By Lehlohonolo Lehana.
The Pretoria High Court has ruled that it will take into account a recording of a confession made by the Senzo Meyiwa’s alleged killers.
The State argued for confessions by Bongani Ntanzi and the first accused – Muzikawukhulelwa Sibiya – to be admitted as evidence.
Magistrate Vivian Cronje told the High Court in Pretoria on Tuesday that she had administered Ntanzi’s confession on June 24, 2020.
Ntanzi, the court heard, had been arrested on June 16, 2020.
There is currently a trial-within-a-trial to determine the admissibility of confession statements made by Ntanzi and Sibiya.
The five accused — Sibiya, Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Fisokuhle Nkani Ntuli, are on trial for the murder of the soccer star.
At the beginning of Wednesday’s proceeding, prosecutor George Baloyi informed the court that the state wanted the recording of Ntanzi’s confession to form part of the evidence.
“The recording provides more detail of what occurred during that occasion more than it is reflected in the pro forma,” he said.
Advocate Thulani Mngomezulu objected to this, asking that the state’s request be suspended and for Cronje’s cross-examination to continue.
Mngomezulu said he opted not to listen to the recording because the state indicated on Tuesday it would not use it in court.
The lawyer implied that the state’s request had “ambushed” the defence.
While Judge Ratha Mokgoatlheng noted Cronje’s testimony that the recording was informal, he said “she cannot claim that as a personal private possession of her” because “she is an officer of the court”.
The judge, therefore, ruled he would have to listen to the recording.
“If I haven’t listened to it how will I be able to determine what information is admissible or what information is not admissible,” Mokgoatlheng said.
Advocate Zandile Mshololo asked that the defence be afforded the opportunity to listen to the recording before it was heard in court, but the judge overruled her request.
It was at this point Mngomezulu addressed the court on the principles of fairness and justice.
“Each party must have proper time for proper consultation. I submit, with due respect, that any information to be disclosed especially of this nature is that there are certain requirements in relation to the best evidence rule that we need to adhere to.”
The defence lawyer hinted at the possibility of an expert being required to authenticate the voice of the accused in the recording.
Such evidence is crucial to rebut the evidence of the state. Hence, I submit with, due respect, the principles of fairness and justice should apply. I’m raising this because if we are given an opportunity to consult, the law and the principle of law state very clearly that we act in the best interest of the clients. We don’t act in our own interests.”
Baloyi, in his response, said the impracticability of the defence’s request was that the recording was long in duration.
“The suggestion from the state will be that the recording is played and there’s an adjournment to take instructions and we reconvene… the matter then proceeds from there,” the state prosecutor said.
Mokgoatlheng, however, acceded to the defence’s request to consult before the recording was played to the court.
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