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[2018] ZAECMHC 14
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S v Diya (CC07/2018) [2018] ZAECMHC 14; [2018] 2 All SA 488 (ECM) (22 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO.
CC07/2018
THE
STATE
Vs
SIPHIWE
BAPHILE DIYA
JUDGMENT
JOLWANA
J
[1]
The accused is charged with one count of murder in contravention of
section 84 of Act 9 of 1983 read with section 51(1) of Act
105 of
1997 as amended. It is alleged that upon or about 05 November
2016, at Plangeni Location, Amandisa Administrative
Area in the
district of Bizana the accused unlawfully and intentionally killed
Salukazi Diya, an 86 year old woman.
[2]
The summary of substantial facts in terms of
section 144(3)
(a) of
the
Criminal Procedure Act 51 of 1977
as amended (the Act) states the
following:
(i)
Tinini George Diya was the husband of the deceased during her life
time. They were the biological parents of Thembekile
Diya
residing at Plangeni Location, Amandisa Administrative Area, Bizana.
Tinini George Diya left his house and rented a
place at Greenville
after the relationship broke down between himself and Thembekile Diya
leaving the deceased residing with Owami
Diya an eight year old
grandchild of the deceased.
(ii)
Thembekile Diya is a member of the South African Police Service
stationed at the VIP Protection Services, Legislature,
Pietermaritzburg.
He resides at Pietermaritzburg but
occasionally he would go home at Plangeni location. The accused is
related to Thembekile and
he would occasionally go to Plangeni
location and reside with the deceased and Owami.
(iii)
Thembekile requested the accused to kill his mother. An
agreement was reached between Thembekile and the accused that
Thembekile would pay the accused an amount of R10 000.00 for the
murder of the deceased. The accused murdered the deceased
on 05
November 2016. Thembekile failed to pay the accused as per
agreement and this resulted in them exchanging text messages
in a
form of whatsapp using their cellular phones.
(iv)
Accused was arrested on 06 January 2017 and made a statement
regarding his involvement in the murder of the deceased to the
police. Thembekile was arrested on 01 March 2017 after he had been
sought by police for a while. At all material times the
accused
and Thembekile acted in concert with common purposes to kill and
murder the deceased.
[3]
On the first day of the trial counsel for the state informed the
court that the state was withdrawing charges against Thembekile
and
would only proceed with the case against the accused. The
accused pleaded not guilty to the charge of murder and elected
not to
tender a plea explanation. Furthermore no formal admissions
were made by the accused.
[4]
The state called Sergeant Thokozani Zide who testified that in
November 2016 he had been a member of the South African Police
Service for 13 years. He was working at the community service
centre, otherwise known as the charge office at Mzamba Police
Station. He reported for duty on the 06 November 2016 at
05:45am. At 05:50 he received a complaint that a woman
had been murdered at Plangeni Location in the district of Bizana
which is an area under the jurisdiction of Mzamba Police Station.
[5]
He, together with constable Mbasa proceeded to the scene of crime at
Plangeni location. They arrived at the Diya family
home where
they found local people as well as members of the family including a
child called Owami, Ondela and Bawinile.
They were showed the
rondavel in which the deceased was said to be in. The door of
the rondavel was closed. They noticed
that the latch of the
door was broken. They opened the door and found the deceased
lying on the bed with injuries on her
face, hand and throat and was
already dead.
[6]
The injuries appeared to have been inflicted with a sharp instrument
which were a cut on her finger in the hand, a cut on her
throat and a
wound on her face. There were blood stains on the floor and on
the wall. They did not see any other injuries.
After
covering her body with a blanket with which she had been covered they
left the rondavel and sealed the crime scene.
They did not find
the murder weapon. They then called forensic services, local
criminal record centre and the detectives.
The ambulance
arrived and confirmed that she was dead. Their photographer
Constable Mbelu arrived and took photos.
The body was removed.
They met the detectives on their way back to the police station as
they took much longer to arrive
at the crime scene.
[7]
The next state witness was Constable Siyabonga Mbelu. He
testified that he is employed by the SAPS as a forensic field
worker,
photographer, video grapher, drawer and finger print expert and is
attached to the Criminal Record Centre in Port Shepstone.
He
attended the crime scene at the Diya homestead on the 06 November
2016, took photographs and compiled the album in respect of
the crime
scene. He confirmed the injuries on the head, face, neck and
right hand of the deceased in which a finger appeared
to have been
chopped off. He also noticed injuries on the right shoulder of
the deceased. All the injuries were depicted
in the album which
he compiled and had been exhibited in court.
[8]
The state then called Siphelele Khowa. He testified that he
grew up together with the accused in the same area, playing
football
together and attended the same school. In July 2016 he was in
Margate and the accused was in the Eastern Cape.
He had asked
the accused to assist him in getting a job. He knew the
cellphone numbers of the accused by heart as they communicated
with
each other quite often. He came to Plangeni in Bizana in the
Eastern Cape in July 2016 to work with the accused.
[9]
He met the accused at Plangeni after taking a taxi from Margate and
the accused took him to his place of residence at Plangeni
which was
the Diya homestead. He introduced him to his family members at
Plangeni and told them that he was going to work
with him at the home
of Mrs Makiva. At the Diya homestead he found Ondela,
Thembekile’s wife, two other children and
the deceased and it
was to these people that the accused introduced him. At the
time Thembekile was not at home as he was
at work in Pietermaritzburg
and was unknown to him.
[10]
He shared a room with the accused at the Diya family home. One
day while the accused was in the kitchen having left his
phone in the
room he decided to use the cellphone of the accused to buy airtime
and thereafter deleted the messages that related
to the airtime
purchase as he did not want the accused to know that he had used his
phone to buy airtime. It was in this
process that he noticed a
message from Thembekile in which Thembekile told the accused to take
muti under his bed and put it in
the milk of the deceased. He
also had Thembekile’s cellphone number as at times Thembekile
would call him when he could
not get hold of the accused and he would
pass his own cellphone to the accused for them to speak. He
also new Thembekile’s
cellphone number by heart.
