Judge Ratha Mokgoatlheng. File Picture: Oupa Mokoena/IndependentNewspapers
Judge Ratha Mokgoatlheng is on Thursday, expected to rule on whether the alleged confessions made by two of the five accused were admissible, a pivotal ruling which could make or break the State’s case against the five men accused of murdering the former Bafana Bafana captain Senzo Meyiwa.
In October, the trial-within-a-trial started in the High Court in Pretoria to determine the admissibility of the confessions made by Bongani Sandiso Ntanzi and Muzikawukhulelwa Sibiya regarding their involvement in the murder of the former Orlando Pirates goalkeeper, who was murdered at his girlfriend Kelly Khumalo’s house in October 2014.
Ntanzi and Sibiya have told the court that they were severely assaulted by police and were forced to sign confession statements implicating themselves and others in the murder.
They have told the court that they were tubed and beaten to make the confession, effectively claiming the confessions were made under duress.
Speaking to IOL News on Wednesday, legal commentator and defence attorney Nthabiseng Dubazana, from Dubazana Attorneys, said if the admissions are ruled to be admissible, they would form part of the record.
“What it actually means is that the court will consider the confessions when making a judgment and indicate that the confessions were done properly and the evidence is relevant,” Dubazana said.
“Not only that, the judge will compare what the accused said in court versus what is contained in the confessions. This can essentially be used against them.”
This would effectively put the State, as led by advocate George Baloyi, in a prime position to secure murder convictions against the accused.
Another legal practitioner, Lwando Mufune of Ueitele and Hans Inc, said the ruling by Mokgoatlheng, though important, was not necessarily a make or break for the State.
“If the State has overwhelming evidence and can still prove that the accused committed the murder, they are still in a good position to win the case,” said Mufune.
Dubazana said in the event the confessions were found to be inadmissible, they will be struck from the record and the State will have to use other ways of proving their guilt.
“The State will now be forced to only use evidence that was given during examination in chief, they can’t refer to the confessions. It will basically become evidence that doesn’t exist,” said Dubazana.
Essentially, the State, would have a mountain to climb to secure a conviction in the murder case if the confessions were deemed invalid.
Mufune said if this was all the State was relying on it, they could be in trouble.
“If they were only relying solely on the confessions and they in turn can't be used as part of the evidence, they have a big challenge in their hands,” she said.
Judge Mokgoatlheng has ruled against the State during the trial within a trial when defence attorneys objected to the court hearing a recording of Ntanzi’s confession after Magistrate Vivian Cronje admitted to making the recording without informing the accused.
Mokgoatlheng ruled that the recording was inadmissible as it infringed upon the rights of the accused.
Meyiwa was killed on October 26, 2014, while visiting his singer girlfriend Kelly Khumalo at her home in Vosloorus.
Five men — Ntanzi, Sibiya, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Fisokuhle Nkani Ntuli are standing trial for his murder.
The matter will return to court on Thursday.
IOL News