By Lehlohonolo Lehana.
The defence in the Senzo Meyiwa murder trial said it was “ambushed” by the state for submitting as evidence an alleged recorded confession made by one of the accused.
It emerged yesterday at the Pretoria high court that the state, led by prosecutor George Baloyi, had previously indicated that it would not use the recorded confession made by Bongani Ntazi which was recorded by magistrate Vivian Cronje at the Boksburg magistrate’s court in June 2020.
However, Baloyi made a U-turn on this yesterday and informed the court that it will lead evidence on it in an ongoing trial within a trial about the validity of Ntanzi’s confession. Baloyi argued that they need to listen to the pro forma of the recording to prove to the court the admissibility of the signed confession the state has.
But the defence protested to this.
“Firstly, we were told it was for official use; secondly, we were told that the state had not intended to use it. In this case, it was apparent that the evidence of the magistrate had to be tested. Prior to the testing then comes an evidence that requires an expert,” said Adv Thulani Mngomezulu for Ntanzi and Muzi Sibiya, arguing the submission was not fair.
He said he needed to consult with his clients about the new evidence.
Mngomezulu also highlighted that if the state intends to lead evidence based on the recordings, the defence will need to bring a voice expect to determine if the confession was made voluntarily.
On Thursday, Baloyi, said the recording of Ntanzi’s confession, brought to court by Cronje, is real evidence and there will be no failure of justice if it is admitted.
The state wants to determine whether the confessions made by Ntanzi and another accused, Sibiya, were admissible.
Mngomezulu, representing Sibiya and Ntanzi, argued that his client’s privacy had been violated.
“In relation to the audio, such rights were not afforded him with regard to that recording. The duty of the magistrate was to take down the confession in writing, there is no extension provided in the act for other duties,” Mngomezulu said.
“Such evidence should be excluded where a right is infringed. This tape recording should be excluded as it will hamper the administration of justice.”
Baloyi maintained that the evidence be admitted, telling the court: “In this instance, the recording is the electronic version of what the accused was telling the magistrate out of his own volition. All the magistrate did was to keep a record of those proceedings.”
Defence advocate Zandile Mshololo, representing accused number five Fisokuhle Ntuli, agreed with Mngomezulu that Cronje ought to have explained the rights of the accused regarding the recording.
“That the recording would be used against you in court before she proceeded with the recording. The audio which was unconstitutionally contained should not be played to the court because it contains incriminating evidence.”
Judge Ratha Mokgoatlheng said he would deliver his ruling on Friday on whether the recording of the confession was admissible and whether Ntanzi’s rights were violated when the recording was made without his knowledge.
The five men on trial for Meyiwa’s 2014 killing at the family home of his girlfriend have pleaded not guilty to charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition.
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