The State has made a U-turn as it now wants to submit the recording of Magistrate Vivienne Cronje administering the confession of Bongani Ntanzi as evidence in the Senzo Meyiwa murder trial in the North Gauteng High Court in Pretoria.
The State had initially indicated in court that it would not use it as part of its evidence, but shared it with the defence to listen to overnight.
The near three hour long recording was revealed on Tuesday when Cronje took the stand and give evidence about how she administered the confession of Ntanzi (accused two) at the Boksburg Magistrate's Court on June 24, 2020.
State advocate George Baloyi made the application on Wednesday morning and Judge Ratha Mokgoatlheng has ruled that Cronje's recording be played in camera to allow the defence to consult with their clients, Muzikawukhulelwa Sibiya, Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Fisokuhle Nkani Ntuli on the matter.
Mokgoatlheng had initially wanted the recording to be played in open court, saying he wanted to allow the court every opportunity to make an informed decision about the evidence before the court.
He also made a U-turn after it was determined that playing the recording could be tantamount to a consultation for the accused with their defence, as they had not heard the recording.
The trial-within-a-trial is currently trying to determine the admissibility of confessions by accused one and two, Sibiya and Ntanzi.
Mokgoatlheng said the recording was evidential material gathered by Cronje as an officer of the court and was not personal material as she claimed in her evidence in chief on Tuesday.
“Although she says it is her personal material, there is nothing like that, she cannot claim it as a personal possession of hers. That information is a product of her function. She was an officer of the court who was instructed to perform an interview,” Mokgoatlheng said, referring to Ntanzi’s confession.
Baloyi said the State wanted to submit the recording as evidence as there were aspects contained in the recording which were important to determine if the confession statement was made voluntarily.
He cited the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica) and said although Cronje did not indicate to Ntanzi, his lawyer and an interpreter who were present that she was making the recording, she was entitled to do so as she was party to the recording.
Advocate Thulani Mngomezulu objected to the State's U-turn on the basis that they had indicated they were not going to use the recording. He said the defence had not been given time to listen to the recording and to research relevant legislation to argue against the submission of the recording.
Advocate Zithulele Nxumalo said he did not listen to the recording, as the State said it would not use the recording, saying his back was against the wall on the matter.
Advocate Zandile Mshololo also objected to the U-turn by the State on the basis that the accused had not been given an opportunity to hear the recording.
“I listened to the recording alone without my client. I have no instructions about that. I will ask again that we be given an opportunity. If the State was allowed to proceed, it would be an ambush,” Mshololo said.
The court has adjourned until 2pm to allow the defence to play the recording to the accused and to consult.
The trial-within-a-trial is expected to resume at 2pm.