Murder judgment casts spotlight on Grahamstown schoolchildren’s high-risk social lives, and victim’s family says residents should know what’s happening on their doorsteps. Sue Maclennan reports.
In a highly detailed judgment, Judge Mbulelo Jolwana noted the Grahamstown community’s disgust at a night of brutality and horror, revealed after a young woman’s broken and lifeless body was discovered among a pile of rubbish on Sunday 5 December 2016. However, he said he was guided by the Constitutional values in acquitting a boy who at age 16 participated in the assault on Denise Nogqala, then 22. The court found his co-accused, Lindani Vamva (19) guilty of murder and Siphamandla Futhufuthu (20), of murder and rape.
Denise’s callous murder and the desperate measures to conceal it, took place within the social circle of a group called Chaos Firm, one of several cliques that young people in Grahamstown associate themselves with. The way Chaos and similar social groups operate, and the activities they engage in, played a significant part in the trial evidence, as well as the outcome.
Two of the three accused and several witnesses were schoolboys. All were friends and close neighbours who grew up together in Joza, and were members of Chaos Firm. The events leading to Denise’s death centred around an evening of drinking at Cool Spot Tavern in Joza for a “pens-down” celebration. Many of those associated with the events of that night, were Grahamstown schoolchildren who had just finished their end-of-year exams.
In his judgment Judge Jolwana read out excerpts from the report of Grahamstown’s chief forensic medical officer Dr Stuart Dwyer, which detailed around 30 injuries. When Denise’s body was found she had been so badly beaten, her family hardly recognised her. Evidence was she had most likely been punched, hit with a hammer, hit with a stick, throttled, stabbed, dragged and bitten. She was hit repeatedly and with such force that her eyes, and her whole head were severely swollen and the skin of her face and head were almost black. Her jaw was broken and the subdural haemorrhage described in the report meant her brain had been knocked against the side of her head so hard that the blood vessels burst.
“We may never have a full picture of what happened,” the Judge said. “Her murder was designed to ensure that she did not live to tell the story.”
In summarising the trial evidence, the Judge pieced together a narrative of the alcohol-fuelled “pens-down” events, which began with Vamva meeting Denise at Coolspot Tavern in Joza.
Had a plan
Vamva returned with Denise to his home for what the Judge conceded may have been consensual sex but degenerated into coercion and brutal assault.
Peer pressure led to the 16-year-old’s involvement initially and he participated in the subsequent assault out of sheer terror of the violent and domineering Futhufuthu.
In the most heart-wrenching snapshot of sheer callousness, the Judge recounted trial testimony that Futhufuthu, the eldest of the three, entering the room and seeing Denise lying on the floor, had kicked her to see if she was still alive. “Her whole body was shaking.”
Futhufuthu left the room with Denise, who had begun to regain consciousness, Vamva and the younger boy then tried to clean up the blood, and went to fetch their girlfriends from Coolspot, spending the rest of the night with them there in his room, the court had heard. They never saw Denise again after that, Vamva said.
Futhufuthu, in his testimony, said he’d taken Denise outside and leaned her against a fence because she couldn’t stand by herself. He said he’d been arguing with the 16-year-old. When the younger boy moved, he’d accidentally stabbed Denise, he said.
The Judge was scathing of Futhufuthu’s version of events.
“His evidence was full of contradictions and downright lies: his evidence, including his plea explanation, was part of a carelessly designed afterthought to explain the inexplicable and justify the unjustifiable,” Judge Jolwana said.
Crying, and a motive
* Trigger warning: graphic description of assault
The 16-year-old’s testimony threw some light on a likely motive for the terrible assault.
The Judge summarised: “Denise was still lying on the floor, bleeding and crying. The two were standing there looking at her when Futhufuthu knocked, saw her, and laughed at them and asked what they were doing.
“Denise tried to get up,” the Judge recounted from the boy’s testimony. “She sat up and said that unless they allowed her to go she would accuse them of rape.
