The family of murdered Martin Whitaker is considering a private investigation and prosecution after former Azanian People’s Liberation Army (Apla) member Dumisani Ncamazana (27) — the controversial beneficiary of a presidential pardon — walked from the East London Regional Court a free man this week.
The dead man’s brother, Andrew, has suggested the case has been “under-prosecuted”. “This thing has been underplayed. Did someone want it to go away?” he asked.
The Democratic Alliance has referred the investigation to the Public Protector and Independent Complaints Directorate.
Ncamazana was the main suspect in the May 27 armed robbery and murder of Whitaker (35) at his Sugar Shack Delicatessen outside East London, but the charges were dropped because of insufficient evidence.
A convicted killer, Ncamazana was granted a special pardon by President Thabo Mbeki, along with 33 African National Congress and Pan Africanist Congress prisoners, earlier this year.
Andrew Whitaker says the family will launch a private investigation and prosecution if necessary, but will wait until the state formally certifies it does not intend prosecuting. If successful, the family’s action could lead to a civil claim against the state and even against Mbeki.
Under the Criminal Procedures Act, the “wife or child or any of the next of kin of any deceased person” may institute and conduct a prosecution, in person or through lawyers. This may only happen if the Director of Public Prosecutions declines to prosecute. Police have advised the family to be patient, because an internal investigation is under way into alleged irregularities by the police and the Department of Justice.
It is rumoured that a backlog of 11 500 criminal cases in the police forensic laboratory delayed vital evidence in the case.
Whitaker and Athol Trollip, the DA leader in the Eastern Cape, this week highlighted puzzling circumstances surrounding the investigation and the discharge of the three suspects: Ncamazana, his brother Simnikiwe and Luntu Nguwe.
Trollip said that before the bail hearing he was assured by the investigating officer, an Inspector Qakala of the East London police, that the case was watertight. But the case did not survive the bail hearing.
Murder charges were “systematically” dropped against all three suspects. A charge of possessing an illegal firearm, substituted for the murder charge in Dumisani Ncamazana’s case, was later also dropped.
Further questions have arisen over the identity parade, conducted 10 weeks after the murder and only after a letter to Ross Mpongoma, the provincial police commissioner, Trollip said.
The parade, he said, appeared to have been conducted on a contact basis, rather than through a one-way mirror — an unpleasant experience for Martin Whitaker’s girlfriend, Lisel de Villiers, who witnessed the murder and was herself assaulted.
Simnikiwe Ncamazana appeared to have swapped his number for that of another person in the line-up.
Bloodstains and plasters were found in Whitaker’s stolen car, perhaps because Whitaker returned fire. Trollip said no forensic investigation was conducted on these stains.
A further suggestive circumstance was a ballistic test showing that the murder weapon was the same as one later used to kill an East London taxi-driver. Simnikiwe Ncamazana had been charged with the taxi murder.
Trollip pointed out that the Eastern Cape director of prosecutions, a Mr Ntsaluba, had indicated on television that he was unhappy with the conduct of the investigation. Ntsaluba could not be contacted this week.
However, Whitaker said “a lot of queries” had been clarified in a long discussion with the provincial police commander in charge of serious crime, Gary McLaren. In particular, he had learned that fingerprints found at the scene had not been matched to those of the three suspects. — newzwise