'Witnesses should be protected': Experts weigh in on witness intimidation in Meyiwa murder trial

In the first round of the rebooted Senzo Meyiwa murder trial, witness intimidation and safety have come under the spotlight.

This was after the behaviour of one of the accused in the Pretoria high court, Sifisokuhle Nkani Ntuli, while police witness constable Sizwe Skhumbuzo Zungu was testifying, prompted the state to ask the court to issue a warning. 

In a video clip only made available a day later, Ntuli is seen muttering while making a gesture which could be that of pulling a trigger. 

The state said the conduct might constitute contempt of court in facie curiae.

Legal expert Nthabiseng Dubazana, of Dubazana Attorneys, told TimesLIVE such behaviour can be construed as interfering with witnesses as they may feel threatened and too scared to give evidence.

“It does play a big role in the event that the accused are found guilty. The accused will be judged on his demeanour in court as well,” she said.

Former prosecutor and magistrate Marius du Toit said if a witness is intimidated the court could instruct the prosecutor to consider laying a charge of intimidation.

He said if an accused conducted himself in a way that encroached on the decorum of the court and became obstructive in any way the court could order he remain in the court's holding cell and not be part of the proceedings.

“If the accused does that in court, the court should possibly consider something like that to see in what way it can protect the witness because the witness must be protected.

“Or alternatively what needs to happen, is the court should consider adducing the evidence in camera, allowing the witness to testify from another room like we do with children because you can do that if a witness is exposed to undue harm testifying in open court.

“There can be an application to testify through a separate video link. There are ways and means around it — you can't tolerate that in court, the accused should be sorted out,” Du Toit said.

He said if such intimidation is noted afterwards, the state should take action against the accused and the court should give the accused a warning.

Judge Ratha Mokgoatlheng warned Ntuli about his conduct on Friday, pointing out he had noticed that some witnesses had made U-turns in their testimony as a result of intimidation.

Du Toit said in this case the court should take that into consideration and apply the necessary weight to it.

“We are all human after all. If I threaten you and it causes you to change your evidence the court should take cognisance of that. The difficulty is if you are prepared to be swayed like that it does affect your credibility as a witness — that's the problem. The difficulty is that the witnesses are under oath.”

The state is supposed to ensure the witnesses are safe and ensure that intimidation doesn't occur, he said.

“At the end of the day, the judge can only consider the evidence which was adduced before him. And even though it might be heavily in his mind that we have an accused here that is prepared to do x, y and z to this poor witness, it doesn't detect the fact that this witness was prepared to change his evidence and it affects his credibility without a doubt. So it will have a bearing on the witness and it will also have a bearing on the accused later on in the case,” Du Toit said.

Ntuli, who is serving multiple terms of life imprisonment for political killings in KwaZulu-Natal, is on trial with Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube and Mthokoziseni Maphisa, jailed at Leeuwkop Prison, for the murder of the Bafana Bafana and Orlando Pirates footballer Meyiwa. They face charges of premeditated murder, attempted murder, robbery with aggravated circumstances, possession of firearms without a licence and possession of ammunition.

Zungu, who had testified that Meyiwa's death was celebrated with a bottle of whisky, has so far given crucial evidence linking the accused to the murder, placing them at a Vosloorus hostel on October 26 2014.

Zungu has also revealed he has moved his family from their home in KwaZulu-Natal for safety reasons.

Meyiwa was killed in October 2014 at the home of his girlfriend Kelly Khumalo. He, the singer, her mother Ntombi, sister Zandile, Zandile’s then-boyfriend Longwe Twala and Meyiwa's friends Mthokozisi Twala and Tumelo Madlala were relaxing over a Sunday meal and a soccer match at the time.

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