[11]
This message which he understood to mean that the deceased was to be
poisoned shocked him. He put the phone back where
he had taken
it from and acted as if he did not know about the message. In
the course of the morning he went to the kitchen
to make himself
tea. Accused warned him not to use the deceased’s milk.
He asked the accused why he could not
use the milk as they are
allowed to use it. The accused told him not to ask too many
questions. He left the milk because
he had seen the massage
from Thembekile.
[12]
The deceased came back from Greenville on a Monday afternoon and
threw the milk away. Some days later Thembekile called
the
accused enquiring about the deceased and the accused responded that
the deceased threw the milk away. They continued
with their
conversation and said their goodbyes. This happened in August
and at the end of August 2016 the accused got a
job in Flagstaff to
build a two roomed structure with a verandah. From the end of
August he and the accused stayed in Flagstaff
building the two roomed
structure.
[13]
On Wednesday the 02 November 2016 accused went to see his girlfriend
but left the phone behind in his pillow. He took
the phone
again for purposes of buying airtime because he had received a phone
call from his home telling him that his child was
not well. He
thereafter deleted the airtime related manages and in the process
stumbled on a message from Thembekile.
In the message
Thembekile was hiring the accused to kill the deceased as he was
tired of her. He did not read the whole message
as he did not
intend to read the accused messages but was deleting the airtime
related messages as he did not want the accused
to know that he had
used his phone to buy airtime. The accused phone was black and
blue in colour. He switched it off
and put it back under the
pillow.
[14]
On Thursday morning on the 03 November 2016 the accused came back
from his girlfriend and thereafter left for Plangeni to fetch
the
ceiling tools and he remained behind. He indicated that he would be
back the following day. He did not come back on the
04 November
2016 as promised. On the following Sunday he received a call
from the accused informing him that the deceased
was no more and had
been killed with a bush knife. A week later, with the financial
assistance of the accused he came back
to Plangeni and by that time
the deceased had already been buried. They stayed at the home
of the deceased and on the 01
December 2016 he left for Gcilima
Location in Margate which is his home. He told his elder sister
about the messages he had
seen in the cellphone of the accused.
His sister told him not to come back to Plangeni where the accused
was staying at the
time. He did not disclose his knowledge
about the messages to the Diya family as he feared for his life.
He feared
that both Thembekile and the accused are from the Diya
family and Thembekile is the son of the deceased and they might kill
him.
He thought because they did not know that he knew about
the messages it was safer for him to keep quiet.
[15]
It was for this very same reason that he also did not report the
matter to the police. He was later taken in for questioning
and
it is then that he told the police about the messages. At that
stage the accused had already been arrested. This
questioning
by the police took place in January or February 2017.
[16]
Under cross examination he testified that he and the accused are
neighbours in Gcilima location in Margate. He readily
admitted
that he used accused cellphone to buy airtime without his
permission. However nothing turns on this. It was
put to
this witness that the accused would testify that he never
communicated with Thembekile through smses about the killing of
the
deceased and that he never saw smses from the Thembekile about the
killing of the deceased. His response was very direct
and in
the form of a question as to where he would get the information about
the smses if it was not from the accused’s phone.
He
insisted that his evidence in this regard is about what he saw and he
did not expect the accused to admit these smses as the
case was about
the killing of the deceased.
[17]
He admitted that he did not know who killed the deceased but based on
the messages it must be the accused having been hired
to do so by
Thembekile. He further admitted that he did not know Thembekile
until he went to Plangeni a few months before
the deceased died.
However during this period he got to know Thembekile as he would come
and go and when he was at Plangeni
they spent time together. He
would sometimes stay for a whole week during which they spent time
together. This related
to the ability of the witness to have
been able to identify Thembekile’s voice when he spoke to the
accused about the deceased
with the accused’s phone being on
speaker probably with the accused being unaware that he could hear
the conversation.
[18]
He maintained his version that the accused left flagstaff on the 03
November 2016 when he was going to fetch tools at Plangeni
because
the ceiling was going to be put up on the next Saturday which
was the 05 November 2016.
[19]
In a nutshell Mr Khowa’s evidence in chief, under cross
examination and when compared to what he said to the police when
his
statement was taken on the 16 February 2017 did not change. His
evidence was consistent throughout in most material respects
and
there were no contradictions even under cross examination. His
evidence was credible.
[20]
The state then called Ondela Diya the grand-daughter of the
deceased. She testified that she lives in her own homestead
just above that of the deceased. She testified that the
deceased stayed with Owami and the accused. The accused
referred
to her father as his brother and her as his daughter and she
in turn referred to the accused as her father. She is the
mother
of the then eight year old Owami. Owami stayed with the
deceased to assist her with errands and they shared the same bed.
The accused stayed in the flat roofed structure which had two doors
leading outside and occupied the room that faced the rondavel
in
which the deceased and Owami slept.
[21]
At about 4:00am in the morning of the 06 November 2016 she was
sleeping in her own homestead when her daughter knocked at the
door.
She opened for her and she entered uttering some words about the
deceased. She was shivering and wet as it was
raining on the
day. She, Ondela rushed to her aunt who lived next door to her
and reported what Owami told her and that she
was rushing to the
deceased’s home. The aunt followed her and she found the
deceased lying on her bed with her hand
on the chest injured.
She went out and screamed for help. She took the phone of the
deceased and called her uncle,
Thembekile reporting to him that the
deceased had been murdered. She also called Thembekile’s
wife, did not get through
and called the accused whose phone rang
unanswered and also called her elder uncle.
[22]
Members of the police forum suggested that they should check if there
has not been a burglary in the other structures to see
if anything
was missing. She together with police forum members checked the
other structures in the yard and did not observe
anything amiss.
