Two Cape Town mass-killing-accused suspects acquitted after judge finds testimony of sole surviving witness to be unreliable

Yanga Nyalara is accused of murdering 18 people in Khayelitsha during May 2021 and June 2022. (Photo: SAPS)

By Vincent Cruywagen and Velani Ludidi

14 Aug 2024

Two men, Yanga ‘Bara’ Nyalara and Wanda Tofile, alias Mampintsa, who were accused of an extortion-linked mass killing that claimed the lives of 12 people three years ago, have been acquitted due to evidence that the court said was replete with lies and inconsistencies that made it impossible to discern the truth.

Two Cape Town men accused of being mass killers, Yanga “Bara” Nyalara and Wanda Tofile alias Mampintsa, have been acquitted, though they remain behind bars due to other crimes.

The two were acquitted on Tuesday after the Goodwood Prison Court ruled that Mr Z, the only surviving witness in the case, was unreliable; there were inconsistencies in his versions of the event and his evidence in court contradicted his statement.

Two of Mr Z’s friends, who also witnessed the mass shooting, have since been murdered.

This acquittal came after the lawyers for Nyalara and Tofile filed a discharge application under Section 174 of the Criminal Procedure Act.

Section 174 of the act encompasses the right of an accused to be discharged from the offence he has allegedly committed where, at the close of the State’s case, there is no evidence on which the court may draw the accused to the charge.

The acquittal effectively means that no one will be held accountable for the mass shooting on 15 May, 2021, which claimed the lives of 12 people. The mass shooting sparked widespread condemnation. Former Minister of Police Bheki Cele and Western Cape Provincial Commissioner Lieutenant-General Thembisile Patekile attended Nyalara’s court appearance in July 2022 at the Cape Town Magistrate’s Court.

At that juncture Cele said: “We believe the arrest of ‘Bara’ will solve many other cases going forward, especially in the Khayelitsha area that has been torn by various scenes of multiple murders.”

Although the two have been acquitted, they will remain in custody due to various other cases. Tofile was sentenced for theft and is scheduled to be released in September, while Nyalara still faces a business robbery charge and is due to appear in the Khayelitsha Magistrate’s Court again on 22 August. Further details were not immediately available.

News of the acquittal was met with relief from some communities in Khayelitsha, especially in Site C, from where Nyalara, often called the “Kasi Robin Hood”, hails. Known for his run-ins with the law, Nyalara is revered by many in the community for protecting residents from robberies, and for recovering stolen items from other criminals.

See news report from 2024 here:

A resident who knows Nyalara well, referred to him by his clan name, Jola, and insisted he must be released.

“We need Jola because crime has soared since his arrest. He not only protected the community but also donated clothes and groceries to those in need,” the resident said.

The community in Site C in Khayelitsha had held protests demanding Nyalara’s release, as crime spiked after his arrest. He had a room in his Khayelitsha home where locals would report cases for him to solve, bypassing the police.

In a now-deleted Facebook post following his acquittal on Tuesday, Nyalara hinted at his potential release, writing: “buy rat traps, the cat is coming”, suggesting he might secure bail in his remaining cases.

On Wednesday police spokesperson Colonel Andrè Traut confirmed that both Nyalara and his co-accused Tofile remained in custody for other crimes and would not be released.

“This office will not be elaborating on the outcome of yesterday’s court proceedings at this stage,” he stated.

Delivering judgment on Tuesday, acting Judge Mandy van Leeve stated that she had never encountered a witness like Mr Z in her career and that the court had nothing on which it could rely.

According to the initial indictment, there were four accused – Nyalara, Tofile, Manelisi Ngumla and Lundi Zweni – who faced 18 counts of murder, six counts of attempted murder, illegal possession of firearms and ammunition, dealing in and possessing drugs and violating the Prevention of Organised Crime Act. However, the cases against Ngumla and Zweni were withdrawn.

