The judge in the Senzo Meyiwa murder trial is today expected to make a crucial decision on whether a witness in the dock can point out the man who allegedly pulled the trigger.
Tumelo Madlala, who was best friends with the deceased Bafana goalkeeper, stunned the courtroom when he said one of his friend's killers was among the five men standing trial for the October 2014 murder that shocked the country.
Madlala, a third witness in the matter, was testifying at the North Gauteng High Court in Pretoria.
Both defence lawyers Adv Timothy Thobane and Adv Zandile Mshololo stood up and objected to the prosecutor's question of whether he could identify any of the accused as the person who killed Meyiwa at his then girlfriend Kelly Khumalo's home in Vosloorus.
According to Madlala, the first intruder was carrying a firearm while the second one was not armed.
Prosecutor George Baloyi asked Madlala if the sketch showed in court fits the description of any of the five men in dock.
''Can you identify any of the current suspects present in court as the person who entered the house carrying the firearm?’’ asked Baloyi.
This prompted Mshololo and Thobane to immediately rise and object to the question, arguing no basis was laid for the question to be asked.
As Baloyi was trying to rephrase the question, Madlala interjected and said; ''This is what I had a problem with yesterday (Tuesday). If I was allowed I would have explained yesterday. What annoyed me yesterday was to be in the same [court] room with the person [who entered the house carrying a firearm].’’
Judge Tshifhiwa Maumela cautioned Madlala and told him to answer the question he was being asked.
The court adjourned and agreed that Baloyi would present heads of arguments on Thursday to argue for the question to be asked.
If Baloyi is permitted to ask the question, this will be the first time that a witness in the trial will be able to point out the person who shot and killed Meyiwa.
Criminal law expert Stephen Tuson said there was nothing wrong with the way Baloyi asked the question.
''The question is permissible in all circumstances. You can't object to the question. The answer to the question has very little evidentiary weight on its own because the answer is not very credible. The accused is pointed out in the dock,” Tuson said.
“It is a highly suggestible situation. The witness could be mistaken. The answer to the question will only have weight or credibility if there is a prior, consistent statement from the witness. If the witness has previously identified the suspect in a statement, ID parade or in some other way then the answer in the dock is consistent with what he said repeatedly in the past.''
Earlier in the day, Madlala said after the incident he and the Khumalos immediately moved to a house in Mulbarton where the celebrity couple lived. Days later music producer “Chicco” Twala paid them a visit and asked Khumalo to go on a holiday overseas.
However, Twala told Sowetan last night that his discussion about a holiday with Kelly was to give the singer some support as she was going through a difficult time after the death of her baby daddy.
“When Senzo died, no-one wanted Kelly. She was crying all the time. If you are rejected by the family of the father of your child what would you do? I had to try and give her support,” Twala said.
The accused — Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube, Mthokoziseni Maphisa and Sifisokuhle Nkani Ntuli — face charges of premeditated murder, attempted murder, robbery with aggravating circumstances, possession of firearms without a licence and possession of ammunition.
They have pleaded not guilty to all the charges.
The trial resumes today.
kokam@sowetan.co.za
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