Murder accused Bongani Sandiso Ntanzi has been given a 'lifeline' by Pretoria High Court Judge Ratha Mokgoatlheng as he barred the submission of audio recording of his alleged confession.
Ntanzi is one of five men currently on trial for the October 2014 murder of Orlando Pirates player Senzo Meyiwa while at the Vosloorus home of his girlfriend, Kelly Khumalo.
Unlike the other accused, Ntanzi was reported to have made two confession statements to law enforcement authorities, while his co-accused Muzikawukhulelwa Sibiya was said to have made a pointing out statement.
The pair are appearing alongside Mthobisi Mncube, Mthokoziseni Maphisa and Sifisokuhle Ntuli, and all have pleaded not guilty.
A trial within a trial had to be held to determine the admissibility of the confessions and pointing out statement. However ,another challenge arose when the state requested that unauthorised audio recording made by magistrate Vivien Cronje when taking Ntanzi's confession be admitted to bolster the states evidence.
The defence counsels of the men objected to this as they stressed how Ntanzi's constitutional rights had been violated as he was not made aware of the recording.
Mokgoatlheng ruled that the recording made by magistrate Cronje would not be allowed to form part of proceedings,and was deemed inadmissible.
According to the judge, he was of the view that the accused rights to a fair trial were infringed by the making of the audio recording by the magistrate Cronje, a reliever stationed at Vosloorus Magistrate’s Court.
He stressed that the court was enjoined to declare the evidence acquired unconstitutionally to be inadmissible from the beginning to the end, as he explained that if allowed, this would amount to the flouting of his (Ntanzi's) rights in terms of Section 35, and would not be in the interest of justice as he would be continuously subjected to a trial unfairly.
‘’This would also bring the administration of justice into disrepute. One has to bear in mind that dignity, freedom and equality are fundamental values of the constitution, and these are important to the right to a fair trial and to ensure adequately that innocent people are not wrongly convicted,’’ he further explained.
Mokgoatlheng, however, added that it was important to note that the ruling of admissibility was not final, and that relevant evidence led in the main trial may be taken into consideration by a judge or magistrate when reviewing decisions made within a trial-within-a-trial no matter what the source might be.
The court will, after the adjournment, proceed with the cross-examination of Cronje.