The seven people mentioned in the controversial second docket of the former Orlando Pirates goalkeeper Senzo Meyiwa murder case may never be tried in court for the crime committed on October 26, 2014.
According to the docket, Vosloorus 375/01/2019, opened only almost five years after the incident, Longwe Twala, Kelly Khumalo, Gladness Khumalo, Zandi Khumalo, Tumelo Madlala, Mthokozisi Thwala, and Maggie Phiri should be charged with murder and defeating the ends of justice.
However, it is understood, through a member of the National Prosecution Authority (NPA), who would only speak on condition of anonymity, that with the five people already standing accused of the crime, the law would not allow the state to charge more people for the same crime.
Muzi Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Ziphozonke Maphisa, and Sifisokuhle Ntuli were charged with Meyiwa’s murder and attempted murder of other witnesses, robbery with aggravating circumstances, unlawful possession of a firearm, and possession of ammunition.
All five pleaded not guilty to all the charges.
Asked what would happen in the event the five accused are acquitted of the charges brought against them, the highly-placed member of the NPA says, “According to the Autrefois Acquit, you cannot charge other people for the same crime if these ones are eventually acquitted. The state has charged these five and if they fail to get a conviction against them, they cannot then turn around and say ‘hold on, we think we should try these other ones.’ It doesn’t work like that. If they are acquitted this matter is closed!”
“If they fail to get a conviction against them, they cannot then turn around and say ‘hold on, we think we should try these other ones.’ It doesn’t work like that. If they are acquitted this matter is closed!” #SenzoMeyiwaTrial #SABCNews #SenzoMeyiwa https://t.co/O0v6E5LOei pic.twitter.com/egHI7TeXtO
— Sipho King K Kekana (@KingKAzania) June 8, 2022
Proceeding halted
Proceedings were brought to a screeching halt on Wednesday when defence advocate for the fifth accused, Zandile Mshololo, told the court she could not carry on with cross-examination of the first state witness, Thabo Mosia. This, she has said, owing to the emergence of the second docket opened in 2019 recommending that those who should be charged are the people who were in the house during the commission of the crime eight years ago.
This is in conflict with the version of events contained in the first docket, indicating that two intruders entered the house where Meyiwa and other people including his then-girlfriend, Kelly Khumalo, her mother, Gladness, sister Zandile as well Zandile’s then-boyfriend, Longwe were.
According to the first docket which led to the arrest and charging of the five people currently being tried in court, the intruders demanded money and cellphones before a scuffle ensued leading to one of the intruders fatally shooting Meyiwa.
Mshololo has told the court she is unable to continue with the cross-examination of Mosia because she would like to cross-examine him on the contents of the second affidavit deposed by Mosia in 2019, which is contained in the second docket.
“I cannot continue with cross-examination because the second docket makes references to statement, I would like to cross-examine the witness regarding … I cannot continue with this cross-examination with reading the whole document where this statement is contained.”
She has accused the state of continuously violating the rights of his client Sifisokuhle Ntuli. This, she says, because firstly, the state only revealed key witness statements two weeks before the start of the trial and now making available the second docket only after the trial had started.
She further argues that this has prejudiced her client and compromised his ability to prepare his defense. “The non-disclosure of such a document violated the right of my clients … in order to prepare his defence.”
The court took a short adjournment but the post-tea session didn’t change much as Mshololo insisted she need more time to study the docket and prepare a defense for her client.
The state conceded that they handed the docket to Mshololo only this morning, arguing that they also got hold of it this morning.
This was not the first time the docket was mentioned in court. Previously, counsel for accused 1 to 4, Malesela Teffo, who was not in court on Wednesday, brought the issue in court, arguing that continuing with the case without dealing with the controversial docket would be futile.
Mshololo has criticised the state for what transpired in court saying it was shameful that the state had chosen not to disclose this docket before the trial.
She has told the court the state has to explain how it came to the decision to charge the five accused currently on trial and not those who were mentioned in the controversial docket.
Mshololo, asked by SABC News if the second docket was of any importance given based on Autrefois Acquit, would not comment.
‘Defence tactics to get charges withdrawn’
However, a source close to the two defence counsels has told the SABC News that it was “because of this Autrefois Acquit that Mshololo is fighting this now and not waiting for these five to be acquitted first. Once they are acquitted it will be late. So, firstly, Mshololo wants the state to explain why those mentioned in the second docket were not charged, and based on that it is possible that it can then be argued that they should be charged and tried alongside these five. But even that could just be a tactic by the defense because once the court agrees to bring more people in this case, then the defense will argue that the state has no case and the case needs to be withdrawn.”
Mshololo refused to comment on the matter.
Mshololo, asked by SABC News if the second docket was of any importance given based on Autrefois Acquit, would not comment. #SABCNews #SenzoMeyiwaTrial https://t.co/U9tejGFbV8 pic.twitter.com/F8TeqoCzkh
— Sipho King K Kekana (@KingKAzania) June 8, 2022
The matter has now been postponed to Monday where the counsels will map a way forward based on the emergence of the second docket and Exhibit C which relates to the correspondence about how the state came to the decision not to charge those who were present during the commission of the crime and the five instead.
For the past few weeks, the defense has gone to great lengths to discredit Mosia, the first forensic expert to arrive at the scene four hours after the shooting and to paint a picture of a serious cover-up involving senior police officials which resulted in the tampering of the crime scene and the planting of evidence to link the five accused to the murder.
