Senzo Meyiwa. (Getty Images)
The prosecutor in the Senzo Meyiwa trial, George Baloyi, said the recording of accused number two Bongani Ntanzi’s confession, brought to court by magistrate Vivian Cronje, is real evidence and there will be no failure of justice if it is admitted.
State witness Cronje previously told the Pretoria high court that she did not inform Ntanzi and his legal representative that she was recording the confession and that she was doing it out of personal choice and safety and not for official purposes.
Cronje took the stand as the third witness in the “trial within a trial” of the five men accused of killing the footballer at the home of his girlfriend Kelly Khumalo on 26 October 2014 in Vosloorus, Gauteng.
The state wants to determine whether the confessions made by Ntanzi and another accused, Muzukawukhulelwa Sibiya, were admissible.
Defence advocate Thulani Mngomezulu, representing Sibiya and Ntanzi, argued that his client’s privacy had been violated.
“In relation to the audio, such rights were not afforded him with regard to that recording. The duty of the magistrate was to take down the confession in writing, there is no extension provided in the act for other duties,” Mngomezulu said.
“Such evidence should be excluded where a right is infringed. This tape recording should be excluded as it will hamper the administration of justice.”
Baloyi maintained that the evidence be admitted, telling the court: “In this instance, the recording is the electronic version of what the accused was telling the magistrate out of his own volition. All the magistrate did was to keep a record of those proceedings.”
Defence advocate Zandile Mshololo, representing accused number five Fisokuhle Ntuli, agreed with Mngomezulu that Cronje ought to have explained the rights of the accused regarding the recording.
“That the recording would be used against you in court before she proceeded with the recording. The audio which was unconstitutionally contained should not be played to the court because it contains incriminating evidence.”
Ratha Mokgoatlheng said he would deliver his ruling on Friday on whether the recording of the confession was admissible and whether Ntanzi’s rights were violated when the recording was made without his knowledge.
The five men on trial for Meyiwa’s 2014 killing at the family home of his girlfriend have pleaded not guilty to charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition.