The last time global attention was focused so intently on a South African courtroom was during 1963 and 1964, when Nelson Mandela and nine other ANC leaders stood in the dock in the Rivonia Trial, charged with acts of conspiracy to bring down the Republic.
Fifty years later, Mandela is no more. The media landscape has been unrecognisably changed by the advent of 24-hour TV channels and social media. And the world’s eyes came to rest on South Africa’s legal system once again, and two young men charged with having knowingly caused the death of their female partners.
On paper, Oscar Pistorius and Shrien Dewani would appear to have little in common. The former is a white South African, a world-famous disabled athlete, his name a byword for inspiration and sporting achievement, showered with media attention and public adulation. The latter is a British-Asian businessman unknown outside of his personal networks: a former chartered accountant for Deloitte who ran his family’s chain of old-age homes.
If it had not been for the manner in which Dewani’s new bride Anni Hindocha met her death, his name would almost certainly still be unknown to us. If it had not been for the manner in which Pistorius’s girlfriend Reeva Steenkamp met her death, his face would still be plastering billboards.
But one thing the two men shared was access to money and influence. The day after Pistorius’ arrest, former UK tabloid editor Stuart Higgins – known as the ‘Human Sponge’ for his PR work for high-profile clients in trouble – was already on his way to Pretoria from London to assist with a “communications strategy”.
Dewani’s family called in Max Clifford, the UK’s king of spin. It’s alleged that one of Clifford’s first moves was to plant a story in Britain’s ‘Mirror’ denying rumours that Dewani was having an affair with a female manager in the family firm, in order to counter the allegations that Dewani was secretly gay.
In a twist of fate, it is Clifford, and not Dewani, who has ended up in jail. Clifford is currently serving an eight-year prison term for indecent assault.
Both men had the necessary funds to hire crack legal teams, with the Pistorius camp allegedly even approaching a forensic scientist who testified for OJ Simpson. Pistorius’ legal bill was ultimately said to top R17 million, with his upcoming appeal presumably taking him well beyond this.
To fight his extradition, Dewani turned to the services of barristers at London’s Matrix Chambers, a chambers which features some of the UK’s leading human rights lawyers (including Tony Blair’s wife Cherie Booth). The barrister who acted for Dewani, Clare Montgomery, previously led the prosecution team in the Swedish attempt to extradite Wikileaks founder Julian Assange.
For his South African trial Dewani procured one of the top legal minds in the country, Advocate Francois van Zyl, who defended Margaret Thatcher’s son Mark when he was accused of plotting a coup in Equatorial Guinea.
In the cases of both men, lawyers argued that they would be especially “vulnerable” to life in prison. While Dewani fought extradition from the UK to stand trial in South Africa, his legal team said he had severe post-traumatic stress disorder and that his high profile, wealth and looks could see his human rights infringed behind bars.
Pistorius’s lawyers said that his disability and “psychological weakness” would make him a target in jail. Defence witness Annette Vergeer, a probation officer, testified to the court that “[Pistorius]’s disability and state of mind would cause his detention to be an excessive punishment”.
Dewani’s successful extradition actually served the state’s case in the Pistorius proceedings. State prosecutor Gerrie Nel and witness Zach Modise – the acting national correctional services commissioner – used the fact of Dewani’s extradition as evidence that South Africa’s prisons were fit for purpose even for those who feel “very vulnerable”, a category Modise put both Dewani and Pistorius into.
In both cases, it was the criminality of black South Africans that was ultimately pinpointed as being at the heart of the two crimes. Pistorius would never have shot through a door if he had not feared that a black intruder was breaking into his home to harm him. Dewani’s defence maintained that his wife’s death was a botched hijacking and robbery by the black men already convicted of Hindocha’s murder which had nothing to do with their client.
In both cases, the wheels of the South African justice system moved uncharacteristically swiftly. Dewani fought his extradition for four years, but once in South Africa was speedily brought to trial. The only major procedural delay in the Pistorius trial came when Judge Thokozile Masipa ordered an unavoidable 30-day period of mental observation mid-defence case based on the testimony of a witness.
To give just one contrasting example, there were over 50 postponements, spanning six years, in the case of the men charged with the 2006 murder of lesbian Zoliswa Nkonyana. Not all the nine men charged with Nkonyana’s murder were found guilty, after their years in jail awaiting trial. Four managed to escape from holding cells at one point and were later recaptured. The case was not as exceptional as one would hope.
