On Tuesday, memories of the Covid-19 pandemic dominated the Goodwood Prison courtroom as the State and defence argued over whether a witness should be allowed to wear a surgical mask to conceal his identity while testifying against alleged mass murderer Yanga Nyalara and his co-accused, Wandile Tofile.
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According to the State, Nyalara, also known as ‘Bara,’ is an alleged extortion ‘kingpin.’
When their trial began on Monday, he and Tofile pleaded not guilty to 12 murder charges, six attempted murders, illegal possession of firearms, and illegal possession of ammunition in connection with the mass shootings on May 15, 2021.
Six other murder charges were dropped in March and May 2022 without explanation, as was the Prevention of Organised Crime charge. Charges against two other defendants were also dropped before the trial, according to News24
After the two pleaded, the State sought an order allowing the first witness to testify via CCTV while wearing a surgical mask to conceal his identifying features for his safety and psychological well-being.
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These applications to testify via CCTV are typically brief exchanges with quick decisions. However, in this case, Bara’s counsel objected to the mask request.
He claimed that his client had the right to observe the facial expressions and body language of a man who was going to speak about him in court. Tofile feels the same.
Senior organised crime detective Lieutenant-Colonel Vincent Galant testified that the man’s face should be obscured with a mask for his own safety.
He stated that two other witnesses had already been killed in the run-up to the trial. The remaining witness was initially under witness protection but later left the programme.
The witness was attacked twice: once by men claiming to be police officers, and again on July 2 by a group of men who stormed into his house and shot at him.
A bullet grazed his ankle as he fled, and he is currently hiding.
The State claimed that during the Covid-19 pandemic, wearing masks in court was commonplace, so it should not be an issue now.
Nonetheless, Nyalara’s counsel ripped into him, claiming that there was nothing in writing in the affidavit submitted to support the mask request, nor in Galant’s diary that mentioned this request for an additional precaution. The police investigation into the two attacks on the witness has not linked the two accused to the crimes.
Nyalara and Tofile listened from behind floor-to-ceiling bars in the newly constructed prison court, which is serving as a High Court for its first case.
Galant admitted that the mask was not a specific request made by the witness but rather an offer by the police to make him more comfortable testifying.
On Monday, Galant testified that the most difficult aspect of their investigations into ‘multiple shootings’ was finding witnesses.
The court preparation officer has already evaluated the witness and determined that he will be retraumatized by testifying and should be allowed to do so via CCTV.
Whatever the presiding officer decides in the Bara case, it will likely be the first order involving the use of a mask to conceal one’s identity, setting a precedent for subsequent cases.
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In these cases, even if they are not in court, the witness must take the affirmation or oath, and the court preparation officer will sit with him to monitor his emotional state.
This case is one of many mass shootings in Khayelitsha, Gugulethu and Nyanga that have terrified the communities, particularly because of their apparent randomness.
In this case, on 15 May 2021, a man linked to Nyalara, Sikhumbile Nkonki, was shot dead in the street in Site B, Khayelitsha, outside a shop being extorted.
Rival extortionists are thought to have killed Nkonki while attempting to infiltrate Nyalara’s territory.
They are not charged with extortion, but the State claims that extortion is what triggered everything.
Extortion occurs when a business owner or contractor is forced to pay a recurring ‘protection fee’ to avoid harm to themselves or their work.
The phenomenon peaked in Cape Town, where it was first visible in disputes over nightclub security. Then, murders and harassment on construction sites began to emerge, and they were linked to either extortion or groups of people forcing contractors to share profits in order to maintain a smooth work schedule.
The State claimed on May 15 that the events were retaliation for Nkonki’s death.
About 10 to 15 armed men went on a rampage in Site B, randomly shooting anyone near the business who was thought to have been extorted by the other group.
They returned to the shop where Nkonki was killed, killing two of the shopkeepers and injuring a third.
Police and paramedics rushed from scene to scene to keep up with the carnage.
Gavin Futho, Mandlakayise Simelani, Thabiso Simelani, Ibrahim Abdulle Ahmed, Asemahle Mayekiso, Simphiwe Mzola, Siyabonga Bethani, Hassan Nuur Mohamed, Thembile Lamani, Mzingizi Mbilini, Osman Wydow, and Ahmed Abukar Omar were all murdered.
Six other people, each assigned an alphabet letter from A to F to protect their identities, were shot, some in the face, but survived with long-term health consequences.
Regardless of the arrests, the shootings continue. Eight people were killed by gunfire in Khayelitsha in April.
The dispute over the mask was not resolved on Tuesday, so the case was postponed until Wednesday for Nyalara’s counsel to explain why he is opposed to the mask in final argument.
Also read:
Khayelitsha residents fear for their lives and demand that “Bara” be released
Picture: Mikki Speid / Unsplash