The family of Sidwell Mkwambi, the 24-year-old New Crossroads resident who was allegedly tortured to death and driven to the mortuary in a police van, had to hear on the radio this week that 12 Western Cape Hawks policemen had appeared in court to be charged with his brutal murder.
“Nobody called to tell us,” said Mkwambi’s sister, Mildred Nopinki. “Our lawyer phoned us to say he had heard about it on the radio too. My mother is staying with me and when she heard the news on the radio she was very upset.”
Nopinki said the family was longing for justice. “The police said my brother had jumped from a car. But that was not true. My family saw Sidwell’s body and it was very bad. All the bones in his body looked like they had been broken.”
The Mkwambi family’s lawyer, Likhaya Makana, said he had not been informed by the National Prosecuting Authority (NPA) that it was prosecuting the case.
The Hawks are charged with offences related to the kidnapping and murder of Mkwambi and the kidnapping, assault and torture of his friends, Siyabulela Njova and Mthuthuzeli Rantaoleng. The men were picked up by police after two policemen were shot in New Crossroads. Makana has also lodged a civil claim against the police for Mkwambi’s death and Njova’s torture.
Admissability of evidence
“I believe this case was a dilemma for the National Prosecuting Authority because these guys are handling very high-profile cases,” said Makana.
The appearance of the police officers on charges of murder and torture was a sensitive issue, the Mail & Guardian was reliably informed by police sources close to the case. There are fears that other cases in court may have to be reviewed if one of the Hawks officers charged with torture and murder had obtained a confession from an accused in similar circumstances.
“Lots of cases could be affected,” said a police source. “The National Prosecuting Authority will have to look at the admissability of evidence in cases where there was alleged torture or assault to obtain confessions.”
It took three years for the NPA to charge the Hawks members after the police watchdog body, the Independent Police Investigative Directorate (previously known as the Independent Complaints Directorate), recommended that 14 Hawks be charged. Two have not been charged.
The matter is further complicated by 33 complaints of torture against the policemen that have been received since the murder investigation started, according to the spokesperson for the directorate, Moses Dlamini.
The NPA had declined to prosecute in 17 of these cases, he said, whereas the other 16 were sent back for further investigation or for clarification and whether further prosecutions would follow was still to be decided.
“We are satisfied that the members have been charged and that they will have to account for the death of Mkwambi and the assault of Njova and Rantaoleng,” said Dlamini.
A decision was finally made to try the Mkwambi case in March last year. Eric Ntabazalila, spokesperson for the Western Cape NPA, said at the time the cases took a long time to process because they were complicated “both legally and factually”.
Police sources told the M&G two years ago that the decision about whether to prosecute had been delayed because many advocates in the NPA worked closely with the Hawks and the cases were passed from “advocate to advocate”.
On Tuesday, the 12 Hawks tried to evade photographers as they sprinted from the Bellville Magistrate’s Court to avoid having their photographs taken after they were formally charged.
Although Nopinki alleges that top Hawks investigator Piet Viljoen visited her home in search of her brother after the two policemen were shot, he has strenuously denied this and is alleged to have told police he was involved in an investigation in Camps Bay at the time.
Viljoen, who was one of the police officers involved in extensive investigations into sidelined crime intelligence boss Richard Mdluli, has not been indicted in this case.
The accused, including two captains, were not arrested and made their own way to court.
The case has been moved to the Western Cape High Court and a pre-trial conference will take place on June 1.
Despite the police watchdog’s recommendation that all the Hawks be suspended, they are still at work.