The court held that Mthokoziseni Maphisa’s application did not address the entire evidence.
One of the accused in the Senzo Meyiwa murder trial has failed in his attempt to have charges against him withdrawn.
The Gauteng High Court in Pretoria on Monday dismissed the Section 174 application brought by accused four, Mthokoziseni Maphisa.
Maphisa had asked the court to acquit him of charges of murder, attempted murder, robbery with aggravating circumstances, possession of an unlicensed firearm, and possession of ammunition, arguing that the state had not provided sufficient evidence to warrant his prosecution.
His application came after the state closed its case.
Despite the Legal Aid Board’s refusal to fund the preparations — which led his co-accused to abandon their Section 174 applications — Maphisa proceeded with his.
Senzo Meyiwa murder trial: Section 174 application judgment
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.
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“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.
Defence arguments rejected
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.
READ MORE: Senzo Meyiwa trial: Defence accuses state of introducing evidence ‘through the backdoor’
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.”
Watch the trial below, courtesy of SABC:
Mokgoatlheng added that evidence showed Maphisa and his co-accused exchanged cellphone communication both prior to and following Meyiwa’s killing.
“There was communication across the board.”
He ruled that a prima facie case exists against Maphisa that calls for an answer.
The judge, therefore, dismissed the application.
Five men on trial
Five accused — Maphisa, Sibiya, Ntanzi, Mthobisi Mncube and Fisokuhle Ntuli — are on trial for Meyiwa’s murder.
The former Bafana Bafana captain and Orlando Pirates goalkeeper was shot dead while visiting his then-girlfriend and singer Kelly Khumalo at her family’s Vosloorus home.
According to the confession statements of Sibiya and Ntanzi, Khumalo ordered the hit on Meyiwa.
