IN THE HIGH COURT OF SOUTH AFRICA

[WESTERN CAPE DIVISION, CAPE TOWN]

In the matter between:

THE STATE

versus

YANGA NYALARA ACCUSED 1

WANDA TOFILE ACCUSED 2
MANELISI NGUMLA ACCUSED 3
LUNDI ZWENI ACCUSED 4

SUMMARY OF SUBSTANTIAL FACTS IN TERMS

OF SECTION 144(3)(a) OF ACT 51 OF 1977

The State alleges that:

1. Accused 1 is a kingpin in a criminal gang, engaging in amongst other criminal

activity, the extortion of informal businesses operating in Khayelitsha.

2. Accused 2 to 4 are members or associates of this criminal gang, who he

deploys to violently enforce his criminal activity in the Khayelitsha area.

3. On the 15 May 2021, Sikhumbule Nkonki, a known associate of Accused 1,

had just collected money paid to him in lieu of extortion from the shopkeepers
at Tea and Tea Cash Store at X196, c/o Banzi Street and Baca Avenue Site B,
Khayelistha, where he was allegedly confronted by armed members of an
opposing group, also involved in the extortion of foreign shop keepers and
informal businesses in Site B, Khayelistha.

4. Nkonki was summarily shot and executed in the street outside the shop by this
group.
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5. Later that day Accused 1, 2, 3 and a group of heavily armed male persons
estimated to have been between 10 - 15 in number, gathered close to the
home of the alleged leader of the opposing group with alias “Phiri” in Y-
section, Site B Khayelitsha.

6. The group then proceeded from that point, with the aim, which became clear
later, of retaliating against the shooting of their associate by this group, by
targeting informal businesses or randomly targeting community members who
happened to be in the vicinity of various informal businesses, in the area
known to be extorted by the opposing group.

7. The group of gunmen first encountered the complainant in Count 1 in a

passage behind Y 834 Duze Close in Y-Section, Site B, Khayelitsha.

8. The complainant noticed three African males coming towards him all of whom
were armed with firearms.

9. One of the men, who he later identified as Accused 3, asked why he was
staring at them as they walked past him.

10. He proceeded to look away but then noticed a group of approximately seven
males also walking towards him all who were armed with firearms, two of
whom he noticed were armed with what appeared to be automatic rifles.

11. As the group passed by him one member of the group unexpectedly shot him
in face and injured him.

12. The group continued on their path, while the complainant ran to the
Khayelitsha Day Hospital to get medical assistance.

13. The group then proceeded to Lelala Crescent where at Y 808B Lelala
Crescent, Site B, Khayelistha they encountered the complainant in Count 2,
who was driving his motor vehicle and shot at him.
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14. The complainant however succeeded in evading the group shooting at him
and was not injured.

15. The group, led by Accused 1, who himself was armed with two automatic
rifles, then made their way Freedom Cash Store, located at Y646 Palisa
Crescent, where Accused 1 was observed handing a rifle to another member
of group, who together with other members of the group proceeded to fire on
the shop injuring the shopkeeper, the complainant in Count 3.

16. The group then made way towards Nquks Tavern, located at Y 744 Lelala
Cescent, Site B, where they encountered the deceased in Count 4, Gavin
Futho in the street outside Nquks Tavern, where he was shot at and killed as
he tried to flee to safety into Nquks tavern.

17. The cause of death of Gavin Futho was determined to be a gunshot wound to
the chest cavity.

18. They also encountered deceased in Count 6, Thabiso Simelani and the
deceased in Count 5, Mandlakhayisa Simelani, seated in a Toyota Corolla
vehicle parked outside Nquks Tavern, where Accused 1 and another member
of the group was observed firing on the vehicle, killing both occupants.

19. The cause of the deaths of Thabiso Simelani and Mandlakhayisa Simelani,
was determined as a gunshot wound to the head and a gunshot wound to the
abdominal cavity respectively.

20. In process of killing Futho and the Simelani brothers, a bullet went astray,
hitting and injuring the complainant in Count 7, while she was cowering inside
a neighbouring dwelling.

21. The group then proceeded down Cosa Avenue to the Skhomo Supermarket at
T110 Bayana Street where they entered shop and shot and killed the
shopkeeper, the deceased in Count 8 Ibrahim Abdulle Ahmed.
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22. The cause of death of Ibrahim Abdulle Ahmed was determined to be due to a
penetrating gunshot wound to the chest.

23. The group then crossed the railway line nearby and walked in the direction of
RR Section, an informal settlement in Site B, Khayelitsha.

24. At a point opposite RR182, RR Section, they encountered the deceased in

Count 9, Asemahle Mayekiso, who tried to flee the group but was shot and
killed.

25. The cause of death of Asemahle Mayekiso was determined to be consistent

with a gunshot wound to the chest.

26. The group then moved on to a point opposite RR 1079, RR Section, where
they encountered the deceased in Count 10 Simphiwe Mzola and the
deceased in Count 11, Siyabonga Bethani, making a bread delivery at a
Zemazema Tuck Shop and shot and killed them.

27. The cause of their deaths was determined as a gunshot wound to the head
and gunshot wound to the body respectively.

28. One of the shopkeepers, the deceased in Count 12, Hassan Nuur Mohamed,
was also shot and killed while standing and smoking outside the
Zemazema,Tuck Shop.

