After a week’s break, murder accused Shrien Dewani returned to the dock in the Cape High Court yesterday looking particularly drawn and tense. It is the fourth week of the trial and during the course of the day Dewani was set to face two people he had not seen in over four years; Leopold Leisser, an escort he had paid for sex prior to his marriage to Anni in 2010; and Zola Tongo, the taxi driver with whom he had allegedly conspired to murder his wife.
Leisser, witness no 16, arrived in Cape Town from the UK at the weekend and is being housed – courtesy of the state (read South African taxpayers) – at the same hotel as Anni’s family, the Hindochas.
But first there was the brief distraction of Dewani’s junior defence counsel, Pieter Botha, continuing to shred the evidence of Warrant Officer Pieter Engelbrecht, a SAPS ballistics expert. At the end of it all, a relieved Engelbrecht finally left the stand just before 11am after conceding almost every single point to the defence.
The 43-year-old bearded Leisser, dressed in a black suit and red tie, strode through the back entrance of Court 2 just after 11am. En route to the witness stand he passed Dewani, who fixed his gaze on the burly German. Once he had settled, Leisser, his face an impassive mask, returned the gaze.
About fifteen minutes later, though, Leisser was asked to stand down after a volley of questions from Deputy Judge President Jeanette Traverso to state prosecutor Adrian Mopp. It was almost an action replay of the dialogue that took place earlier in the trial, when the judge ruled that Dewani’s sexual orientation was of no relevance in the matter and did not prove motive.
The interruption came shortly after Leisser had explained how he had met Dewani on Gaydar in 2009 and that they had had three meetings during which Dewani had paid for sex. Leisser had, uncharacteristically, he said, allowed Dewani to sleep over at his home in London during two of these encounters.
“He was the first client I had allowed to do that,” Leisser said adding that Dewani had requested that he be allowed to overnight.
It was then that Dewani’s junior defence counsel Pieter Botha rose to object, telling the court, “I have allowed a certain amount of leeway so far but what is the relevance of this?”
To which Judge Traverso responded, “That is what I was wondering”.
Yesterday a clearly frustrated Mopp attempted once again to explain why he felt that it was an issue, offering that Leisser’s evidence went beyond “sexuality” and was about “context”.
“The context is that Mr Dewani disclosed to the witness that he was engaged and he was considering… (Mopp hesitated at this point, telling the judge he would have to disclose the nature of the testimony)…I will be forced to say what we intend leading this witness on,” said Mopp.
“No, you have to tell me why it is relevant,” Traverso responded.
Mopp tried again, his voice rising sharply, explaining that he was “trying to address the context of this particular witness so far as a disclosure by Mr Dewani to the witness less than a month before he is about to be engaged to the deceased in this matter”.
Mopp argued that the court would surely want to know why the murder had occurred.
“Surely one of the questions the court has to decide on is: why did it happen? The evidence of this witness helps the court to understand the context, unless the court is not going to ask at any stage why this happened,” Mopp tried again.
“Will that indicate motive?” asked Traverso.
“Of course it will point to that,” offered Mopp.
Traverso was not impressed telling Mopp that he had yet to convince her that Leisser’s testimony was relevant.
“My Lady, it must be relevant,” said Mopp.
“Mr Mopp, you can’t tell me it MUST be relevant, you must tell me WHY it is relevant,” Traverso shot back.
A short while later the judge ordered both parties to make written submissions as to why Leisser’s evidence should be admitted. The German stood down and left the court.
The state had clearly not anticipated that Leisser would spend less than 15 minutes in the stand as their next witness, Zola Tongo, wasn’t anywhere near the court and still needed to be brought to Cape Town from the Malmesbury Correctional Centre about 65km away.
Tongo, who is serving an 18-year-sentence for his role in Anni’s murder, was brought into court accompanied by two correctional services officers just after 2pm. Dewani stared at Tongo, who did not look up from his seated position in the witness stand.
The father of five has visibly aged since his hearing and sentencing in 2010, when the court learned that the taxi driver was in severe financial difficulty at the time of the murder. Tongo had initially told police he had been an innocent victim, but on 20 November finally admitted his role in the killing. He pleaded guilty to four counts including kidnapping, robbery with aggravated circumstances, murder and obstructing the administration of justice. It was Tongo who implicated Dewani as the mastermind behind the alleged staged hijacking and killing of Anni. Dewani has pleaded not guilty to all charges.
Yesterday prosecutor Shireen Riley led Tongo systematically through his testimony. He recounted how Dewani had approached him outside Cape Town International airport on 12 November where he had been touting for business.
