Senzo Meyiwa trial: Court rules audio recording of accused’s confession won’t be admitted as evidence

The defence has emerged victorious after the audio recording of an accused’s confession about his alleged involvement in Senzo Meyiwa‘s killing was declared inadmissible.

The Gauteng High Court in Pretoria has been hearing evidence in a trial-within-a-trial, which is being held to determine the admissibility of confession statements made by Bongani Ntanzi and one of his co-accused, Muzikawukhulelwa Sibiya.

Magistrate Vivian Cronje, who took down Ntanzi’s confession in June 2020, testified this week that she recorded her entire interview with the suspect in the presence of his legal representative.

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However, she did not inform Ntanzi or his lawyer about the recording.

The state had originally intended not to lead evidence on the three-hour long recording, but made a U-turn on Wednesday.

The admissibility of the recording as evidence was challenged by the defence, who presented their arguments on Thursday along with the state.

Rights infringement

Delivering his ruling on Friday, Judge Ratha Mokgoatlheng highlighted that there was no dispute about the fact that this recording was done without Ntanzi’s consent.

The judge said the court needed to determine whether Ntanzi’s rights were violated in terms of Section 35(5) of the Constitution as alleged by the defence.

“If the recording is admitted as evidence, can it be said that it would bring the administration of justice into disrepute and that also it will be said to be an infringement of accused number two’s rights to a fair trial?” he said.

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Mokgoatlheng said he was of the view that the accused has a right to a fair trial and “what infuses its purpose is for justice to be done and to be seen to be done”.

“In considering the purpose of this case before court, this principle lies at the heart of a fair trial in the field of criminal justice. One has to bear in mind that dignity, freedom and equality are fundamental values of the Constitution and these are important to the right to a fair and to ensure that innocent people are not wrongly convicted.”

The judge said he “begged to differ” with state prosecutor George Baloyi’s reliance on the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) in determining the admissibility of the recording.

Watch the trial below:

Mokgoatlheng also disputed the state’s view that the recording was merely an electronic version of the pro forma statement.

“Mr Baloyi himself submitted what persuaded them to want to have the recording considered evidential material was that it contained some details that were not included in the pro forma statement,” the judge explained.

Baloyi’s submissions on Thursday referenced the same provisions of Rica, arguing the recording was not made illegally.

Recording inadmissible

Having considered all arguments, Mokgoatlheng concluded that Ntanzi’s rights were indeed violated.

“From the time the accused number two’s rights were infringed in that manner, this court doesn’t have to speculate that perhaps accused number two would have later said he doesn’t mind that these Section 217 proceedings were recorded,” he said.

The judge explained that Ntanzi would be subjected to an unfair trial if the court were to accept evidence that was obtained unconstitutionally.

“If this court allowed such an egregious and flagrant flouting of accused number two’s constitutional rights in terms of Section 35(5), it would not be in the interests of justice to do so because accused number two would then be continuously subjected [to] a trial unfairly when we know that the Constitution engages us and enjoins us to prevent such an exigency and also in the view of this court that would bring the administration of justice into disrepute.

“Consequently, this court rules that the audio recording should not form part of this proceedings. It is inadmissible.”

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