In both the Dewani and Pistorius cases, the quality of police work in the investigations has come in for strong criticism. The original investigating officer in the Pistorius case, Hilton Botha, came under fire for his initial handling of the crime scene, including a failure to wear protective covers on his shoes. One vital piece of evidence – the toilet door through which Pistorius shot – was not treated with sufficient care. The defence alleged that police moved elements of the crime scene before they took photos. One of Pistorius’s watches was allegedly stolen by police attending to the scene.
In the Dewani case, we saw a flawed ballistics investigation, the fact that police only transcribed telephone discussions about the murder three months before trial, the fact that no investigations diary was kept, and allegations that investigating officer Paul Hendrickse took to Facebook to express anti-Dewani bias. State witnesses offered a plea bargain by the National Prosecuting Authority were found to be so unreliable on the stand that in one case an immunity deal has now been revoked.
Yet in both the Dewani and Pistorius investigations, the quality of police work was leagues ahead of that which less high-profile criminal matters can hope to achieve in South Africa. The Khayelitsha Commission of Inquiry into Policing, which took place this year and failed to receive a fraction of the publicity granted to the Dewani and Pistorius trials, heard endless evidence of police failing to respond to call-outs unless a personal contact was invoked; of police losing dockets and neglecting to communicate any case progress to the families of victims; of police abandoning vital evidence in rape cases in a field; of police letting onlookers contaminate crime-scenes.
While we wring our hands at the police handling of the Dewani and Pistorius investigations, we should acknowledge that even that defective work represents the top end of South Africa’s two-tier criminal justice system: one for the rich, one for the poor.
What, then, are we left with? Two men cleared of murder. One in jail, perhaps not for very long. One totally free. The verdict in the Pistorius trial attracted the charge that Judge Thokozile Masipa may have mis-applied the law: a charge which an appeal court may now have the chance to consider. The verdict in the Dewani case seems far less ambiguous: Judge Jeanette Traverso has said that the evidence brought before her was simply too flimsy to proceed.
They are two verdicts which have left many greatly unhappy: the families of both women, but also many ordinary South Africans. Some will argue that these verdicts give substance to the idea of a society where women can be killed with impunity; that they may even embolden those who beat, or rape, or murder women in South Africa. One journalist reported that after the Dewani case discharge on Monday, a man was seen “waving a note in the air, pleading: ‘Here’s R50 for someone to murder MY wife, please!’” A joke, of course, but not a very funny one.
But perhaps we can take comfort in the fact that the judges presiding over the trials were manifestly un-swayed by the court of public opinion – or, for that matter, by political pressure. In 2010, erstwhile police chief Bheki Cele – now a deputy minister – openly called Dewani a “monkey” who “came all the way from London to have his wife murdered here”.
When Gauteng Premier Nomvula Mokonyane attended the Pistorius trial, she made a point of seeking out state witnesses to thank them for their testimony against the athlete. The ANC Women’s League in both cases expressed disappointment with the verdicts.
But these politicians sounding off about the trials clearly made not a jot of difference. If there is a positive takeaway message here, it is that the independence of the South African judiciary has been tested and found to be resolute.
And as for Pistorius and Dewani, these men whose glum faces have been everywhere we turned this year? We’re not done with Pistorius: on Tuesday Judge Masipa will hear the arguments for whether the Supreme Court of Appeal should consider his sentence and conviction for culpable homicide anew.
By the time you read this, Dewani may be on a plane home to Bristol: at his own expense this time, hopefully, rather than ours. He’s never coming back.
The next time international journalists descend on our shores en masse, let’s hope it’s for neither the death of an icon, nor a murder trial. In 2015, can we have some good news, please? DM
Photo: A file picture dated 11 September 2014 shows South African Paralympic athlete Oscar Pistorius crying while the verdict is being read during the verdict in his murder trial, Pretoria, South Africa. EPA/KIM LUDBROOK / POOL //// A file photograph showing British businessman Shrien Dewani siting in the dock before the start of his trial at the Western Cape High Court, Cape Town, South Africa, 06 October 2014. EPA/MIKE HUTCHINGS / POOL
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