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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC75/2005

In the matter between:

THE STATE

and

LUZUKO BANISI 1^ST ACCUSED

THANDOLOMZI AFRIKA YAPHI 2^ND ACCUSED

ANDILE BIELLA THEMBILE 3^RD ACCUSED

THANDISILE SHOES BOSMAN 4^TH ACCUSED

SIVUYILE MAN NYAMANA 5^TH ACCUSED

SIYABONGA J-J JEJANA 6^TH ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The six accused are before a Judge sitting alone. They are charged with two / four counts as follows:

COUNT 1

Murder in that on or about the 19^th day of March 2005 at or near House 1561 at unit nine in Mdantsane they unlawfully and intentionally killed MALUSI EDGAR GOJE, a male adult person.

The charge is accompanied by a warning in terms of section 51(1) of the Criminal Law Amendment Act¹, relating to the minimum terms of imprisonment, to the effect that the provisions will be applicable if they are convicted, as the murder was premeditated and also because the death of the victim was caused by the accused in committing or attempting to commit or after having committed or having attempted to commit robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure act² and the offence was committed by a person, a group of persons or a syndicate acting in the execution or furtherance of a common purpose or conspiracy.

COUNT 2

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, in that on or about the date and at the place referred to on count one, they unlawfully assaulted the said MALUSI EDGAR GOJE by shooting him with a pistol and took by force and violence from his possession a cellphone and a television set which were his property or in his lawful possession, aggravating circumstances being present, in that they wielded a firearm in the commission of the said robbery and inflicted grievous bodily harm on him.

The charge is accompanied by a warning in terms of the provisions of section 51(2) of the Criminal Law Amendment Act to the fact that, if they are convicted, the provisions of the section relating to minimum sentences will be applicable, as aggravating circumstances were present in the commission of the said robbery.

COUNT 3 (against accused No. 2 Thandolomzi Afrika Yaphi)

Contravening section 3 read with subsections 1, 103, 117, 120(1)(a) and section 121 read with schedule 4 of the Firearms Control Act ³, read with section 250 of the Criminal Procedure Act – unlawful possession of a firearm at or near the place and on the date referred to earlier, in that he unlawfully possessed an arm namely a 9 mm Star semi – automatic pistol without holding a licence to possess such arm.

COUNT 4 (against accused No. 2 Thandolomzi Afrika Yaphi)

Contravening section 4(i)(e) read with subsections 1, 103, 117, 120(1)(a) and section 121 read with schedule 4 of the Firearms Control Act further read with section 250 of the Criminal Procedure Act – unlawfully possession of ammunition in that on or about the date and the place referred to on count one he was in unlawful possession of ammunition, namely unknown number of 9 mm rounds without being the holder of a licence in respect of a firearm capable of discharging that ammunition or a permit to possess ammunition, or a dealer’s licence, manufacturer’s licence, or a gunsmith’s licence, import, export or in-transit permit or transporter’s permit issued in terms of the Firearms Control Act or was otherwise authorised to do so.

2. All the accused pleaded not guilty to the first and second charges. Accused No. 2 also pleaded not guilty to counts three and four.

3. According to Dr Claude Hannah who conducted a post-mortem examination on the deceased, the cause of death was a gunshot wound to the abdomen. The bullet entered through the abdomen and exited on the right lower buttock.

4. The deceased had been a tenant in house number 1561 unit nine in Mdantsane for about a week. According to his sister Phumla Regina Goje he was born in 1965 and was a candidate attorney and did not take liquor. After the death of the deceased she went to his house where she noticed that a television set and a green nokia cellular phone were missing. She had carted the deceased’s property to the house when he went to occupy it. Earlier on that night the deceased had called her and others at his home in Mdantsane asking them to switch their television set on in order to view a certain programme. This happened at about between 23h00 and 24h00.

5. Nokuthula Jennifer Mpalala lives at number 1560 unit nine in Mdantsane. She was the deceased’s next-door neighbour. She knew the deceased from Mncotsho rural village near Berlin where they lived before they went to live in Mdantsane. The deceased lived alone in house number 1561. He had lived there for about one week.

6. On 19 March 2005 at about 20h00 while she was in the company of her sister, they heard a gunshot and a scream. They then noticed that a burglar door of the deceased’s house was open.

7. While she was looking through the dining room window of her house she saw images of three people she could not identify, walking out of the deceased’s house. She told her sister about the three people.

8. The called the police to report the shooting. There were some police officers patrolling in the vicinity of the deceased’s house at that time. Within a very short time the police were there.

