Judge Ratha Mokgoatlheng during the Senzo Meyiwa murder trial at Pretoria High Court on 17 July. Picture: Gallo Images/Phill Magakoe
An audio recording of Bongani Ntanzi’s alleged confession to his involvement in the murder of former Bafana Bafana captain Senzo Meyiwa dominated proceedings in court.
The court is hearing evidence in a “trial-within-a-trial” held to determine whether the alleged confession statements of Ntanzi and Muzikawukhulelwa Sibiya could be accepted in the main trial.
State witness Vivian Cronje was expected to be cross-examined by the defence in the Gauteng High Court in Pretoria on Wednesday following the conclusion of her evidence-in-chief.
Cronje was the magistrate tasked with taking Ntanzi’s confession on 24 June 2020.
According to the state, Ntanzi made his first confession statement to a police officer days prior.
The witness testified on Tuesday when she took the confession in an office at the Boksburg Magistrate’s Court, Ntanzi’s lawyer, Ntokozo Mjiyako, and an interpreter were present.
She told the court the suspect said he had not been assaulted or influenced by any person to make the confession.
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Each page of the pro forma document and confession statement was signed by Cronje, Ntanzi and the interpreter.
Cronje also disclosed that she had made an audio recording of the entire interview with Ntanzi, which was three hours long.
The magistrate, however, had not informed Ntanzi and his lawyer about the recording.
At the beginning of Wednesday’s proceeding, prosecutor George Baloyi informed the court that the state wanted the recording of Ntanzi’s confession to form part of the evidence.
“The recording provides more detail of what occurred during that occasion more than it is reflected in the pro forma,” he said.
Advocate Thulani Mngomezulu objected to this, asking that the state’s request be suspended and for Cronje’s cross-examination to continue.
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Mngomezulu said he opted not to listen to the recording because the state indicated on Tuesday it would not use it in court.
The lawyer implied that the state’s request had “ambushed” the defence.
While Judge Ratha Mokgoatlheng noted Cronje’s testimony that the recording was informal, he said “she cannot claim that as a personal private possession of her” because “she is an officer of the court”.
The judge, therefore, ruled he would have to listen to the recording.
“If I haven’t listened to it how will I be able to determine what information is admissible or what information is not admissible,” Mokgoatlheng said.
Advocate Zandile Mshololo asked that the defence be afforded the opportunity to listen to the recording before it was heard in court, but the judge overruled her request.
It was at this point Mngomezulu addressed the court on the principles of fairness and justice.
“Each party must have proper time for proper consultation. I submit, with due respect, that any information to be disclosed especially of this nature is that there are certain requirements in relation to the best evidence rule that we need to adhere to.”
The defence lawyer hinted at the possibility of an expert being required to authenticate the voice of the accused in the recording.
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“Such evidence is crucial to rebut the evidence of the state. Hence, I submit with, due respect, the principles of fairness and justice should apply. I’m raising this because if we are given an opportunity to consult, the law and the principle of law state very clearly that we act in the best interest of the clients. We don’t act in our own interests.”
Baloyi, in his response, said the impracticability of the defence’s request was that the recording was long in duration.
“The suggestion from the state will be that the recording is played and there’s an adjournment to take instructions and we reconvene… the matter then proceeds from there,” the state prosecutor said.
Mokgoatlheng, however, acceded to the defence’s request to consult before the recording was played to the court.
The trial will continue on Thursday.
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