A star witness whose evidence was “riddled with contradictions”, a murder investigation botched by police and a premier league defence lawyer who outmanoeuvred the prosecution at every turn. These were the key reasons why the case against Shrien Dewani was thrown out on Monday.
The British businessman walked free from the high court in Cape Town without having to testify after being cleared of any part in the murder of his new wife, Anni, on their South African honeymoon in November 2010.
It was a bitter humiliation for the state, which had fought a long and expensive legal battle for Mr Dewani’s extradition from the UK. Before the trial, its representatives had boasted to the media that their case against him was “watertight” but, once in court, it leaked like a sieve.
The case really only rested on the claims of one man: taxi driver Zola Tongo, already a convicted criminal because of his own part in the killing. He was the sole witness who claimed to have had any direct contact from Mr Dewani about his wish to have his wife murdered in a staged carjacking while they drove through a township. "Tongo is the pillar on which this case rests," Mr Dewani's defence counsel, François van Zyl, told the court. "If that pillar falls then the whole case collapses."
The defence argued that the fact that Tongo had his sentence reduced from 25 years to 18 in return for giving evidence against Mr Dewani was even more reason to treat what he said with caution.
As it transpired, Tongo's hapless performance under cross-examination on the witness stand was devastating to the state's case. Judge Jeanette Traverso said his version of events was "highly improbable", adding: "One does simply not know where the lies end and truth begins."
Fanciful
Among the assertions that Judge Traverso found fanciful was the notion that Mr Dewani would walk out of an airport, find Tongo in the first available taxi and then, having known him for just half an hour, ask him to orchestrate his wife’s death. She said Tongo’s evidence was “riddled with contradictions” and concluded: “Discrepancies were a theme going through Mr Tongo’s evidence. In some instances evidence makes no sense and the explanations are poor.”
The other state witnesses, hijacker Mziwamadoda Qwabe and so-called “middle man” Monde Mbolombo, fared little better, serving only to undermine one another. This, more than anything else, meant the prosecution case was doomed.
Prof James Grant, of the School of Law at Wits University in Johannesburg, said: “The problem was around the evidence of the various witnesses. All along it turned on what Tongo was going to say, and his evidence was of a very poor quality.”
The long delays over extradition worked to Mr Dewani’s advantage in this regard, Prof Grant added. “We have to remember it’s four years on and often witnesses can’t remember what happened a year ago. One of the witnesses [gunman Xolile Mngeni, who had a brain tumour] even died in the meantime. If this had come to court immediately, he might have had a very different case to answer. Tongo’s story would have been far clearer and the three witnesses’ stories would have corresponded better.”
Poor preparation
But William Booth, of the South African Law Society, said prosecutors should have done more homework. “They could not always know what a witness is going to say but, on the other hand, they had four years to prepare and they knew that these were witnesses they had to be careful with and check on properly. The state has a host of support staff so why didn’t they do that? I think they owe us an explanation as to why it all went wrong.”
Questions will now be asked about the performance of the lead prosecutor, Adrian Mopp, who at times appeared uncertain and repeatedly wrongfooted by his opposite number, Mr Van Zyl.
Judge Traverso repeatedly admonished him over the late preparation of evidence, scolding “You have had four years to prepare,” and “This is day 20 of the trial and the state is still scurrying around.”
Mr Van Zyl trumped Mr Mopp on day one by releasing a plea statement from Mr Dewani that revealed his bisexuality and liaisons with male sex workers. This took the sting out of the prosecution’s evidence that Mr Dewani’s relationship with German escort Leopold Leisser and visits to gay clubs and online chat rooms “all of which he had kept secret from Anni”, offered a possible reason for him to want out of his new marriage.
Judge Traverso ruled that sexually explicit emails and nearly all of Mr Leisser’s evidence were inadmissible and that Mr Dewani’s sexuality was irrelevant to the case. The court therefore never heard Leisser’s claim that Dewani had once told him that he needed “to find a way out” of his engagement to Anni.
The plea statement also in effect neutralised CCTV footage and phone records that showed seemingly suspicious meetings between Mr Dewani and Tongo. The 34-year-old from Bristol explained that Tongo had agreed to organise a surprise helicopter trip for his new wife, hence the covert communications and handover of money as a deposit without Anni’s knowledge.
Mr Van Zyl, who previously defended Mark Thatcher over the so-called “Wonga coup” in Equatorial Guinea, lived up to his reputation. Prof Grant said: “We saw very good lawyering on the part of Dewani. From the outset, Van Zyl was brilliant, especially in his cross-examinations. Some might say Mopp behaved too well, was too polite, was too much of gentleman, was too gentle. A different style might have led to a different conclusion. But I think it would be unfair to blame him.”
Mr Mopp may have had a losing hand from the start. Police bungling in the immediate aftermath of the murder included a falsified affidavit, witness statements that went unsigned, missing notebooks and a flawed ballistics investigation. A Guardian investigation in 2011 found allegations from Qwabe and Tongo's lawyers that they were tortured by police.
South Africa’s national police commissioner at the time was accused of prejudging the case by declaring: “A monkey came all the way from London to have his wife murdered here.” Some observers suggested the police were under pressure to find a foreign culprit because the incident had damaged South Africa’s image as a safe tourist destination built up during the football World Cup a few months earlier.
Flimsy evidence
Most legal experts praised Judge Traverso’s decision on the basis of the flimsy evidence before her, but few argued that prosecutors should never have brought the case to trial in the first place. “That’s 20/20,” said Ulrich Roux, a lawyer at BDK Attorneys in Johannesburg. “It’s difficult to say it’s a mistake. If they hadn’t gone ahead, the public would have been even more up in arms. The state obviously thought they had a strong case based on the evidence of convicted people. One can never be certain how credible the evidence of these people will be. The two main witnesses were terrible, but I don’t think we can blame the state.”
– (Guardian service)