9. The police came and entered the deceased’s house. After a while Mpalala entered the deceased’s house. She found three policemen inside the house. It is common cause that those policemen were Constable Mcacisi Mlindi, Inspectors Tembani Bovan and Ndema. Ndema’s first name was not given.

10. When Mpalala entered the house the policemen were shining a torch. The policemen ordered her out of the house and told the deceased to walk close to the door. The deceased said that he would be unable to close the door as he was losing power. The policemen went out of the door and closed the burglar guard.

11. As the police were shining a torch Mpalala saw that the deceased was naked and was attempting to get up from his bed. She did not observe injuries on the deceased but the police told her and her sister that the deceased was bleeding from the nose.

12. Mcacisi Mlindi is a constable in the South African Police Service. He was at the deceased’s house on the night in question with Inspectors Bovan and Ndema.

13. Mlindi observed that a door to the deceased’s house was open and a burglar guard was bent. He observed that the house was not lit but a refrigerator gave some light. They switched electric lights on. He saw that the deceased was lying on a bed in the main bedroom.

14. Mlindi said that the deceased asked them what they were looking for there and who had called them to his house. When they told the deceased that the house had been broken into he (the deceased) said that young men had been there and that he had not been attacked. Mlindi and his colleagues observed that there was no television set there.

15. According to Mlindi the deceased appeared drunk and he said that he was not injured. He did not get close to the deceased.

16. Tembani Bovana who is an inspector in the South African Police Service was one of the three policemen who went to the deceased’s house.

17. Bovana said that when they received the message that there had been a shooting at the deceased’s house they were not far from the house and that they got to the house within a very short time.

18. They saw two ladies outside the next – door – house. They noticed that a burglar guard to a door was bent and that the door was open.

19. Inside the house they found the deceased lying on his back on a bed. According to Bovana the deceased said that no shooting had taken place. Bovana said that they looked at the deceased in order to establish whether or not he had been shot. They saw fresh blood on his nose.

20. The deceased asked them whether his DVD and a television set were still in the dining room. The two items were not there but a computer was on its stand.

21. They suspected that the deceased was drunk. They told him that on the following day he should go to the police and lay charges of housebreaking.

22. Bovana said that before they left the premises of the deceased’s house they asked the two ladies from the next – door – house to guard the deceased’s house because they feared that thieves might return to take the computer.

23. They removed a blanket which covered the deceased and they observed that he had a T-shirt on but they did not pull the T-shirt up to see whether he had been injured.

24. The police asked neither deceased nor the two ladies from the neighbouring house what their names were.

25. Bovana said that they asked the deceased to get up and close the door but he did not get up.

26. He conceded that, had they taken the deceased to hospital, his life might have been saved.

27. Dr Hannah said that the deceased’s main blood vessels were not directly injured. His opinion was that if he had been taken to hospital and received medical attention within an hour it is possible that he would have survived.

28. Thembisa Danisa is the owner of house 1561 at unit nine in Mdantsane which she leased to the deceased. She said that the burglar door was bent, that the door “was not right” and that it was shaking when the previous tenants were occupying the house.

29. Captain Ntembiso Stanley Ndzendevu arrested all the accused except accused number four. The Court accepts that he apprised the five accused of their constitutional rights after arrest.

30. The Court ruled earlier in trials – within – a trial in this case that statements made by accused one, five and six are admissible in evidence.

31. Evidence of such statements binds only those who made them because, before the close of the State’s case, Counsel for the State did not apply that it be admissible against others (See S v Ndlovu and Others 2002(2) SACR 325(SCA).

32. The statement of the first accused Luzuko Banisi “Exhibit F” which was read into the record is briefly to this effect.

During March 2005 (date and time not recollected) he was in the company of his companions. One of his companions suggested that they rob a spaza shop. They then proceeded to the spaza shop at unit nine in Mdantsane. That companion was carrying a Norinco firearm on his stomach. The companion shot a man and he fell on the floor. Banisi noticed that it was not a spaza shop but it was a house. His companion took a television set in the dining room and a Nokia 3310 cellular phone. They then proceeded to unit three in Mdantsane. On his own version, he knew that they were going to rob a spaza shop which turned to be a residential house. He knew that his companion was carrying a firearm and must have foreseen the possibility that his companion would shoot and possibly kill any person who offered resistance. He associated himself with the plan to rob occupants of the house.

