By Lehlohonolo Lehana.
Judge Ratha Mokgoatlheng delivered his judgment on the state’s application seeking to recall cellphone data analyst, Colonel Lambertus Steyn, to return to court to testify.
The State and the defence were battling it out in the Pretoria High Court over whether a key state witness should be recalled back to the witness stand in the Senzo Meyiwa trial.
The State has brought an application to call Colonel Steyn back to clarify apparent discrepancies in the data he presented in court a year ago.
Five men are being tried for the 2014 murder of the Bafana Bafana captain in what the State believes was a hit.
State advocate George Baloyi wants Steyn – the police’s cell phone analyst – back on the witness stand to answer to allegations of fraud and uttering by the defence on the Section 205 records that he testified on.
The defence made these allegations after Vodacom forensic supervisor Pinky Vythilingam told the court that the Section 205 records before her did not show a phone call from the 5th accused Fisokuhle Ntuli to Senzo Meyiwa’s girlfriend, Kelly Khumalo, as was previously testified by Steyn.
Handing his judgment, Mokgoatlheng noted the statements made by one of the defence counsel on their intention to lay criminal charges because the “discrepancies” in the cellphone data allegedly constituted fraud.
“Consequently, the state is of the view that these are very serious allegations, which must be investigated.
“The allegations ought to be put to Colonel Steyn and that he must be given the opportunity to comment because Pinky Vythilingam is being vilified for an action or conduct, which she never participated in.”
I have said that amounts to reputational damage because she is an expert witness. She gives evidence throughout the courts in South Africa,” he said.
The judge stated that he agreed with the prosecution that Steyn needed to return to the witness stand to account.
“This court is also baffled, I can tell you that, by the evidence given by Colonel Steyn because this is what he says under cross-examination by Ms [Zandile] Mshololo on the question as to how did he establish that the various numbers that he mentioned in his affidavit are associated with accused five.”
He stressed that Steyn never explained how he went about making the linkages.
So all the state wants is for Colonel Steyn must come and clarify the issue of the two calls, not to give new evidence and not to correct his evidence.”
Mokgoatlheng highlighted that the court may, at any stage of criminal proceedings, recall and re-examine a person concerned, according to Sections 167 and 186 of the Criminal Procedure Act.
The judge further pointed out that the right to a fair trial included the right to an explanation with regard to the clarification of evidence.
“This right is encapsulated in the Constitution.”
He, therefore, ruled that Steyn must be recalled.
“It is settled law that if it is within the reasons of logic there is an argument between the state and the defence regarding whether evidence has to be corrected or clarified, or evidence in the administration of justice can never ever happen, they say the judge should err on the side of the application.
“I have already conceded that I don’t understand what Steyn was saying there. He never explained to this court,” Mokgoatlheng continued.
The judge added that there would be no prejudice.
Meyiwa was shot and killed while visiting Khumalo at her mother’s residence in Vosloorus, Gauteng, on 26 October 2014.
Muzikawukhulelwa Sibiya, Bogani Ntanzi, Mthobisi Mncube, Mthokoziseni Maphisa and Ntuli are on trial for Meyiwa’s murder.
They face charges of murder, attempted murder, robbery with aggravating circumstances, possession of an unlicensed firearm, and possession of ammunition.