Judge Ratha Mokgoatlheng. (Mario van der Waal/Gallo Images)
Judge Ratha Mokgoathleng said in the Pretoria high court that the confessions of two of the accused in the Meyiwa trial were made freely and voluntarily with no coercion.
On Thursday, Mokgoathleng — who found that the confessions of accused number one, Muzikawukhulelwa Sibiya, and accused number two, Bongani Ntanzi, were admissible — said the judgment was not final and could be reviewed at a later stage.
The judgment relates to the five-month trial within a trial to determine whether the alleged confessions can be admitted to the court record.
Sibiya and Ntanzi, alongside Mthobisi Ncube, Mthokoziseni Maphisa and Fisokuhle Ntuli, have been accused of the October 2014 murder of Bafana Bafana captain Senzo Meyiwa at the home of his girlfriend, Kelly Khumalo, in Vosloorus, Gauteng.
Mokgoathleng said: ”The court, after careful consideration of the evidence and heads of arguments, has dealt with whether the accused made the confessions freely, voluntarily and in a sane and sober sense without undue influence — has found that the confession made by accused one was made freely and voluntarily without any coercion.”
On Monday, the defence wrapped up its closing arguments in the trial within a trial and reiterated that the two accused were tortured and coerced into signing already written statements.
Mokgoathleng emphasised that he was following the letter of the law and that it should not be said that he had discounted the evidence of coercion presented by the defence.
“These accused before the court said that they do not know the contents of these statements. They were never read to them. Accused one says when he went to sign the statement before [Colonel Mhlanganyelwa] Mbotho, they were assaulting him,” Mokgoathleng said.
Legal analyst advocate Romeo Nthambeleni said Mokgoathleng’s ruling does not have any real effect on the main trial because it is not a full judgment and could be revisited and changed in the future if new evidence arises.
Nthambeleni said the court can interfere with its own ruling if the evidence emerges later in the trial that such confessions were not given freely and voluntarily, or that the statement was obtained in a manner that is not in line with section 33 of the Constitution — which stipulates that everyone has the right to administrative action that is procedurally fair.
The state is halfway into proving its case against the accused in the main trial, he added.
“It must also be remembered that, in criminal trials, the state has a duty to prove its case beyond reasonable doubt. Therefore, they are already halfway in proving that the accused in court are the ones that killed Senzo.”
Nthambeleni said he did not think any of the people mentioned in a statement by lead investigator Brigadier Bongani Gininda would be called to court. Khumalo was among those implicated in the statement.
On 29 January, Gininda testified that Meyiwa’s murder was not a robbery gone wrong, but a contract killing. He also alleged that Sibiya had implicated Khumalo in ordering the hit and that police had linked her with Mncube and Ntuli through cellphone evidence.
Gininda said Sibiya was first linked to the murder through witness statements under oath and indirect evidence, such as boasting to individuals closely associated with him in KwaZulu-Natal about his involvement in the murder.
“If the state believes that there are still people that are implicated, then they must be indicted — it is the lead investigator and the state’s responsibility to do so,” Nthambeleni added.
Legal expert Mpumelelo Zikalala also said Mokgoathleng’s ruling would not have a big impact on the main trial.
“It simply means that we can now go back to the main trial and listen to the other evidence and wrap up the matter because the outcome can always be revisited when new evidence arises and can simply be changed,” Zikalala said.
The state and defence requested an adjournment so they could consult with the accused and prepare for the main trial.
State prosecutor George Baloyi told the court that the 17 witnesses who had testified during the trial within a trial will be recalled to give evidence in the main trial and put their confessions on record.
All the accused have pleaded not guilty to charges of premeditated murder, attempted murder, armed robbery, illegal possession of a firearm and the illegal possession of ammunition.
The trial continues on Friday.