Accused two in the Senzo Meyiwa murder trial, Bongani Ntanzi. Picture: Oupa Mokoena/African News Agency (ANA)
Judge Ratha Mokgoatlheng is expected to deliver judgment on the admissibility of Magistrate Vivienne Cronje’s recording of Bongani Ntanzi's confession, which has taken centre stage in a trial-within-a-trial at the Senzo Meyiwa murder trial this week.
The footballer was gunned down in October 2014 at his girlfriend Kelly Khumalo's Vosloorus home.
The arrests of the accused - Muzikawukhulelwa Sibiya, Bongani Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Fisokuhle Nkani Ntuli, were announced on the anniversary of the footballer’s death three years ago - October 26, 2020.
On Thursday, the North Gauteng High Court in Pretoria heard submissions from both the State and defence over the admissibility of Magistrate Cronje’s recorded confession of Ntanzi, which was made on June 24, 2020, eight days after he was arrested.
State advocate George Baloyi wants the court to allow into evidence the recording by Magistrate Cronje, while the defence is opposed to the evidence being admitted to the court within the trial-within-a-trial.
Baloyi held that the recording was relevant and argued that the principle of best evidence was applicable. He said the court must hear the evidence and argued that under the Rica Act, Magistrate Cronje, as a party to the recording, was entitled to make the recording without informing other parties.
Advocate Thulani Mngomezulu, for accused one and two, made submissions to the court, arguing that the recording was unconstitutional as Ntanzi was never informed of his rights and was never informed he was being recorded.
He said the court should not listen to the recording, and he explained that according to the law, the provisions of a valid confession included that it had to be free and voluntary and must be made in sober and sound sense.
Mngomezulu said Magistrate Cronje would have had to have Ntanzi’s rights explained to him before the recording was made.
He said the recording was obtained in a manner that violated the rights of the accused.
“It was only the person who took it who was aware. These tape recordings must be excluded as they will violate the rights in the Bill of Rights,” said Mngomezulu.
Advocate Zandile Mshololo said the recording could not be admitted into evidence as Magistrate Cronje did not explain Ntanzi’s rights.
Mshololo said the recording contained incriminating evidence, which was not contained in the written pro forma confession statement.
“I submit, to say the recording is not the same as the document submitted before the court, Exhibit JJ (the pro forma confession statement).
“I submit that the magistrate ought to have explained the constitutional rights of the accused and say I will be recording and this may be used against you; this ought to have been explained,” said Mshololo.
She also said the matter of fairness could not outweigh infringing on the Constitutional rights of the accused when State advocate Baloyi cited case law, which cited that evidence unconstitutionally obtained may be admitted in the interest of fairness.
Judge Mokgoatlheng said a ruling on the recordings would be made at 10am on Friday.
“The court must retire to consider if the State has succeeded in determining whether the recording is admissible and, consequently, if the rights of accused two have been infringed.”
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