At its last sitting on June 12 2023, when star witness Zandile Khumalo was due to testify, the Senzo Meyiwa murder trial had to be postponed. On the day, deputy judge president Aubrey Ledwaba announced that presiding judge Tshifiwa Maumela was seriously ill and the trial would have to be postponed indefinitely.
In the meantime, judge Maumela was suspended by the president pending a judicial conduct tribunal. It is important to emphasise that judge Maumela’s suspension is completely unrelated to the Meyiwa trial. Similarly, his substitution from the Meyiwa trial is completely unrelated to the suspension (it is only due to his ill health).
At the time of the postponement, judge Ledwaba indicated that he was considering appointing a new judge to preside over the Meyiwa trial to avoid further delays and ensure it reaches finality.
We would later learn that judge would be retired judge Ratha Mokgoatlheng.
What does a new judge being appointed mean for the Senzo Meyiwa case?
The appointment of the new judge in the Meyiwa case means that the case has to start de novo (from scratch).
This means that the evidence presented in the case will have to be presented again and witnesses will have to be recalled.
While the National Prosecuting Authority is likely to serve a fresh indictment, many of the other parts of the trial is likely to remain the same. Based on an assessment of the evidence, the NPA might choose to change the sequence of its witnesses, but those witnesses cannot change the versions that they have already testified in the old trial.
Restarting is an extraordinary step and usually happens when an appeal court sets aside a conviction due to a procedural error when a judge recuses themselves or is incapacitated due to illness or dies.
Restarting the trial is disruptive and will cause some prejudice to all parties involved — particularly the Meyiwa family.
Does this mean that a new deadline will be set for the conclusion of the case?
Once a trial runs in the high court, there are generally no deadlines set because the way the case runs depends on the availability of the parties and how they conduct themselves, how court processes are followed, and also on the witnesses and evidence led by the parties.
We understand that there are ongoing discussions for the Meyiwa trial to run non-stop for 10 weeks. This might mean that the case will be wrapped up before the end of the year. We can only hope the case will be brought to finality as speedily as possible, considering the amount of evidence that will be led again.
There is a risk that witnesses may feel fatigued and be reluctant to come and testify again. However, should any of the witnesses refused to testify, they may be forced to do so through a subpoena.
What will happen to the witnesses, will they have to testify all over again?
Yes, witnesses will have to be recalled to testify again before the new judge. In a trial, the court takes a witness-by-witness approach. Each witness’s evidence and credibility is assessed independently.
While sections 214 and 215 of the Criminal Procedure Act (CPA) allow the court to consider the evidence given in the previous trial, it is not enough for the judge to only read the recorded transcripts. The judge must carefully listen to each witness and assess their demeanour and body language as they testify. This is to determine whether the evidence can be admitted, what weight the court should place on the evidence, as well as the credibility of the witness. This can only be done in open court.
In State v Gumbi — where a new judge had taken over from where a previous judge, who fell ill, had left off — the Supreme Court of Appeal warned that the new judge needed to careful on how they receive the previous evidence, and it is better to simply start the trial from scratch.
There is a risk that witnesses may feel fatigued and be reluctant to come and testify again. However, should any of the witnesses refused to testify, they may be forced to do so through a subpoena.
There is also a risk that the witnesses may also give inconsistent statements in the witness box. However, the CPA allows the defence lawyers to cross examine the witnesses on their previous statements to test the truth or veracity of their testimony.
Who pays for the costs of the new trial?
Like the old trial, all the parties will have to carry their own costs of legal representation. All the accused will have to pay for their defence lawyers. This is one of the unfortunate prejudices of restarting the trial, but it must be weighed against getting the trial to finality as quickly as possible, which is in the interests of all involved.
What do we know about the new judge?
In his youth, judge Mokgoatlheng was a football player and played for Orlando Pirates in the 1960s before later playing for Kaizer Chiefs, according to TimesLIVE. He was inspired by Oliver Tambo and Nelson Mandela, and left football to study law at the University of Fort Hare. Upon his graduation, he practised as an attorney before becoming Kaizer Chief’s legal guru and later club director.
Judge Mokgoatlheng was appointed as a judge in the Gauteng high court in Johannesburg in 2007 before his retirement in 2020.
Judge Mokgoatlheng has handled several high-profile cases including the Jeppestown massacre, the Richard Mdluli trial, the sentencing of Muzi Malephane for the murder of Tshegofatso Pule and the Thulsie Twins for terrorism, and the bail application of Angelo Agrizzi.
This means he more than likely has the skill to deftly manage the trial and get to the real issues and core evidence. He also has the gravitas to quickly pull all the parties along, from the prosecutors to the defence lawyers and even the media.
That Mokgoatlheng is coming out of retirement to specifically deal with the Meyiwa trial also means that he has no competing judicial duties and would devote all his time to finalising the trial. This is likely to lead to the trial being finalised within a relatively short space of time.
While it is disruptive for a new judge to come in midway through a large, complex and high-profile criminal trial like this, it is not necessarily a bad thing in these unique circumstances. Judge Mokgoatlheng might very well help speed the trial to finality and see that justice is done.
Mbekezeli Benjamin and Zikhona Ndlebe are research and advocacy officers at Judges Matter at the DGRU, University of Cape Town.
TimesLIVE
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