A typical Sunday afternoon township tableau

In one of the first of what we hope will be many cases studies, Ananias Ndlovu writes about a typical Sunday afternoon township tableau.

Case study: Nzimeni Nyaqela

One Sunday morning in November 2010, I found myself in the Krugersdorp township of Kagiso, interviewing a middle-aged woman called Nombulelo Nyaqela.

She is the sister of the 29-year-old Nzimeni “Terrence” Nyaqela who is in Johannesburg Prison, aka Sun City, serving a life sentence for murder, attempted murder and robbery. Nzimeni was sentenced in 2009; the crimes were committed in 2006.

Nyaqela’s story

According to Judge Philip Hattingh, delivering judgment in the South Gauteng high court (case SS47/09), Nyaqela and two friends, having run of money for booze by a late Sunday afternoon, decided to rob a spaza shop.

One of the group, Zweli Kota, had an illegal firearm. But the group decided they needed another one – and a member of the group, whom we will call Mr. X for reasons that will become obvious, led the group to the home of his father, a policeman, where there was a firearm.

Then the group went to another section of the township in search of a spaza shop to rob. They entered the shop of James Sitchedi at 4678 Themba Drive, Kagiso, and held up Sitchedi, his wife Julia, and his son, Thabang.

What then actually happened is not clear – since each of the accused, the witnesses, and the victims gave contradictory statements.

But Hattingh found that three people entered the shop and held up the Sitchedi family. Then, while one took money from the register, there was a struggle between James and one of the men, and James was shot three times and died.

His son tried to intervene and was also shot. The men took money, cell phones and cigarettes and fled.

The last of the group to be arrested – in Zeerust – was Mr. X, whose father is a policeman and who went to fetch the second weapon. He turned state witness.

His evidence was important – because he could identify everyone involved, from the planning stage onwards.

He conceded that he had gone into the shop, though he denied shooting anyone, and he said that it had been Nyaqela who physically removed all the money from the register.

So far, so good, or so bad: a typical Sunday afternoon township tableau: semi-drunken young men in search of money; firearms available; yet another crime that went wrong because no one had initially intended to kill anyone.

Unfortunately, the matter became even more “typical”. A spaza shop owner lost his life; his family lost a husband and father; and three young men were sentenced to life imprisonment.

Even more typical were two other things.

The first was that the majority of South African crimes, especially in townships, are not solved by detective work or sophisticated forensics, but by word of mouth – in other words, by informers, known in local parlance as impimpis.

Or crimes are solved – and this has happened for decades – by one of those involved in the crime turning state’s evidence. This was the situation in Nyaqela’s case – and the person who turned state’s evidence is the man we have called Mr. X.

Mr. X gave three statements. First he said Nyaqela was not there; later he said Nyaqela was not at all part of the shooting and had been waiting outside; then he said Nyaqela was inside and was the one who took money out of the cash register.

When asked why he changed his statements, Mr. X told the court that Nyaqela was his friend and he wanted to “save” him. Hattingh said there were no material contradictions in his evidence and it was accepted.

“The state witness explained that accused number 2 (Nyaqela) was his friend who was much closer to him than the others and that he was trying to cover for him, so that it would seem that he was not involved. He further explained that when he made the confession he did not know, as he put it, how it worked to become a section 204 witness,” said Hattingh.

It would seem to be trite law that the evidence of an accomplice should be approached with caution, as Hattingh himself said, and surely, when an accomplice gives three contradictory statements, something really seems to be awry.

However, in his judgment Hattingh quoted a remark from the State versus Francis in which an appeal court judge (Smallburger) had said:  “It is not necessarily expected of an accomplice, before his evidence can be accepted, that he should be wholly consistent and wholly reliable and even wholly truthful on what he says. The ultimate test is that whether, after due consideration of the accomplice’s evidence, with the caution which the law enjoins, the court is satisfied beyond all reasonable doubt that in its essential features the story that he tells is a true one”.

In short, Hattingh had resolved to accept the evidence of Mr. X.

The second sad “typicality” about this case is that it often happens in South Africa that a suspect-turned-state-witness admits later that he/she told lies to keep out of prison.

There are, in turn, two “problems” related to this.

The Supreme Court of Appeal (SCA) is on record that it will not consider an appeal based on a witness claiming to have gotten it wrong. The SCA’s view is that if it listened to every witness who changed his/her mind, there would be no end to its work. Appeals will only be entertained if there is new evidence – and it has to be fresh new evidence. The court is strict about this.

Secondly of course, there are not too many people prepared to come forward and admit that they have perjured themselves. All else aside, perjury is a serious crime.

But it was precisely the issue of Mr. X’s testimony that had taken me to Kagiso.

I had gone to interview Nyaqela at Sun City and he told me that Mr. X had come to see him in jail. Mr. X admitted having lied about Nyaqela being part of the planning and also about him being present at the robbery.

Mr. X told Nyaqela that the police had “tortured” him – yet another sad typicality of this particular story – instructing him to implicate all his friends.

I also suspect that “turned” witnesses are instructed to implicate everyone that they can lest their testimony be questioned. In other words, if Mr. X – who had, after all, been part of the crime – had not implicated Nyaqela, one of the circle of friends, Nyaqela could have come to court and questioned other aspects of Mr. X’s testimony. And the state was relying on Mr. X’s testimony to ensure a speedy conviction.

Moreover, according to Nyaqela, Mr. X had written a letter in which he confessed that he had lied and had given to Nyaqela’s sister, Nombulelo.

She had in turn given the letter to Nyaqela, but he – remarkably – had lost it or given it to his lawyer. Nombulelo said that, after sentencing, Mr. X had continued to visit the family and even confessed to implicating Nyaqela wrongfully.

“He told us that my brother was innocent and he even visited him in prison to apologise. He also wrote a letter of apology and our mistake is that we did not make copies; we just took the letter to my brother in prison and he lost it.

“But now things have changed; he does not want to talk to us anymore. He is keeping his distance and yet he is the only one who can clear my brother’s name.”

Later, I tried to talk to Mr. X about this issue but, when I finally met him, his father, a police officer, was also there – and essentially told his son not to speak. He said the matter was “a closed case’ and the family was trying to move on. He said the story had “divided” the township causing enmity, and that going on with it was “township torture”.

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About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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