Introduction December 2017. This is reprinted at the time when Ace Magashule was elected Secretary-General of the ANC.
I do not say that Magashule murdered Ngombane, but it happened when he was in a top leadership position. Surely he knows more about the circumstance of Ngombane’s death and should share this with the public and help ensure that the killer(s) are brought to book
On 22 March 2005 Noby Ngombane, his wife Nokwanda and two children, Zandile and Khanya, were watching a video when Ngombane went to answer the door and was gunned down in front of his children. While it was widely speculated that the murderer was known in the townships, Nokwanda and her two siblings and two cousins were charged with the murder. Eventually charges were withdrawn and an inquest found in 2008 that none of the family was involved. The person or persons who were responsible for the murder have never been apprehended.
One of the important gains of our liberation struggle has been to establish a constitutional state, in which there is growing confidence in the law and its processes. Consequently most of us say: ‘Let the law take its course.’ I regret that I am unable to follow this fundamental principle, without qualification, in the unfolding Free State murder trial in which the wife of Noby Ngombane, her siblings and cousins are the accused.
Why should this be so? It is a case that is riddled with press leaks about the Ngombane marriage, with allegations that Nokwanda was supposed to be inheriting millions of rands, and various other personal matters, some true, some totally false. Ngombane was a controversial person in Free State politics. He was in the thick of battles that are publicly known. Long before his murder he was depicted as the mastermind behind all sorts of Machiavellian activities against the dominant group surrounding the ANC provincial leader Ace Magashule (who subsequently became the premier of the Free State).
Given this context, it is reasonable to deduce that this was a political assassination and, if that were so, it constitutes a great danger to our democracy, as Nokwanda said at the funeral. There was, however, no statement forthcoming from the government. There was one from the ANC, however, to the effect that no ANC member kills another ANC member. I understand this discourse of ‘closing ranks’: it has served the liberation movement well through many crises and the difficult years of repression. It is a way of protecting the ANC from damage. But is it not possible that by closing ranks, one is also enclosing someone who may be the killer of Noby Ngombane?
It is also important to ask how this statement may have been interpreted. Could the police not have understood it as an intervention, in effect saying, ‘Leave no stone unturned, but no ANC member may be investigated’?
The ANC leadership understands the fractious nature of Free State politics. It would be naive to expect that these divisions have not seeped into the ranks of the security forces. Could this intervention have had an impact on their investigation?
Sacred as the principle that the law should take its course may be, it can only operate when an investigation has integrity and is conducted within the norms of our Constitution. This has not been the case with the Ngombane investigation. At the bail hearing of Nokwanda (which received little publicity in the media, which has in the main focused on unsubstantiated gossip), the advocate raised the following issues:
• The torture of Nokwanda’s brother Bongani Mlambo, accused of murder, photographs of whose torture wounds have been presented by the defence;
• The removal by the police of Bongani Mlambo to the Eastern Cape, without informing the defence and in violation of the law, allegedly to look for the murder weapon;
• The searching of the home of Noby Ngombane’s parents without a warrant; and
• The failure of the prosecutor to provide the defence with a docket.
In each of these instances the prosecutor conceded the illegality and undertook to abide by the law. However, immediately after the hearing, he ran for his car, chased by messengers of the attorneys, to avoid providing the docket.
That very evening people claiming to be members of the police again arrived at the home of Noby Ngombane’s parents and asked for access to their five-year-old granddaughter, to hear her recollections of the night her father was killed. The entire investigation has proceeded with a focus on the Ngombane–Mlambo family.
When we established democracy in 1994, we said that torture would never again be used to extract information. We said that never again would a person be convicted on the basis of false evidence. People accused of a crime should have a fair trial.
It could well happen that, after great expense, the case may collapse. What then happens to the investigation? What happens to the trails that were not followed? And what happens to those who have been accused of this murder? How will Nokwanda and her family rebuild their lives?
I write this as an ANC cadre who was tortured under the apartheid regime and who has seen people railroaded to jail and even hanged for murders they did not commit. We defeated apartheid to ensure that such things should never happen again.
I am writing this because I fear that the Free State prosecuting authorities acted too quickly and without following correct procedures. I am writing this because there does seem reason to doubt whether the investigation has been sufficiently wide and conducted on a basis conforming to policing procedures and within the law. I write this as a cadre who believes in the rule of law. I therefore plead with the government and the ANC, in the spirit of our liberation movement, to ensure that the authorities are instructed to conduct a careful and procedurally correct investigation – under close monitoring.
I also call for the immediate release of the accused, against whom no basis has so far been shown for a legitimate charge. I make this plea to prevent a scandal and a grave injustice.
(Sunday Times, 4 September 2005), also printed in slightly different form in my book Recovering Democracy in South Africa (2015