The defence in the Khayelitsha massacre case wants to unmask the sole surviving witness.
The debate began as the trial of Yanga “Bara” Nyalara and Wanda Tofile began in the Western Cape High Court, which sat at the Goodwood prison circuit court, on Monday.
They were arrested in 2022 for a mass shooting which left 12 people dead and six wounded.
The duo have been charged with murder, attempted murder, illegal possession of a firearm and ammunition.
On Tuesday their lawyer crossexamined Lieutenant-Colonel Victor Gallant about the reasons the witness and the State requested he wear a mask in court.
Gallant testified on Monday that two witnesses died during the investigation, another is on the run and they were left with just one living witness.
He said the remaining witness had been attacked twice, including being wounded in a shooting at their home on 2 July by suspects dressed in police uniform.
The State made the application for the witness to testify anonymously, fearing the witness may be intimidated.
The order states: “That the identity of a State witness (MrZ) be withheld in the proceeding in terms of section 153(2) of the Criminal Procedure Act (CPA). Mr Z be permitted to wear a so-called ‘Covid mask’ for the duration of his evidence and that Mr Z’s evidence be presented via closed-circuit television in terms of section 158(2)(a).”
The State made reference to the Supreme Court of Appeal case of the State v Staggie in 2012.
It added: “A court may order video evidence if the facilities are available.
The State also said they relied on the report by High Court preparation officer Sophie Petlele’s report which “established that Mr Z, some three years after the events transpired, is still very traumatised and will suffer harm should he be required to give evidence in an open court and/or in the proximity of the accused.”
Petlele also advised the witness to get counselling.
The defence attorney then addressed Gallant and said:“The defence is entitled to a fair trial, inter alia challenge and in an open court.
You testified that mass shootings were prevalent in Khayelitsha, and that they happen on a daily basis.
The lawyer says: “The witness was in the process of applying for witness protection but he didn’t go into the programme, he with- drew himself while busy with the process. He changed his mind and left the programme.
“Despite an attempt on him before, the witness is willing to testify but only if he testifies on camera and with a mask.
The court heard that the witness wished to wear a mask so they are not identified.
A surgical mask which covers the nose and the mask was suggested.
The witness would also testify from a separate room and will be clearly visibly and they will be in the room on their own and the camera will capture their body language.
And the court will be in the position to see the body. The ruling will be made this morning.
mandilakhe.tshwete@inl.co.za