Admitting the audio recordings of the confession of Bongani Sandiso Ntanzi as evidential material of the State will amount to a violation of his constitutional right and will bring the justice system into disrepute.
These were the submissions of advocate Thulani Mngomezulu, the legal counsel for the first and second accused, advocate Sipho Ramosepele, counsel for Muzikawukhulelwa Sibiya and Bongani Ntanzi, in the Senzo Meyiwa murder trial taking place at the Gauteng High Court, Pretoria.
Not only did Mngomezulu submit for the audio recording not be allowed as evidence, but also for the court to not even listen to the audio.
He told the court that they were now sitting with a situation where a constitutional right has been recorded differently to how it was explained to the accused, to the extent that magistrate Vivien Cronje had failed to inform them that they were taking the alleged confession in writing while simultaneously recording it.
“We submit that in relation to the right when this has been infringed, there is no way for it to be cured after the fact. The provisions of section 35.5 pose a legal question here: Was this recording obtained in a rightful way?
“That section, my lord, provides that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of the evidence would render the trial unfair. It is for this reason we insist that the recording be excluded in that it will violate rights as enshrined in the Bill of Rights and impede the administration of justice.”
Advocate Zandile Mshololo, the legal counsel for the fifth accused, Fisokuhle Ntuli, seconded the request for the court to steer clear of the audio as she stressed that Ntanzi’s right had been violated and this should have been thoroughly explained to him.
The State submitted earlier that there was no need for an expert to be called in to testify, as they pointed out that Cronje had indicated the recording was not meant for official use, but made to safeguard herself.
Prosecutor George Baloyi told the court that the request to admit the audio was not in conflict with the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) as there was no room to argue that Ntanzi’s privacy had been infringed
Judge Ratha Mokgoatlheng said the court would adjourn to make a decision on the submission of the audio before the matter can proceed with the cross-examination of Cronje.
As he had listened to arguments, Mokgoatlheng said the judgment would be delivered today.