The killing of Senzo Meyiwa and the undoing of Bheki Cele

With a recent study by the Human Sciences Research Council having found that public confidence in the South African Police Services (SAPS) is at an all-time low of 27%, the eight-year long SAPS investigation into the killing of Senzo Meyiwa bears close scrutiny.

It took six years before five suspects were arrested and charged. However, when the trial finally starts on 11 April 2022 it will be the Minister of Police Bheki Cele who will be on trial in the court of public opinion.

The brother of Senzo has found common cause with the sister of one of the accused, and together they have no doubt that the five men have been framed to protect the real culprit.

“Yes, I appreciate that it is a very serious matter if an attorney or counsel is threatened by somebody — whoever they may be — pertaining to their appearance in a case. It is a very serious matter,” said Judge Bert Bam on Friday 24 March 2022. The case he was referring to is the trial due to start on 11 April 2022 in the Pretoria high court. Five men — Fisokuhle Ntuli, Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube and Mthokoziseni Maphisa — will stand accused of murdering the much-loved Senzo Meyiwa, the goalkeeper captain of South Africa’s national football team Bafana Bafana, eight years ago.

I was sitting in the Pretoria high court next to Sinqobile Maphisa, the sister of Mthokoziseni Maphisa, to observe and record the exchanges between advocates Malesela Daniel Teffo (for the defence) and George Baloyi (for the state) explaining their concerns before Judge Bam. Teffo had put out an urgent last-minute call to Sinqobile and me to support him and bear witness to his urgent appearance before Judge Bam, when he put on record that he and his attorney had received death threats. His attorney had withdrawn as a result.

“Are you going to withdraw from the case?” Judge Bam had asked him.

“No, your Lordship, I am ready to proceed. I have another attorney. I have requested this hearing to put on record in court that there are efforts to try and sabotage me and try to blame me to be the one who delays the case further. My clients have also been held in different prisons to frustrate me in consulting with them. But I am ready to proceed with the case even next week.”

Despite Judge Bam’s irritation that Teffo had caused him to have to interrupt another important criminal trial, the gruff judge was reassured. He had repeatedly insisted in the pre-trial proceedings in the previous week that no further delays would be tolerated. He noted on record the efforts to frustrate Teffo and agreed to urgently write to the head of the correctional services department to ask that all the accused could be held in the same correctional facility.

Teffo’s anxiety had been mollified. He wanted his arch-foe, Minister of Police Bheki Cele, to know that he was not going to yield to intimidation.

To understand why the two men are at such extreme odds, we need to wind back the clock to 25 October 2020, six years after Senzo’s shooting, when the rambunctious minister confidently announced “a breakthrough” in the Senzo case. Five people had been arrested for what he claimed was a premeditated contract killing on Senzo. He was confident that the state had a watertight case, and that it was only a matter of time before the mastermind was arrested too.

Alas for Cele, his rebukes and reproaches to the media have not been much of a deterrent. Starting on 7 April 2022, thanks to filmmaker Sara Blecher, Netflix will be flighting a five-part docu-series, Senzo: Murder of a Soccer Star. Whatever verdict the court eventually delivers, the court of public opinion will be a lot better informed as they follow proceedings.

Cele will doubtless be following both the Netflix documentary and the criminal trial that starts four days later with a deeply vested interest. Nearly eight long years have elapsed without the courts of law having decided the matter. Judge Tshifwiwa Maumela will preside there, but what verdict will the court of public opinion yield?

All evidence on public record points to the reality that Cele’s “watertight case” is leaking very badly.

After Sinqobile, Teffo and I left the court, one of the first people Sinqobile called was Sifiso Meyiwa, the brother of Senzo, to update him on what had occurred.

How could it be that the sister of one of the accused could be speaking warmly with common cause with the brother of the person he had supposedly murdered?

Sifiso Meyiwa is one of the people that Sara Blecher interviewed for the documentary. He is convinced that the wrong people have been arrested. At a human rights conference held at the University of Pretoria on 13 December 2021 hosted by Khulumani Support Group and the University of Pretoria’s Centre for Human Rights, he explained why he believes the trial of the five suspects is a set-up, contrived to draw suspicion away from someone who was in the room when his brother was shot.

His revelations were followed by the confident assertion by Sinqobile that her brother was being framed, together with the other four.

Sinqobile also features prominently in the Netflix documentary.

It has since been reported in Isolezwe that a dark cloud still hovers over innocent witnesses to the tragedy, who were inside the house when Senzo was shot.

There were six other adults present, so there was no shortage of direct witnesses: Kelly Khumalo, her mother Ntombifuthi Khumalo and sister Zandi Gumede, Longwe Twala (son of another music celebrity Chicco Twala) and Senzo’s friends Mthokozisi Thwala and Thumelo Madlala.

Zandi Gumede is fed up.

“Why were we not called to identify the arrested men? After all, we were the ones in the house. I just do not know the men arrested. I have never seen them. Not one of them was in the house. I first saw them on television. I don’t know what the police are trying to do because I never saw any of the detainees entering the house.”

