The prosecution has been blocked from cross-examining one of the suspects on his co-accused's statement.
The state in the Senzo Meyiwa murder trial suffered a blow in its attempt to cross-examine the first accused, Muzi Sibiya, using a confession made by his co-accused.
The prosecution had previously argued for permission to question Sibiya about statements made by the second accused, Bongani Ntanzi.
The defence, however, opposed this, maintaining that Ntanzi’s confession could not be used against another accused person.
Both Sibiya and Ntanzi had given statements to police concerning the murder of Meyiwa, who was shot dead on 26 October 2014 while visiting the family home of his then-girlfriend and singer Kelly Khumalo, in Vosloorus, Ekurhuleni.
These statements were admitted as evidence in March 2024 after the court ruled that they were made voluntarily, despite defence claims that the confessions were obtained through torture and assault.
Senzo Meyiwa murder trial: Judge’s ruling
Proceedings resumed on Monday in the High Court in Pretoria, where Judge Ratha Mokgoatlheng delivered his decision on the state’s application.
In reading his ruling, Mokgoatlheng referred to an earlier court case that dealt with constitutional issues around the cross-examination of accused persons, emphasising that such practice could violate Section 9 of the constitution.
He stressed that fairness must be upheld for all parties involved.
“They mustn’t be treated unequally,” Mokgoatlheng remarked.
The judge further said that Section 35 of the constitution could also be infringed in such circumstances, as it undermines an accused’s “unfettered right” to give evidence and to challenge that of a co-accused.
“Remember he [Ntanzi] hasn’t given evidence and he also has the right to challenge the evidence of accused number one.”
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Mokgoatlheng noted that state prosecutor George Baloyi had already questioned Sibiya regarding his own confession statement.
He also clarified that the court has yet to make a definitive ruling on the legal standing of the accused’s statements.
“The status of that statement has not been definitively defined by this court as a confession or extra curial statement, because normally a confession is defined as an unequivocal admission of guilt.
“If you look at the statements of Mr Sibiya and Mr Ntanzi, they are not unequivocal admissions of guilt… where a person makes a statement and admits all the elements of the offence like saying ‘I killed Ratha Mokgoatlheng and burned his body’.”
Watch the murder trial below:
The judge concurred with the defence that the prosecution’s request infringed on constitutional rights.
“That is frowned upon by Section 9 and consequently also it infringes section 35 of the constitution regarding the freedom of a litigant or an accused person to give evidence and attack the evidence of a co-accused if he so desires.
“Consequently then, the ruling I made against Mr Baloyi stands that he cannot use the statement of accused number two to cross-examine accused number one.”
Mokgoatlheng reiterated that the status of the statements remains unresolved.
“People must remember that this case is still continuing. That election will be done by this court at the end of the case after all the parties have addressed the law [and] facts.”
Background on the confessions
Ntanzi made his first confession on 19 June 2020 — three days after his arrest — before Colonel Moholo Solomon Raphadu at the Moroka police station in Soweto.
A second confession was recorded five days later by magistrate Vivian Cronje in the Boksburg Magistrate’s Court, in the presence of his then attorney.
Sibiya allegedly confessed on 30 May 2020 at Diepkloof police station and later conducted a pointing-out of the Vosloorus crime scene on 5 June 2020.
In their statements, both Sibiya and Ntanzi alleged that Khumalo was the mastermind and ordered the hit on Meyiwa.
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