Four Men Found Guilty of Murder of Zoliswa Nkonyana

Zoliswa Nkonyana

Four men were found guilty of the murder of Zoliswa Nkonyana for being lesbian by Magistrate Raadiya Whaten in the Khayelitsha Regional Court in Cape Town, South Africa. The 19-year-old was stabbed, kicked and beaten to death by a mob on February 4, 2006. Last month the court acquitted two of the accused and dropped charges against all of the men for attempted murder. In the five and a half years since the case began, there have been upwards of 40 postponements.

From Free Gender (Convicted #1, 4, 5 and 9 in the story below are Lubabalo Ntlabathi, Sicelo Mase, Luyanda Londzi and Mbulelo Damba):

The Magistrate reviewed the entire case, including the three ‘trials within trials’ regarding the confession of Accused #4, the DNA evidence taken from blood found on Accused #5's tekkies, and the police statements made by other accused. The confession and the DNA, which demonstrated that the blood on the shoes belonged to Zoliswa, were found admissible into evidence. However, the police statements made by the other accused were not. The Magistrate stated that on this point that the statements were not admitted because of the “sloppy manner” in which those statements were taken by police.

The Magistrate also reviewed the witness testimony given by Pindiswa and Laura. Taken together, their testimony tells the story of an altercation that broke out in the ladies’ toilets at Phela’s tavern. Pindiswa and Zoliswa were chastised for using the ladies’ bathroom and called ‘tomboys.’ After this, Accused #4 slapped Zoliswa in the presence of everyone in the tavern. When Zoliswa and Pindiswa left, they were chased by a group. Pindiswa was hit with a golf stick, and Zoliswa was stabbed and hit with bricks. The Magistrate compared the testimony of these two witnesses to the confession of Accused #4, and found that they were very similar and a “golden thread” could be drawn regarding the events on the Zoliswa was murdered. At several points, the Magistrate made reference to Zoliswa’s sexual orientation as being the motivation for her murder.

Despite poor lighting, the distance at which Laura and Pindiswa viewed the murder, and the 3 years between the incident and their testimony, the Magistrate found Pindiswa and Laura to be “honest witnesses.” And since only Accused #5 testified in court, no alternative version of events was fully put forward. The Magistrate wholly disregarded the explanation of Accused #5 who claimed that Zoliswa’s blood must have “jumped” onto his tekkies.

The Magistrate concluded based on Accused #4's confession that those participating in the assault acted with “common purpose.” All had been involved in the altercation outside the bathrooms at the shebeen, all had been chased her, and all had participated in the assault. Further, Zoliswa was “tiny girl” and it was reasonable to conclude that such an assault on her would lead to her death.

The only issue remaining was the question of identity. On this point, the Magistrate cited the testimony of the investigator who said that Accused #7 and #8 were in police custody for robbery at the time the murder allegedly took place. She also said that the State had not built a strong case against Accused #2. At this juncture, she acquitted #2, #7 and #8. She then said that the names of Accused #1, 4, 5 and 9 came up again and again, leading her to conclude that they had been reliably identified as participating in the crime. She said that “regardless of their role” whether stabbing, kicking or beating, their cumulative acts resulted in the death or Zoliswa. She said that it was “beyond reasonable doubt” that the involvement of #1, 4, 5 and 9 resulted in Zoliswa’s death, and she convicted them of murder.

Last month's trial was protested by a coalition of civil society organisations including the Social Justice Coalition, Free Gender, Treatment Action Campaign, Triangle Project and the Sonke Gender Justice Network. These organisations issued a joint press statement addressing the failures of the police and justice system inherent in this case.