In court: Two accused in the Senzo Meyiwa trial, Muzikawukhulelwa Sibiya and Bongani Ntanzi. Photo: Phill Magakoe/Gallo Images
The National Prosecuting Authority (NPA) this week remained mum on whether lawyer and former crime intelligence officer Dominic Mjiyako would testify in the Senzo Meyiwa murder trial, given his centrality to the alleged confession made by the second accused.
Legal experts slammed the NPA’s silence on Mjiyako’s possible testimony, saying he would offer answers to numerous questions related to second accused Bongani Ntanzi’s legal representation when he allegedly confessed in June 2020 to killing Meyiwa in October 2014.
On 8 February, Ntanzi took the stand as the defence’s second witness in the trial within a trial to determine whether confessions by him and accused number one, Muzikawukhulelwa Sibiya, were admissible.
Both claimed that they were tortured in police custody and made to sign already written confessions. Ntanzi accused Mjiyako of wanting to enter a guilty plea during his first appearance in October 2020 at the Boksburg magistrate’s court. Ntanzi maintains that he did not know who Mjiyako was and that he was never asked for his legal representation, saying he met the lawyer on 24 July 2020.
Sibiya and Ntanzi are among five men accused of killing the footballer at the home of his girlfriend, Kelly Khumalo, on 26 October 2014 in Vosloorus, Gauteng. The other accused are Mthobisi Ncube, Mthokoziseni Maphisa and Fisokuhle Ntuli.
Asked whether Mjiyako will be called to the stand, NPA regional spokesperson Lumka Mahanjana told the Mail & Guardian that the witness list would not be revealed to the public.
“When the actual trial began, the prosecutor did mention that the witness list had been updated and we cannot share that list with the public,” Mahanjana said.
Legal expert Elton Hart, of the University of Johannesburg’s procedural law department, said he was dissatisfied with the NPA’s response and that the authority was just “shying away” from answering the question.
“The NPA needs to make it known if they will be calling Mjiyako into the stand because a lot of things are left hanging because he is the only person who could have the possible answers,” Hart said.
“It should be remembered that when the accused were arrested, their phones had to be taken, therefore they never had access to using their phones to call their families or call a lawyer to instruct them or if maybe a family member does get a lawyer, that lawyer will definitely reveal who instructed them to come to assist.”
Last week, the defence closed its case in the trial within a trial after prosecutor Ronnie Sibanda completed his cross-examination of Ntanzi. The state then requested that the court grant it five days to prepare closing arguments, and another five days for the defence to respond to those arguments.
Legal analyst advocate Romeo Nthambeleni told the M&G that should trial Judge Ratha Mokgoatlheng find that there was force used to coerce the accused into implicating themselves in Meyiwa’s murder, the statement would be ruled inadmissible in the main trial because the rights of the accused under section 33 of the Constitution were abused or violated.
Section 33 stipulates that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.
“Under the provisions of the Criminal Procedure Act, all confessions must be made freely and voluntarily by a person in sound and sober senses. The burden of proof lies with the state to show that the accused that have been brought to court have indeed committed the offence of murder to secure a conviction,” Nthambeleni said.
In the trial within a trial, the court must determine whether the confessions made by the accused were made freely and voluntarily and without undue influence, Nthambeleni added. That is very key for them to be admitted into the record as admissible evidence against accused persons in the main trial.
Hart said if the confessions were deemed inadmissible, it would mean the state’s case was built on circumstantial evidence, and the real truth about what happened to Meyiwa would not be uncovered.
“The worst thing that could happen here [is if it is determined] that these guys were coerced into making these confessions. It means that whatever is in those statements is null and void, which means that all evidence brought to court by previous witnesses will also be in question,” Hart said.
Another legal expert, Mpumelelo Zikalala, said it should always be kept in mind that the state has a bigger burden to prove without doubt that the accused were the people who committed the crime.
“The state always has to bring its ‘A game’ on all the evidence presented. You find the state embarrassed once in a while when the evidence brought forward does not assist them in any way,” Zikalala said.
Hart added that if the alleged confessions were admissible, then that would make the state’s case much easier.
“The state would then have some sort of concrete evidence that they use against the accused and say that they had admitted to killing Senzo Meyiwa and then they would answer to that,” he said.
The trial is expected to resume on 3 March 2024.