Unreliable state witness leaves judge in disbelief
|Updated
“I have never experienced a witness like Mr Z in my career.”
That is what Western Cape High Court acting Judge Mandy van Leeve said of a witness central to the State’s case against Yanga “Bara” Nyalara, who police once categorised as the Western Cape’s “most wanted”.
Nyalara, along with co-accused Wanda Tofile, were on Tuesday acquitted of all 20 charges related to a Khayelitsha May 2021 mass shooting – yet another blow to the State involving a high-profile case in less than a week.
The two were accused of killing 12 people and wounding six others in Site B. Their trial began less than a month ago at the Goodwood Prison Court, sitting as a high court.
The State hinged its case on one witness identified as Mr Z. He was the only surviving witness who identified Nyalara and Tofile in connection with the incident after two other witnesses, who were allegedly Mr Z’s friends, were murdered, the court was told.
They were 15 years old at the time they allegedly witnessed the incident.
In filing a Section 174 application for discharge of all the charges against the accused, Nyalara’s lawyer, advocate Reuben Liddell, argued that Mr Z continuously lied in his evidence which was “shocking” and nothing Liddell had ever experienced in court.
“Had there been no video of the shooting incident, the court would have relied on the witness’s word. His versions in his police statements and oral version in court was crumbled by what was seen in the video. We were fortunate to have the video. He downright lied to the investigating officer. At some point, he shifted blame to the police who took his statement,” said Liddell.
Tofile’s defence counsel, Stacey Webb, said: “There have been too many inconsistencies and the witness’s evidence is problematic. One can not tell when what he is saying is true or not.
For example, his schooling years that he seemed not to know. Importantly, the issue about his statements, he first told the court he made one statement and then admitted to having a second statement. Under cross-examination what he mentioned in his statement contradicted what he said in court. He identified Mampintsha (Tofile) four days before the trial started. He’s shown a high degree of untrustworthiness.”
Judge Van Leeve said the court could not regard Mr Z as a competent witness.
“As the court proceeded I was presented with numerous versions. The court cannot regard him as a competent witness. The evidence is poor and unreliable. I have never experienced a witness like Mr Z in my career. At this stage there is nothing that the court can rely on,” said Judge Van Leeve.
The State could only say that while it considered that the evidence was poor and that it might be problematic, it was still evidence.
In an indictment the State had painted Nyalara as a feared gang leader in Khayelitsha who was involved in extortion among other crimes. His arrest in 2022 made headlines, with former police minister Bheki Cele, who attended Nyalara’s first court appearance, saying how he would never be back in society again.
Shaking his head in disbelief, Tofile said he was relieved and was longing for the day that had come, while Nyalara said the court outcome was a reflection of the prayers of his loved ones.
Outside the court, their loved ones were joyous. Police officials were seen gathered with the National Prosecuting Authority (NPA) in discussions.
“We are naturally disappointed that the accused were granted a Section 174 application. We accept the decision of the court. We take comfort that the accused (Nyalara) has a pending case which will be on the roll on August 22, 2024, at Cape Town Regional Court and there are other cases that are under investigation against him,” said NPA spokesperson Eric Ntabazalila.
Nyalara’s pending case is in connection with business robbery, while Tofile is currently serving a separate sentence in connection with theft and is expected to be released in September. Provincial police spokesperson Andrè Traut said: “The investigation relating to the other crimes committed by the individuals is still under way, and they will both remain in custody.”
Tuesday’s outcome comes as the State is under sharp criticism over the handling of high-profile cases, including the Khayelitsha barbershop shooting in June where three children and a man were killed and seven others wounded.
Similar to the Nyalara matter, there have been arguments in relation to identity issues and two suspects were granted bail.
There were also calls for police to strengthen their administration work after three suspects, Tebogo Maluke, Cassiem Feni and Avuyile Mjongwana, linked to a planned cash-in-transit (CIT) heist in Khayelitsha had to be released as they were not charged within 48 hours as the law requires.
At the time of their appearance, two other suspects, Simphiwe Mzawya and Sihle Mabongo, were absent as they were still in hospital after being wounded in the shootout with police during their arrest.
Eight other suspects were killed in the exchange of fire.
Hawks spokesperson Siyabulela Vukubi said their Bellville-based National Priority Violent Crime team rearrested Mabongo and Mzawya on a warrant. Mabongo was still in hospital under police guard, while Mzawya appeared briefly at the Khayelitsha Magistrate’s Court on Tuesday.
They face possession of illegal firearms, ammunition, possession of explosives and attempted murder charges. The matter is expected to be back in court on August 15 for bail profiling.
Police Minister Senzo Mchunu’s spokesperson, Kamogelo Mogotsi, said: “As the legal processes run, we trust that those tasked with ensuring that justice is dispensed continue to do so. A priority for the ministry in this seventh administration is to professionalise the police service and this also speaks to ensuring that thorough investigations are done to avoid acquittals on technical issues or weak cases.”
Cape Times