Tuesday, December 21, 2010

DEWANI: Balancing the scales of justice


Poor prison conditions and dodgy cops don't help SA's case for extradition, writes Anton Ferreira

Dec 18, 2010 8:36 PM | By Anton Ferreira

Be afraid, Shrien Dewani, be very afraid. If you are extradited to South Africa, the police will treat you like an animal, cook up false evidence against you and then throw you into an overcrowded jail ruled by gangs where you will rot for the rest of your life.

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MAIN SUSPECT: Shrien Dewani is seen leaving Southmead Police Station in Bristol, England, after he reported there earlier this week as part of his bail conditions
MAIN SUSPECT: Shrien Dewani is seen leaving Southmead Police Station in Bristol, England, after he reported there earlier this week as part of his bail conditions
quote 'A monkey came all the way from London to have his wife murdered here' quote

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That, at least, is the picture Dewani's lawyers are likely to paint of the fate that awaits the 30-year-old murder accused when they argue in a London court next month against South Africa's efforts to bring him to Cape Town for trial.

And it will be a picture based on fact.

Take national police commissioner General Bheki Cele's recent comments on the case: "A monkey came all the way from London to have his wife killed here."

Cele later backpedalled, saying he was not necessarily referring to Dewani, but it's hard to find anyone who believes him.

Apart from calling Dewani an animal in arguably racist terms, the commissioner also referred to the British millionaire businessman as if he had already been convicted of murder, something that would raise eyebrows in any legal jurisdiction where one is presumed innocent until proven guilty.

Then there is the issue of the police feeding the prosecution tainted evidence.

It has happened before, in the high-profile trial of Fred van der Vyver, who was acquitted in the Cape High Court of murdering his girlfriend, Inge Lotz, three years ago.

The judge in that case, Deon van Zyl, lambasted police witnesses as unreliable, unconvincing and evasive. "It appears that some of the early investigative work was unhelpful, due to faulty methods and lack of experience," the judge said at the time.

One of the attorneys who represented Van der Vyver, William Booth, said Dewani's lawyers would be likely to cite the Lotz case and the more recent failed prosecution of Glenn Agliotti in arguing that their client would not get a fair trial in South Africa.

"It's been established in South Africa that there's been manipulation of evidence - that goes to the heart not only of the police investigation, but of the prosecution," Booth said.

"They can raise the Lotz case, and what happened with Agliotti, how the prosecution and the police dealt with that case - Agliotti was acquitted, but the point was that they seemed to have tried to manipulate evidence."

Judge Frans Kgomo, in acquitting Agliotti of the murder of Brett Kebble last month, denounced the state's key witness, Clinton Nassif, as thoroughly discredited.

Booth said the South African prosecution would have to outline its case against Dewani - that he allegedly asked Cape Town taxi driver Zola Tongo to organise the murder of his new bride, Anni - in some detail in the court in London.

"Dewani's defence team will scrutinise the evidence to determine the strength of the case ... then look at other issues, like is he going to get a fair trial in a country where the head of police makes these (monkey) comments," Booth said.

The lawyer noted that Cele had also made inappropriate comments about another UK client of his, Simon Wright, a Sunday Mirror journalist accused during the World Cup of setting up a security scare at Cape Town Stadium.

When a fan barged into the England dressing room after one of the team's matches, Wright was charged with trespassing.

"Cele alleged that he (Wright) was involved in all kinds of illegal dealings and arranging for the World Cup authorities to be placed in a bad light as far as security was concerned, that there was conspiracy and all kinds of absurd, blatant lies," Booth said. "It was a similar kind of thing."

Advocate Paul Hoffman, director of the Institute for Accountability, has formally complained to the public protector about the "monkey" remark.

"Bheki Cele is like a loose cannon who seems to open his mouth to change feet," Hoffman said.

"The magistrate in Westminster who has the extradition application, puts into the scales of justice all of the information that is fed to him by the South African government, and all of the information that is put in by Mr Dewani and his lawyers, and he balances it," he said.

"If the scales are evenly balanced and it's then introduced into that extradition application that the chief of police has already decided that Dewani is a murderer ... and if it's fed into that system that he thinks he's a monkey, those scales can tip, and they won't tip in favour of the South African government either."

Hoffman said Dewani would be able to argue that if he was convicted, the likely sentence - life in jail - would be "cruel and unusual" punishment and a violation of his human rights.

Booth described conditions in South African prisons as "horrific".

"The overcrowding in prisons, the gangster activity in prisons, his right to have medical treatment - there's very little medical treatment within prisons, we know that - his lawyers could argue all of that," Booth said.
On the other hand, the South African government could argue in London that the Lotz and Kebble murder trials both demonstrate that if a case against an accused is full of holes, the excellence of our judges and lawyers will ensure an acquittal.

Professor Max du Plessis of the law faculty at the University of KwaZulu-Natal said that "professionally and judicially" the South African and British legal systems enjoyed a measure of mutual respect.

"That is evidenced by a number of factors - South African lawyers are welcomed in the UK, and a number of South African lawyers have taken up practices in the UK and risen to the top of that country's legal profession.

"Some of our most respected advocates and judges in South Africa have been selected as honorary benchers of the Inns of Court in London, including Jeremy Gauntlett SC and Justice Edwin Cameron."
Du Plessis said decisions of South African courts were regarded with respect by UK courts, "and in appropriate cases these decisions, particularly of our Constitutional Court, are referred to by the English courts as authoritatively persuasive examples of comparative jurisprudence".

The South African legal system "is likely to be regarded as one in which the fair trial guarantees in our constitution are closely policed by independent and competent judges," he said.

"That doesn't relieve the duty upon our politicians, including our national police commissioner, to act with the same fortitude and responsibility in making comments about the case."

Whoever argues South Africa's case in the London court will be up against stiff opposition from the barrister Dewani has hired, Clare Montgomery QC, who is regarded as one of the top UK criminal lawyers of her generation.

High-profile extradition cases in which she has been involved include that of the late Chilean dictator Augusto Pinochet, who she defended when Spain tried to extradite him from the UK in 1998. British authorities finally ruled in 2000 that Pinochet was unfit to stand trial in Spain due to ill health.
  • Montgomery practises in the same law firm as Cherie Booth, wife of the former UK prime minister, Tony Blair.