When they went to check the room occupied by the accused, Bawinile,
Thembekile’s wife pushed her aside
and thus preventing her from
accessing it saying there is no key to the room as the key was with
the accused. At that time
Bawinile stayed at her maiden home
and had come after receiving a phone call from her in which she
reported the incident.
[23]
Police arrived and did their job and the body of the deceased was
taken away. Thembekile arrived and went to the rondavel.
She also saw the accused scrubbing the floor of his room. She
did not see the accused when he arrived, she just noticed him
when he
was scrubbing the floor. She went to the accused, greeted him
and asked if he had heard of the killing of the deceased.
The
accused said yes he had heard. The accused said the reason he
was scrubbing the floor was because water had seeped in
as it was
raining. This struck her a being strange as she used to stay in
that structure before she built her own house and
no water entered
it. She testified that in the afternoon at about 5pm on 05
November 2016 although she was not sure about
the exact time, the day
before the incident she had gone to the deceased’s home to
fetch her younger son. She found
the deceased, Owami and her
younger son there. The accused was also there although she did
not talk to him. He took
his shoulder bag and left.
[24]
Under cross examination it was put to her that the accused says he
arrived at the home of the deceased on the 01 November 2016
from
Flagstaff and left on the 03 November 2016 for his actual home in
Gcilima, Margate. Ondela testified that she would
not dispute
that as she already stayed at her own homestead at the time. It
was also put to her that the accused did not
scrub the floor on that
day but the witness insisted that she saw him scrubbing the floor of
his room. She also insisted
that she saw him the day before the
incident on the 05 November 2016 in the afternoon at about 5pm
leaving the home of the deceased
and she also left for her homestead
taking her younger son with her. This was the last time that
she saw the accused until
she saw him again the following day
scrubbing the floor on the day of the death of the deceased.
[25]
It is perhaps convenient that I deal with the evidence of Nosipho
Mlambo. She testified that she is a neighbour to the
home of
the deceased. On 05 November 2016 she was at her homestead when
at about 6pm in the afternoon or early evening although
she is not
sure what the time was she saw the accused walking past her
homestead. She knew the accused as he was at the time
staying
at the home of the deceased. There was nothing strange about
the accused. He was carrying a back bag on his
shoulder.
When she saw the accused she was going to a shack in which she keeps
her chicken. It was neither bright not
dark at the time so she
was able to see and recognise him. Under cross examination she
testified that it had been a while
since she last saw the accused
before the 05 November 2016. However, she knew the accused very
well as somebody who built
and fixed houses in the area and stayed at
the Diya homestead.
[26]
Besides the fact that Ms Mlambo’s evidence was clear and with
no contradictions even under cross examination, it is very
significant that she corroborates Ondela’s evidence that the
accused was at Plangeni location on the 05 November 2016.
Ondela’s evidence was that she went to the deceased’s
home to fetch her younger son and saw the accused leaving carrying
a
back bag. Ms Mlambo also testified to having seen him in the
afternoon or early evening of the 05 November 2016 carrying
a back
bag in the neighbourhood. Both Ms Mlambo and Ondela’s
evidence was very clear in this regard and they corroborated
each
other in all material aspects.
[27]
The next state witness was Sergeant X.V. Nqoko who testified that he
is the investigating officer of this case. He received
a call
at about 6am about a person who was found dead at Plangeni location
in Bizana. He proceeded to the crime scene but
because he was
new at Mzamba Police Station he got lost so much that he drove back
to the Police Station to ask for assistance.
Eventually he got
to the scene and it was the Diya homestead.
[28]
He asked Mr Petela Diya if they knew of anybody they considered as an
enemy of the deceased and he did not know of anyone.
He
mentioned that perhaps the husband of the deceased could be involved
as the deceased and her husband were no longer living together.
The husband rented a place in an area called Greenville. He
further said the deceased and her husband were not in good terms.
He proceeded to Greenville to look for the deceased’s husband
and he was not there but was informed by a neighbour that the
deceased’s husband received news that his wife had been
killed. He then concluded that they must have missed each other
on the way. He then returned to the Diya family home and he
found the deceased’s husband there with other family members
and locals.
[29]
He spoke to the husband who said that he should talk to his son as he
had left his wife with his son. It then became clear
to him that this
was a family murder. He told the husband that he should come to
the police station once things have calmed
down so that he could take
a statement from him. He also told Ondela that when she was
feeling better she should also come
to the Police Station for a
statement. Before he left he got the impression from the
community that others suspected the
husband of the deceased while
others suspected her son. On the way back to the Police Station
he met a community member who
showed him the deceased’s son
Thembekile Diya. He was carrying a bag which clearly showed
that he was coming from somewhere
and he asked to speak to him.
[30]
He asked him about who the possible suspects could be and he said he
suspected his father because the deceased and his father
were not in
good terms when he left the family home. He, later that day,
received a call from a member of the community who
told him that the
killer was known in the family and it was not the husband of the
deceased. In the morning of the day of
the funeral he got a
call from the husband of the deceased saying that he was not feeling
safe as his son was accusing him of having
killed the deceased and he
was asking the police to intervene. He was not at work on the
day and he asked the station commander
to attend to the matter.
[31]
Later on the day of the funeral he received a call from Thembekile
who told him that he had found some clothes, bush knife,
flops and
other items which he suspected were used in the murder. He said
he found these items hidden between some rocks
near the family home.
He asked his colleagues to go and get those items and were entered on
SAP 13 form for further investigation.
[32]
After the funeral he called the deceased’s husband, Ondela and
Thembekile to come to the Police Station for statements.
On the
same day the deceased’s husband came and he took a statement
from him in which he denied any knowledge about the death
of his wife
and said that he must ask his son. He had left the family home
more than a year ago and was renting a place in
Greenville following
a quarrel between himself and his son.
