Defence advocate Zandile Mshololo
The state’s alleged failure to disclose the second docket into footballer Senzo Meyiwa’s 2014 murder — which was opened in January 2019 — was unlawful and violated the constitutional rights of Fisokuhle Ntuli, the fifth accused in the trial, his lawyer says.
In an application launched on Monday advocate Zandile Mshololo said Judge Tshifhiwa Maumela should record the “irregularities” she said had denied her client a fair trial.
Ntuli, as well as Muzikawukhulelwa Sibiya, Bongani Ntanzi, Mthobisi Ncube and Mthokoziseni Maphisa — who are represented by attorney TT Thobane — face charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition in connection with the footballer’s October 2014 murder.
All five have pleaded not guilty. Meyiwa was shot in the Vosloorus, Gauteng, home of his girlfriend, singer Kelly Khumalo, in what the state alleges was a botched robbery.
During Ntuli’s not guilty plea submission in April, Mshololo said her client would exercise his constitutional right to remain silent and not offer a plea explanation to his innocence.
On Monday, Mshololo said had it not been for the non-disclosure of the second docket, which she said Ntuli’s defence had not been aware off, her client could have given a plea explanation and objected to the charges being put to him because there were other suspects the National Prosecution Authority (NPA) had recommended for charging.
“It is therefore submitted that the right to a fair trial of the accused, entrenched in the Constitution, has been violated by failure on the part of the state to provide sufficient information to the defence before any evidence is led,” Mshololo contended.
“It is submitted that the state denied the applicant of his constitutional right of access to all information available regarding this case. Further to that, the state denied the applicant the right to apply to the court for an order compelling the state to furnish the defence with information [and] particulars contained in the police docket Vosloorus CAS 375/01/2019, the ‘second police docket’.”
She added that the second docket contained an affidavit from Sergeant Thabo Mosia, a forensic expert and the state’s first witness, who allegedly made statements in his second affidavit, deposed in June 2019, that contradicted his first in October 2014.
The second docket recommended charging Kelly Khumalo, Longwe Twala, the son of renowned music producer Sello “Chicco” Twala, Gladness Khumalo, who is Kelly’s mother; her sister Zandi Khumalo, Tumelo Madlala and Mthokozisi Thwala, both of whom were Meyiwa’s childhood friends; as well as Maggie Phiri, a neighbour who allegedly cleaned up the crime scene and evidence.
The charges in the second docket are for murder and defeating the ends of justice.
But state prosecutor George Baloyi opposed Mshololo’s application, telling the court that the defence had been aware of the existence of the second docket since at least 17 March, during the pre-trial sitting, when it was first mentioned in open court.
Reading from the court transcript of March 17, Baloyi showed that MM Sibiya, Mshololo’s instructing attorney, was present in court when advocate Dan Teffo, the former counsel for all accused except Ntuli, first broached the existence of the second docket and the need for its disclosure.
Baloyi added, after reading from a 2012 supreme court of appeal ruling, that special entries for the recording of irregularities only applied when information was not placed on the court record.
“The alleged irregularity has already been placed on record, and can be relied upon by the defence for an appeal … should a guilty verdict ensue,” Baloyi said.
“We therefore submit that the application for the special entry should be dismissed. If an aspect is on record, there is no need for a special entry. In this case, the record is replete with reference to Vosloorus CAS 375/1/2019 [second case docket number].”
Maumela adjourned proceedings and is expected to give his ruling on Tuesday.
Meanwhile, Mosia, who has been on the witness stand since April, is still under cross-examination, but did not take the stand on Monday. He is expected to conclude his testimony this week, when the state will call its second witness.
All accused have been remanded in custody.