The rights of accused two in the Senzo Meyiwa murder trial were infringed “egregiously” when Magistrate Vivienne Cronje made an audio recording of his alleged confession, the High Court in Pretoria has ruled.
Judge Ratha Mokgoatlheng has ruled that the audio recording was inadmissible and that the court will not consider nor listen to it.
The court is holding a trial-within-a-trial of the Senzo Meyiwa murder trial to determine the admissibility of confessions made by accused one and two — Muzikawukhulelwa Sibiya and Bongani Ntanzi.
A recording of Ntanzi’s confession has taken centre stage in court in the past few days after it emerged he had been recorded without his consent by Cronje.
“The rights of accused two were infringed by the making of the audio recording by Magistrate Cronje and consequently from the time the rights were infringed in that manner,” Mokgoatlheng said.
“This court is enjoined to declare evidence acquired unlawfully to be inadmissible. If this court allowed such an egregious flouting of accused Constitutional rights, it would not be in the interest of justice to do so. He would continuously submitted to a trial unfairly,” the judge said.
“That would bring the administration of justice into disrepute. This court rules that the audio recording is inadmissible.”
The recording by Magistrate Cronje, which she admitted she had not obtained with the consent of Ntanzi, had taken centre stage in the trial within a trial to determine the admissibility of confessions made by Ntanzi and accused one, Muzikawukhulelwa Sibiya.
Mokgoatlheng said declaring the recording inadmissible did not mean the written proforma confession document was also inadmissible.
Defence advocates Thulani Mngomezulu, Charles Mnisi, Zithulele Nxumalo and Zandile Mshololo had argued on Thursday that the court should not consider the recording nor listen to it as it was made unlawfully.
They argued that it infringed on the rights of accused two, while State advocate George Baloyi had argued that the recording was obtained lawfully according to the RICA Act, as Cronje was party to the recording.
Mokgoatlheng said there was no dispute that the recording was made without informing the accused of the recording, his rights and that it could be later used against him in a court of law.
“This court in terms of the law, is entitled to be furnished with the proforma document, when Magistrate Cronje was engaging accused two in the interview in terms of Section 217,” he said.
“Correspondingly, this court was entitled to listen to the recorded proforma, questions 1-13 of the audio recording. But the defence objected and said this court will only be indulged by the defence after I have made the finding either way. That is not the law,” Mokgoatlheng said.
“The court is entitled to listen, but, because we now find ourselves in a situation where the defence has listened to the tape, Mr Baloyi and the accused have listened to the tape,” said the judge.
“The judge has been disbarred from listening to the tape. That was unconceived and unlawful.”
Mokgoatlheng explained that the constitution, and within the interest of justice and the administration of justice, allowed him to admit evidence that was unlawfully and unconstitutionally acquired.
But in this instance he said the rights of accused two were flouted so badly, he could not.
“This cannot be done because of the egregiousness of the rights of accused two,” Mokgoatlheng said.
“Further, I have already said that it is not in the interest of justice to wait for the whole evidence to be laid before this court in a full throttled application with rebuttal evidence,” he said.
“Rulings which are made on admissibility in trials within a trial, those decisions are interlocutory, and may be reviewed.”
A ruling of admissibility is not final.
“The rights of accused two were infringed by the making of the audio recording by Magistrate Cronje and consequently from the time the rights were infringed in that manner.”
The trial within a trial is expected to resume after 11.30am, with the defence expected to cross examine Cronje.
Muzikawukhulelwa Sibiya, Bongani Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Fisokuhle Nkani Ntuli, are standing trial for the murder of Senzo Meyiwa.
The police announced on the anniversary of the footballer’s death three years ago - October 26, 2020, that they had been arrested.
The trial continues.