The defence teams in the trial for the murder of Mboneli Vesele have argued that a piece of paper supposedly found in the room of one of the accused, and apparently crucial to the state’s case, be disregarded.
It is alleged that the writing on the piece of paper reportedly found in Thamsanqa Mgwetyana’s room is the same as that on a ‘hitlist’ found in a maroon Jeep suspected of being used in the murder of Vesele.
The ‘hitlist’ contained the names of senior officials of the University of Fort Hare.
Mgwetyana has been accused of being the author of the piece of paper and the ‘hitlist’.
Mgwetyana, Zimele Chiliza, Mthobisi Khanyile, Nkosiyazi Maphumulo, Bafana Chiliza, Lindokuhle Manjati, Phelisa Nkonyeni and Isaac Plaatjies are facing charges including the murder of Vesele, who was gunned down in January 2023.
In a trial-within-a-trial before the Bhisho High Court on Tuesday, it was argued that the constitutional rights of Mgwetyana had been violated: that his rights were not read to him and that he had consented to a search without understanding what he was consenting to.
The defence also argued that testimonies of the police officers who were at the scene were contradictory.
Two of the police officers, a “Sergeant Mokoena” and a “Constable Ndlovu”, testified that the piece of paper was found on the floor of the room, while a “Warrant Officer Ndumiso” said the paper had been found in a drawer.
It was argued that the two versions were mutually destructive and not admissible in court.
State prosecutor advocate Louis Sinclair argued that Mgwetyana had been read his rights and had been asked to consent.
Sinclair submitted that evaluating the evidence as a whole and looking at the probabilities, Ndumiso’s recollection of him searching for the paper and collecting the paper exhibit in a drawer in the room of the accused was incorrect.
“This version is clearly not supported, even by his own affidavit and the corroborated evidence of both Sergeant Mokoena and Constable Ndlovu, which indicated that the exhibit was pointed out by Constable Ndlovu to Ndumiso where it was situated on the floor of the room,” Sinclair said.
Sinclair submitted that the version of Mgwetyana that he was not read his rights should be rejected as false.
He said in the event that the court found that the search was unlawful and did not comply with the threshold of Section 22(a) or (b), an inquiry in terms of Section 35(5) of the Constitution should follow to establish whether the admission of the evidence of the written paper seized during the unlawful search would render the trial unfair or otherwise be detrimental to the administration of justice.
“It is respectfully submitted that the police in this matter acted in good faith.
“The police failed to inform the accused when they explained his constitutional rights that he had the right to refuse the search without a warrant.
“This was not an intentional or blatant disregard of procedure but rather an unintentional error in an otherwise civilised and procedural search,” he said.
Arguing on behalf of Mgwetyana, attorney Wanda Quluba said the argument by the state had no legs to stand on.
“It’s not only the mere finding of the paper but also how the circumstances leading to such discovery and how that paper discovered was dealt with,” Quluba said.
Advocates Peter Daubermann and Mark Botha also argued against the admissibility of the evidence.
Daubermann said the “diametrically proposed versions of the police cannot be reconciled”.
He said there was “simply no independent evidence resolving this conflict”.
“There is no contemporaneous photograph fixing the original position. There is no sketch, no neutral witness, no contemporaneous note, recording location prior to movement.
“In fact, it is rather strange that the position of that piece of paper was not documented prior to it being moved,” he said.
Botha said the evidence of the police officers was a fabrication.
“We have two mutual destructive versions to the extent that the court cannot choose between the two … They cannot be accepted,” Botha said.
He said the court could not make a finding on where the paper was found.
A ruling will be made on Wednesday.
Daily Dispatch
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.