Samuel Nndwambi's murder conviction was overturned. But only after he'd spent 12 years in prison

2018-10-03 08:40
Samuel Nndwambi was wrongfully convicted for murder and served 12 years of a life sentence before being released in June 2018. Photo: Aidan Jones

Samuel Nndwambi was wrongfully convicted for murder and served 12 years of a life sentence before being released in June 2018. Photo: Aidan Jones

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"Twelve years," he says, slapping his hands together and shaking his head. "Twelve years. Twelve years."

Samuel Ntshavheni Nndwambi was a carpenter and breadwinner for his wife and three children. One late afternoon in early 2006, Nndwambi was completing a table for a client in his home workshop in Thohoyandou when police came to arrest him, GroundUp reports.

"I was shocked. When I asked the police why they were arresting me, they said, 'We will talk when we get there.'"

A few months later, after a brief trial, Nndwambi was transported to Kutama Sinthumule maximum security prison to begin a life sentence for murder. He was 39 years old.

On June 14, 2018, the Supreme Court of Appeal (SCA) ordered his immediate release, saying that then Acting Judge Ephraim Makgoba had convicted Nndwambi on scant evidence.

"Life is hard in prison, especially when you know you are innocent," says Nndwambi.

First and second accused still in prison

"You get up in the morning and you know you did nothing. And you're among people who have actually committed violent crimes. You are lost. You don't know what you are doing there, but there's nowhere to go."

Interviewed in Thohoyandou, Nndwambi's eyes dart around the room. He rubs his legs and shifts in his chair while speaking about his time in prison.

Next to him sits one of his three co-accused, former taxi driver Marcus Mulaudzi, who is calm and soft-spoken. Mulaudzi was released in 2016 after a successful appeal to the SCA. He served 10 years of his life sentence.

The deceased in the murder case was Shavhani Ramusetheli, a school principal from Thohoyandou. The first and second accused were Leroy Mushweu and Piet Mudzugu, both of whom are still in prison. Mulaudzi and Nndwambi were the third and fourth accused.

"They had enough evidence to convict accused number one," says advocate Agnes Ramanyimi of Sigwavhulimu Attorneys, who was part of both successful appeals.

She explains that DNA matching Mushweu's was found at the crime scene.

"But Mushweu tried to extricate himself by implicating [Mulaudzi] and [Nndwambi], claiming that he was pressured by [Nndwambi] to commit the crime and that [Mulaudzi] had driven them to the scene in his taxi," she says.

Little evidence

According to the SCA, Mushweu's testimony was the only evidence the State had against Nndwambi and Mulaudzi, and could not be relied upon to convict.

"No evidence was led by the State other than that of the accused who incriminated his co-accused," the judgment states.

"I don't think I will be able to forgive the State… I think there is no justice."

Mulaudzi says he had only met Mushweu twice.

"He had a girlfriend in Shayandima [a village in Thohoyandou] and took my taxi there twice," he says.

Nndwambi says he was only briefly acquainted with his co-accused.

Nndwambi was represented by Legal Aid before Sigwavhulimu Attorneys' involvement.

"Ten years represented by Legal Aid and nothing happens! … Until Sigwavhulimu came along."

Ramanyimi says she became aware of Nndwambi through her involvement as counsel on Mulaudzi's case.

Rich man's justice

"We looked at the court records and thought it would only be just to assist [Nndwambi] as well," says Ramanyimi.

"We approached his sister first and got to know the family. We went to him in prison to ask if we could represent him. We then terminated the mandate of Legal Aid, and that is when we started with the paperwork."

In order to appeal against a conviction one has to have trial transcripts, but these cost money.

"Something needs to be done about this," says criminal law expert William Booth.

"The costs in some of the appeals I have dealt with were between R18 000 to R100 000 to have the record transcribed. These costs need to be borne by the appellant. This means often the appellant cannot carry on with his appeal."

Booth says that indigent appellants represented by Legal Aid should be able to access their court records for free. But after the lack of progress with Legal Aid Nndwambi was now represented privately and would have to pay for the records, which Ramanyimi says cost R37 000.

"He didn't have the money, so we paid for the transcripts and represented him pro bono," says Ramanyimi.

