The lawyers for Yanga “Bara” Nyalara and co-accused Wanda Tofile have described the absolute anonymity sought by the State for a witness as “boxing with their hands tied behind their backs”.
The High Court sitting at Goodwood Prison heard that the State wanted the witness, identified as Mr Z, to be allowed to testify wearing a mask, in-camera and his name to be withheld for his protection.
The State argued there were justifiable fears or dangers after Mr Z survived two alleged attacks. Two other witnesses had been killed.
Representatives for the State and defence have requested that their names not be published.
In court on Wednesday, the defence stated that Nyalara and Tofile agree that the witness’s name be withheld and that he testify via CCTV, saying this would afford Mr Z with sufficient protection, but that no law supported the application for the witness to hide behind a mask.
The pair are charged with 12 murders, six attempted murders and illegal possession of firearms and ammunition in connection with a May 2021 shooting.
They have pleaded not guilty to all charges.
The defence argued that during the Covid-19 pandemic there was a law that made wearing of masks mandatory and even then witnesses would be asked to lower their masks to show their face.
“The Covid-19 argument the State is using is different from this case and weak. The law of masks was for infectious diseases but now it is used to hide a witness. There is no law for witnesses to wear a mask. The State has failed to provide evidence, even sexual abuse victims and sometimes children testify with no mask covering them.
“No one can ask for an order without facts. The accused do not know the witness or where he is currently and there are no links or evidence with what happened to him with the accused.
“We will just see his face, no name or any other details. The witness refused police protection; he was walking free without protection prior to the trial. It will be a travesty of justice and a first in this country because it is not known on what authority the State prosecutor has to ask for a mask order,” the defence told the court.
The defence further argued that the accused have the right to a fair trial, which includes challenging any evidence.
“It would be to expect the accused to box with their hands tied behind their backs. Whether the witness has ulterior motives, if he has a vendetta against one of the accused. Whether the witness was involved in the crime but wants to shift blame.
“Anonymity would heighten the witness’s sense of impregnability and increase his temptation to falsify or exaggerate. Since Mr Z will be behind a mask, the court will also be unable to assess his demeanour.
“Quite clearly, the accused would not receive a fair trial because they could not properly exercise their right to cross-examine or lead their defence.
Mr Z is the only one who links accused 2 to this matter. Indeed, he must be able to test his credibility and reliability thoroughly, and this can only be done through thorough cross-examination,” it added.
The matter was postponed to July 29 for a decision.
Cape Times