‘Accused’s rights were infringed’: Defence wants audio recording excluded in Senzo Meyiwa trial
The defence is objecting to the admissibility of the recording as evidence in a trial-within-a-trial.
Accused number two Bongani Ntanzi at the Pretoria High Court on 15 September 2022. Picture: Gallo Images/Tebogo Letsie
The defence has argued that one of the accused’s rights have been violated by the magistrate who took his confession about Senzo Meyiwa‘s murder.
The Gauteng High Court in Pretoria on Thursday heard arguments from both the state and the defence on the admissibility of the recording of accused Bongani Ntanzi’s confession.
The state wants the introductory part of the three-hour long recording admitted as evidence in a trial-within-a-trial.
However, the defence has challenged the state’s application after having listened to the audio recording on Wednesday.
It has claimed Ntanzi’s confession, which was taken down by Magistrate Vivian Cronje in the presence of his attorney in June 2020, was made under duress.
Prosecutor George Baloyi originally told the court the state was not going to lead evidence on the recording, but made a U-turn on Wednesday.
In defence of Ntanzi, Advocate Thulani Mngomezulu argued on Thursday Cronje had a duty to take Ntanzi’s confession statement in writing.
Mngomezulu said his client’s rights were violated because Cronje did not inform the suspect about being recorded when the statement was being taken down by the magistrate.
“Even if we are still contesting whether the statement was taken free and voluntarily, but we still maintain that a right has been infringed,” he told the court.
The defence said the infringement cannot be cured.
“The legal question here is… was the recording obtained in a rightful way?” the defence lawyer asked.
Mngomezulu quoted Section 35(5) of the Constitution on the procurement of evidence which states that “evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair”.
“This tape recording should be excluded as it will hamper the administration of justice,” Mngomezulu said in his submission.
Watch the trial below:
Mngomezulu argued the state was only seeking for the recording to be admitted as evidence after becoming aware that there may be issues with the evidence on the introductory part of the statement.
“I would submit that the state by bringing an ambush disclosure saw that there might be patent and latent defects on the pro forma.”
The defence lawyer said there would be no need to admit the recording as evidence if there were no issues with the pro forma.
Admissibility should be ventilated first
Mngomezulu further said the court could make a ruling without having listened to the recording since there was already enough evidence before it to decide on the matter.
“The court should actually ventilate the issue first of what it has been provided with,” he said.
“In the event there was no recording, the implication would not be that the court would be at a difficulty to arrive at a conclusion,” the lawyer added.
Meanwhile, Advocate Zandile Mshololo also argued Cronje ought to have explained the constitutional rights of the accused before the recording was made.
Mshololo told the court the recording should not be played before a ruling on its admissibility was made because it contained incriminating evidence.
Judge Ratha Mokgoatlheng will deliver his ruling on Friday.
Ntanzi and his co-accused – Muzikawukhulelwa Sibiya, Mthobisi Mncube, Mthokoziseni Maphisa and Fisokuhle Ntuli – are on trial for Meyiwa’s murder, which took place on 26 October 2014.
The suspects have pleaded not guilty.