Inept conduct of NPA leads to murder accused slipping through the cracks

Nhlanhla Ngwenya, the Zimbabwean citizen accused of shooting and killing restaurant owner Roberto da Silva in October 2018 while the accused was in the country illegally, is now missing. This follows after Ngwenya received bail under peculiar circumstances in January 2022 in the High Court in Johannesburg. AfriForum’s Private Prosecution Unit is acting in terms of a watching brief on behalf of Cindy da Silva, Roberto’s wife.

The court declared on 28 October 2022 that Ngwenya’s bail is finally forfeited to the state after he once again failed to turn up for his trial. According to the prosecutor of the National Prosecuting Authority (NPA), the state does not currently know where the accused is.

AfriForum’s Private Prosecution Unit became involved in this case after the deceased’s wife approached the unit for help. This follows after she opened three dockets with the police. The NPA initially indicated that they would prosecute the accused on murder and three charges of armed robbery. The accused was already under arrest at the time as he was an illegal immigrant. However, after several postponements, Cindy da Silva saw that the accused was sitting in the gallery among the public and was clearly no longer under arrest.

“The NPA’s inept handling of this matter caused problems from the outset. If the Private Prosecution Unit had not become involved in the case, the charges against the accused would have disappeared completely. What message does this send to the victim’s family – that they do not deserve justice? The NPA and police are tasked with protecting the community and ensuring that guilty persons are brought to justice, but we see more and more how these obligations are being flouted. That is why organisations, such as AfriForum, which hold state institutions accountable, as well as the ability to prosecute privately, are increasingly becoming indispensable,” says Adv. Phyllis Vorster, prosecutor at AfriForum’s Private Prosecution Unit.

The NPA also informed Da Silva earlier this year that Ngwenya would no longer be charged with murder, despite footage indicating that Ngwenya had already broken into the restaurant twice beforehand and robbed cash. During the third robbery, Roberto was shot dead.

Since the NPA failed to notify the deceased’s loved ones of developments in the case, AfriForum’s Private Prosecution Unit insisted on an investigation into how Ngwenya, given the fact that he was an illegal immigrant accused of murder, received bail. It emerged from this investigation that the accused filed a bail appeal during the festive period in December 2021 and was released on bail on “new facts” in January of this year.

The unit then made and attended a formal appointment with the deputy director from the office of the Director of Public Prosecutions in Gauteng (DPP) from which it became clear that he was not even aware of the bail appeal, the footage or the fact that one of the dockets was lost. The unit then made representations to the DPP that the charge of murder should be reinstated and also made the contents of the lost docket and evidence available to the NPA. Thereafter, the NPA decided to reinstitute prosecution and the “lost” docket was suddenly discovered.

“We will now assist Cindy to ensure that the SAPS take the necessary steps to ensure that the accused is tracked down – and, if necessary, extradited – so that the trial can continue,” says Vorster.