She asks why the police don’t take full witness statements of all those who were in the house, and subject them to polygraph tests to see who is telling the truth. Suspects could have been arrested and charged within hours of the incident. Instead they have had to endure an eight-year ordeal of social stigma and suspicion.

This confirms the assertions of Sifiso and Sinqobile that none of the five currently accused were in the house to discharge the weapon.

Putting these perspectives together it is clear why a further compounding of injustice will occur for as long as the prosecution of the five continues — and for as long as the person who really pulled the trigger is not charged in their place.

It is also clear that both Sinqobile and Sifiso believe that Cele has meddled in the case to subvert a just outcome, and both have vested their interests in the person of Advocate Teffo to ensure justice is finally done.

Advocates at odds

This sorry situation becomes more sorrowful still if we contrast the trial of those alleged to have murdered Senzo with the trial of another sporting icon, the Olympian athlete Oscar Pistorius, who was convicted of murdering his girlfriend Reeva Steenkamp. It becomes clear that the problem Cele was tasked by President Cyril Ramaphosa to solve when he was appointed minister of police in 2018 has become a whole lot bigger.

All told, it took five years from the date of Reeva’s murder to the end of legal proceedings when, on 28 March 2018, the constitutional court dismissed an appeal against the 13-year prison sentence. Next year Oscar Pistorius will be eligible for parole.

Whereas it had taken six years for the courts to convict and sentence Oscar Pistorius for murder, with respect to the killing of Senzo, six years elapsed before anyone was even arrested, let alone convicted and sentenced.

Senzo was killed eighteen months after Reeva’s death when a bullet entered his chest at close range at the home of his ex-girlfriend, celebrity singer and music star Kelly Khumalo.

It took so long for any reassuring progress in the investigation that eventually Afriforum, the civil rights organisation, offered the services of advocate Gerrie Nel to the family to seek a private prosecution. It was an attractive prospect. Nel had been the state prosecutor who had successfully secured the conviction and sentence of Oscar Pistorius. In January 2017, with his public profile considerably enhanced, he had resigned from the National Prosecuting Authority (NPA) after 35 years’ service to head the newly formed Private Prosecution Unit that Afriforum hoped would do what a captured and compromised state was failing to do: put criminals behind bars.

Afriforum stood to earn valuable public kudos by championing the cause of the victims of a crime that was not from their normal constituency of white Afrikaans-speaking South Africans.

With Senzo’s father Sam Meyiwa in declining health, the family accepted Afriforum’s offer, leaving the NPA facing the potentially embarrassing prospect of having their high-profile former employee achieve justice where the NPA had failed.

Then came Cele’s “breakthrough” announcement in October 2020. Nel was paradoxically quite positive in his response. Achieving a private prosecution was always going to be a costly and very ambitious challenge that could only start if the national director of public prosecutions (NDPP) was prepared to issue a nolle prosequi certificate. Such certificates are a necessary precondition allowing private individuals to institute private prosecution proceedings. That is a formal certificate issued by the NDPP confirming that it declines to prosecute.

The arrest of the five showed that the NPA was indeed intent on a prosecution.

Although deprived of the prospect of a private prosecution, Nel expressed confidence that the police had a strong case and that he would simply exercise a watching brief on behalf of the Meyiwa family, reassuring them that the promise of justice — and closure — was at hand. He was confident that the arrest of the supposed “mastermind” would follow once plea bargains and confessions were underway.

Alas, after the passage of another 18 months, Sam Meyiwa had died — heartbroken and disillusioned. Nel’s initial confidence gave way to concerns that without any arrest of a “mastermind”, the state’s case was not as strong as he had once believed.

No mastermind has been fingered, and the only confession that the state has to buttress their case has, according to Teffo, in all likelihood been extracted by torture from one of the five accused while in custody. Teffo is confident that when (and indeed if) the individual takes the stand Judge Maumela will see that for himself.

Instead of being embarrassed by Afriforum, the state is now embarrassing itself.

Sinqobile explains in the half-hour video clip below how she and Sifiso Meyiwa became allies in common cause after he became aware of her social media campaign for the discharge of her brother and the others, convinced they had been wrongly accused by someone whose interests were other than justice and the rule of law. I am now also firmly enrolled in their cause. Social workers cannot do their jobs unless the police and prosecution do theirs in a shared dedication to upholding the rule of law and the bill of rights.

Sifiso decided to terminate his mandate to Nel after conferring and piecing information together with Sinqobile and Teffo. He mandated Teffo instead. However, Nel’s skin is still in the game because Sifiso’s mother and two sisters have opted to stay with Nel to continue the watching brief for them.

For all the complexity that adds, it also makes things extremely interesting.

My attempt to contact Nel to compare notes and try to make sense of the complexity hasn’t met with any response so far.

What is really going on behind the scenes? Will the trial of the five bring justice so that the family, friends and fans of Senzo can move on with closure? What is this trial really all about?

Latinate insights

Given that our legal system is rooted in Roman Dutch law, let’s see if further recourse to the Latin legal dictionary can empower the public to arrive at a more educated opinion on the legal issues that the case raises, so that we can hold the feet of Cele more firmly to the fire.

