Questions over the existence of a witness statement dominated proceedings in the murder trial of footballer Senzo Meyiwa.
Questions over the existence of a witness statement dominated proceedings in the murder trial of former Bafana Bafana goalkeeper Senzo Meyiwa.
Constable Sizwe Skhumbuzo Zungu returned to the witness stand in the Gauteng High Court in Pretoria on Monday.
The court adjourned early on Friday to allow Zungu time to go find his notes in KwaZulu-Natal (KZN) after advocate Charles Mnisi, for accused three Mthobisi Mncube, requested the police officer’s original statement before proceeding with cross-examination.
According to the state, only notes had been taken and there was no handwritten statement produced by Zungu.
At the beginning of proceedings on Monday, state prosecutor George Baloyi told Judge Ratha Mokgoatlheng that Zungu’s notes could not found as they were shredded.
“The investigating officer informs me that the notes were destroyed after the statement was made, therefore, the notes are not available,” he said.
Zungu also revealed that he did travel to KZN to look for the notes and could not find anything.
“The only thing I found was the statement that I rectified,” the witness said.
Mokgoatlheng then requested both the state and defence to present their cases in order for the court interrogate whether in fact two affidavits were made under oath.
‘Conflict of interest’
Presenting his head of argument, Baloyi insisted that that there was no statement.
“What is in existence is notes and not the statement. The witness mentions that he only had notes that he used to write his statement and that there were mistakes with regard to the sequence of events and the names of the witnesses,” he said.
Baloyi told the court that Zungu’s cross-examination should continue on the basis of his statement and anything else will be subject to the credibility findings of his testimony.
However, Mnisi argued that Zungu himself mentioned in court that there was a statement that he wrote and he initialled it.
“The court had made an order that there should be some kind of escapade to go to KwaZulu-Natal to look for those notes ensue.
“We had an opportunity to go and have a listen, to hear what the records insofar as Mr Zungu’s testimony on this aspect of the inquiry is concerned. I may say without any fear of self-contradiction that what we have been maintaining is confirmed by what it is stated in the record.
“I am going to request the court to consider actually listening himself exactly what Zungu said abut the statement. We are not requesting notes. We based our request on the basis of Zungu’s very own testimony about the statement,” the advocate said.
Mnisi said he was not accusing the state of unlawfully withholding the original statement.
“My request my lord was for the disclosure of the original statement from which the typed version we were handed with was prepared from,” he said.
“The state and the witness must know [where the statement is]. It is still my submission that before I start with my cross-examination, unless the court were to rule otherwise, we should be furnished with that original version.”
He said the defence believed “there’s a conflict of interest” and “discrepancies” on the typed version of the statement.
“I am saying what further buttresses our request to receive the original version of the hand written statement… it is because of the inconsistencies that we have already been able to identify in the typed version.”
‘Very serious infringement’
Mokgoatlheng delivered his ruling on whether there were two statements under oath following argument presented by the state and defence.
“Mr Baloyi is accused of harbouring a statement which should have been disclosed to this court which is a very serious infringement if that could happen and he could be struck off the roll of advocates by failing to disclose information which this court and the defence is entitled to… to arrive at a reasonable and justifiable conclusion of this trial,” he said.
The judge said he did not believe Baloyi would risk his entire career by not providing the court with any information pertaining to the case.
“I don’t know what he would gain because it is not the duty of a prosecutor to defend or act as an attorney or advocate of a witness. The duty is of a prosecutor to present a case of the prosecution to the court for it to adjudicate and consider. It’s a truism which is trite in our law that a prosecutor does not have the sacrosanct duty of pursuing a conviction at all costs.”
Mokgoatlheng highlighted that even if there was a statement that contradicts the state’s case, Baloyi was obliged to present such information.
“Consequently for instance when a witness makes a statement and deviates from the statement, it is the duty of the prosecutor to bring it to the attention of the court and I don’t mention the deviation which which is induced by intimidation as we know happened in this court,” he said in reference to Zungu’s safety ,which was brought into the spotlight on Friday.
Accused five, Fisokuhle Ntuli, was allegedly caught on video making a hand gesture similar to that of pulling a trigger in the direction of Zungu in court.
Mokgoatlheng said he “saw those threats” and it made him fear for Zungu’s safety.
Watch the proceedings below:
Meanwhile, the judge further pointed out that there was a “fundamental difference” between a police statement and a witness statement.
“Mr Baloyi says he does not have a written statement by this witness. Mr Zungu, I agree, he may have stated that he has made a written statement but today here and now I have asked Mr Zungu, who is a police officer and is not a lay person, whether he has made a statement which he has deposed to under oath and signed – and he says none. He says the only statement has deposed to is the statement that was made on 31 May.”
Mokgoatlheng concluded that the defence cannot prove the existence of the original statement.
“This court finds that no written statement exists,” he ruled.