Judicial Watch

About Dewani, Pistorius and justice in general

Shrien Dewani, innocent or just lucky?
shrien-dewani.jpg

Two recent high-profile murder cases, stirring wide international interest, have put the South African criminal justice system to the test. The results are mostly positive but there is also reason for reflection.

Both cases call for wider reflection than just on the health of the criminal justice system. At the end of the first trial, that of paralympian Oscar Pistorius after the death of his girlfriend Reeva Steenkamp, we wrote “… that a mirror was held up to society, inviting some serious introspection.” This would include examining our sense of the relationship between justice and revenge.

Other institutions in society – such as the live TV coverage and social media – and their role in the process of seeking justice, were also identified as due for some interrogation.

In the Pistorius case the state has been granted leave to appeal against the judgement. To ensure we stay on the right side of the sub judice rule we will refrain from detailed comment.

In the latest case, the trial of British businessman Shrien Dewani accused of masterminding the murder of his wife, Anni Hindocha, the process in the court has probably run its full course – although the state might still decide to seek leave to appeal.

As in the Pistorius case, the judgement led to a lively and often emotionally charged public debate filled with controversy. Many of the same issues as before came up, with some new ones added. Top of the list is a feeling among many that the system has let the late Anni and her family down – her sister said as much after Dewani was acquitted.

And there were indeed in this case reasons for concern about the quality of the investigative capacity available to the state on which it has to build its prosecution efforts.

Positives

But some positives also emerged from both cases, especially from the Dewani case.

First up, against the background of the emotions whipped up by the case, in our opinion, the way Western Cape Deputy Judge President Jeanette Traverso discharged her duties affirmed a wisdom embedded in our system: to rather have an objective presiding functionary (judge or magistrate) to pass a verdict in terms of princepled law, than a jury of ‘peers’.

The latter can easily become the victims of, or succumb to, public opinion in violation of the rule of law. One can hardly put it better than did judge Traverso in her judgement: “I've heard the Hindocha family's plight. But I've taken oath to uphold rule of law. I can't let public opinion influence my judgment”. And also: “If any court allowed public opinion or emotion to influence the application of the law, it would lead to anarchy.”

The frustration and agony of the Hindocha family for not knowing the “full story” of what happened can be empathised with, especially since Shrien was never placed on the witness stand. “We came here looking for answers, we came here looking for the truth and all we got was more questions. All we wanted was to hear all the events and the hope of actually finding that out has kept us as a family going,” said Anni’s sister Ami Denborg on behalf of the family.

But judge Traverso again put the greater good of upholding the rule of law first.

Of acquitting Shrien after the state concluded its case, forestalled the need for the defence to put forward a case and put him on the stand. Judge Traverso ruled that the state failed to prove its case against him. The only possible reason to refuse Dewani's acquittal application would have been to the hope that he would incriminate himself during evidence. That isn’t allowed and would be an injustice, she said.

The downside

The National Prosecuting Authority (NPA) and especially the investigative arm of the system did not come out that well in the public eye. That this not just a perception based on an emotional reaction is borne out by, among other things, the following facts that emerged during the trail:

• It transpired in the early stages of the trial that the murder investigation was initially handled by low-ranking police officers and only later handed to the Hawks, responsible for serious crime investigations;

• The officer who took an affidavit from Dewani after the murder came to light did not properly put him under oath and his notebook went missing. No colleagues sat in on the interview and apparently no recordings are made of such interviews; and

• Initial ballistic tests turned out to have been well less than solid and new tests ordered during the trial raised doubt about who actually fired the fatal shots.


The prosecution, hamstrung by having to rely on what turned out to be a weak key witness, Zola Tonga, already convicted in connection with the murder, further seemed to have made some crucial tactical errors. Most importantly was to solely rely on Diwani’s self-confessed bi-sexual orientation – trying to introduce hearsay evidence from a male prostitute about pressure from, or reaction by, his family to this fact.

Ministerial investigation

Against this background Justice Minister Michael Masutha’s request for a full report from the NPA, detailing the investigation and prosecution of the Dewani and Pistorius cases and the investigation into the murder of Bafana Bafana captain Senzo Meyiwa should be welcomed.

"He wants to reflect on how the system has fared in all these high profile cases that have been negatively reported. Negative reporting to him means criticism of the system," said the ministry’s spokesperson Mthunzi Mhaga,

It is hoped that the report will among other things reflect on the following questions:

• Are procedural arrangements and protocols during investigations up to scratch to prevent situations like crucial notes during interviews with suspects and/or potential witnesses getting lost; and

• Are investigative teams properly resourced and equipped with technological backup to ensure maximum performance – for example, should all interviews not be recorded?

Cases like these are traumatic enough for all concerned, to be on top of it saddled with the feeling that “the system” did not give its best to ensure that justice is done. Not even for Dewani could it have been a satisfactory result. For the rest of his life he will know that people will always wonder: “Is he really innocent or did he just get lucky?”

by Piet Coetzer

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