By Lehlohonolo Lehana.
The Gauteng High Court in Pretoria has dismissed an application to have Mthokoziseni Maphisa discharged from further prosecution in the Senzo Meyiwa trial.
Maphisa brought the section 174 application in August, arguing that the State has failed to prove its case against him.
In his ruling, Judge Ratha Mokgoatlheng emphasised that the law entitles an accused person to be discharged only if there is no possibility of conviction unless they incriminate themselves.
Mokgoatlheng noted that the accused has no obligation to testify and that, once a court rules there is no prima facie case, silence cannot be held against them.
“Clearly, a person ought not to be prosecuted in the absence of a minimum evidence upon which he might be convicted merely in the expectation that at some stage he might incriminate himself.
That is recognised by the common law principle that there should be reasonable and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated,” he said.
The judge highlighted that courts must consider the totality of the evidence and not selectively.
He stressed that evidence in a trial can be interlinked and support other testimony.
Mokgoatlheng said Maphisa’s application was “limited” and did not take into account all the evidence presented.
He pointed out that the defence relied heavily on the testimony of police officer Sizwe Skhumbuzo Zungu, who previously claimed he “partied” with Maphisa and his co-accused at a Vosloorus hostel on the night of the killing in October 2014.
“Nothing is said about other contentious issues,” Mokgoatlheng said, adding that ballistic and cellphone evidence had been ignored in the defence application.
He also referred to the confession statements made by accused one, Muzikawukhulelwa Sibiya, and accused two, Bongani Ntanzi, which remain on record.
“I am pertinently referring to that evidence because it is still alive in this court and it has not been analysed in the application that has been lodged.
“[This evidence] affects certain of the accused [but] it has not been as the law requires subjected to a counter application because of new facts which may have come to the attention of the accused before court.”
Mokgoatlheng added that evidence showed Maphisa and his co-accused exchanged cellphone communication both prior to and following Meyiwa’s killing.
He is accused of being one of five men who carried out the 2014 murder of the Bafana Bafana captain in Vosloorus, on the East Rand.
Meyiwa was shot while at the home of his girlfriend, singer Kelly Khumalo, whom the State believes is the mastermind.
Five accused — Fisokuhle Ntuli, Mthobisi Mncube, Sibiya, Ntanzi and Maphisa — are on trial for Meyiwa’s murder.
The accused have been charged with murder, attempted murder, robbery with aggravating circumstances, possession of an unlicensed firearm, and possession of ammunition. The suspects have pleaded not guilty.