‘Why has Kelly not been arrested for Senzo Meyiwa’s murder?’: the million-rand question

While legal experts differ on whether singer Kelly Khumalo should have already been arrested for her alleged involvement in the Senzo Meyiwa murder, innocent or guilty, she will have to live with a dark cloud over her head.

Khumalo did not answer calls or read text messages, but her manager, Khothatso Tsotetsi, responded by saying she could not comment at this time.

“Thank you for reaching out. We appreciate your interest in Ms Kelly Khumalo's work and understand the importance of transparency. At this time, we regret to inform you that we are unable to provide any comments on the ongoing trial and allegations made towards Ms Kelly Khumalo,” Tsotetsi said on Friday.

“Our legal team is actively addressing the situation, and we trust in the legal process to unfold appropriately.”

She had a message for the public.

“We understand the public's interest, and we assure you that updates will be shared through official channels as soon as they are available. We kindly request your understanding and patience during this sensitive time.”

University of Pretoria legal expert Llewellyn Curlewis believes the state has handled the matter correctly regarding Khumalo not having been arrested in connection with the footballer's 2014 murder.

“There are a lot of questions swirling around this matter and some might feel there is a snake in the grass somewhere, but considering what is known about her alleged involvement in the murder and the evidence available, I think the directorate of public prosecutions [DPP] made the correct decision in not authorising a warrant for her arrest,” Curlewis said.

“The DPP has the sole authority to decide if somebody must be prosecuted. Anybody is allowed to lay a complaint, but the police must still get the OK from the DPP before they can arrest.” 

If the DPP decides not to prosecute, there are other avenues available.

“You can apply for a nolle prosequi certificate from the DPP, and once you have it you can initiate a private prosecution.”

Innocent or involved, Kelly Khumalo now lives with a dark cloud above her head. I am afraid there is not much she can do about it.

—  Llewellyn Curlewis, University of Pretoria legal expert

There is no other authority to approach.

“It is the responsibility of the DPP to test whether there is prima facie evidence against the subject. If there is for instance no clear motive, the smart thing to do is to keep investigating.”

While the clock might keep ticking on other crimes, murder is a beast of a different legal nature.

“In general the DPP has 20 years to decide to prosecute, but there is no statute of limitations on murder. They can decide to prosecute as long as the suspect is alive.

“Innocent or involved, Kelly Khumalo now lives with a dark cloud above her head. I am afraid there is not much she can do about it. If she wants to take on the police in civil court she would have to prove she was prosecuted maliciously and that would be very difficult,” Curlewis said.

He mentioned a well-known example.

“Look at Dr Wouter Basson. He fought for almost 20 years to clear his name. He was found innocent on all charges, yet if you ask the man on the street who he is they will say 'aah, Dr Death'. He's had to live with those accusations and I'm afraid Ms Khumalo will have to too.”

Curlewis believes it is a systemic issue.

“No system is perfect, there will always be some holes and issues, the trick is to fix it in court over time.”

Elton Hart, an attorney at the University of Johannesburg's legal clinic, disagrees with Curlewis' view.

“This is the first time I know of where we have two separate dockets for the same alleged guilt cause. When the new arrests were made, the accused should have been added to the original docket.

“There have been claims made that some confessions were made after the accused were tortured. If this is decided in the favour of the accused, the state will only be left with circumstantial evidence and that will not be enough to convict beyond reasonable doubt. Their entire case will fall flat,” Hart said.

Hart believes Khumalo should have been arrested during the first trial.

“She was a definite person of interest. Normally, such a suspect is arrested, and should the state fail to prove its case the charges would just be withdrawn. Why this is not the case in this matter is hard to understand. 

“She should be standing in the box explaining to the court what did and did not happen on that evening.”

Khumalo's name was dropped in the Pretoria high court last week by lead investigator Brig Bongani Gininda of the police's cold case unit.

Khumalo was implicated by two of the accused as the one who ordered the hit on her then-boyfriend and father of her child.

According to legal expert Kabelo Seabi, the NPA probably could not proceed with the prosecution of Khumalo because the “independent evidence” from cellphone records is circumstantial.

“There is no direct proof that Khumalo was the only person who had access to the phone, that she sent the messages or used the cellphone to communicate with the accused; even though the cellphone may have belonged to her or been in her possession. There is a possibility that someone else used the cellphone, therefore it’s not conclusive in the circumstances that she was in contact with the accused persons in the present trial,” Seabi said.

Meyiwa was shot dead in Khumalo's presence at her mother's home in Vosloorus in October 2014. Also present at the time of the murder were Kelly's sister Zandile, her boyfriend, Longwe Twala, Khumalo's mother Ntombi and two of Meyiwa's friends who were visiting from KwaZulu-Natal.

The house occupants claimed Meyiwa was killed by one of two intruders who barged into the home and demanded cellphones and money.

Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Mncube, Mthokoziseni Maphisa and Sifisokuhle Nkani Ntuli are on trial for Meyiwa's murder. They have all pleaded not guilty. During proceedings last week, the roles of the five men were outlined and how they were linked.

Gininda said he had established that Meyiwa's murder was a contractual hit rather than a botched robbery and that Khumalo wanted him out of her life as early as 2013.

Investigations also revealed she is linked to the alleged perpetrators of the murder through cellphone linkages connecting her to Mncube and Ntuli.

Gininda's statement, which was commissioned on November 20 2020, had an unsigned arrest warrant for Khumalo attached as police tried to make an application for her arrest for the murder.

However, Gininda said the National Prosecuting Authority (NPA) made the final call on who to charge.

