There are two worlds, the state argued in the Shrien Dewani murder trial yesterday. One, the realm of the “reasonable man”, the other, the criminal underworld where anything is possible including an assassination plot planned in 30 minutes and executed sloppily in two days. But somewhere between the tragedy and farce of the killing of Anni Hindocha, the state still believes her husband has a case to answer. By MARIANNE THAMM.
Western Cape deputy director of public prosecutions, Adrian Mopp, is not fond of dramatic gestures. He is a quiet, bespectacled man of average height with close-cropped dark hair and throughout this trial has politely led witnesses, simply and carefully through their evidence. He has withstood, with remarkable decorum, the many interruptions and admonitions by Western Cape Deputy Judge President, Jeanette Traverso, from the bench.
Earlier in the trial, as Mopp led a witness, a cacophony of rowdy voices from outside the building drifted into the wood-panelled courtroom, drowning out the testimony. A visibly irritated Traverso instructed Mopp to please sort out the noise. Mopp momentarily looked up at the judge, his mouth moving soundlessly like a fish, clearly surprised that her request had been directed at him. This is not the job of a senior state prosecutor. There are countless court orderlies who could have been instructed by the judge to take care of the matter. But Mopp did not assert himself.
One wonders how Gerrie Nel would have handled it.
Perhaps; “I put it to you Milady that this is the job of the court orderly”.
Instead Mopp politely replied “Yes, Milady”.
From the start, Mopp has attempted to introduce a rather more contemplative and philosophical quality to the state’s presentation of the case against Bristol businessman, Shrien Dewani, accused of orchestrating a staged hijacking in order to have his young, Swedish wife, Anni, murdered while on honeymoon in South Africa in 2010.
Perhaps this has been a deliberate strategy because the evidence, shoddily gathered by police, is relatively flimsy and pivots on the testimonies of two convicted criminals and a middleman who has been offered immunity from prosecution. But the state’s case against Dewani ultimately rests rather heavily on the version of one man, the alleged co-conspirator and shuttle driver, Zola Tongo. This evidence, the defence has argued, is so poor and unreliable that Dewani cannot possibly be found guilty of the charges.
Tongo, now serving 25 years, is the only South African with whom Dewani had direct contact. His assertion is Dewani offered R15,000 to have his wife or “business partner” killed and that his [Tongo’s] role in the plot was to procure assassins, which he did through Monde Mbolombo, the fixer, a receptionist at a hotel. For this Tongo believed he would be paid R5,000.
But Traverso, it is clear, has little time for narrative or contextual embellishments when it comes to hearing evidence. From the start, she has indicated that she is interested in the facts, facts and evidence shorn of any perceived context.
After the first ‘bombshell’ of this trial – now in its seventh week – by Dewani’s defence that he would admit he is bisexual, the state has been on the back foot. Mopp’s early attempt at introducing Dewani’s sexual orientation as a “context” for the murder was ruled inadmissible by Traverso.
One of Traverso’s more memorable quotes to Mopp was “Do not try and get in the back door what you cannot get in through the front.”
Yesterday, as the state ran through its 62-page principle submissions in reply to the defence’s 174 application in terms of the Criminal Procedures Act for a dismissal of all charges against Dewani, Mopp again attempted to sketch a “backdrop” to his argument.
“There is a danger of course that we could approach the evidence with our own world view, our own paradigm of how we expect things to be. How we would expect events to unfold on 12 and 13 November”.
Traverso leaned back in her chair and peered at Mopp over her glasses.
“In other words,” Mopp continued, “we engage in an ex-post facto consideration of the events that transpired. And to do so through our own worldview, of how we anticipate or expect certain things to happen, we impose our own worldview… We may, from our own positions, expect levels of sophistication. We cannot contemplate that a hit would be put together within two days, that a murder would be planned in 30 minutes. In our own world it may not be possible, it may not exist that that can happen…”
Traverso could not help herself. Clearly impatient with this line of argument she interrupted Mopp.
“But what is the test? Must we test it from our own world? Must we test it from the reasonable man?” she asked.
“Milady, the test of course is the reasonable man,” answered Mopp adding, “so far as the background I am trying to sketch for the court, our submission is we know the individuals in the particular matter are not the A-team of contract killers. They could barely arrange transport from Khayelitsha to Gugulethu and this is no slick professional outfit trying to put in place a plan.”
In the midst of this amateurish chaos, Mopp seemed to be suggesting, it was inevitable that some of the evidence might seem improbable to the “reasonable man”.
Traverso reminded Mopp that Tongo and Mbolombo, at least, had had “fairly sophisticated level of jobs before they lost them” an observation, Mopp agreed, he could not dispute.
But this aside, Mopp continued, the men were vulnerable – they had both admitted to financial problems at the time – which made them more susceptible to Dewani and his alleged offer of R15,000 for the “hit”. Mziwamdoda Qwabe, a qualified tour guide and one of the hijackers, had also been unemployed said Mopp.