Nolle prosequi has already been explained. Three further terms are useful to help make some sense of them as they apply to the case: dolus eventualis, sub judice and res ipsa loquitor.

Dolus eventualis

It was thanks to Gerrie Nel that South Africans have a general grasp of this Latin term.

It took but a year after Reeva Steenkamp was killed before Oscar Pistorius’ murder trial commenced. Judge Thokozile Masipa was however persuaded that Pistorius had no premeditated intent to kill Reeva and convicted him of a lesser charge of culpable homicide. He was sentenced to a maximum of five years. However, Nel appealed the finding to the supreme court of appeal and a full bench overturned Judge Mapisa’s finding. Nel’s argument rested on Judge Masipa’s application of the legal principle of dolus eventualis (whether an accused did actually foresee the outcome of his actions, reconciled himself with the eventuality of his actions), arguing that the judge made an error in concluding Pistorius had not foreseen that by firing four shots through the closed door of the toilet cubicle, he would kill or injure whoever was behind the door.

Before the court can consider whether dolus eventualis is relevant in the Meyiwa case, the state would need to at least have the person who fired the fatal shot that killed Senzo confirmed and in the dock for cross-examination. Witness statements from those six other people who were in the house would need to be before the court and the witnesses cross-examined to identify who fired the weapon. Only then would the question of dolus eventualis arise.

Thus, using the word “murder” in the title of the Netflix documentary is prejudicial. The court could eventually conclude that the real shooter lacked intent and that only a lesser verdict of culpable homicide could be sustained on the evidence presented, as Judge Masipa concluded (as it turned out, wrongly) in the Pistorius case. I hesitate to speculate on what actually happened in the Khumalo house on that fateful night, but the distinction between culpable homicide and murder may turn out to be relevant.

Sub judice

Both the defence and prosecution are agreed that the Netflix documentary should not be flighted before the trial of the five currently accused has run its course. Would Cele, Baloyi and his opposing counsel Teffo have justifiable common cause to seek an interdict on the grounds that it violates the sub-judice rule?

Sub judice simply means “under a judge”, and means that a particular case or matter is under trial or being considered by a judge or court.

After the nearly eight-year failure of the criminal justice system to achieve a verdict on who killed Senzo Meyiwa, it is not a question of whether the media is entitled to flight a documentary about the travesty. It is a matter of obligation to bring the scandal to the court of public opinion.

As one who cherishes the rule of law as a matter of principle my bias has inclined to now err on the side of risk when it comes to the sub-judice rule. Invariably it is the guilty party that invokes the doctrine to try and further delay justice. They do so when the facts are speaking so deafeningly for themselves that all they can do is sabotage the legal process. Former president Jacob Zuma’s lawfare attrition strategy abundantly illustrates.

When justice is delayed for so long, it is no longer simply a matter of “justice denied”: it is “injustice compounded”. If the courts of law have failed to expedite justice, the court of public opinion is really one’s only recourse.

Res ipsa loquitor

This brings me to explaining the final Latin legal doctrine, res ipsa loquitor. It means “the facts speak for themselves”.

It is a doctrine from Roman law that goes all the way back to Cicero in 52 BCE to describe a situation where the facts are self-explanatory.

I have not yet seen the Netflix documentary, and hesitate to be so bold to categorically assert that all of the five accused are the wrong people in the dock. But there is one fact that speaks very loudly for itself: besides representing four of the five accused, Teffo also holds a watching brief for Sifiso Meyiwa.

Nel says that it is unprecedented for the same legal representative to hold a brief for a victim of a crime as well as the people accused of that crime, and that it amounts to a conflict of interest. From the video clips above, it seems that the opposite is true. Far from a conflict of interest, they have a commonality of interest, and therein lies the rub.

Veteran violence monitor Mary de Haas is convinced that after years of political interference in the operations of the SAPS, the repeated meddling of Minister Bheki Cele is making a bad situation considerably worse. In an open letter to President Cyril Ramaphosa to commemorate Human Rights Day, she urged him to take drastic action.

“Since you have seen fit to appoint a man who is patently unfit to be Minister of Police, and whose conduct has been a major contributing factor to the current crisis, I am calling on you to personally intervene by halting any permanent national commissioner appointment until an independent forensic audit of all senior management members, including their qualifications and how they came to be appointed to their current positions, has been carried out.”

Ramaphosa bears the ultimate responsibility to save our criminal justice system. He cannot compromise this constitutional function at the altar of political expediency. Our society is beset by high levels of violent crimes, from cash-in-transit heist to robbery and murder. As a result, South Africans live in fear as if they are prisoners in their own homes, unable to enjoy some of the most basic human rights such as leisure. This situation cannot be left to continue.

After repeated failures by the NDPP and the SAPS to serve society without fear, favour and prejudice in prosecuting crime I have also lost confidence in the criminal justice system serving society with independence and integrity. After eight years without a prosecution of Senzo Meyiwa’s killer, I think we now have something more damning than a majority judgement in the court of public opinion. We are facing the judgement of history.

This is an edited version of an article first published on John G Clarke’s Medium website