidence of the shooting itself
was tendered because the only witnesses
to it were Mr Nkosi and Mr
Biyela. The State relied principally on the evidence of a confession
and a pointing-out, both by Mr
Biyela. The two trials-within-a-trial
were combined by consent of the parties. The principal
objections to the admission
of the evidence were:
(a)
Mr
Biyela had been severely beaten by the police officers who arrested
him. He was so traumatised by this experience that he simply
did what
he was told to do by the police officers. As a result, neither the
confession nor the pointing-out were made freely and
voluntarily.
(b)
Mr
Biyela was not apprised of his Constitutional rights by Lt. Colonel
Zulu who conducted the pointing-out. In addition, the pointing-out
notes were not read back to him afterwards. There was no suggestion
that Lt. Colonel Zulu had in any way intimidated Mr Biyela,
but,
because he was a police officer, Mr Biyela was afraid of him.
(c)
With
regard to the confession, for the reason that he was afraid of police
officers, he did not make it freely and voluntarily.
His
Constitutional rights were not explained to him, especially the right
to legal representation, Lt Colonel Devnath, to whom
the confession
was made, did not read the statement back to him after he made it,
matters were put into the statement which he
never said, and answers
given by him were disputed in respect of six paragraphs.
[8] At
the end of the trial-within-a-trial I made an order that the
objections to both the pointing-out and the
confession were
dismissed, and they were admissible for the following reasons:
(a)
The
entire version of the assault upon him was wholly improbable. This
was because the officers who arrested him at his Maphumulo
home were
members of the National Task Team, specialising in political crimes.
They were not looking for Mr Biyela for this case,
but for a
Greenwood Park case, and they testified that they did not know of the
Maphumulo case into the death of Mr Mzobe. Indeed,
the investing
officer, Sergeant Ndimane, stated that Mr Biyela was not considered a
suspect in February 2020 when he was arrested.
Mr Biyela was taken
from his home to Durban North police station overnight and
transferred to Durban Central police station the
next day. The
National Task team wanted him nearby in order to be able to question
him. Indeed, this was, of itself, not indicative
of no assault upon
Mr Biyela, but he steadfastly maintained that during the assault in
his home when he was arrested the police
officers kept questioning
him as to why he had killed Mr Mzobe.
(b)
The
State witnesses all gave their evidence in a straightforward manner,
without inconsistencies or improbabilities. The evidence
of Mr Biyela
was, by contrast, very poor, and improbable. His fear of police
officers, was, in my view, a contrived one because:
(i)
It was only the assault at his initial arrest
which caused his alleged anxiety.
(ii) He
was taken out of the hands of those police officers completely, and
testified that he did not feel otherwise
in any way threatened during
the pointing-out and the confession.
(iii)
He did not tell the Magistrate at his first appearance of the
assault, allegedly because he never knew that
he could.
(iv) he did
not tell his legal-aid counsel who appeared for him at hearings after
his first appearance, allegedly because
he did not know that he could
do so. He only told his present counsel because he asked Mr Biyela if
he had been assaulted during
the confession. The fact of the assault
was raised for the first time during this trial.
(v) The
evidence of Dr Deoraj, who examined Mr Biyela four days’ after
the alleged assault, was that no evidence
established that he had
been assaulted as he alleged – kicked multiple times with
booted feet by two police officers whilst
lying handcuffed (both feet
and hands). Despite giving Sergeant Ndimande details about the
killing of Mzobe, he did not tell him
about the assault, or request
that a charge be laid against his attackers.
(vi) Mr
Biyela said that he agreed to do the pointing-out because Sergeant
Ndimande gave him courage by assuring him
nothing would happen to him
if he did so. He also stated that at no stage did Sergeant Ndimande
force him to do anything.
(vi) In
contradiction to what he first said, Mr Biyela stated in answer to my
questions, that he had told Sergeant Ndimande
about the assault, but
Sergeant Ndimande simply laughed at him, which he always did. This
was something he had not told his counsel.
(c)
The
interpreter used during the confession was Nkosikhona Vincent Ngiba,
a clerk employed in the South African Police Force, and
a
first-language Zulu speaker. He clearly has a good command of
English, and told the Court that in 2014 he completed a National
Diploma in Human Resouces Management at the Mangasuthu University of
Technology. His lectures, text books and exams were all in
English.