“[Vamva] became angry and assaulted her again. He kicked her and slapped her.”
Given a stick and ordered to assault Denise, the youngest boy obeyed, because Futhufuthu had told him if he didn’t, he would end up like her.
In his testimony, the boy said Futhufuthu, the eldest in the group, was a good person whom they saw as their protector. “In Chaos, boys must respect men,” the Judge cited from testimony.
“Fearing for his life, he took the stick and hit her on her legs,” the Judge related.
“[Futhufuthu] said he must stop being a ‘moffie’. He then hit her on the head five times. [Futhufuthu] then took the hammer. He hit her on her ribs, head and face so hard that even [Vamva] was shocked,” the Judge recounted from the youngster’s testimony.
“[Futhufuthu] opened the door wide and said he was solving the mess. He grabbed Denise, pulled her outside and told them to clean the flat.
“[The minor] was scared to run away because [Futhufuthu] was in the yard.”
[Futhufuthu] then entered with his hands covered in blood and told them to bring the bathtub with which they later covered Denise’s body in their initial attempt to conceal it.
Evidence and witnesses
During the trial, the defence disputed the collection and handling of the trial evidence. The state brought in expert witness Warrant Officer Kirsty Heynes, a forensic DNA analyst from Cape Town. Her detailed explanation of evidence handling, along with similar evidence from the local criminal records centre about collecting, packaging and dispatching the samples, along with to-the-millimetre detail from the investigating officer in the case, warrant officer Danny Britz, left no room for doubt and the challenge was abandoned.
Several people witnessed the events that led to Denise’s death and in his judgment on Monday 16 April, Judge Jolwana registered the community’s “absolute disgust” that the whole group did not have in mind to help Denise.
“Instead, they sought to hide the murder and rape of an innocent young girl who was part of their entertainment facilities to be disposed of after use,” Judge Jolwana said.
“This must be particularly painful not only for the family of deceased, but the entire community of Joza and surrounding areas,” Judge Jolwana said. “Because it is disgusting.”
The court could not, however, be guided by public feelings of disgust, Jolwana said.
Common purpose
The three were prosecuted on the basis of the Doctrine of Common Purpose. On a legal precedent the boy’s counsel, Willem Olivier, had applied to the Judge to have his client discharged. The Judge upheld the Doctrine, saying it was in accordance with Constitutional values for a fair trial.
However, the Judge had acknowledged the possibility that Vamva’s initial intimacy with Denise may have been consensual. “The court accepts that [Vamva] had consensual sex when alone with the deceased,” the Judge said. “They were given an hour or so for privacy. Even if the evidence were improbable, I would still not be able to convict him of rape,” the Judge said.
“Because we can’t say [Vamva] raped the deceased, we can’t put [the minor]in common purpose when it comes to the rape charge.”
Also removing the minor from the ambit of common purpose in Denise’s rape was the fact that there was no evidence by any state witnesses that Futhufuthu was seen raping the victim or having sexual intercourse with her.
“None testifed about seeing him having sexual intercourse with her in the flat or in the presence of [Vamva and the minor].
“All testified that he took her outside the flat and was with her outside for some time before reappearing at the flat with bloodied hands and a knife. Citing the DNA evidence implicating Futhufuthu, the Judge said his conclusion was that the latter had raped his victim somewhere outside the flat.
‘Wanted to help’
The Judge then addressed the murder charge against the minor.
“Everyone would have known what [Futhufuthu] meant when he said he wanted to help and told them to all take part,” the Judge concluded. “[The minor] didn’t want to but was forced. I am unable to exclude the possiblity of [the minor]having participated in murder to save his life. The only witnesses who testified to seeing what happened… are unreliable.”
The Judge cited the domineering influence of Futhufuthu and members of Chaos. Recounting the evidence of another witness, the Judge said, “[Name] testifies that on that night his mother and stepfather were terrorised by Futhufuthu.”
