Mawanda Makhala and Velile Waxa were convicted in December 2019 of the murder of Victor Molosi, an ANC councillor and former chief whip in the Knysna region, who was gunned down near his home in July 2018. Hitman Vela Dumile was also convicted at the same time.

The court sentenced them to life imprisonment for the murder and five years for associated firearm charges. Makhala and Waxa first approached the Supreme Court of Appeal (SCA) in February 2022, but their bid was dismissed by a majority of the court.

They have now approached the Constitutional Court, raising constitutional grounds based on the rights of witnesses and the admissibility of statements. They argue that the trial court should not have accepted statements by a State witness, who testified under the provisions of section 204 of the Criminal Procedure Act, because he later changed his evidence. That witness, Luzuko Makhala, is the brother of the first applicant, Mawanda Makhala.

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Statement in question  

During the trial, the court had heard how contestation over seats in the municipality had led to the killing. Waxa was formerly an ANC councillor but chose to stand as an independent in the 2018 local government elections. He contested a seat in the same ward as Molosi’s mother-in-law, but retained the seat.

According to Makhala and Waxa’s lawyer, Daniel Dercksen, the outcome “generated considerable chagrin in local ANC circles”. The two men were “reputedly fingered by the ANC section of the Knysna community as perpetrators of the murder”. 

In an affidavit before the Constitutional Court, Dercksen says the State witness was clearly a suspect in the case. Community members had led police to Luzuko Makhala, who confessed to aiding in the crime by arranging a hitman at the request of his brother. He admitted to driving from Knysna to Cape Town to collect the hitman, who then killed Molosi. His brother paid for the petrol for this trip.

However, when the trial began, Luzuko Makhala denied the statements. Dercksen says his original statements should have been thrown out of the court record for a number of reasons, including the manner in which they were obtained.

Luzuko Makhala had no legal representation and Derksen questions whether police made him aware of his rights. 

“It is apparent that Colonel Ngxaki (who took down the statement) had in fact negligently misled (or intentionally hoodwinked the witness). Significantly, notwithstanding his aforesaid warning as to the rights to silence and against self-incrimination, Ngxaki clearly thereafter reassured the witness that he might as well proceed to incriminate himself without concern as his statement would not be used against him should he not be accepted as a State witness. This was both an unauthorised and false assurance,” Dercksen argues.

He adds that the trial court had raised concerns about the quality of the statement, saying it was recorded in a “very haphazard, incoherent” manner.

Dercksen argues that Luzuko Makhala was motivated by self-interest and had no desire to do the right thing. He adds that the presence of a lawyer would have “ensured at least that the s204 witness was advised that he was being misled and was actually embarking on an exercise of confessing, with potentially dire consequences for him if he were to not be indemnified and subsequently prosecuted for the murder charge, without protection”.

In written submissions to the court, the National Prosecuting Authority (NPA) rebuffs Dercksen’s argument, saying the case was “rightly rejected by the Supreme Court of Appeal”.

“Although there is both a minority (Unterhalter AJA) and majority judgment (Meyer AJA with Mocumie, Makgoka and Mothle JJA concurring), the ultimate finding reached is the same, that the Applicants were rightly convicted,” the NPA says.

“The prospects of success in the appeal are poor and it would not be in the interests of justice to grant leave to appeal,” argues Mervyn Menigo, senior state advocate in the Western Cape division of the NPA. 

‘Making a mockery’

The NPA also denies that Luzuko’s rights were violated when he gave the statements to police. 

“It will be submitted in support of the judgments of the trial court and SCA, that Luzuko Makhala was neither a suspect, an arrested person nor a detained person and did not have the rights accorded to these classes of persons, and even if he could have been classed as anyone of these, it could not be shown through the facts of this matter that any of his fundamental rights were violated, and even in the unlikely event that the court finds that a fundamental right may have been violated, the admission of the evidence could not be shown to have rendered the trial of the applicants unfair or to have been detrimental to the administration of justice.”

The NPA argues that the trial court was correct to admit Luzuko Makhala’s evidence, even though he recanted, as it “revealed a conspiracy which had led to the commission of a heinous murder and would never have come to light”.

“The witnesses then deceived the police and State prosecutor into believing that he would testify in accordance with his statement. Then in full view of the public observing the trial including the family of the deceased, he unashamedly lied to the court, making a mockery of the criminal justice system, all the while revealing that he had obtained the advice of the legal representative of the first appellant (his brother) on how to subvert the court’s search for truth in the matter,” the NPA says.

The court is due to hear the case on Thursday, 15 February. 

A 2022 analysis of political killings in South Africa revealed that the vast majority of these murders were conducted in KwaZulu-Natal. Almost half (49%) of assassinations take place at the victim’s home, often when leaving for work or arriving home. DM