Senzo Meyiwa trial: NPA ordered to make decision on Kelly Khumalo prosecution

The Pretoria high court has ordered the National Prosecuting Authority (NPA) to make a final determination on whether people named in the second Senzo Meyiwa murder docket, including singer Kelly Khumalo and two of her relatives, will either be charged or be “suspect witnesses” in the trial

The main trial into Meyiwa’s murder has been postponed to September to allow advocate Zandile Mshololo, legal representaive for fifth accused Fisokuhle Ntuli, to study the second docket before she can complete her cross-examination of the state’s first witness, forensic officer Sergeant Thabo Mosia. The docket was opened in January 2019. 

Ntuli, Muzikawukhulelwa Sibiya, Bongani Ntanzi, Mthobisi Ncube and Mthokoziseni Maphisa face charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition, to which they have pleaded not guilty.

They are charged on the first docket, opened in October 2014, which has a different set of investigating officers from those in the second docket.

Footballer Meyiwa was shot dead on 26 October 2014 at the Vosloorus, Gauteng, home of Khumalo, who was his lover, in what the state alleges to have been a botched house robbery. 

On Tuesday, Judge Tshifhiwa Maumela assented to Mshololo’s request that an order be granted compelling advocate Andrew Chauke, the Gauteng head of the NPA, to clarify whether the seven accused in the second docket, who were recommended for prosecution on murder and defeating the ends of justice charges, will be brought to court as “suspect witnesses or accused witnesses”. 

Six of the seven — Longwe Twala, Khumalo, her mother Gladness Khumalo, her sister Zandi Khumalo, as well as Meyiwa’s childhood friends Mthokozisi Thwala and Tumelo Madlala — were present when he was shot. 

Maggie Phiri, the seventh person, is accused by investigators named in the second docket of defeating the ends of justice by allegedly cleaning up the crime scene to “hatch a plan of deceiving police officers” that Meyiwa was killed in a botched robbery. 

On Monday, an NPA document was handed to court, wherein Chauke wrote that the decision to prosecute the seven people in the second docket “was an internal opinion from a junior state advocate” and that the opinion had “no merit”. 

This is what Mshololo needed a clarity order on. 

​​”I’m asking for an order directing [Chauke] to give clarity on the junior advocate, who has made an opinion. And [Chauke] as the head of the office now must reveal whether any decision has been made on the second docket,” Mshololo submitted in court. 

Advocate Dan Teffo, who represents the first four accused in the trial, also successfully requested a court order for the NPA to be compelled to issue a “nolle prosequi certificate” should the second docket not be prosecuted, which will give the defence leeway to explore private prosecution of the seven people named in it. 

Maumela agreed with those requests, and said state prosecutor George Baloyi should ensure that Teffo’s and Mshololo’s requests, which were ratified in court orders, were implemented before the main trial resumed on 5 September. 

Meanwhile, before the resumption, an interlocutory application will be heard on Teffo’s mooted application to contest the jurisdiction of the Pretoria high court to hear the case. 

Teffo said this week that the court “had no jurisdiction” because Meyiwa was killed in Ekurhuleni, which falls under the Johannesburg high court jurisdiction. 

Teffo took issue with a letter signed by the national head of the NPA, Shamila Batohi, who changed the case’s jurisdiction to Pretoria on 9 February 2020, almost nine months before the current five accused were arrested on 27 October 2020. 

Teffo, referring to Batohi as “a sangoma” or soothsayer, questioned how she could have foreseen the arrests of the five accused, and therefore changed the trial’s jurisdiction. 

Maumela granted time for Teffo to launch his application and for it to be heard, giving the defence lawyer until 23 June to file his papers, and for the state and Mshololo to respond by 30 June. 

The oral arguments on the jurisdiction of the court will be heard on 12 July, Maumela ruled. 

The accused are remanded in custody until their next appearance on 12 July.

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Khaya Koko
Khaya Koko is a journalist with a penchant for reading through legal documents braving the ravages of cold court benches to expose the crooked. He writes about social justice and human-interest stories. Most importantly, he is a card-carrying member of the Mighty Orlando Pirates.

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