[33]
He got a statement from Ondela in which she said she was staying on
her own at her own homestead and the deceased was staying
with her
eight year old daughter. She further told him that the accused
had been asked by Thembekile to stay at the Diya
homestead. She
told him that the day before the incident she had seen the accused at
the home of the deceased and had taken
a back bag and left at about
4:00pm. She also left for her own house.
[34]
Thembekile came to the Police station on a Thursday on which he was
going back to his place of work and he took a statement
from him.
Thembekile did not mention that he had asked the accused to stay at
his home. He asked him if he knew the
whereabouts of the
accused on the day of the incident and he said the accused was at his
home in Margate.
[35]
Time went by without any breakthrough. Later the deceased’s
husband came to the Police Station and reported that
the community
was angry about two young men who were staying at the home of the
deceased. Those young men were the accused
and his friend.
In January 2017 he received information from an informer who told him
that he had met the accused who was
complaining bitterly about not
being paid by Thembekile for the murder of his mother after he had
hired him to kill her.
[36]
The deceased’s husband came to the Police station again
reporting that the community was threatening to kill the two
young
men who stayed at the Diya homestead. On the 06 January 2017 he
and his colleagues proceeded to the Diya family home
to establish
from the accused what was happening and also to protect him.
They found the accused with another young man and
they took both of
them to the Police Station. They separated them and talked to
the accused about what the community was
saying about him and his
safety. The accused was emotional as if he wanted to cry.
He asked him to speak if he had
something to say. He decided to
take out his pocket book and read out the constitutional rights of
the accused in Isizulu.
[37]
The accused indicated that he wanted to explain everything he knew
about the death of the deceased. He asked him if he
would be
prepared to say what he wanted to say to a senior officer and he said
yes. He told him that he was placing him under
arrest and
explained his rights. The accused made it clear that he wanted
to co-operate with them as Thembekile had not paid
him but was
worried of being killed by Thembekile. He told him that he
would need to talk to a senior officer.
[38]
He told him that before he killed the deceased he burnt a cd to
induce the deceased and the child to sleep. He told him
that he
was prepared to show him where he had hidden the murder weapon.
They proceeded to a forest next to Mzamba river where
he pointed out
where he had hidden the weapon. They found the place with fresh
ashes. He concluded that the weapon
must have been taken by the
people that made that fire there as they could not find it.
From Mzamba river they went to the
Diya homestead to retrieve a
t-shirt he said he was wearing on the day of the murder but had
washed it. He reminded him that
he did not have to show him
anything but he insisted that he wanted to do so.
[39]
He told him that he had left in the afternoon the day before the
murder to create the impression that he had left but came
back at
night so that he could not be seen. At the Diya homestead he
showed him a shack in which he said he burnt the trousers
that he was
wearing when he killed the deceased which had blood stains. He
took the t-shirt he had worn but had washed it
from his room at the
Diya homestead. He called an officer at Bizana Police Station
to assist him in getting a statement from
the accused. He made
this call at about two in the afternoon on the 07 January 2017.
The officer could not assist at
the time so he called his branch
commander who was also unsuccessful in getting the statement taken
immediately as the officer
would only be available on Monday the 09
January 2017. The accused was going to appear in court on that
day but he arranged
for the accused to also go and make the statement
to a senior officer at Bizana Police Station. He was not
involved in the
process of the confession being taken from the
accused.
[40]
Under cross examination he conceded that no warning statement was
taken or any other written down statement by him when he
interviewed
the accused and that this was contrary to police standing orders
which required that each time a suspect is being interviewed
irrespective of whether he was under arrest or not a statement must
be taken. His explanation was that the accused was co-operating
and had even agreed to make a statement before a senior officer.
The accused was confessing to the crime and as such for
the statement
to be admissible in court it needed to be taken before a senior
officer.
[41]
When he was asked who was with him when he went to the Diya homestead
to arrest the accused he said he did not go there to
arrest the
accused and he was with Sergeant Mzondi and Warrant Officer Mshiywa.
When it was put to him that the accused would
testify that when he
went to the Diya homestead he was with Constable Bebula and another
unknown police officer he denied this
and insisted that he was with
Sergeant Mzondi and Warrant Officer Mshiywa. There were two
reasons for going to fetch the
accused namely to question him as he
was alleged to be involved and secondly to protect him as it was
reported that the community
might harm him.
[42]
It was put to him that the accused says he was arrested after 09:00pm
on 5 January 2017. He denied this and insisted
that it was
after midnight on the 06 January 2017. After introducing
themselves as police the accused opened the door for
them. It
was further put to him that accused was not told why he was at the
Police Station and his rights were also not read
to him. He denied
this and said the initial purpose of taking him in was not to arrest
him but to question him. He only decided
to arrest the accused
when he noticed that he was implicating himself in the crime and it
was at this stage that he read him his
rights.
[43]
He denied tying the accused’s arms and legs to a chair or
putting a 10kg rice empty bag and a tyre tube over his face
and thus
suffocating. He denied that Constable Bebula was involved in
interviewing the accused insisting that Constable Bebula
was not even
in the team that investigated the Diya murder. He denied that
he and his colleagues tortured the accused at
all as he in any event
was co-operating with them. This was why there were no injuries
reported by the accused at all.
It was put to Sergeant Nqoko
that eventually, after repeated suffocation the accused succumbed and
admitted to the killing.
The torture included the accused being
pressed on his stomach with booted feet and knees. Sergeant
Nqoko disputed all this
and insisted that accused told them about his
involvement in the crime voluntarily and denied promising a lenient
sentence if he
implicated Thembekile.
[44]
The version of the accused as put to Sergeant Nqoko is full of
improbabilities. For instance while he insists that he
was
arrested after 9:00pm on 05 January 2017 it appears on SAP14 A form
which is a notice of rights that accused signed for his
rights on 06
January 2017 at 2:15am, this in circumstances in which the accused
denied that he was advised of his rights at all.
