Defence advocates in the Senzo Meyiwa murder trial have continued to poke holes in the conduct of senior commissioned officers who took confession statements from accused one and two - Muzikawukhulelwa Sibiya and Bongani Ntanzi.

There is currently a trial-within-a-trial in the North Gauteng High Court in Pretoria to determine if the alleged confessions made by Sibiya and Ntanzi were made freely and voluntarily.

In the past fortnight, the State has called several senior police officers, an interpreter, and a magistrate in a bid to show the confessions were made freely and voluntarily.

On Tuesday, defence advocates Thulani Mngomezulu, Charles Mnisi, and Zithulele Nxumalo all cross-examined Justice of the Peace Officer Lieutenant Colonel James Hadebe.

Under cross-examination by Mnisi, Hadebe told the court he did not inform Sibiya that he was not part of the investigation team in the Meyiwa murder, nor had he established if the accused had been to a doctor or district surgeon to assess his state of health.

Said Mnisi: “The fact that you said no (to the above) is indicative that you did not ascertain whether the future deponent (Sibiya) was there before you freely or voluntarily. This shows the tainted credibility and the sanctity of the process you were going through”.

“I don't believe so, my lord; I work according to the proforma,” Hadebe replied.

He also told the court that Sibiya, who he had been tasked with pointing out a crime scene confession, was alone with him in Room 31 at the Alberton Police Station as he had undertaken to provide interpretation services as he was a first language IsiZulu speaker.

This was questioned by the defence.

Under cross-examination by Nxumalo, the advocate tried to create doubt around Hadebe’s testimony that he did know about the nature of the charges Sibiya faced.

Hadebe insisted that he only learnt of Sibiya's charges during the interview they conducted in Room 31, while Nxumalo pointed out that he was the one who signed for the accused on the Occurrence Book (OB) record, which would have contained the charges faced by Sibiya and the relevant case number.

Hadebe told the court he signed in a rush as he was irritated by the Alberton Police Station officers who would not sign to release the accused as they apparently feared accountability should he escape.

“I take full responsibility for my actions; I am not running away from anything. It is true that I was not aware of what the accused was going to point out before I interviewed him,” Hadebe told the court.

Nxumalo also sought to create doubt, pointing out that Hadebe had arrived at the police station at 11.30am, but he only got in contact with Sibiya almost an hour later at 12.24pm.

“What was happening between that time?” asked Nxumalo.

“I was at the police station waiting for an indication that they had arrived (with Sibiya) from wherever they were coming from,” said Hadebe.

Hadebe also told the court that he did not make notes when they travelled with the accused to the scene.

Earlier, under cross-examination by Mngomezulu, Hadebe told the court he had been escorted by two vehicles from the Ekurhuleni Metro Police who kept a distance when they went to point out the scene with Sibiya at the Vosloorus hostel.

The court has yet to hear the exact nature of what Sibiya was pointing out in his confession statement.

Mngomezulu has told the court that Sibiya was assaulted, tortured, and tubed with a plastic bag by police officers after his arrest on May 30, 2020.

Tubing is an apartheid-era tactic that involves the accused being suffocated with a plastic bag, causing asphyxiation.

Sibiya was assaulted outside his Tembisa home, in Lethabong, at a location in Vosloorus before he was taken to the Alberton Police Station, Mngomezulu told the court.

He was also assaulted at an office at the Diepkloof Police Station, where retired Justice of the Peace Officer Colonel Mhlanganyelwa Mbotho administered a pre-written confession to which he was asked to put his signature, the defence said.

It was unclear where the tubing took place.

The defence claims Mbotho arrived with an already-filled proforma confession, and Sibiya was encouraged to sign to stop the assault.

Turning point?

Last week, Judge Ratha Mokgoatlheng ordered that an audio recording of Ntanzi's alleged confession could not be admitted as evidence in the trial-within-a-trial after Magistrate Vivienne Cronje, who administered Ntanzi’s confession, admitted to the court she had made the recording without informing Ntanzi of his rights.

Judge Mokgoatlheng said Magistrate Cronje egregiously infringed on the rights of the accused.

“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 submit to a trial unfairly,” the judge said.

Since that ruling, it has arguably been an uphill battle for the State as the defence has attempted to poke major holes in the conduct of Magistrate Cronje during her cross examination.

The court heard how Magistrate Cronje, despite being informed of an irregularity in law after Ntanzi was detained for eight days without appearing in court, still proceeded with the confession statement, having told the accused that he was to inform her of any irregularities.

She later told the court this was reported to a senior magistrate, but the defence argued she should not have proceeded further with the confession.

She was also told of how Ntanzi had not washed in eight days and requested a phone call to his family, but she did not act on these either.

She was then found to have unlawfully recorded the confession interview without warning the accused of his rights, consent, or knowledge.

Regarding the presence of a Dominic Mjiyako, who was Ntanzi's attorney but who is now being disputed by the defence, Magistrate Cronje conceded that she did not make a copy of his fiduciary compliance certificate but told the court he had been shown the certificate, nor did she request his mandate, which would show he was a legal representative of Ntanzi.

A delay of over two hours was also caused on Tuesday when the State advocate George Baloyi failed to share Hadebe’s statement as discovery to the defence advocates.

Advocate Mshololo is expected to cross examine Hadebe on Wednesday. Mngomezulu will also have an opportunity to re-cross examine Hadebe after his statement was belatedly discovered on Tuesday.

The trial continues.

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