Former Bafana Bafana goalkeeper Senzo Meyiwa. (Photo by Lefty Shivambu/Gallo Images/Getty Images)
The judge in the Senzo Meyiwa trial, Ratha Mokgoatlheng, on Friday ruled against the admissibility of an audio recording in which one of the accused allegedly made a confession, saying the fact that it was done without the suspect’s knowledge infringed on his rights.
State advocate George Baloyi had argued the recording was real evidence and there would be no failure of justice if it was admitted. But defence advocate Thulani Mngomezulu, representing Bongani Ntanzi, argued that his client’s privacy had been violated.
Following Mokgoatlheng’s ruling on the recording, the “trial within a trial” at the Pretoria high court continued around the overall admissibility of the confessions made by Ntanzi and another accused, Muzukawukhulelwa Sibiya, with the defence cross-examining magistrate Vivian Cronje, who had made the recording.
Mngomezulu told the court that Cronje had effectively directed his client Ntanzi to make the confession and that her statements showed an element of inducement.
Ntanzi and Sibiya are among five men accused of killing the Bafana Bafana player at the home of his girlfriend Kelly Khumalo on 26 October 2014 in Vosloorus, Gauteng.
Mngomezulu asked Cronje to read the first paragraph of the transcript of Ntanzi’s alleged confession. “Informed the deponent that I am a magistrate,” Cronje read.
The advocate asked if it was necessary for her to mention that she was a magistrate, saying Cronje should have instead said she had been brought in to assist by taking the confession.
Cronje responded that she felt Ntanzi had to know whom he was appearing before and the situation he was in.
Cronje continued to read: “I do not work with the police, or anyone involved in this case, and he can speak freely when I am around.”
Mngomezulu said the sentence suggested that Cronje had directed Ntanzi to speak because she told him that she was not a police officer.
“That pro forma on its own, has an element of inducement, you were swaying the impulse of the deponent,” Mngomezulu said, adding that Cronje had made promises to his client when she told him: “If necessary, you will be afforded protection, if need be.”
In response, Cronje said Ntanzi needed to know that, if he felt threatened, he could be protected.
Cronje previously told the court that she did not inform Ntanzi and his legal representative, Dominic Mjiyakho, that she was recording the confession and that she was doing it out of personal choice and safety and not for official purposes.
“This court is enjoined to declare evidence acquired unlawfully to be inadmissible. If this court allowed such an egregious flouting of accused constitutional rights, it would not be in the interest of justice to do so. He would continuously submit to a trial unfairly,” Mokgoatlheng said in his ruling on Friday.
“That would bring the administration of justice into disrepute. This court rules that the audio recording is inadmissible.”
The five men on trial have all pleaded not guilty to charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition.