Witness Zandie Khumalo takes the stand after losing bid to ban broadcast of her testimony

Senzo Meyiwa of Orlando Pirates celebrates a goal during the Absa Premiership match against Free State Stars at Orlando Stadium, Soweto on 18 October 2014. (Photo: Gallo Images)

By Nonkululeko Njilo

18 May 2023

Zandie Khumalo, a public figure and artist who was present when slain footballer Senzo Meyiwa was fatally shot at her sister Kelly Khumalo’s home nine years ago, did not produce sufficient reasons in her application to prevent visual and audio broadcast of her testimony, the judge at the North Gauteng High Court in Pretoria has ruled.

Zandie Khumalo was due to take the stand on Monday and shed light on the circumstances of the killing of Bafana Bafana star Senzo Meyiwa, but she failed to do so, citing anxiety and a social media onslaught.

Instead, Khumalo filed an application to ban both the visual and live broadcast of her testimony and cross-examination.

On Thursday, Judge Tshifiwa Maumela ruled against the application on the basis that the witness did not advance sufficient reasons.

“The court makes the following order: one, that live broadcast of the image of the witness number one will not be permitted. Two, that members of the electronic media are permitted to live-broadcast the testimony of witness number one by means of an audio.

The right for the public to know can never trump the manner in which the witness wants to testify.

“I might just add that the prohibition of images of witness number one while she testifies shall remain in place until the finalisation of this case,” said Judge Maumela.

The judgment comes after prosecutor George Baloyi indicated minutes before the witness was due to testify that she was not prepared amid live visual and audio broadcasting of the proceedings.

Among other reasons advanced by the State was that Khumalo who is well known to the public, had anxiety, feared a social media onslaught and that she would be subjected to public ridicule.

“A witness should be given a choice to testify in a normal way or in front of cameras... Witnesses need to be accorded courtesy and respect. No witness should be forced to testify in front of a camera.

“The right for the public to know can never trump the manner in which the witness wants to testify, whatever manner is comfortable with him or her... The witness harbours the feeling that harm might befall her if she testifies,” said Baloyi.

Meyiwa was shot in what the State believes was a botched robbery and what the defence argues was a cold-blooded murder. At the time of the shooting, Meyiwa was in the presence of his musician girlfriend, Kelly Khumalo; her mother, Ntombi; Zandie Khumalo, also a musician; Zandie’s boyfriend, Longwe Twala; and two of Meyiwa’s childhood friends, Mthokozisi Thwala and Tumelo Madlala.

Read more in Daily Maverick: Witness to Senzo Meyiwa murder accused of fabricating his testimony

Both Thwala and Madlala have taken the stand to give evidence about what transpired at the Khumalo home nine years ago. The defence poked several holes in their testimonies. During their testimony and cross-examination, both broke down with emotion.

Flashback: Senzo Meyiwa of Orlando Pirates celebrates a goal during the Absa Premiership match against Free State Stars at Orlando Stadium, Soweto on 18 October 2014. (Photo: Gallo Images)

The State used this as part of its reason that Khumalo should be allowed to testify without a live broadcast.

“She is a witness with vulnerabilities and anxieties for the witness stand. Being a victim of crime is traumatising. We saw the two previous witnesses breaking down during their testimony. Why should this witness be castigated?” Baloyi argued in court.

Maumela, however, argued in his ruling that “the court finds this witness did not advance sufficient reasons to justify an order restricting both visual and audio broadcast”.

The accused on trial for the murder are: Fisokuhle Ntuli, Muzikawukhulelwa Sibiya, Bongani Sandiso Ntanzi, Mthobisi Prince Mncube and Mthokoziseni Maphisa. All five face charges of murder, attempted murder, armed robbery, possession of firearms without a licence and possession of ammunition. They have pleaded not guilty.

‘Flimsy’ reasons

All the defence lawyers and media lawyers submitted heads of arguments rejecting the application on the basis that she sought privilege which had not been afforded to other witnesses before her.

The defence also argued that a ban of the live broadcast would have a negative impact on the accused whose families were following proceedings in the live stream, and the family of the deceased, among other interested parties.

Advocate Zithulele Nxumalo had told the court that it could not be “held to ransom” by the witness at the 11th hour, while advocate Sipho Ramosepele argued that reasons brought by the witness had been “flimsy, dead and buried”.

Advocate Zandile Mshololo told the court there had been no basis for the application given that no substantial evidence had been brought forward to support her objection to giving testimony on camera.

“The witness failed to provide the court with the circumstances, nature and extent of objection raised. We do not know to what extent her rights will be affected... The very same witness who is seeking protection not to have her testimony [shown live] broadcasted or recorded is the one who is busy discussing this case in the media,” said Mshololo.

Read more in Daily Maverick: Senzo Meyiwa murder trial resumes with a cloud hanging over presiding judge

Mshololo also urged the court not to feel threatened by the witness’s demand not to testify if the court ruled against her application, saying mechanisms had been in place to compel her to testify.

“She cannot threaten this court. It is not her choice – she is compelled and obliged to testify. If she refuses, the mechanisms are in place in our law to force her to testify under oath because these people need to hear their case without any unnecessary delays,” she said.

A lawyer representing electronic media, Dan Rosengarten, advanced a similar argument against the witness’s involvement in the case on social media and the media.

He said the witness had already subjected herself to public scrutiny by publicly commenting on the trial on social media. Rosengarten read to the court social media posts by the witness from 2022 and 15 May when the application was made.

“I pause to say and to ask whether this is merely a stunt for someone who is very active on social media and whose image is all over social media.”

The trial resumed on Thursday afternoon with Khumalo being sworn in, and thereafter her name was revealed. Testimony continues DM

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‘Flimsy’ reasons