29. The cause of his death was determined to be a gunshot wound to the head.

30. The complainant in Count 14 and the deceased in Count 13, Thembile
Lamani, who happened to be walking in the same street, were also shot at by
the group.

31. The complainant in Count 14 was shot in face while Lamani was killed.

32. The cause of death of Thembile Lamani was determined to be consistent with
a gunshot wound to the head and the consequences thereof.
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33. The group then moved back across the railway line into X Section and made
their way to Tea and Tea Cash Store where their associate Nkonki held been
killed earlier that day.

34. On the way to Tea and Tea Cash Store, while still on Banzi Street they
encountered the deceased in Count 15 Mzingisi Mbilini, walking in the street
and shot and killed him opposite X320, Banzi Street.

35. The cause of his death was determined to a gunshot wound to the abdominal
cavity.

36. On arriving at Tea and Tea Cash Store, three members of the group including
Accused 1, entered the shop, and shot and killed two of the shopkeepers, the
deceased in Count 16, Ahmed Abukar Omar and the deceased in Count 17,
Osman Weydow.

37. The third shopkeeper, the complainant in Count 17, was also shot at but
escaped injury.

38. The cause of death of the Ahmed Abukar Omar and Osman Weydow was
determined to be due to a gunshot wound to the head and face and due to
multiple gunshot wounds and the consequences thereof, respectively.

KHAYELITSHA CAS 191/3/2022

39. On 8/3/2022 the complainant in count 22, a known and admitted associate
and friend of the leader of the opposing extortion gang alias “Phiri” was
standing in the street near Nquks Tavern in Y-section Khayelitsha.

40. He was then approached by Accused 1 who immediately produced a firearm

and shot at him.

41. As he turned and fled two more shots were fired at him which injured him.
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42. He was able to escape and make his way to the hospital where he was treated
for gunshot wounds to the back and leg.

KHAYELITSHA CAS 149/5/2022

43. On 8/5/2022 the state witness was called by Accused 3 to him up with his
motor vehicle at Sayda Tavern in Mphongwana Street, Site C, Khayelistsa.

44. On arriving there Accused 1 and 3 entered his vehicle and told him to drive to
a nearby petrol station.

45. He noticed that both Accused were armed with firearms.

46. On the way he heard Accused 1 on the phone with someone and thereafter he
instructed him to drive to TR Section Khayelitsha where another person not
known to him climbed into the rear of his vehicle.

47. They then drove in the direction of Town 2 where they picked up a fourth
unknown male near the Old Apostolic Church whereafter Accused 1 instructed
the witness to drive to Site C.

48. On the way he overheard a conversation between this unknown person and
another person, where the other person was told that Accused 3 was in Site C
under the influence of alcohol and was thus an easy target to be shot.

49. They then drove to Site C, where Accused 1 and the fourth person collected,
alighted from the vehicle and entered the informal settlement.

50. They returned a few minutes later with the fourth unknown person taking up
position on the opposite side of the street where he was observed making a
phone call.
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51. A black Toyota Run X vehicle arrived on the scene, was boarded by the
unknown person and drove off.

52. The witness was instructed to follow the vehicle.

53. At some point the Toyota Run X vehicle turned left into a street and the
witness continued onwards and was instructed by Accused 1 to turn left at the
following street.

54. The witness then heard a gunshot and was immediately instructed by Accused
1 to turn the vehicle around and tstop at certain point where Accused 1, 3 and
the other unknown male alighted from the vehicle and ran down a
passageway, whereafter the witness heard further gunshots.

55. He decided to drive away, but upon looking left towards the corner of Idada
and Maphongwana Street from where the gunshots were coming, he noticed
the flashing lights of the gunshots.

56. After the gunshots had subsided, he received a call from Accused 3 instructing
him to collect them at a point known in a place known as Taiwan.

57. All three then boarded his vehicle whereupon the witness was told to leave
Site C.

58. On leaving Site C while driving on Idada Street he noticed a body lying on the
corner of Idada and Mphongwana Street.

59. He then heard Accused 3 exclaim that “the dog is dead”.

60. The witness then dropped them off at an open field near Luzuko.
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61. On the evening of 8/5/2022 the deceased in Count 29, Sivuyile Lubobo known
to be a prominent organized crime figure and leader of a gang of extortionists
rivaling Accused 1, had congregated with his known associates Mthokozisi
Mhlakaza, Asanda Nofemela and Fundiile Mxhonywa (the deceased in counts
27, 28 and 30 respectively) near the corner of Idada and Maphongwana Street
in Site C Khayelistha, where they were shot at by the Accused. Lubobo,
Nofemela and Mxhonywa died at the scene while Mhlakaza died later in the
hospital.

62. The causes of the deaths of Lubobo, Nofemela and Mxhonywa was
determined to be multiple gunshot wounds to the body whilst Mhlakaza’s was
determined to be thoraco-abdominal gunshot wound and the consequences
thereof.

63. The deceased in count 25, Khayalethu Nelani and count 26 Athenkosi
Bonkolo were at the home of Bonkolo, when they informed Bonkolo’s Aunt
that they were going to leave the house to investigate who was shot in the
street outside.

64. Bonkolo’s Aunt then heard further shots only later to discover that they were
also shot and killed.

65. The cause of their deaths was determined to be multiple gunshot wounds and
the consequences thereof.

66. The State will allege at all material times the Accused acted with common
purpose in the commission of the offences.