Where is the sangoma? Witnesses 'vanish' so Hillary Gardee murder accused walk

A sangoma who claimed one of the accused in the Hillary Gardee murder consulted him for cleansing is among three key witnesses the state says are untraceable, leading to the case being provisionally withdrawn.

Mpumalanga High Court judge Takalani Ratshibvumo was scathing and outraged on Wednesday when the prosecutor said the trial could not go ahead because key witnesses could not be traced. Ratshibvumo said: “This is a joke.”

The defence attorney of three of the four men accused in the matter, Lesego Kwakwa, said the sangoma was one of the witnesses who could not be traced. He told Sowetan on Wednesday another witness who claimed to have seen two of the accused (Philemon Lukhele and Albert Gama) loading what seemed to be the body of a woman into a car at Lukhele’s Lodge in Mbombela, Mpumalanga, also could not be found.

The other witness told police Gardee was seen in the car with other men but could only identify Lukhele.

Police said in the early stages of their investigation the sangoma revealed accused no 1, Sipho Mkhatshwa, consulted him for cleansing after Gardee’s murder in 2022.

Mpumalanga police spokesperson Brig Selvy Mohlala said: “It’s not that we arrested the wrong people, but we learnt this morning [Wednesday] that one witness said he was sick while two could not be traced. But we are working hard to get the witnesses.”

The fourth accused is Hlabirwa Rassie Nkuna.

Kwakwa said the state indicating it is ready for trial, means witnesses were supposed to be available “to present their allegations against our clients”.

“When the judge came into court we confirmed our appearance, then when the state was supposed to introduce their case they told the court they are withdrawing the charges. The reason for the withdrawal was their main witnesses are not available and cannot be found.

“It aggrieves us and our clients. You would remember they [the accused] were charged with these offences in May last year and by then the state has taken witness statements. Even during the bail application, they [the state] kept saying they have a strong case and cannot be released.

“They had almost the whole year to prepare their witnesses so the trial can run smoothly and now they come and say their witnesses are nowhere to be found,” Kwakwa said.

He said the trio were the main witnesses which he believes do not exist.

“The sangoma claims to have consulted accused no 1 who wanted cleansing for the murder of Hillary. That is the main witness with regards to accused no 1. The main witness is in respect to accused 2 and 3 [Lukhele and Gama], who alleged in the statement he saw Lukhele and Gama loading the body of what appeared to be a woman in Lukhele’s vehicle. The third witness alleges he saw Lukhele parked somewhere with Hillary in the vehicle and about four other men, but he was able to identify Lukhele because he knows him.

“The witness who said he saw Lukhele loading the body of a woman into the vehicle at Lukhele’s lodge [Intsika Guest House] claimed to know Lukhele from Swaziland before Lukhele came to South Africa [and] Lukhele used to give him odd jobs; he knows him very well. If these witnesses are not there, there is no way the case can proceed,” Kwakwa said.

During Mkhatshwa’s bail application in July, his fiancée Zandile Magagula said the SMS tip-off police used to arrest him was allegedly sent from the number of her former mother-in-law.

Kwakwa said DNA taken from his clients and Gardee came back negative and there were negative results for blood samples taken from Lukhele’s guest house and shoes.

National Prosecuting Authority Mpumalanga spokesperson Monica Nyuswa declined to go into details of the indictment.

“We have witnesses and the police are going to trace the witnesses with the hope of reinstating the charges.”

Kwakwa said they received the witness statements after a long battle and they were insufficient.

“This thing is traumatic because [the case] has damaged people’s lives. Mkhatshwa lost his job. He was arrested a day before his wedding. Lukhele lost income from student accommodation, including his job. They are out now but when the case was covered internationally, they were on television and radio. They are still stigmatised in the sense that they are [labelled] murderers and rapists and so on.”

Kwakwa questioned why the state did not subpoena the witnesses.

Police minister Bheki Cele’s spokesperson Lirandzu Themba said: “The court has ruled that the case has been provisionally withdrawn due to the unavailability of witnesses. This is the conclusion of the court and should be respected. With that said, the charges are provisionally withdrawn, which means if witnesses are traced, the case may be reinstated.”

Kwakwa said he would consult his clients to determine their position which would include a lawsuit and application for permanent stay of prosecution.

The EFF slammed the state for mishandling the case and witnesses. Spokesperson Sinawo Tambo said: “The sudden disappearances of witnesses should be a cause for concern as it raises the suspicion that they have either been intimidated or been dealt with in a clandestine manner, which is all too frequent when it comes to whistle-blowers in South Africa.”

– Additional reporting by Mandla Khoza and Mpho Sibanyoni

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