Tensions ran high in the Senzo Meyiwa murder trial on Friday as defence lawyers united in rejecting the state’s attempt to cross-examine the first accused, Muzi Sibiya, over a confession allegedly made by the second accused.
Sitting before Judge Ratha Mokgoatlheng in the Pretoria High Court, the defence argued that the state’s move was both procedurally flawed and a violation of the accused’s right to a fair trial.
Fishing for evidence
Advocate Zandile Mshololo, representing accused number five, Fisokuhle Ntuli, criticised the prosecution for what she described as an attempt to fish for evidence.
“This court should not allow the state to fish,” she said.
“The state is saying it’s a confession, during the trial it says it is a pointing out. And alternatively it goes on to say it is hearsay. Which one do we need to defend?”
Mshololo further explained the distinctions between the various forms of evidence.
“Confession is made before a peace officer, pointing out is made before a peace officer. And an exculpatory statement is not made before a peace officer, that is the difference.
“Had we been informed from the beginning that these are exculpatory statements, the accused persons would have defended themselves appropriately.”
She accused the prosecution of conducting what she termed a trial ambush.
“The accused’s rights to a fair trial have been violated. And even if they haven’t yet, they will be violated if the court allows the state to use the statements contained in GG. It will render this trial unfair,” Mshololo argued.
Classification of evidence
She warned that the improper classification of evidence could have serious consequences.
“If the classification of evidence is not explained properly, the defence will be expected to make submissions on admissibility without clarity. I submit that these three statements do not amount to an exculpatory statement.”
And advocate Zithulele Nxumalo, representing accused number four, echoed the objection. He stated that the state’s actions violate the accused’s rights.
“The state alleges that the statement made by accused number two is an exculpatory statement. A trial within a trial was already conducted for the admissibility of the confession made by accused number two, who contested that the statement was made under threat or assault,” Nxumalo told the court.
However, state prosecutor Advocate George Baloyi defended the state’s position. He cited testimony from witnesses at the Basotho hostel.
Witness testimony
“There are people who testified about the accused as they departed to kill Meyiwa. And upon returning, the witnesses informed the court that they saw them,” said Baloyi.
“Tumelo Madlala also identified accused number one and accused number one spelled out the role that he played. Therefore, I am submitting that it is lawful that we use the confession by one of the accused.”
Judge Mokgoatlheng noted the distinction between a confession and an exculpatory statement. He explained that the status of a confession differs from that of an exculpatory statement in the sense that a confession normally would be in terms of section 217.
The judge reserved his ruling on the matter, which is expected to be delivered on Monday.