Tongo then went on to recount, in considerable detail, how he had driven the couple to the Cape Grace in the Waterfront, giving them an unofficial guided tour as he passed various areas, including the townships. He explained that he had been keen to “market” himself as a knowledgeable tour guide to the couple with the hope that they would use him during the trip.
The most marked characteristic of Tongo’s testimony was, once again in this case, the specifics of language. Tongo was testifying in his mother tongue, Xhosa, with the aid of an interpreter. Xhosa can be highly idiomatic and oblique to those not steeped in the language and perhaps this might provide some explanation as to why the driver’s testimony at times seemed confused, confusing and baffling. The question is, was there anything lost in translation?
For example, Tongo explained that when Dewani had informed him that he “had a job” for him, he had thought: “Now hunger is over”. The literal translation of his reply would have been “now hunger has been tried and convicted”.
Tongo explained that Dewani had informed him of this “job” when he had returned to the taxi after checking in to the hotel with Anni. During the ten-minute discussion in the vehicle Dewani had allegedly informed him that a business associate was arriving the following day and that “he wanted him removed from his eyes” or “he wanted him taken out of sight”. Tongo later said Dewani had told him that the business associate was a woman.
Tongo took pains to explain that he had initially told Dewani that he was not “involved in such things” before almost immediately offering to “the gentleman”, as he referred to Dewani, that he in fact night know someone who knew someone. Tongo recounted how he had driven to the Protea Hotel in Century City where he had asked receptionist Monde Mbolombo for help because “Monde is aware of things happening in the township.”
Dewani, said Tongo, had offered him R15,000 for the “job” and a further R5,000 for facilitating it.
Not once during his testimony did Tongo use the word “kill”, “murder”, “hit” or “victim”. The word “umsebenzi”, or job, recurred several times. Firstly, that he was grateful for the work the Dewanis had initially given him as a driver and then later when referring to the murder itself. It was, it appears, just another “job”, not only to Tongo, but the rest of the conspirators.
In Tongo’s world, the assassins were known by their nicknames “Spra” (Mziwandoda Qwabe, one of the gunmen) and guns are referred to as “sticks” or a “kierie” (Afrikaans for stick). Tongo had apparently never met Spra (or the second gunman, Xolile Mngeni) before Mbolombo had given him Qwabe’s number, which he had saved under “H” on his cell phone. He said he had chosen “H” simply because it was easy to remember.
On the Saturday before the murder Tongo had met with Qwabe and Mngeni in Khayelitsha and they had discussed the “job” agreeing they would hijack Tongo’s VW Sharan in Gugulethu. Tongo as well as Dewani would be set free and Anni would be robbed and killed later.
It was clear from his testimony yesterday that Tongo had had several opportunities to change his mind and pull out of the alleged conspiracy. He told the court that as evening approached he had second thoughts, had tried to contact his pastor and “my knees were shaking”.
He had asked a fellow driver “Ta Vuks”, who had been standing with him when the Dewanis arrived, if he had wanted to do the “transfer” that evening as he knew that the hijacking and killing would then not occur. Ta Vuks was unfortunately unavailable.
Tongo had been late in picking up the Dewanis for their tour of the city’s nightlife and Gugulethu, something he had suggested earlier in the day. Before picking up the Dewanis, Tongo said he had cleaned his car and activated the child locks.
He also said after he had arrived at the spot in Gugulethu where the men had arranged for the hijacking to take place, only to find that they were not there, he had driven back to the N2 and was on the phone to Qwabe when a police van passed him and indicated that he should not drive and talk on the phone. This was his second opportunity to pull out.
At this stage, said Tongo, he could see Dewani in the rear view mirror and who was “making big eyes at me” as if to indicate, he said, that he had wanted to know what was going on.
Tongo could also have changed his mind when he took the couple to Somerset West, but had allegedly received at text from Dewani about when the hijacking would take place.
Dewani’s senior counsel, Francois van Zyl, is going to go into cross-examining Tongo like a pitbull on steroids. There are many discrepancies in Tongo’s original statement to the police, the NPA and in court yesterday, and Van Zyl is bound to exploit these. Tongo is the state’s star witness and is also, after all, the only person who had direct contact with Dewani on the night. The other witness, Anni, is dead. And it is only her family’s daily presence in the court that prevents her from simply ending up being known or referred to as “the deceased”. DM
Photo: British businessman Shrien Dewani is driven in police custody after appearing at the Western Cape High Court, Cape Town, South Africa, 09 September 2014. Shrien Dewani appeared at the Western Cape High Court for a pre-trial hearing. EPA/NIC BOTHMA.
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