That there were material discrepancies in Tongo’s various statements to the police and his testimony in court, said Mopp, pointed more to his distressed state of mind after the murder rather than the suggestion by the defence that he had deliberately lied.
The driver, Mopp said, had understood he had “done a terrible thing” and had testified in court that he had been “in a critical state”.
He had admitted that he had been desperate to get business and had “sold” himself as a tour guide to Dewani as they travelled from the airport to the hotel after their first meeting.
“Tongo was desperate to get business and on the way to the hotel marketed himself. That the accused [Dewani] had a discussion with him of 10 minutes, says the defence is so improbable that it cannot be true. But it is not so improbable,” suggested Mopp.
If the men had indeed been planning to rob rich tourists then why, he asked, did it happen for the first time with this particular fare when Tongo had picked up countless others? Mopp’s suggestion, of course, is that it could only have been because Dewani had concocted the entire plan beforehand and had induced Tongo to participate.
“The accused comes to a strange country, meets a strange person. Would he ask this strange question?” interrupted Traverso.
“I don’t know,” offered Mopp.
He suggested, however, that the “factual matrix” that was being put forward by the state was not an “improbable one”. The alleged hit provided “easy” money for Dewani’s accomplices and at the time they had not thought it though properly.
“There was no discussion. Someone had to be killed for R15,000. It was as simple as that,” argued Mopp.
“But do you think the accused would have gone along with this loose arrangement? What about the R4,000 he had in his pocket and that was taken during the robbery?” asked Traverso.
“In for a penny, in for a pound. If you engage with criminals who knows what is going to happen? Criminals see an opportunity they take it. There are no rules for those kinds of negotiations…” said Mopp.
Speaking to the matter of why Tongo had activated the child locks on both back doors of the VW Sharan before picking up the Dewanis Traverso asked, “Here is a man who has created a situation where everything goes klopdisselboom (smoothly) and who then creates a situation where this very man [Dewani] can’t get out!”
Mr Mopp, his voice rising an octave, offered, “But Mr Dewani is a co-conspirator! He has even more assurance than that. He has given the mandate! On his [Tongo’s] own evidence his safety and that of the accused is guaranteed. It is not so improbable!”
“But how would he get out of the car?” asked Traverso.
“The door was going to be opened for him,” said Mopp adding, “we are dealing with amateurs. If it wasn’t for the fact that the deceased was killed it would be comical.”
When Traverso asked whether the court could make a finding that the hijacking was meant to take place during the couple’s first drive-through Gugulethu, Mopp replied that it could, as part of the conspiracy was that it had to happen in the township.
“Call records show that the men [the assassins] moved from Khayelitsha to Guguletu. The accused [Dewani] had earlier made a booking at 96 Winery in Stellenbosch, which would get them going in the direction of the hijacking. This would explain his [Dewan’s] plausible presence in Guguletu. The first occasion was meant to be the only occasion.”
Dewani had told police, said Mopp, that it had been Anni who had wanted to go to the township.
“The accused offers this explanation to justify his presence in the townships. It takes the eye off Tongo. The accused says ‘we went to the township because my wife wanted to go’ and low and behold, two people are lying in wait for her!”
The fact also that Dewani had “concealed” his trip to exchange money on the Saturday of the murder in his explanation to his family after the murder as well as failed to mention the proposed surprise helicopter trip he had been planning for Anni, was all part of a “factual matrix” pointing to his involvement.
When Traverso questioned Mopp as to why Tongo would have approached Mbolobmo, Mopp replied that this was because unlike Tongo, who lived in the “suburbs”, Mbolombo still lived in the township.
“It is not so improbable. He may know people,” said Mopp.
“And hey presto Mr Mbolombo phones a hitman?” said Traverso.
“You can be a young man on the straight and narrow in a township. You will know where to buy dagga. You will know where you should and should not go,” suggested Mopp.
“Not just what is going on Mr Mopp a hitman?” asked Traverso
“Common sense is that a young man growing up in a township would know how to access certain things. Growing up in a township an individual would know people who are involved,” said Mopp.
In relation to how and when Dewani had agreed to pay the hitmen their R15,000 [the killers alleged they had been short-changed and had only received R10,000] and which Tongo had claimed would be in the cubby hole of the vehicle but which was later allegedly placed in the pocket of the rear passenger seat, Mopp said “the state will submit that even the problem with the money and its location is consistent with how this conspiracy unfolded”.
At the close of the state submissions yesterday Judge Traverso adjourned the hearing for two weeks to 8 December when she will present her ruling. That she will take this much time seems to suggest that the defence might have convinced the court that Dewani is innocent and the judge may need more time to set out her thoughts on why she agrees that the state has offered no evidence of a conspiracy.
Dewani’s legal team, who are being instructed by his older brother Preyen, seemed to be in high spirits and smiled as they left the courtroom. DM
Photo: British businessman Shrien Dewani appears in the Western Cape High Court on Monday, 6 October 2014. Picture: Nardus Engelbrecht/SAPA/Pool
Daily Maverick © All rights reserved