“This matter was a prosecutorial-driven investigation. Before the application of the warrant that was made on October 23 2020, I have indicated in my evidence that I made a memorandum to the DPP, where I indicated all the evidence that we have on all implicated people, including Khumalo, she is there. A decision was taken at that time that these are the people that must be inducted and that is accused 1 to 5. I cannot disclose further details in terms of our discussions with the NPA, but certain things needed to be looked into insofar as Khumalo [was concerned],” Gininda said.

Khumalo also allegedly visited a witch doctor for cleansing after the murder, which the accused also did.

“Ms Kelly Khumalo seems to be the trigger point of this murder,” Gininda said.

Evidence also reveals that while Khumalo phoned several people immediately after the murder, she did not call emergency services.

Last year during the trial, state prosecutor Adv George Baloyi told the court the state did not intend to call Khumalo to testify.

Two of the hitmen were connected to Khumalo via sworn confession statements they allegedly made to police, while the other two were linked via cellphone evidence.

Gininda said accused number one Sibiya and accused number two Ntanzi had implicated Khumalo as the person who ordered the hit on her boyfriend.

He said police could also link Khumalo with accused number 3 Mncube — Meyiwa's alleged shooter — and accused number 5 Ntuli through cellphone evidence.

Khumalo had the same picture of a see-through bag with money as Mncube.

Gininda said Khumalo failed to disclose four cellphone numbers to the police, and the numbers were discovered by cellphone analysts during investigations. 

Legal expert Nthabiseng Dubazana of Dubazana Attorneys says why Khumalo has not been charged is the million-rand question.

'This is the million-rand question as it is rather confusing why the DPP did not consolidate the two dockets and ensure that the accused persons from the two dockets are charged together. The DPP said that they will wait for the decision from this case which makes no sense,” Dubazana said.

However, in the interim, the revelations do not mean much as it is evidence being led under the ambit of a trial-within-a-trial.

“We will only find out at the end of the matter if the court will consider it and what weight to attach to the evidence,” she said.

She said Khumalo is not prejudiced as she is not an accused in the eyes of the court.

Legal expert Melusi Xulu said the recent revelations beg the question why the “mastermind” was not arrested.

“There are questions as to why was the ‘mastermind’ not arrested because usually what happens when someone is killed is that there must be a motive that must be investigated. If the fact is that it was a murder that was made to look like a botched robbery and it turns out that it was an ordered killing there must be an investigation as to who ordered the killing. The strange thing is the police have had this information possibly for the last few years and it then means that they have not done anything about it because they should have done a thorough investigation. They should have obtained cellphone records which would have assisted the state in knowing that Kelly Khumalo is the orchestrator,” Xulu said.

Xulu said the developments also make it look like the NPA does not want to arrest Khumalo.

“Because if they were given this information, they should have asked for more investigations, but the NPA will have to answer why she was not arrested,” he said.

Seabi said one must always bear in mind the NPA carries the burden of proving the guilt of an accused beyond reasonable doubt. The accused, afforded the constitutional protection of being presumed innocent, does not have to prove anything during a criminal trial.

He said unless the accused in the case agree to testify against Khumalo, the NPA does not have any direct evidence to prove beyond reasonable doubt she conspired to have Meyiwa murdered.

Seabi said their confessions cannot be used as evidence against another person other than themselves and they will have to give direct evidence as witnesses of their involvement with Khumalo.

Senior legal analyst and South African Legal Practice Council member Adv Romeo Nthambeleni said the evidence is inadmissible in court as the accused were denying the validity of the statements and how they were made.

“The provisions of section 219 determine that 'no confessions made by any person shall be admissible as evidence against another person'. This applies to this case as well,” he said.

Nthambeleni said in a case where the state proves the statements now being denied by the accused were made voluntarily, they can only be used as evidence against the accused who made those statements and not against their co-accused.

“Even indirect usage of a confession against someone other than the declarant is prohibited as confirmed in the case of S v Makeba by the Supreme Court of Appeal. This means that the statements cannot be used as evidence against Khumalo in this case as that will be to lower the threshold under the provisions of section 219,” he said.

Concerning the telephone links made between Khumalo and some of the accused, Nthambeleni said because she has not been charged by the state yet, the evidence that has been linked to her has not been tested.

He said the state needs to present new solid evidence that links her to the murder as well as the witnesses to testify to support such evidence if it decides to charge her.

“The onus and the burden of proof lie on the state to prove their case beyond reasonable doubt that the accused is guilty of the charge and this unfortunately applies to Khumalo as well,” he said.

Seabi said the NPA would probably await the finalisation of the current case against the five accused before deciding whether to prosecute Khumalo.

If the accused are convicted, they might want to enter into some agreement for lenient sentences in exchange for testifying against Khumalo.

Xulu said it was interesting that there might have been a section 105 A plea agreement.

“It shows that the accused might have been interested in getting a lesser sentence and implicating whoever he was going to implicate ...”

While a trial-within-a-trial in this case is to investigate whether the confessions were made without any undue influence, Dubazana said the defence had strayed from the confines of a trial-within-a-trial as the purpose of such a trial is to determine the admissibility of evidence and not guilt.

She said the merits of a case should not be entertained at this stage, however the defence attorney had introduced the merits which might work against him in the long run.

Xulu agrees with the school of thought that there was a deviation from what was expected.

Seabi said the defence has strayed far from the terrain of a trial-within-a-trial to inquire whether the accused made the confessions freely and voluntarily and have unwittingly revealed portions of the contents of the confessions, the admissibility of which is being contested.

The National Prosecuting Authority said it could not comment on the matter as it is still sub judice.