The state’s non-disclosure of the second Senzo Meyiwa killing case docket, which recommended the prosecution of singer Kelly Khumalo and others, has delayed the murder trial and “violated” the accused’s constitutional rights, according to advocate Zandile Mshololo.
She received confirmation that the second case docket was authentic and that a draft charge sheet in the file, which recommended charging seven people who are not before the court, was valid.
Mshololo represents the fifth accused in the trial, Fisokuhle Ntuli.
The first four accused — Muzikawukhulelwa Sibiya, Bongani Ntanzi, Mthobisi Ncube and Mthokoziseni Maphisa — are represented by advocate Dan Teffo.
Mshololo told the Pretoria high court on Monday that state prosecutor George Baloyi was “lying” when he said she was aware of the second case docket when the trial began in April.
Meyiwa was shot on 26 October 2014 at the Vosloorus, Gauteng, family home of his lover Khumalo, in what the state claims was a botched house robbery.
Last Wednesday Mshololo there was a second case docket on Meyiwa’s murder, with a charge sheet attached to it, from advocate Andrew Chauke, the Gauteng head of the National Prosecuting Authority (NPA).
The charge sheet recommended charging Longwe Twala, son of music producer Sello “Chicco” Twala; Khumalo; her mother Gladness Khumalo; her sister Zandi Khumalo; Meyiwa’s friends Tumelo Madlala and Mthokozisi Thwala; and neighbour Maggie Phiri, who allegedly cleaned the scene after Meyiwa was shot.
The seven were allegedly meant to be charged with murder and defeating the ends of justice.
On Monday, Baloyi said Mshololo had “castigated the state” by saying the prosecution had “brought the trial to shame” by only disclosing the second docket to Mshololo last Wednesday.
Baloyi said Mshololo was mistaken in referring to the Gauteng NPA’s letter recommending the charging of the seven people in the second docket as “a decision” of the NPA. He said the prosecution recommendation was “a memorandum”.
In a document handed to court on Monday and signed by Chauke, the NPA provincial head said the draft charge sheet was only “an opinion”.
“The alleged documents [charge sheet] do not have any status as such was an internal opinion from a junior state advocate, which was without merit,” Chauke contends in the letter, which was read in court by Baloyi.
After reading the letter, Baloyi said it “boggles the mind” that Mshololo would see the charge sheet as a decision, and asked that she withdraw her assertion that the state had brought the trial to shame.
But Mshololo hit back at Baloyi, telling the court that when she mentioned the second case docket and the attached charge sheet, she had read the documents verbatim and accused Baloyi of lying by saying she was aware of the second docket.
Mshololo said even if she was aware of the second docket, that still did not mean it had been disclosed to her and her client. The non-disclosure was a violation of Ntuli’s constitutional rights because the state had been aware of the docket since January and also knew that Teffo had received it in March, she said.
“My lord, I was not present during the handover of the second case docket … After that, the trial started on 11 April. When the trial started, the state had not disclosed to me the second docket.
“Now the state is lying by saying [I was aware of the second case docket],” Mshololo said, adding that the state had a legal duty to disclose the documents.
“The trial is now going to be delayed because of the non-disclosure of the state. The trial will be delayed because accused number five’s [Ntuli] constitutional rights have been violated,” Mshololo said, adding that she would have pleaded differently had the second docket been disclosed to her.
The matter was postponed to Tuesday for court to decide on the next block of trial dates. Baloyi said the preliminary dates would be 4 to 16 September, and then 4 to 14 November.
All accused — who face charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition, all of which they have pleaded not guilty to — have been remanded.