He had been requested by Lt Colonel Devnath to act as interpreter. He
said that everything that was written in the confession
and the
pro-forma question sheet accompanying it, were as interpreted by him
to Lt. Colonel Devnath.
(d)
Mr
Ngiba was a most impressive witness, and I have no hesitation in
accepting his evidence as the truth. As did Lt. Colonel Devnath,
he
testified that Mr Biyela was relaxed and comfortable throughout. When
the interview was complete, Mr Ngiba read back the contents
of the
documents to Mr Biyela, who confirmed them and signed accordingly.
(e)
Lt
Colonel Zulu told the court that he had read Mr Biyela his
constitutional rights four times. He also read back the inspection
notes to Mr Biyela.
[9] After
the trial within-a-trial, by consent, I made an order that the
contents thereof would form evidence in
the main trial. Mr
Mlotshwa
,
who appeared for the State, closed his case. Mr
Masondo
,
who appeared for Mr Biyela, then called him to testify again. At the
outset of his second testimony, Mr Biyela stated that he
wished the
Court to use his confession statement to Lt. Colonel Devnath. He then
proceeded to put forward a defence of compulsion
– that he was
so afraid of Mr Nkosi, he went along with his plans to rob and kill
Mr Mzobe.
[10] Aspects
of his evidence which now emerged from Mr Biyela second testimony,
and which were either not previously
testified to, or which were now
contradicted are as follows:
(a)
Mr
Nkosi was the notorious and feared leader of the ‘Desperadoes’
gang.
(b)
The
gang dealt in the drug ‘whoonga’, and carried out
killings.
(c)
Their
hallmark, following the film upon which they based their existence
was that they all carried firearms. Mr Nkosi was on parole,
having
been released from prison a year previously.
(d)
Mr
Nkosi and Mr Biyela embarked on a journey to go to Maphumulo first,
and then to Stanger to obtain more firearms for other gang
members.
They intended to go to Maphumulo first, and then to Stanger. It was
not Mr Biyela’s idea to take Mr Nkosi to Maphumulo
to rob and
kill Mr Mzobe – that was Mr Nkosi’s idea. Mr Biyela was
scared to ‘go against’ him because ‘he
shoots’.
As Mr Biyela put it, Mr Nkosi invited that into his mind.
(e)
Mr
Biyela then said that he was touched by the plight of Mr Nkosi
because he was fleeing his enemies, and was apparently wanted
by the
police for the murder of his friend. He told Mr Biyela that if they
left together, his enemies would not expect him to leave
with Mr
Biyela.
(f)
On
the way to Maphumulo in a taxi, Mr Nkosi showed Mr Biyela his
firearm. After eating oranges with Mr Mzobe at the house of his
grandmother, Mr Nkosi said they should rob Mr Mzobe and take his
firearm. He foresaw that that would, inevitably, have involved
killing Mr Mzobe, because he would resist the taking. Mr Nkosi had
had ample opportunities to see that Mzobe carried a firearm
with him
at all times.
(g)
Mr
Biyela claimed that he warned or reprimanded Mr Nkosi because Mr
Mzobe was his neighbour, Mr Nkosi assured him that he would
do a
‘clean job’ – meaning, as he had previously stated
that there would be no witnesses and that he would kill
Mr Mzobe
‘nicely’.
(h)
Mr
Biyela said the contents of his confession statement was correct,
save that he had gone along with Mr Nkosi because of his fear
of him.
In his statement t following is recorded:
‘
After arriving at
Maphumulo, we discovered that we no longer have to go to Lindelani
since there was a firearm at White City, next
to Ma-Eleven.I informed
Khanyisani that in order for us to get hold of the firearm from the
owner, he would have to rob and shoot
the owner because the owner is
my neighbour.
“
Did you know the
owner” – Yes, the owner was known to me as Siphamandla
Mzobe.’
(i)
Mr
Biyela stated in his
s115
statement that Mr Nkosi was his friend,
something he later sought to distance himself from. Significantly, he
records that he became
afraid of Mr Nkosi after he had shot Mr Mzobe.
In his confession statement it is recorded:
‘
Myself and
Khanyisani planned to rob and kill Mr Mzobe we planned this together.
“
Do you have
anything else to say?”
I informed Khanyisani
that I am young and that he must carry out the shooting because he
(Khanyisani) was used to killing people.’
[11] At
this stage of the trial the evidence of Mr Biyela, his
s 115
statement and his
s 220
admissions had become so contradictory and
confused, it was difficult to say with any confidence that anything
he said could be
relied upon, save perhaps his confession statement.