The occurrence
book of Mzamba Police Station reflects the accused and Zukile Diya
being detained at 02:15 on the 06 January 2017.
That occurrence
book also contains an entry in which it is indicated that both the
accused and Zukile Diya were notified of their
rights.
[45]
The state indicated their intention to have the confession admitted
as part of the record and that there should therefore be
a trial
within a trial to determine its admissibility. Mr Sakwe for the
accused confirmed in court that the statement concerned
was in fact
made by the accused and therefore its contents are from the accused.
However the accused denied that he made
the statement voluntarily and
said that what is contained in the statement was told to the accused
by Sergeant Nqoko.
[46]
Sergeant Nqoko gave evidence in the trial within a trial. He
testified that at 8pm on 05 January 2017 all of them as
a team of
seven detectives had an operation. It was at this time that he
told his colleagues that there was information about
the Plangeni
community not being happy with the presence at the deceased’s
home of two young man who were suspected of being
involved in the
killing of the deceased. Their commander decided that they were
to divide themselves into two groups.
He, sergeant Mzondi and
Warrant Officer Mshiywa went to the Diya homestead after 24:00
midnight.
[47]
On their arrival there they introduced themselves as police and the
door was opened for them. They found the accused
and another
young man there and told them that there was information that they
were implicated in the murder of the deceased and
the community was
not happy about them being there. They also wanted to question
them about the incident. At the Police
Station they separated
them and questioned the accused about his involvement in the killing.
He became emotional and started
crying and said he wanted to
tell them everything as he knew about the death of the deceased.
[48]
He realised that the accused was about to implicate himself and he
stopped him and read him his rights. After the rights
were read
to him he said he wanted to talk as he knew about the death of the
deceased. He then stopped him and explained
his rights to him
in Isizulu reading them from his pocket book. Their cells at
Mzamba Police Station were under renovations
so he took the accused
for detention at Port Edward Police Station. He also read an
entry from an occurrence book of Mzamba
Police Station in which there
is an entry that the accused and Zukile Diya were detained at 2:15am
and that their rights were read
to them and were without any visible
injuries. He also read from a copy of the Port Edward Police
Station occurrence book
in which it is entered that on the 06 January
2017 at 02:20am the accused and Zukile Diya were received and their
constitutional
rights read and were free from injuries.
[49]
At 09:00am on the 06 January 2017 he booked out the accused for
further investigation and returned him back to Port Edward
Police
Station at about 1pm. The reason he did this was because during
the interview the accused had mentioned the weapon
he used in
committing the crime and he wanted to retrieve it. This
evidence is supported by an occurrence book entry showing
that at
09:15 the accused was book out of Port Edward Police Station for
further investigations. There is also another entry
which shows
that he was returned or booked back at 12:55 with no visible
injuries. On the 07 January 2017 he went to Port
Edward Police
Station to take the finger prints of the accused and did not take him
out of that police station.
[50]
On the 09 January 2017 he was booked out of Port Edward Police
Station. Sergeant Nqoko referred to an entry in the Port
Edward
occurrence book which showed that accused and three other prisoners
were booked out for court appearance. However he was
not involved in
this process. He was however aware of the arrangement for the accused
to make a statement to a senior officer.
After lengthy cross
examination he maintained his version. He confirmed that Constable
Bebula took the accused to the commissioned
officer to make a
confession as he was not involved in the investigation. He
denied that the accused succumbed to torture
to make the statement he
made to the commissioned officer as he was never tortured.
[51]
He also referred to SAP14A form which is a notice of rights which
were read to the accused and for which he signed at 02:15am
on the 06
January 2017.
[52]
The state called Warrant Officer Mshiywa who corroborated the version
of Sergeant Nqoko that Nqoko, he, Warrant Officer Mshiywa
and
Sergeant Mzondi are the three officers who went to the Diya homestead
to take the accused to the police station and that Constable
Bebula
was not involved. He corroborated Sergeant Nqoko’s
version about all the events of the 05 January 2017 and 06
January
2017 including accused implicating himself in the crime. He
testified that he asked constable Bebula who was taking
dockets to
court to also take the accused from the court cells to Bizana Police
Station for confession before Captain Ntlangula.
He denied that
the accused was ever tortured at all or made to recite a statement
which he was to make to Captain Ntlangula.
[53]
The state then called Constable Ntando Bebula. He testified
that he is a detective and was part of the operation meeting
on 05
January 2017 and that he was with the other group and did not go to
the Diya homestead. He knocked off duty at 3am
and did not come
to work at all on the 06 January 2017 after knocking off at 3am.
His involvement with the accused was taking
the accused from the
court cells to Bizana Police Station to Captain Ntlangula for a
confession. He corroborated the version
of other state
witnesses about his non-involvement in the Diya investigation.
He denied participating in the interview of
the accused at all and
therefore could not possibly have been involved in his torture.
In any event the torture is said to
have occurred as soon as the
accused arrived at the Police Station and continued non-stop for five
hours.
[54]
This line of evidence by the accused continued even in the face of
the entries in the occurrence book of the Mzamba and Port
Edward
Police Station. The accused continued to link constable Bebula
even after he testified that he did not even come to
work on the 06
January 2017 after knocking off duty at about 3am. Constable
Bebula confirmed being asked to take the accused
at the court cells
in Bizana Magistrate’s court to the office of Captain Ntlangula
which he did.
[55]
The state called Captain Ntlangula who testified that he has been in
the police service for 33 years and has been a captain
since 2011.
In his evidence he went through all the questions and answers in the
confession form as given by the accused.
In any event the
defence attorney Mr Sakwe made it clear that there was no contest
about the fact that the confession was in fact
made by the accused.
Their only issue was that it was not made freely and voluntarily as
it was induced through torture that
continued for several hours.
