‘Accused didn’t understand his rights’ – Defence argues in Senzo Meyiwa trial

The defence in the Senzo Meyiwa murder trial has maintained that an accused’s constitutional rights were not properly explained to him when he was taken to do a pointing out of the crime scene.

Colonel James Hadebe returned to the witness stand in the Gauteng High Court in Pretoria on Wednesday to conclude his cross-examination by the defence.

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Hadebe is one of the witnesses giving evidence in a trial-within-a-trial, which is being held to determine the admissibility of confession statements, pointing out and warning statements by all five men in the main trial.

The police officer testified that on 5 June 2020, he collected accused one, Muzikawukhulelwa Sibiya, from Alberton Police Station and drove with him to the crime scene of Meyiwa’s shooting in Vosloorus.

Consent

During proceedings on Wednesday, Advocate Zandile Mshololo grilled Hadebe about his version of events in leading up to the pointing out exercise to test whether Sibiya did so freely.

Mshololo argued that the presence of the Ekurhuleni Metropolitan Police Department (EMPD) officers at the holding cell in the Alberton police station posed a threat to Sibiya, but Hadebe disagreed.

She asked Hadebe whether Sibiya gave consent to leave the cell with him before the completion of a pro forma, which is an introductory part of a statement that deals with an accused’s rights.

“I requested him to come with me and he agreed,” the witness responded, although the police officer conceded that he did not write this down.

“You did not record that because you did not ask him for consent,” Mshololo put it to Hadebe.

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Hadebe dismissed the advocate’s notion.

“If you say to someone ‘please let’s go an office’ and he comes with you, I think that’s a request. If it wasn’t he would have refused which may be you would now be making allegations that I forced him,” he explained.

“I’m asking this question because we are dealing with the issue of whether the accused voluntarily submitted himself to you to go to that office in the first place and there’s nowhere he gave consent to you,” Mshololo said.

Hadebe said he only mentioned the purpose of booking Sibiya out of the cell when they were at the office where he read his rights to him.

“I explained that I came to take a statement as he had arranged with the investigating officer,” the officer told the court.

Watch the trial below:

In his evidence-in-chief, Hadebe testified that no one wanted to sign Sibiya out when he went to the Alberton police station to collect him.

He explained the EMPD officers feared that the suspect might escape, so he eventually signed Sibiya out himself in the occurrence book.

Constitutional rights

Meanwhile, Mshololo asked Hadebe whether he explained the allegations against the accused as required in terms of Section 35 of the Constitution.

“Do we agree that you never informed the accused of the allegations against him? Am I correct?” she asked.

“Yes,” Hadebe replied.

The defence lawyer told the officer that the accused was under the impression that he was being interviewed in relation to drug dealing.

“He never said I’m under arrest for murder,” she said.

But Hadebe said the drug dealing was a secondary response to whether he knew what he was arrested for.

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Mshololo: “Did he, at any stage, tell you that he was under arrest for murder?”

Hadebe: “No”.

Mshololo: “So why do you say it was secondary?”

Hadebe: “Because of the answer he gave.”

Mshololo later argued that the rights on the pro forma that was supposed to be explained to Sibiya were vague and failed to cover the consequences of making the statement.

But Hadebe insisted Sibiya understood all his rights.

The court previously heard that Sibiya made an alleged confession statement regarding Meyiwa’s murder on the night of his arrest on 30 May 2020.

The confession, however, wasn’t recorded.