The defence in the Senzo Meyiwa murder trial insists on another trial within a trial to find the admissibility of a confession recorded by state witness magistrate Vivian Cronje.
This was argued in the Pretoria High Court on Thursday as the state insisted that the audio recording is authentic.
The audio allegedly belongs to accused number two Bongani Ntanzi, and is said to have been recorded during the proforma interview and the taking down of the confession.
Ntanzi’s legal representative, advocate Thulani Mngomezulu, said the court was still involved in an enquiry on the statement by his client whether it was made voluntarily.
The defence argues that it was not made while Ntanzi was in his sound senses, suggesting that it was made under duress.
He said Cronje had a duty to take down the confession reduced in writing and claims no further requirements were needed.
Client’s rights infringed
He said in relation to the recording, his client’s rights have been infringed, as what he was allegedly cautioned about in relation to taking down the confession in writing was not repeated for audio purposes.
“In this case, no rights are explained. Indeed so, even if we are still contesting the fact that it has been taken freely and voluntarily, we still maintain that a right has been infringed,” said Mngomezulu.
He said the recording of a right, as it was heard on the audio, should not be compared to explaining the right.
He said explaining the rights would have included having Cronje also caution Ntanzi that the audio recording may be used against him in court.
Mngomezulu argued that Cronje knew that she was gathering evidence without the knowledge of accused number two, and submitted that the recording should be excluded as doing so would further infringe his client’s rights.
“If the state is adamant or vividly sure that there is no supplementary information to be supplemented on the proforma, surely there would be no need for the state to use the recordings.
Advocate Charles Mnisi said it is a procedure to hold a trial within a trial to test the admissibility of the evidence brought forth.
He said the current one looked into the said statements brought forth by the state, but another one should be held to look into the audio recording itself.
In agreement, advocate Zandile Mshololo said Cronje should have informed Ntanzi that there was a live audio recording device during their session, and that it may be used against him in court.
She said as such, another trial within a trial should be considered.
