Ntumba accused free after key witness goes missing

A missing technician is what collapsed the state’s crucial evidence, which is said to place four police officers at the scene where Mthokozisi Ntumba was gunned down during a student protest in Braamfontein, Johannesburg last year.

Sowetan has learnt that the witness, known only as Mash, downloaded footage recorded from CCTV cameras at MyClinic Health Care where Ntumba had consulted with a doctor shortly before he died.

Though this footage was the first video Independent Police Investigative Directorate (Ipid) investigator Judy Thwala obtained in her investigation, Mash could not be found when she was issuing summonses to the state's 19 witnesses.

On Tuesday, the Johannesburg high court acquitted the officers – Tshepiso Kekana, 27, Cidraas Motseothatha, 43, Madimetja Legodi, 37, and Victor Mohammed, 51, – on charges of murder and three counts of attempted murder of TVET college students.

Judge Mawabo Malangeni said none of the 18 state witnesses who testified during the trial earlier this year could identity the accused as the ones who shot and killed Ntumba on March 10 2021.

Malangeni said the state could not provide any credible evidence that warrants a conviction.

The judgment came due to an application that was brought by the accused for discharge of the charges against them in terms of section 174 of the Criminal Procedure Act.

Malangeni said the state’s case was based on circumstantial evidence from the video footage obtained from the clinic.

Footage obtained from the Johannesburg Institute of Engineering and Technology College, which is next to the clinic, was admitted as part of the evidence.

The cause of death was firearm-related injuries to the chest.

The father of four was killed when police fired rubber bullets at University of the Witwatersrand students who were protesting against historic debt and demanding to be registered.

During the trial, two police commanders – Cpt Mkhanyiseli Shange and Col Jacob Beeslaar – who were on duty on the day Ntumba died, testified that they were called to Ipid offices last year to watch the footage from the clinic.

Shange testified that he could identify the four accused in the video while Beeslaar said he could only identify one of them.

“The police got out of the vehicle and shot at the people standing by the pavement using shotguns. I observed that one person was holding his chest as if he was shot.

“After that, I saw members jump back into the vehicle and the Nyala drove off. I only recognised warrant officer [Victor] Mohammed on the footage. I could not see the others very well,” said Beeslaar at the time.

But this footage could not be admitted into evidence in court as Mash could not be found.

Sowetan understands that and attempt was made to track down Mash for weeks and several addresses in Lenasia, southern Johannesburg were visited but he was nowhere to be found.

“He could not be reached on his cellphone and he was not found at the address he gave. We searched for him through crime intelligence, Sars [SA Revenue Service] and home affairs and we found six addresses in Lenasia and he was not found at any of those places. We found people at those houses who did not know the missing witness,” said a source close to the case.

'"In March the court gave us two days to find the missing witness but we still could not find him.”

An application was brought by the state to have the video admitted but Malangeni dismissed it.

In the footage presented in court, three officers can be seen coming out of the Nyala but they cannot be identified as they were wearing face masks due to the pandemic.

Two officers are seen carrying firearms but no shots were fired.

In his judgment Malangeni said: “There is no person [witnesses] who saw the accused persons committing the crime. The state’s case is based on circumstantial evidence with the video [from the clinic] in the main. The video footage viewed by this court is different from the one viewed by Shange.

“None of the complainants [students who were shot] could identify the accused persons. Mr Mlungisi Hlela [security officer at college] claims he saw police shooting at the students.

“He could not identify or link them to the crime scene. On the evidence of the state in its entirety, there is no credible evidence upon which this court... may convict.

“Fortunately, courts do not make decisions based on public opinion or media reports but on evidence presented before it. I therefore order that all accused persons are found not guilty of all counts and discharged,” said Malangeni.

Defence lawyers welcomed the decision, saying justice had prevailed.

National Prosecuting Authority spokesperson Phindi Mjonondwane said the state accepted the judgment. 

“However, we will study the judgment and determine if there is any plan of action that will follow after this,” said Mjonondwane. 

Ntumba’s brother Ayanda said he was saddened by the acquittal.

“This is painful. We cannot change what has happened. This shows that the justice system in South Africa is dead,” said Ayanda.

Ipid spokesperson Lizzy Suping said they were also studying the judgment.

Inconsistent testimonies collapse Ntumba trial

The state's case against the four policemen accused of killing Mthokozisi Ntumba was punctuated by inconsistent witness testimonies and evidence from the beginning.

One of the state's key witnesses, Dr Tebogo Sedibe, testified during the trial that when he  arrived at the scene, he found no bullet cartridges next to the body.

Sedibe had a few moments earlier seen Ntumba in his consultation rooms at MyClinic HealthCare on De Beer Street in Braamfontein, Johannesburg, on March 10 2021.

The doctor had been called out to attend to Ntumba following the shooting.

Though Mlungisi Hlela, a security officer at the Johannesburg Institute of Engineering and Technology – a college adjacent to the clinic – did not mention seeing any cartridges in his evidence-in-chief, he testified during cross-examination that he saw some inside their college premises.

Ballistics expert Lt-Col Chris Mangena testified that when he reconstructed the scene two days after the killing, he found some cartridges.

In his judgement, Judge Mawabo Malangeni said: "The crime scene was contaminated. [Admin clerk at the clinic, Lerato] Mokoena, Sedibe, could not see any cartridges next to the body of the deceased..."