[56]
Captain Ntlangula testified that his assessment of the accused was
that there were no visible signs of assault over and above
the
accused having told him that he was not threatened and he was not
assaulted. It became clear from the evidence of Captain
Ntlangula that he, as indeed is required by the confession form, read
all the accused rights to him and assured him that he had
nothing to
fear. It was never suggested that any torture or assault or
threatening occurred in the presence of Captain Ntlangula.
[57]
The accused corroborated Captain Ntlangula’s evidence of not
being alerted to threats, torture or assault having been
perpetrated
to him. He in fact testified that he lied to Captain Ntlangula
about these things. In his evidence in chief
the accused gave
evidence of first being taken to a female officer who was not
satisfied that he was confessing. When asked
what happened
after the statement he made to the female officer he testified that
he was then fetched from that officer to the
community service centre
by another female officer. In the meantime the female officer
to whom he made a statement left going
about her business but when he
saw the other officer who was with Bebula and Nqoko he showed her
that officer whose name he did
not know. The female officer to
whom he allegedly made a statement did not talk to Bebula but when he
met Bebula at the reception
Bebula took him back to the office of the
female officer where he was subjected to further assaults and threats
and torture.
[58]
It became clear that the accused was putting together a clumsy
combination of lies, half-truths and fabrications. His
story
even considered alone did not make sense and was contradictory in
most material respects. It is very strange that after
all these
assaults he would sit in front of Captain Ntlangula and say he had
not been assaulted but also show no signs of having
been ill-treated
at all.
[59]
The state applied to cross examine the accused on the contents of the
statement. That application was not opposed by
his defence
attorney. On being cross examined on the contents of the
statement he testified that all its contents were prescribed
to him
by Sergeant Nqoko. These included details about Thembekile’s
wife not conceiving, details about his movements
between Flagstaff,
Plangeni and Gcilima. He started saying that some of the things
came from him and not Nqoko. What
made it clear even more that
he was lying is that he admitted that Sergeant Nqoko and his
colleagues did not give him a written
statement to memorise and
recite before Captain Ntlangula but told him what to say in that
statement which is detailed and lengthy.
[60]
He also later claimed to have been promised a lenient sentence if he
implicated Thembekile. However just like the allegations
of
assault, threats and torture he did not give any evidence beyond his
mere
ipse dixit
. The admissibility of confession is
provided for in
section 217
of the
Criminal Procedure Act as
follows:
“
Evidence
of any confession made by any person in relation to the commission of
any offence shall, if such confession is proved to
have been freely
and voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto
be admissible in
evidence against such person at criminal proceedings relating to such
offence.”
[61]
It is important to always remember the over-arching provisions of the
Constitution in relation to a fair trial. The relevant
provision in this case is Section 35 (5) of the Constitution which
reads thus:
“
Evidence
obtained in a manner that violates any rights in the Bill of Rights
must be excluded if the admission of the evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.”
[62]
The balancing act necessary to ensure that the right to fair trial is
not compromised was explained in the following terms
in
S v Khan
1997 (2) SACR 611
(SCA):
“
In
any democratic criminal justice system there is a tension between, on
the one hand, the public interest in bringing criminals
to book and,
on the other, the equally great public interest in ensuring that
justice is manifestly done to all, even those suspected
of conduct
which would put them beyond the pale. To be sure, a
prominent feature of that tension is the universal and
unceasing
endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal
by state
agencies in the prevention, investigation or prosecution of crime.
But none of that means sympathy for crime and
its perpetrators, nor
does it mean a predilection for technical niceties and ingenious
legal stratagems. What the Constitution
demands is that the
accused be given a fair trial. Ultimately, as was held in
Ferreira
v Levin
fairness is an issue which has to be decided upon the facts of each
case, and the trial judge is the person best placed to take
that
decision. At times fairness might require that evidence,
unconstitutionally obtained be excluded. But there will
also be
times when fairness will require that evidence albeit obtained
unconstitutionally, nevertheless be admitted.”
[63]
On the facts of this case there was not even the slightest objective
evidence of anything having been done by the police that
would have
resulted in the accused making the statement he made to Captain
Ntlangula in any way other than as provided for in section
217 of the
CPA.
[64]
To clarify this issue further I am reminded of a comment made by
Erasmus J in
S v Nombewu
1996 (2) SACR 396
(E) where he said
the following:
“
The
court should in fact endeavour to educate the public to accept that a
fair trial means a constitutional trial and vice versa.
Pronouncements on human rights by the Courts and academics obviously
add body to the jurisprudence which surrounds the Constitution.
But abstract statements of law very often mean different things to
different people and very little to the bereaved and the aggrieved
who see factually guilty accused go free in consequence of some
infringement of his constitutional rights by officials. It
is
therefore the duty of the courts in their everyday activity to carry
the message to the public that the Constitution is not
a set of high
minded values designed to protect criminals from their just deserts:
but is in fact a shield which protects all citizens
from official
abuse. They must understand that for the courts to tolerate
invasion of the rights of even the most heinous
criminal would
diminish their constitutional rights. In other words, the
Courts should not merely have regard to public opinion,
but should
mould people’s thinking to accept constitutional norms using
plain language understandable to the common man.”
[65]
I was,
inter alia,
also guided by these sentiments as I
listened to all the evidence given for and against the admission of
the confession and I came
to the conclusion that on the facts of this
case the confession was made freely and voluntarily by the accused in
his sound and
sober senses and without being unduly influenced
thereto.
[66]
It seemed to me that the choice on constable Bebula by the accused
who despite evidence to the contrary, placed him at his
home at the
time they were taken in by police for questioning on the 06 January
2017 had more to do with an attempt to extricate
himself from the
confession which he had made to Captain Ntlangula by trying to have
it declared inadmissible on the basis of constable
Bebula having
played a role far exceeding even that played by Sergeant Nqoko, the
actual investigating officer. This was
one of the many
disingenuous attempts by the accused to mislead the court by creating
doubt around the admissibility of the confession.