Given that adults were terrified of him, there was no reason why he wouldn’t be able to force a 16-year-old boy to do as he pleased, Judge Jolwana said.
“I can’t find [the minor’s]explanation for his participation in the murder so improbable as to be false,” Judge Jolwana said.
Another child witness
In another reminder that many of those associated with Denise’s death were children, earlier in the trial, a Grade 8 schoolboy wore his school uniform as he stood in the witness box. He described how he’d been woken by whispering in the dead of night to see two of the accused pushing the body of a young woman into an indentation in the ground, barely two steps away from his bedroom window. Her head bleeding profusely, they pushed her face-down into the hole between his bedroom wall and an adjoining container, and covered her with a zinc bathtub, the boy said.
At the time barely more than 15 years old, he went to tell his parents – but they were drunk and he couldn’t wake them up, he told the court. Terrified, he crept into their bed and remained there with them for the rest of the night.
Shattered
Denise was 22 and the mother of two little boys, 2 and 4 at the time of her death. The two found guilty of her murder – Lindani Vamva and Siphamandla Futhufuthu were 18 and 19 at the time and the boy whom may not be named because he is still a minor was 16. At the time of judgment they were 19, 20 and 17. The elder two have been in custody since their arrest in December 2016. The minor was released into the care of a family member.
A much loved sister, cousin and niece, Denise came to live in Vukani with relatives at the age of 10, having spent most of her childhood on a farm west of Grahamstown. She spent a few years at school here. The mother of two little boys – 2 and 4 at the time of her death – she returned to the farm during the week, employed to do domestic work. The weekend of her death, she was visiting friends and family in town. Her brother Luthando and other family members were shattered by her violent death and wanted to know what happened.
The case was heard in camera (no members of the public permitted), with a limited number of immediate relatives of the young accused permitted in court. This is because the second accused was not yet 18.
“We will never have a full picture of what happened,” Judge Jolwana said in his judgment. “Her murder was designed to ensure that she did not live to tell the story.”
Now that judgment has been passed and the account of the night’s events is out, Luthando says in a way it’s a relief.
“I’m okay. Maybe now I can stop thinking about it, wondering what happened,” he told Grocott’s Mail this week. Luthando says Grahamstown’s residents should know what goes on under their noses. “People must know what happens i this town.”
He’s struggling to support Denise’s younger son, now nearly 4, along with his own three young children. His employer, like most Grahamstown businesses, is a small company and pays a modest salary.
“If I don’t support those children, no one will,” he said.
The judgment
Judge Jolwana acknowledged the potential for ordinary people to be frustrated by the law and spent a lot of time carefully explaining the principles behind his judgment.
“The court should endeavour to educate what is entailed in a fair trial,” the Judge said. “Abstract statements of law mean different things to different people – but very little to the aggrieved or the bereaved.
“The Constitution is not a set of high minded values to protect criminals,” the Judge said. “It is there to protect all citizens from abuse.”
Within a Constitutional value system, he said, it was important not just to listen to public opinion, but also to mould people’s thinking to accept Constitutional norms.
It was based on these that his judgment stood as follows:
Vamva was found guilty of murder and not guilty of rape. Futhufuthu was found guilty of murder and rape. The minor was found not guilty of rape or murder.
Futhufuthu had two previous convictions, prosecutor Jannie Engelbrecht told the Judge. In the Grahamstown Regional Court on 20 June 2017 he had been convicted of robbery with aggravating circumstances. He had previous convictions for for murder and robbery.
All the counsel and the Judge agreed to the 2 July scheduling of a hearing for pre-sentencing reports. Counsel for Vamva Advocate Jock McConnachie pointed out that Vamva was 18 at the time and only in Grade 8, as well as being a first-time offender. For Futhufuthu, Legal Aid lawyer Deon Geldenhuys said Futhufuthu was 19 at the time of the offence, so the pre-sentencing report would be in the interests of justice. Counsel for the acquitted minor was Willem Olivier.
