State wants ‘traumatised’ witness of Khayelitsha mass killing to wear mask while testifying

23 Jul 2024

The State wants the last surviving witness of a 2021 Khayelitsha shooting in which 12 people were killed to testify while wearing a face mask and to be exempt from disclosing his real name to the court.

According to a report by a court preparation officer (CPO) attached to the Western Cape Directorate of Public Prosecution, the last surviving witness of a mass killing in Khayelitsha in May 2021 is still severely traumatised and will suffer harm if he is required to give evidence in an open court or near the accused.

The report, dated 18 July 2024 and compiled by the CPO, is the foundation for the State’s main arguments in its application to acting Judge Mandy van Leeve to allow the witness to testify via CCTV with his face covered.

On Tuesday, the prosecutor (who does not want to be identified, such is the fear that surrounds the case) presented the State’s heads of argument, while the defence team (who also do not want their names published) will reply on Wednesday.

The State is seeking an order allowing the last surviving witness of the massacre, named only as Mr Z, who survived two assassination attempts, the last on 2 July, to testify via CCTV while wearing a Covid mask to help shield his identity and to be exempt from disclosing his real name to the court.

However, the defence wants the witness’s face to be visible while he testifies, arguing that if he is masked the court will be unable to see his demeanour or facial expressions.

The State will call Mr Z to testify against Yanga “Bara” Nyalara, an alleged extortionist, and his co-accused, Wanda Tofile, who are allegedly responsible for 12 murders in Khayelitsha in May 2021. The pair are charged with 12 murders, six attempted murders and illegal possession of firearms and ammunition.

Read more: Two of three witnesses in Khayelitsha mass murder trial are dead, court hears

According to the summary of substantial facts, on the day of the massacre, Nyalara, an alleged extortionist and kingpin in a criminal gang, led a group armed with automatic rifles and firearms on a killing spree, shooting primarily at men.

The shooting lasted for about an hour — people were shot between shacks as they ran for cover.

Risk of harm

Based on the CPO’s report, the prosecution told the court that three years after the mass shooting on 15 May 2021, Mr Z was still severely traumatised and would suffer harm should he be required to give evidence in public or near the accused.

“The wearing of masks should be considered in today’s context. For 18 months, everyone was seen wearing a Covid mask. Nowhere was it interpreted as an infringement,” the prosecutor told the court.

The State said Mr Z faced a risk of harm if he was required to reveal his name in court. The State argued that withholding the witness’s identity would not hinder the accused’s defence.

Judge van Leeve asked Lieutenant Colonel Victor Gallant, head of the provincial detective organised crime unit, what he had told Mr Z about how the SAPS would protect him.

Gallant replied: “We told him that he would testify in camera, his face would be covered, he would not be in the same room as the accused, this application would be heard in court, and a decision would be made by the court. We also informed him that the court might not grant the order.”

However, the defence pointed out that the CPO did not state in her report that Mr Z needed to wear a mask, but she had recommended that he testify via CCTV in a separate room.

The case is being heard in the Western Cape High Court, sitting in the Goodwood Prison Circuit Court. DM

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