Judge Ratha Mokgoatlheng on Monday morning ruled that the state cannot use the confession of accused number two, Bongani Ntanzi, to cross-examine accused number one, Muzi Sibiya, in the Senzo Meyiwa murder trial.
The ruling was handed down at the Pretoria High Court, where the state sought permission to question Sibiya using Ntanzi’s alleged confessions.
Delivering his judgment, Mokgoatlheng said the court had to consider both legal and constitutional issues before making a determination.
“This court must ensure that all witnesses are accorded fairness and treated equally,” the judge said.
“Section 9 of the constitution stresses that no person should be unfairly discriminated against, and Section 35[F] safeguards the right of an accused person to challenge evidence presented against them.”
State’s proposal contested
The ruling followed heated legal arguments between Adv George Baloyi, the state prosecutor, and the lawyers representing all the accused on Friday.
The defence contested the state’s proposal, contending that Ntanzi’s statements were inadmissible against his co-accused, Sibiya.
Mokgoatlheng cited the Mhlongo case, which raised similar constitutional concerns.
“The defence has rightly pointed out that using one accused’s confession to cross-examine another infringes constitutional protections.
“This deprives the second accused of the unfettered right to give evidence and challenge that evidence in turn.”
The judge further clarified that the court had not yet determined the official status of the statements made by the accused.
“This court has not defined those statements as confessions. A confession is usually a clear admission of guilt, but the accused one and two’s statements are not clear admissions.”
Rights of accused two protected
The judge highlighted the importance of fairness.
“This court may be infringing on the rights of accused two if the statement is used in cross-examination against accused one.
“Therefore, the ruling is that Mr Baloyi cannot use the statement of accused two to cross-examine accused number one,” said Mokgoatlheng.
Before court proceedings began on Monday, the court heard that Sibiya was unwell and had to consult a doctor.
However, his lawyer, Adv Charles Mnisi, confirmed that his client was fit to continue. “Mr Sibiya says he is okay and has indicated that we can proceed,” Mnisi told the court.
The court will continue hearing evidence in the ongoing trial, which concerns the 2014 murder of Bafana Bafana goalkeeper Meyiwa.
READ MORE: Defence slams state over trial ambush in Senzo Meyiwa murder case