[67]
Following the ruling on the confession the state called Captain
Ntlangula to give evidence in the main trial. He read
into the
record the original statement made to him by the accused which was
admitted as Exhibit “I”.
[68]
The statement reads as follows:
“
During
November 2016 I was at my home. There arrived Thembekile Diya
to me asking me to remove his biological mother.
Thembekile
believed that his mother had knowledge as to why Thembekile’s
wife does not give birth. Thembekile was asking
me to kill his
mother. I refused to kill his mother. He kept on begging
me. I later agreed if he pays me a sum
of R10 000.00.
We had a deal as to how he was going to pay me and he promised to
give me this R10 000.00 at the
month end of December 2016.
On
the 01 November 2016 I went to Flagstaff and came back. On the
03 November 2016 I wake up going to Gcilima and I was to
fulfil the
deal. On a Friday at night I arrived to my home. The
purpose was to make sure that nobody would see me.
On Sunday
night between 24:00 and 01:00 I woke up and wore a black short
trouser, a striped t-shirt. I took my tom hawk.
I went to
the deceased’s room within the yard. I burned a CD so
that the mother of Thembekile should sleep. The
tom hawk had a
part built to remove nails. I went to the deceased room and
force the door to open. I observed Thembekile’s
mother
was asleep. He was with a minor child. I then chopped the woman
on the head above the right ear as she was sleeping
on her left
side. I chopped her three times. I observed if she would
be able to wake up and I found that she is unable.
I then put
on her blanket and took my cd with a spade and throw it on the
toilet. I took my tom hawk.
I
recalled that the clothing I was wearing would give me a problem
because a black short trouser and a t-shirt had blood stains.
I
then changed the attire and took the t-shirt and short trouser and
burned them at home during the night of the incident.
I took
the tom hawk and hide it on the forest. I went back to sleep.
At about 03:00 – 04:00 I left going to Port
Edward. When
I was at Port Edward, I was phoned by Sinethemba and Ondela telling
me about the death of my mother. I
called Thembekile and
informed him that I have killed his mother, Thembekile informed me
that he would give me money on the month
end and he will confirm that
his mother is dead. Thembekile phoned me to go home as if I
knew nothing.
Thembekile
has not paid me until I was arrested on Thursday 05 January 2017”
[69]
Captain Ntlangula’s evidence was not challenged in that no
cross examination was done by the defence nor was the accused
version
put to him for comment. The state then sought leave to hand up
the post mortem report as an Exhibit “J”
as being in
compliance with the provisions of
section 212
(4) (a) of the
Criminal
Procedure Act. The
defence had no objection and the post mortem
report was admitted accordingly after which the state closed its
case.
[70]
Accused gave evidence in his defence in which he testified that he is
related to the deceased in that the deceased was the
wife of his
elder partenal uncle. He stayed at the home of the deceased
since April 2016 when he had gone to Plangeni to
extend a structure
at the home of Mrs Makhiva. He grew up with Mr Siphelele Khowa
at Gcilima location in Margate. He
confirmed most of Mr Khowa’s
evidence in so far as it did not implicate him in the offence.
[71]
He denied any knowledge of the sms messages about which Mr Khowa
testified. He denied that he left Flagstaff on the 03
November
2016 insisting that he left Flagstaff on the 01 November 2016
remained at Plangeni until 03 November 2016 when he
left for
Gcilima. He did not challenge Mr Khowa’s evidence about
him having gone to see his girlfriend on the 02 November
2016 and
coming back to their place of evidence on the 03 November 2016 before
he left for Plangeni.
[72]
He down played Mr Khowa’s knowledge of Thembekile on the basis
that at most they would not have been together for a month
or even
two weeks. I do not understand what the accused meant in this
piece of evidence. It is difficult to accept
that if Thembekile
had spent a week with Mr Khowa at Thembekile’s home where the
accused and Mr Khowa resided that would
not have been enough for Mr
Khowa to know him. In any event the issue was about cellphone
messages having been seen and read
by Mr Khowa in the accused’s
cellphone. All that this required was for Mr Khowa to know the
cellphone number of Thembekile.
It should be remembered that Mr
Khowa testified that when Tembekile could not get through to the
accused he would phone him and
ask him to give the phone to the
accused.
[73]
Despite his insistence that he was at Gcilima location at his home on
the 05 November 2016 the day before the murder two witnesses
Ondela
and Nosipho Mlambo testified that they saw him at Plangeni on 05
November 2016. Ondela’s evidence was that she
went to the
deceased’s homestead to fetch a child and saw the accused at
the deceased’s homestead in the afternoon
at about 4 or 5.
The accused was also seen by Ms Mlambo when he walked past her home
in Plangeni. These two witnesses
knew the accused very well.
It is his version that he arrived at Plangeni in April 2016, that
would be more than 6 months
before the incident. For the
accused to now suggest that Ms Mlambo could be mistaking him for
somebody else ignores the fact
that Ms Mlambo’s evidence about
the accused is corroborated by that of Ondela.
[74]
The accused testified that when he arrived at the Diya homestead on
the 06 November 2016 after he heard about the killing of
the deceased
the first person he saw was Ondela. This is in line with
Ondela’s evidence that she saw the accused in
his room.
He further testified that they met at the door to his room, turned
back inside the room where Ondela became emotional
and cried.
He then asked her to sleep in his bed until she felt better and left
her sleeping in his bed. This version
of Ondela sleeping in his
bed was like, many other pieces of evidence, never put to Ondela when
she testified.
[75]
Because there are numerous instances in which the accused version was
not put to the state witnesses it is instructive that
I should state
what the law is in this regard. In
Smal v Smith
1954 (3)
SA 434
Claasen J had this to say:
“
It
is, in my opinion elementary in standard practise for a party to put
to each opposing witness so much of his case or defence
as it
concerns that witness.”
