After five years behind bars, abaThembu royal and senior traditional leader Nkosi Avelile Sakhisizwe Mtirara has walked free — released by the Mthatha high court and allowed to resume his duties overseeing more than 20 villages around Bhityi near Mthatha.
Mtirara, who was 32 when convicted by the Bhityi magistrate’s court in May 2021, had been sentenced to life imprisonment plus eight years for allegedly raping two underage relatives between 2016 and 2017.
But on appeal, the high court set aside his conviction, ruling that critical procedural errors during the trial had rendered key evidence inadmissible.
Acting judge Nolubabalo Cengani-Mbakaza ordered that the proceedings be started de novo — afresh — before a different regional magistrate, should the National Prosecuting Authority (NPA) decide to pursue the case again.
Family spokesperson Nkosi Zwelithobile Mtirara said they now faced the task of explaining to the community and fellow traditional leaders that his release was not the result of parole or a remission of sentence.
“Sakhisizwe has already resumed his royal duties both as senior traditional leader of Xhongorha and also as one of the senior royal family members of the AbaThembu Kingdom.
“But the government has not yet processed his salary, despite the fact that King Zwelibanzi [Buyelekhaya Dalindyebo] has done all the necessary processes, including reinstalling him as the head of the Xhongorha Traditional Council and reinstating him in all his royal duties,” Zwelithobile said.
He described Mtirara’s earlier conviction as “a sad day” for the royal family.
“We knew that it was all a conspiracy to have him removed from the throne, but we left it to the court to decide and did not interfere with the process, though we remained supportive of him.
“We are against abuse of women and children, rape and gender-based violence, but in the case of Sakhisizwe, we knew it was a conspiracy,” he said.
Mtirara has led the Xhongorha Traditional Council since March 21 2014, following the death of his father, Nkosi Jongisizwe Mtirara.
The high court judgment emphasised that his acquittal was not based on technicalities but on fundamental flaws in the way the trial was conducted.
In his appeal, Mtirara argued that the magistrate erred in finding that one of the complainants — who was under 16 at the time — understood the nature and import of an oath. The court record, he said, clearly showed she did not.
He also argued that the trial court failed to admonish the child witness after finding she understood the difference between truth and falsity.
Regarding the second complainant, the appeal court found that she was neither sworn in nor affirmed before testifying — and that Mtirara himself had not been placed under oath.
Cengani-Mbakaza, who heard the appeal on August 6 2025, and delivered judgment on October 16, noted: “Although the merits of the case were extensively argued in the heads of argument, our engagement with the counsel for the appellant revealed that there is no cogent basis to fault the trial court’s evaluation of the evidence.”
The judges therefore focused on the legal points raised in the appeal.
Cengani-Mbakaza, together with judge Fathima Dawood, found that both the older complainant and the accused “were not administered the oath”, contrary to the requirements of the Criminal Procedure Act (CPA), which stipulates that evidence must be taken under oath, affirmation, or admonishment.
The judgment recorded that the younger complainant’s understanding of an oath — referred to as ukufunga in isiXhosa — appeared to relate to “threats accompanied by gestures of pointing fingers and threatening facial expressions”.
“Therefore the trial court misdirected itself in finding that the child witness understood the oath and its implication.
“Considering the fact that the trial court was satisfied that the child witness understood the difference between the truth and falsity, it should have admonished the child to speak truth as contemplated under section 164 of the CPA.
“Regrettably, it failed to do so,” the judge wrote.
“The evidence was not taken under oath, affirmation, or admonishment as prescribed by the relevant statutes.
“Based on the record, it appears that neither the witness nor the accused was administered the oath.”
Cengani-Mbakaza said the failure to properly swear in or admonish witnesses compromised Mtirara’s right to a fair trial and undermined the state’s duty to ensure fairness.
“Now it has been established that the evidence of both crucial witnesses was not taken properly in compliance with relevant statutes.
“A multitude of cases demonstrate that the testimony of a witness who has not been placed under oath properly, has not made a proper affirmation or has not been admonished to speak the truth as provided for in the CPA, lacks the status and character of evidence and is inadmissible.
“In my opinion, the evidence as it stands compromises the appellant’s rights to a fair trial … the proceedings’ non-compliance with relevant legal standards has also undermined the state’s duty to ensure fairness.”
The judge further noted that the public prosecutor should have recognised that the child witness did not understand the oath, and should have instead asked the court to admonish the witness to tell the truth.
“In the circumstances, purely on these legal issues, unfortunately the appeal against convictions and sentences must succeed,” Cengani-Mbakaza said.
The NPA said it had not yet decided whether it will pursue a retrial.
Daily Dispatch
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