Legal experts are divided about whether the defence’s Section 174 application for discharge will succeed, after the closure of the state’s case in the murder trial of soccer star Senzo Meyiwa.
While the defence argues there is insufficient evidence to continue, analysts agree the state’s case has several weaknesses that the defence is likely to exploit when they argue their case from Thursday to have the charges dropped against the five men accused of killing the soccer star. These include:
- a broken chain of evidence;
- contradictions in witness testimony; and
- the state’s failure to call all the individuals who were present in the house at the time of the murder.
Meyiwa was shot dead in the presence of his then-girlfriend Kelly Khumalo at her mother’s home in Vosloorus in October 2014. Also present were Kelly’s sister Zandile, her boyfriend Longwe Twala, the sisters’ mother Ntombi Khumalo and two of Meyiwa’s friends visiting from KwaZulu-Natal.
The occupants claimed Meyiwa was killed by one of two intruders who barged into the home and demanded cellphones and money.
Mthobisi Mncube, Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthokoziseni Maphisa and Sifisokuhle Nkani Ntuli are on trial for Meyiwa’s murder. They have pleaded not guilty.
When the trial resumes on Thursday, the court is expected to hear whether the defence will proceed with its section 174 discharge application. The decision is pending approval from Legal Aid South Africa, which is funding the defence.
According to senior legal consultant adv Romeo Nthambeleni, the section 174 application is brought by the accused when they feel that the state has not discharged its onus of proving the case beyond a reasonable doubt.
However, Nthambeleni does not believe the defence’s application will succeed.
“The state has brought enough evidence to be able to link the accused to the crime scene. The state has brought enough evidence for the court to actually consider that they have committed the offence that they are charged with. As far as I’m concerned, they will not be successful on section 174.
“Section 174 is something that is applicable when the state has not proved their case beyond a reasonable doubt. So I think that the court is going to dismiss that section 174,” he said.
Legal expert Nthabiseng Dubazana of Dubazana Attorneys argues that based on the numerous contradictions and the broken chain evidence, the state did not make a strong case against the accused.
“Considering how old this case is, there are many things that have happened, but what I do recall is that the chain of evidence was broken and there were contradictions in the state’s case, and the failure of the state to call all persons in the house may work against them,” she said.
Nthambeleni believes there are weaknesses that the defence can lean on in the state’s case.
“The defence is going to say ‘the accused that are brought in court were not linked to the crime and then they did not commit the crime. They could not be in the house. There are two dockets that were open. There were people in the house who were at the crime scene, and they were not called by the state to actually strengthen their case.’”
Nthambeleni said there were many loopholes that the defence could use to excuse the accused from the crime scene.
“Those weaknesses are there. There was also evidence [from] a dental specialist who gave a report and said that this person [Mncube] did not have a gold tooth. They’re going to use those kinds of things to create their case to say these accused were not at the crime scene. And on that basis, those weaknesses show that they cannot be linked to the crime scene,” Nthambeleni said.
Some of the occupants at the Vosloorus home when Meyiwa was murdered said one of the intruders had a gold tooth.
Dubazana said should Legal Aid South Africa refuse to fund the discharge application, the accused will be without attorneys, and they may have to get other attorneys to continue with the case.
In the state’s case, lead investigator Brig Bongani Gininda told the court all five accused actively participated in the planning and execution of the contractual murder.
Gininda said evidence indicated the planning of the offence and that a gathering took place after the incident at a Vosloorus hostel. He said his investigations revealed that Meyiwa was murdered as a contractual assassination or hit rather than a robbery gone wrong.
Witnesses in the house testified about intruders while some neighbours testified to seeing them running out. An eyewitness identified Ntanzi as the tall intruder.
Top ballistics expert Lt-Col Chris Mangena told the court that the murder weapon, a 9mm pistol belonging to Mncube, was also used to kill Alexandra taxi boss Reggie Mohlala in January 2015.
Mangena said the possibility of an altercation or struggle between the deceased and the shooter could not be ruled out.
After he examined the crime scene and Meyiwa’s body and clothing, Mangena said he could determine at least two shots were fired. The shot towards the door was the one that hit Meyiwa. However, no witness was able to tell the court which intruder fired the deadly shot.
State witness Constable Sizwe Skhumbuzo Zungu placed all of the accused at a Vosloorus hostel on the day of the murder. He testified about their activities on the day, their disappearance around the time of murder, their return with guns, and that they announced and celebrated Meyiwa’s death before word got out.
Zungu testified he only realised years later that the men were the ones who allegedly murdered the footballer.
Another witness, Col Lambertus Steyn, told the court that cellphone data revealed that Kelly Khumalo had been in contact with one of the accused, Ntuli, on at least two occasions before Meyiwa’s death — the last being just days before his murder.
Similar pictures were found on Khumalo’s phone and some of the accused.
Photos downloaded from Ncube’s phone showed the dreadlocks he had around the time Meyiwa was murdered.
Gininda said Sibiya was first linked to the offence through witness statements made under oath. Sibiya also allegedly made a confession and pointed out the crime scene, while Ntanzi had made two confession statements.
Ntanzi was linked to the offence through certified sworn statements he made to the witnesses and an identikit compiled from descriptions by witnesses.
An HR manager where Ntanzi worked said Ntanzi had worked for two hours the day before the murder and did not report for duty on the day of the murder as he had taken unpaid leave from the day after the murder, citing personal problems.
Mncube has been fingered as the gunman and was initially linked through statements and co-accused confessions. Gininda said photos obtained from his phone show him wearing the same clothing that witnesses identified on the day of the incident as the accused carrying the revolver.
Maphisa allegedly confessed to a private person about his involvement in the murder when he asked them for information on why Ntanzi was arrested.
Investigations revealed that Maphisa’s role was to guard outside the house that night.
Ntuli has been fingered as the driver of the getaway car, a silver-grey Volkswagen Polo. Evidence also allegedly revealed that he drove the car with the suspects to the scene and back to the hostel.
Gininda testified the accused were known to be hitmen.
Sibiya and Ntanzi’s confessions allegedly implicated Khumalo in the murder.
Gininda also testified that communication records between Khumalo and her sister showed that as early as 2013, she wanted to get rid of Meyiwa.
He said there was a warrant of arrest out for Khumalo, but it was never executed as the National Prosecuting Authority decided otherwise.