This was the submission by the state during its response to counsel for the fifth accused, Adv Zandile Mshololo’s application for a special entry made earlier in the day.
The state says the application for a special entry of what the defense says is a prejudicial irregularity is “premature and ought to be dismissed.”#SABCNews #SenzoMeyiwa #SenzoMeyiwatrial pic.twitter.com/3QrJuLNrdo
— Sipho King K Kekana (@KingKAzania) September 5, 2022
Adv Mshololo earlier pleaded with the court to put into records that the state’s non-disclosure of the docket before the accused could plea was an irregularity that prejudiced her client and submitted that had the accused been aware of the contents of the other dockets he could have pleaded differently.
Second docket in Senzo Meyiwa trial under the spotlight:
The state, in response, has argued that with the accused having pleaded not guilty and not having made any admission, there is no chance the disclosure of the docket could have affected how the accused pleaded.
Adv Baloyi says “if the accused had pleaded guilty or made admissions, then it would be understandable” to argue that the non-disclosure of the second docket could have changed their plea, “but in this case they pleaded not guilty.” #SABCNews #SenzoMeyiwatrial #SenzoMeyiwa pic.twitter.com/TIWylvu6wE
— Sipho King K Kekana (@KingKAzania) September 5, 2022
Judge Maumela: It’s not for the court to look at the effect of failure to disclose but to look at the failure to disclose and put that on record.
The state insists the non-disclosure before the plea could not have affected how the accused pleaded.#SABCNews #SenzoMeyiwatrial pic.twitter.com/F1zvoMUinL
— Sipho King K Kekana (@KingKAzania) September 5, 2022
Adv George Baloyi has asked the court to dismiss Adv Mshololo’s application saying it didn’t meet the requirements for a special entry.
Baloyi says one of the requirements for a special entry is that the irregularity should not appear from the court records, saying that the issue of the second docket, which brought proceedings to a halt, had been discussed extensively in court and appeared on court records.
He has also argued that special entries are a route to the appeal courts and presuppose there would be a guilty verdict, which he has argued is premature.
Advocate Mshololo has argued that the docket is relevant to the current proceedings as it contained statements from the same witnesses in the first docket Vosloorus CAS 636/10/2014 and because it also referred to the same crime and same set of facts.
Mshololo says the statements of witnesses in the second docket are contradictory to the statements contained in the other docket. #SABCNews #SenzoMeyiwatrial #SenzoMeyiwa pic.twitter.com/fNoy3oXOdH
— Sipho King K Kekana (@KingKAzania) September 5, 2022
“The second docket contains the photo album of photos that were taken at the crime scene the following day after the incident. That is crucial to this trial. It also contains the second statement of Thabo Mosia who is testifying before this court and in that statement, he is contradicting himself,” argues Mshololo.
“It also contains the statement by Brigadier Ndlovu who played a role in the investigation of this matter and that statement has not been disclosed. It contains material evidence regarding the evidence of Mosia who is in the box. That information ought to have been supplied to the defense.”
Mshololo says these contradictions by witness statements are relevant to the current proceedings and in her preparation for her client, Fisokuhle Ntuli, she ought to have been furnished with such information as required by the law.
“It also contains the statement of Warrant Officer Mishack Makhubo regarding the status of the witnesses who submitted statements under Vosloorus Cas 636/10/2014. He (Makhubo) is referring to the information or evidence that was obtained during the investigation of the crime. The statements are contradictory to the statements contained in the other docket.”
Mshololo says this non-disclosure of information has prejudiced her client who could have pleaded differently had such information – which only came to the attention of the court during the trial – been made available before the plea.
She says her client’s constitutional rights were violated by the state’s “withholding” of such crucial information.
She has pleaded with the court to record this as an “irregularity” which she would use at the Supreme Court of Appeal in the event her client is found guilty.
“The information contained in the second docket; the state was aware of it when the accused pleaded. Above the violation of section 32 of the constitution, the constitutional right of the applicant protect under section 35 says the accused has every right to be furnished with sufficient information to be able to prepare a defense. Without the applicant being given that information an irregularity was created,” says Mshololo.
Last week, the National Prosecution Authority (NPA) announced that the decision on the second docket would only be made after the current proceedings, something Mshololo says speaks to the relevance of the docket in the current trial.
Meyiwa was shot dead on the evening of 26 October eight years ago when two intruders allegedly stormed into Kelly Khumalo’s house in Vosloorus and demanded cell phones before a scuffle allegedly ensued leading to the murder of the former Bafana Bafana goalminder.
The defense has rejected this version of events slowly painting a picture of a cover-up involving the police who attended the scene.
The court has adjourned and will resume on Tuesday morning.