33. The fifth accused Sivuyile Nyamana’s statement which was read into the record is briefly to this effect:

He was in the company of his companions, one of whom was carrying a 9mm firearm. They were from a shebeen and on their way to their homes at unit three in Mdantsane. As they were walking through unit nine in Mdantsane the companion who was carrying a firearm suggested that they get into a certain house. The door of the house was kicked open. He (fifth accused) stood in the doorway of that house. They took a television set. He could not see other items because small items were kept in their pockets. He did not see people in the house. They left with the items they stole. On their way to their homes they decided that the items be kept inside a garage of a companion’s home. Later he was given an amount of thirty rands in coins being part of the proceeds of the sale of the stolen items.

He must have realised that they were going to rob the occupants of their property in the house especially when the door was kicked open. He knew that one of his companions was carrying a firearm and must have reconciled himself with the fact that the firearm could be used to shoot and kill whoever stood in their way during the robbery. See R v Nsele 1955(2) SA 145(A), S v Malinga 1963(1) SA 692(A), S v Mkhize 1999(2) SACR 632(W) 638f – g.

34. The statement of the sixth accused Siyabonga Jejane Exhibit “E” which was read into the record is to the following effect:

He was at unit nine in Mdantsane at Hollywood tavern. On their way to their homes one of his companions suggested that they walk past a spaza shop to buy some food. They proceeded to the spaza shop. When they got there the companion who suggested that they go there told him to wait at the gate because he was drunk. While waiting at the gate he heard a gunshot. He saw the companion who suggested that they go there carrying a television set. When he asked his companions what had happened they walked past him without saying anything. They parted ways and he went to his home at unit three in Mdantsane. On the following day he heard that the television set was purchased by someone.

35. The Court finds that the house and date the first, fifth and sixth accused refer to is the date when the deceased was shot at house 1561 unit nine in Mdantsane.

36. There is no other evidence against the six accused.

37. The statements of the first accused Luzuko Banisi and that of the sixth accused Siyabonga Jejane incriminate them. The statements are confessions. In my view they have been confirmed in material respects by the facts that the deceased was shot and also by the one that his television set and his nokia 3310 cellullar phone were stolen. (section 9 of the Criminal Procedure Act 51 of 1977)

38. The second accused Thandolomzi Afrika Yaphi, the third accused Andile Biella Thembile, the fourth accused Thandisile Shoes Bosman and the sixth accused Siyabonga Jejana are accordingly found not guilty of all the counts they are charged with.

39. The first accused Luzuko Banisi and the fifth accused Sivuyile Nyamana are found guilty on the first count (murder) and on the second count (robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act 51 of 1977).

40. I should seize this opportunity and remark on the shocking and disturbing conduct of the police officers who attended the scene of crime. They are Inspectors Tembani Bovana and Ndema and Constable Mcacisi Mlindi. They were told that a shooting had occurred inside the deceased’s house. They found the deceased lying on his back on his bed bleeding from the nose. The deceased did not get up even when they told him to close the door. He told them that he was losing power. They say that they believed that he was drunk. If this is what they believed they ought have been more careful. They did not even turn him over to see whether or not he had been shot.

It was clear to them that some of his items had been stolen. Even for the bleeding from the nose they did not take him to hospital. It would have taken them about ten to fifteen minutes to take him to Cecilia Makiwane hospital which as far as O a, aware, is close to where the deceased was. They decided to leave him lying there. Dr Hannah said that the deceased’s main blood vessels had not been directly injured and he expressed the opinion that he might have survived had he received medical attention within one hour.

41. A copy of this judgment will be forwarded to the Provincial Commissioner of the South African Police Service for his attention.

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A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES: THE STATE

and

LUZUKO BANISI 1^ST ACCUSED

THANDOLOMZI AFRIKA YAPHI 2^ND ACCUSED

ANDILE BIELLA THEMBILE 3^RD ACCUSED

THANDISILE SHOES BOSMAN 4^TH ACCUSED

SIVUYILE MAN NYAMANA 5^TH ACCUSED

SIYABONGA J-J JEJANA 6^TH ACCUSED

Registrar CASE NO: CASE NO. CC75/2005

• Magistrate:

• Supreme Court of Appeal/Constitutional Court: BISHO HIGH COURT

DATE HEARD: HEARD ON: 09, 10, 11, 12, 13, 16 OCTOBER 2006

DATE DELIVERED: 15 NOVEMBER 2006

JUDGE(S): DHLODHLO ADJP

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): MR X JONAS

• for the accused/respondent(s):MR P DUKADA FOR ACCUSED NO. 4:

MR LR NDUNYANA FOR ACCUSED NOS. 1, 2, 3, 5, AND 6

Instructing attorneys:

• Applicant(s)/Appellant(s):

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings :

• Topic:

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