R500 000 over 10 years

Nndwambi's sister Florence Thinyelo Nndwambi is a tailor who says she earns R800 to R1 000 a month.

"I contributed what I could toward the transcripts but it is difficult just to get by so it was tough to contribute anything," she says.

Mulaudzi says he was only able to appeal because he got help from his cousin Sam Mulaudzi.

"I paid about R500 000 assisting him over a period of about 10 years," says Sam who is an entrepreneur in the construction business.

"There can sometimes be rich man's justice," says senior journalist Carolyn Raphaely of the Wits Justice Project, which investigates miscarriages of justice in the criminal justice system.

"I think Legal Aid lawyers are also very overworked and this often means things take longer to get done," says Raphaely.

"The most difficult thing for me was the fact that my family had been evicted from where we were living and I couldn't do anything to prevent it," says Nndwambi.

"Until today, we don't have a place that is really ours."

Prison life and release

"The worst thing for me was constantly living in fear," says Mulaudzi of his time in prison.

"People would get stabbed while I was watching."

He says one of his cellmates often got violent.

"I just felt unsafe all the time," he says. "Also, when the wardens were having their own quarrels everybody would get a beating, for nothing."

He says they sometimes had to wait up to four days for medical treatment after a beating by the wardens.

"I prayed every day. I accepted that even if I die tomorrow, it's fine, because I am dying believing in God," says Mulaudzi.

"Believing in myself helped me to keep going from day to day," says Mulaudzi. "I also sprinkled snuff and declared my belief to my ancestors."

Disbelief on day of release

He says he didn't make any friends in prison.

"I became used to the people who were with me in my cell, but they were just people I lived with. I would not call them friends."

On the day he was released, Nndwambi says he was busy doing his laundry when he was called.

"It was about 16:00. I was actually scared because I wasn't sure where they were taking me. It might be a lie. Anything was possible there, so I refused."

He said only when a senior warden came to explain was he willing to comply.

He returned home to his wife and children.

"All my friends left. It is only family now," says Nndwambi. "My child who is working is the one who bought me the clothes I am wearing right now. He also buys the food that I eat every day. They are happy that their dad is back."


He says he no longer has carpentry tools or a workshop space and his employment prospects are slim.

When Mulaudzi was released two years ago he found that his wife had left and his child had dropped out of school.

"After I left, things fell apart. The family just split. They didn't have any direction because they depended on me," says Mulaudzi.

"I was confused as to where do I go. Where do I stand? What do I do?"

He says his friends came on the day to see if he was really out and he didn't see them again. He now lives in a dilapidated house with his mother.

"It is humiliating to go from earning good money and providing for my family to here."

This judgment is one of several handed down at the Thohoyandou High Court that were subsequently overruled by the SCA.

On March 29, 2017, the SCA set aside Nndwambi Mudau and Tshivhangwalo Rathogwa Mudau's life sentences which Acting Judge Makgoba had handed down on July 14, 2003.

The SCA said the trial contained "gross procedural irregularities" and that the right to a fair trial had been infringed.

Life sentences were also set aside on November 30, 2015, in the case of Khavhadi v the State (459/15) and on March 31, 2014, in the case of Tshakwata and Another v the State (522/13), the SCA citing lack of reliable evidence.

"Believing in myself helped me to keep going from day to day."

The National Registry of Exonerations in the USA has identified 2 271 exonerations since 1989 in that country alone, the equivalent of "more than 20 080 years lost".

According to Raphaely, this registry is unique globally. She says in South Africa there are no proper statistics for the number of wrongfully convicted people.

Anger at accused number one

"It is difficult to solve a problem when you don't know its scope… I think prosecutors tend to underplay its prevalence," says Raphaely.

Felicia Sithole of Statistics South Africa confirmed that the state agency does not collect data on wrongful convictions.

Asked if he thinks he will ever be able to forgive Mushweu and the State, Nndwambi shakes his head vigorously.

"No, no, no. Never."

"I may say now that I could forgive but every time I saw accused number one [in prison] I got angry. I boiled up," says Mulaudzi.

"The thought of forgiving him doesn't really cross my mind. I don't think I will be able to forgive the State… I think there is no justice."

This is the first in a series of articles.

Read more on:    polokwane  |  prisons  |  courts

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