His defence of compulsion was raised only after he had lost his
objections
to the admission of the pointing-out evidence and the
confession statement. It is, in my view, clearly contrived. Initially
Mr
Biyela would have the Court believe he was scared of the police
officials. The only indication of a fear of Mr Nkosi, in his
s 115
statement, was after he witnessed the shooting of Mr Mzobe. The
probabilities overwhelmingly favour a finding that Mr Biyela told
the
truth when he said that he and Mr Bkosi planned the killing together.
He may well have even feared Mr Nkosi, particularly after
Mr Nkosi
tried to have him killed to silence him as a witness against Mr
Nkosi. As for the defence of compulsion to explain his
part in the
killing:
(a)
Mr
Biyela and Mr Nkosi spent over two weeks together at Mr Biyela’s
grandmother’s home. The plot was clearly hatched
before the day
of Mr Mzobe’s killing because they had gone to find guns as the
purpose for the trip. The suggestion of taking
Mr Nkosi to church at
a nearby school was denied by Mrs Mhlongo, who said that only the
Easter services were done at the school.
(b)
Mrs
Mhlongo also said that Mr Nkosi and Mr Biyela were coming and going
during the time they spent at her home. She was an excellent
witness,
despite having no formal education whatsoever. We have no hesitation
in accepting her version in preference to that of
Mr Biyela. This
means that there must have been ample opportunity for Mr Biyela to do
something about his fear of Mr Nkosi –
report to the local
police, warn Mr Mzobe, speak to others or simply leave the area and
go into hiding far away, as he claimed
to have done after Mr Nkosi
tried to have him killed.
(c)
Having
helped to plot the robbery and murder of Mr Mzobe, it is insufficient
for Mr Biyela to claim, as he did, that Mr Nkosi put
the idea into
his head.
(d)
Mr
Biyela did not state that Mr Nkosi ever threatened him prior to the
killing, in order to coerce him into taking part. That was
an
essential element for him to have established in order to succeed in
a defence of compulsion. Vague suggestion and fears do
not suffice.
The defence raised is the more improbable because Mr Biyela was aware
of the reputation of Mr Nkosi – on his
version a man who never
hired hit-men to do his dirty work, but did the killings himself. Mr
Biyela could give no rational explanation
for freely associating with
known criminals who operated a drug-dealing gang. He simply contented
himself by saying they liked
his company because he is
‘free-spirited’.
[12] I
have consulted a number of authorities on the issue of compulsion.
They include:
(a)
S
v Bradbury
1967 (1) SA 387
(A).
(b)
S
v Goliath
1972 (3) SA 1
(A).
(c)
S
v Mandela
2001 (1) SACR 156
(C).
(d)
S
v Petersen en Andere
1980 (1) SA 938
(A).
(e)
S
v Kibi
1978 (4) SA 173
(E).
(f)
R
v van der Merwe
1950 (4) SA 124
(O).
(g)
Lungile
v S
[2000] 1 All SA 179
(SCA).
These
judgments all stress that the circumstances of each case has to be
taken into account, and the onus is ultimately on the State
to
establish that there was no compulsion. Mr
Masondo
,
correctly in our view, conceded that the defence faced difficulties
with regard to succeeding on the defence of compulsion. The
State, by
virtue of its case, and the poor performance of Mr Biyela, has
established that there was no compulsion sufficient to
sustain a
defence to the crimes with which Mr Biyela was charged.
[13] In
all the circumstances, we have no hesitation in concluding that Mr
Biyela is guilty on both counts one
and two as charged. Given the
planning of the robbery and the murder, and the circumstances of
their commission, the murder falls
within the ambit of
s 51(1)
, read
with (a), (c) and (d) of
Part I
of Schedule 2 to the
Criminal Law
Amendment Act, 1997
, and the robbery falls within the ambit of
s
51(1)
, read with
Part II
of Schedule 2 to that Act.
Mr
Biyela, you are accordingly convicted on count one of murder and on
count two of robbery with aggravating circumstances, as set
out in
the indictment.
Lopes
J
S
Milozewski (Assessor)
Date
of hearing: 8
th
June 2021 – 18
th
June, 2021.
Date
of Judgment: 18
th
June
2021.
For
the State: Mr
N Mlotshwa (Instructed by the
Attorney-General).
For
Mr Biyela: Mr
SG Masondo (Instructed by Legal-Aid).