State allowed to cross-examine key witness in Khayelitsha shooting

Cape Town - The Western Cape High Court has decided that the State be allowed to cross-examine a key witness in a shooting incident at a party in Khayelitsha in 2020.

The issue before the court was whether Thobelani Tofile was to be impeached following conflicting statements he had made to police.

On March 8, 2020, in a bloody weekend, at least seven people were killed and seven others wounded when gunmen opened fire at a house in Khayelitsha.

Tofile’s version was that he was detained at Philippi police station for unlawful possession of a firearm.

He was then called to the office of the investigating officer in that case, and made an offer that he should “incriminate the accused in exchange for the charges of unlawful possession and another two charges of murder to be withdrawn against him”, he said.

According to his version, he signed the statement without knowing the contents.

On the State’s version, at least five officers were in an office occupied by the Anti-Gang Unit in Lentegeur, when he confirmed he was on the scene, and agreed to make the statement.

When Tofile started telling the police about the incident, the detective wrote everything down as he narrated.

Tofile was satisfied and signed the statement after its completion.

“Simply put, in his disavowed previous inconsistent statement Tofile saw the two accused and others shoot at the people who attended the party.

“In his viva voce evidence Tofile did not see who shot,” the court papers read.

The State asked the court to declare the witness hostile.

This was aimed at allowing the State to cross-examine its own witness.

Ultimately, Judge Daniel Thulare found: “I was persuaded that the statement of Tofile, which the State tendered was, prima facie, freely and voluntarily made with no promises from the police, induced the statement.”

“Tofile did not want to consult with the prosecutor. The fact that Tofile contradicted himself in viva voce evidence and in his prior statement is no reason to disregard or exclude his evidence in its entirety. For these reasons I found Tofile hostile, and thus allow the prosecution to cross-examine him.”

Cape Times