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The evidence will speak for itself in Senzo Meyiwa trial

The five men accused of killing Bafana Bafana star Senzo Meyiwa appear in the high court. Picture: Jacques Naude/African News Agency (ANA) Archives

The five men accused of killing Bafana Bafana star Senzo Meyiwa appear in the high court. Picture: Jacques Naude/African News Agency (ANA) Archives

Published Jun 18, 2022

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By Zelna Jansen

Following the controversial arrest of advocate Malesela Teffo in court, the Senzo Meyiwa murder trial is finally getting traction. Meyiwa was a soccer player for Orlando Pirates. He also represented the national team in several matches and captained some of the matches in the African Cup of Nations. Meyiwa was murdered in October 2014.

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At the time, it was believed to be a robbery gone wrong at the home of his girlfriend, Kelly Khumalo. It was reported Meyiwa was shot while protecting Khumalo from the attackers. The assailants allegedly fled the scene with Khumalo’s cellphone. A suspect was arrested but released as there was no evidence linking him to the crime. There were several rumours of a cover-up by the people in the house.

However, the case remained unsolved and became a cold case up until 2019. Many were critical of how the police investigated the case. In 2020, authorities believed that Meyiwa was a victim of a hit and not, as initially believed, a robbery gone wrong.

Theories of a mastermind surfaced. Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa and Fisokuhle Ntuli, who are on trial for Meyiwa’s murder, were arrested and charged. Teffo is the advocate for four of the accused.

The defence has so far cross-examined the State’s first witness, forensic expert Sergeant Thabo Mosia. An issue raised prior to and during the trial by Teffo is there are two case dockets with different case numbers.

During the trial, advocate Zandile Mshololo, acting for accused number five, raised questions about the two dockets, and claimed potential prejudice to her client because there were different suspects identified in the other docket.

This docket contains a decision by the Director of Public Prosecutions in Gauteng to have Kelly Khumalo, Chicco Twala’s son Longwe Twala, Kelly’s mother Gladness Khumalo, Kelly’s sister Zandi Khumalo, Meyiwa’s childhood friend Tumelo Madlala, Mthokozisi Thwala and Maggie Phiri, who is said to have cleaned the crime scene before the police officers arrived, charged with the murder of Meyiwa.

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In response, the National Prosecuting Authority (NPA) has stated the additional docket does not have merit. During cross-examination by Teffo, Sgt Mosia admitted it was “very strange” for the SAPS to have two case dockets and different investigating teams.

A case docket can be explained to be an official document that holds a record of a reported crime and the investigation conducted into the crime.

In South Africa, crimes are reported and documented using a paper system, where a brown folder, better known as “brown donkeys”, holds all the evidence of an investigation. In 2009, the former minister of police, Nathi Mthethwa, in his budget speech in the National Assembly, stated that the loss of criminal dockets would soon be a thing of the past as

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“SAPS are now working on the development of the e-docket and e-filing systems. Once finalised, these systems will need to be implemented with considerable vigour”.

This system would also help synchronise information between correctional services and the prosecution. Over the past decade, the SAPS has been introducing this system where a docket would be stored online and where e-dockets and forms would become part of the Integrated-Case Docket Management System (ICDMS).

For many reasons, such as no internet connectivity, or copies and scanners, SAPS have been struggling to get the system up and running. Because of the paper system it is possible to have two dockets. In the event of such a scenario, the two dockets can be reconciled.

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In terms of the Criminal Procedure Act of 1977, the court can make inquiries about the accused, the charges and witnesses and decide on the best way forward. It may lengthen the trial but not end it.

Another question raised by some was that the murder took place in Johannesburg and therefore the trial should be heard in the Johannesburg High Court instead of the Pretoria High Court. Due to the establishment of the nine provinces, there is no longer a Witwatersrand High Court.

There is now a South Gauteng High Court and the North Gauteng High Court. In terms of the Superior Courts Act of 2013, the South Gauteng High Court, Johannesburg, becomes a local seat of the Gauteng division.

As a result, where there were formerly two high courts, there is now only one, which sits in two places. Section 6 of the Superior Courts Act states the Gauteng Division will have its main seat in Pretoria. There is therefore no issue in terms of whether the trial is heard in Johannesburg or Pretoria.

If there were concerns about the jurisdiction, the Criminal Procedure Act makes provision for cases to be easily transferred to other courts. The jurisdiction or the issue of two dockets is therefore not fatal to the Senzo Meyiwa murder trial. In the end, the evidence led will eventually speak for itself.

* Jansen is a lawyer and CEO of Zelna Jansen Consultancy

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