Twelve of the 18 murder counts relate to gangs vying for a slice of an extortion ring allegedly controlled by the Guptas and Boko Haram gangs in Khayelitsha. In the mass shooting of 12 people three years ago, seven others were injured. The other 6 murder counts related to another mass killing in March 2022, but charges were withdrawn with no reasons provided.

Read more: Court papers lift the lid on alleged extortionist’s Khayelitsha killing spree that left 18 dead

On Monday 22 July 2024 the pair pleaded not guilty to murdering 12 people in the mass shooting in May 2021. Both had an alibi that at the time of the mass shooting that they were not near or at the scene of the crime.

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

Mr Z testified on Monday, 29 July, wearing a face mask to protect his identity. Mr Z identified the two accused in the dock as the shooters in the mass killings. The media was not allowed to listen to his testimony and the public gallery where family members and friends sat was cleared.

His testimony via CCTV and with a mask in Goodwood Prison Court comes after acting Judge Mandy van Leeve ruled in favour of the State, which requested that Mr Z’s face be covered for safety reasons.

Read more in Daily Maverick: “Last surviving witness to Khayelitsha mass shooting identifies accused as culprits”

Evidence ‘replete with lies’

Lawyers for Nylara and Tofile stated in their 174 application to have both their clients acquitted of the charges they faced that Mr Z’s evidence was so replete with lies and inconsistencies that it was impossible to discern the truth from the lies. They also noted that his identification evidence was particularly shocking, which is the source of the dispute.

When the trial began, both the defence lawyers and the State prosecutor stated that they did not want their names published.

The 174 application reads: “In his first statement, Mr Z did not identify Mampintsha as one of the persons involved in the incident. His statement only identified two persons. Mr Z only included Tofile for the first time in his second statement four days before this trial started.

“It is so obvious that Tofile was only added after he saw a photo of him in a photo identification that even the court pointed this out. Instead of being honest, he lied and blamed the police for leaving Tofile out of his first statement.”

gangland murders nyalara Yanga Nyalara has been acquitted of mass murder charges related to the death of 12 people in Khayelitsha in May 2021. (Photo: SAPS)

The defence also pointed out a flaw in Mr Z’s testimony: the clothing he wore on the day of the shooting. Mr Z testified that Nyalara wore a Fabiani tracksuit cap and black takkies, and Thulani, who died, wore a black jersey, black jeans, black takkies, and a black hat, while Tofile wore a black top, jeans, and takkies but no hat.

The defence stated in its application that: “Mr Z’s attempt to save face by asserting that he identified them from their clothing further undermines his reliability. What is fatal for Mr Z is that those persons were not dressed even as he described to the court. He got almost every single item of clothing wrong. This supposed method of identification makes no sense.”

It was further the defence’s contention that since this matter turns on identification, his credibility must be considered at this stage.

Against this backdrop, the defence team contended that Mr Z’s evidence, in all of its various versions, is neither truthful nor reliable, and that there is credible prima facie evidence implicating the accused. The defence’s arguments carried more weight, leaving the court with no choice but to acquit the two accused.

Community outcry

In related news, five suspects involved in a foiled cash-in-transit heist in Khayelitsha were released last week after police failed to present them in court within the required 48 hours. The Hawks re-arrested two of the men on Tuesday. Sihle Mabhongo, 24, and Simphiwe Mzanywa, 46, who were wounded in a shootout with the police that left eight other suspects dead, were taken into custody again. Mabhongo, who briefly appeared in court, remains in the hospital under police guard and is currently on parole for a previous arrest.

In response to the acquittal, Western Cape National Prosecuting Authority (NPA) spokesperson Eric Ntabazalila stated: “The NPA accepts the court’s decision. We are naturally disappointed that the accused were granted a Section 174 application.

“We will take comfort that the accused (Nyalara) has a pending case which will be on the roll 22 August 2024 at Cape Town Regional Court, and there are other cases that are under investigation against him.” DM

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See news report from 2024 here:

Evidence ‘replete with lies’

Community outcry