[76]
In
S v Abader
2008 (1) SACR 347
at 356 it was held that the
duty to put an accused’s version to a witness is not an
inflexible axiomatic rule cast in stone.
The rational of this
rule and the duty is that, if it is intended to argue that the
evidence of the witness should be rejected,
he should be cross
examined so as to afford him an opportunity of answering points
supposedly unfavourable to him.
[77]
In
President of the Republic of South Africa and others v South
African Rugby Football Union and others
2000 (1) SA 1
(CC) the
Constitutional Court stated the legal position as follows:
“
The
institution of cross examination not only constitutes a right, but
also poses certain obligations. As a general rule it
is
essential, when it is intended to suggest that a witnesses is not
speaking the truth on a particular point, to direct the witness’
attention to the fact by question put in cross examination showing
that the imputation is intended to be denied and to afford the
witnesses opportunity, while still in the witness box of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in cross
examination, the party calling the witness is entitled to
assume that
the unchallenged witness’ testimony is accepted as correct.”
[78]
The defence called its next witness Nkazimlo Robert Diya who
testified that he is the nephew of the accused. This witness
was called to prove accused’s defence of alibi. The
accused had testified that he left Plangeni for his home at Gcilima
location in Margate on the 03 November 2016 and returned only on the
06 November 2016 when he was informed by Ondela that the deceased
had
died. It soon became clear that this witness was intent on
misleading the court. The most glaring feature of this attempt
was
his denial that he had spoken to defence counsel about the case.
This bothered me as it suggested that defence counsel
was calling a
witness with whom he had not consulted. I sought to establish
this fact from defence counsel who advised of
his utmost surprise at
the witness who was lying about the consultation they had.
[79]
In
Take and Save Trading CC and others v Standard Bank of SA
Ltd
2004 (4) SA 1
(SCA) Harms JA stated that:
“
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side
and a
Judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed
by both sides.
A Judge is an administrator of justice, he is not merely a figure
head, he has not only to direct and control
the proceeding according
to recognised rules of procedure but to see that justice is done….”
Fairness of court
proceedings requires of the trier to be actively
involved in the management of the trial, to control the proceedings,
to ensure
that public and private resources are not wasted, to point
out when evidence is irrelevant, and to refuse to listen to
irrelevant
evidence. A supine approach towards litigation by
judicial officers is not justifiable either in terms of the fair
trial
requirement or in the context of resources….”
[80]
Defence Counsel asked for a short adjournment after which he applied
for the evidence of his witness Nkazimlo Robert Diya to
be expunged
as it was clear to him that the witness was lying. This
application was not opposed by the state.
[81]
The defence closed its case without having called any witness to
corroborate the alibi defence. This is strange considering
that
the accused’s version is that when he arrived at his home on
the 03 November 2016 and left on the 06 November 2016 the
whole time
his mother and sisters were there but he did not call any of them
save for the witness whose evidence was a clear attempt
at misleading
the court.
[82]
I am mindful of the approach to alibi defence as was stated in
R v
Hlongwane
1959 (3) SA 337
(A) by Holmes AJA where he said that:
“
The
legal position with regard to an alibi is that there is no onus on an
accused to establish it and if it might be reasonably
be true he must
be acquitted. But it is important to point out that in applying
this test the alibi does not have to be considered
in isolation.
The correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and
the court’s
impressions of the witnesses.”
[83]
This takes me to the case of
S v Van Der
Meyden
1999
(2) SA 79
(W) at 82 C-D in which Nugent J remarked as follows:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test in any
particular case will depend on the nature of the evidence which the
Court has before it. What must be borne in mind, however, is
that the conclusion which is reached …must account for
all the
evidence.”
[84]
In this case Mr Khowa testified that accused left Flagstaff for
Plangeni on the 03 November 2016 and was to have returned on
the 04
November 2016. He did not return. He is seen by two
witnesses in the afternoon of the 05 November 2016 the very
day he
claims to have been in Gcilima location in Margate. The
deceased’s injuries are as he described in his confession
before Captain Ntlangula in most material respects. This is
further corroborated by other evidence like the photos as well
as the
post mortem report.
[85]
The detail contained in the confession is such as to leave no doubt
that it was given by someone who knew how the deceased
was killed.
[86]
The accused did not tell captain Ntlangula about being assaulted,
tortured or even threatened despite being asked about these
matters
repeatedly in the confession form.
[87]
The accused evidence was riddled with outright lies and
inconsistences as to put beyond doubt that it is so full of inherent
improbabilities as to be false. The accused was simply unable
to challenge the corroborated evidence of the state witnesses.
He changed his version about the confession from saying it all came
from Sgt Nqoko to saying it was partly his and partly that
of Nqoko.
[88]
In
R v Skosana
1960 (4) SA 723
(A) at 729 C-D Van den Heever
JA stated that there is no limitation placed upon the kind of
evidence which may adequately confirm
the confession or prove
aliunde
the commission of the offence charged. In this case there is
abundance of such evidence as pointed out above. Therefore
section 209
of the CPA is more than adequately satisfied. This
section provides that:
“
An
accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed the offence
in question,
if such confession is confirmed in a material respect or, where the
confession is not so confirmed, if the offence
is proved by evidence
other than such confession, to have been actually committed.”
I
have therefore come to the conclusion that the guilt of the accused
has been proved beyond reasonable doubt and the accused is
accordingly found guilty of murder as charged.
MS
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: M MAKHUBALO
Instructed
by: NDPP
MTHATHA
Counsel
for the Accused: M SAKHWE
Instructed
by: LEGAL AID BOARD
MTHATHA
Matter
heard on: 21 February 2018
Judgment
handed down on: 22 February 2018