Daily Maverick

The killing of Anni and freedom of Shrien Dewani

While murder accused Shrien Dewani spent his first moments of freedom in the cells below the court reportedly taking selfies with the official who stood watch over him in the dock, the NPA’s Nathi Ncube was furiously spinning in the midday heat on the steps of the High Court in Cape Town. While it was “unfortunate” that Dewani had been acquitted, said the NPA’s spokesperson, they still believed he was involved in the killing of his wife Anni. By MARIANNE THAMM.

It is perhaps a tad awkward that one of the first ads to pop up on the CNN International edition report – on Western Cape Deputy Judge President Jeannette Traverso’s ruling on the defence counsel for Shrien Dewani’s 174 application yesterday – was for Brand South Africa, touting the country as a tourist destination.

“What is beauty? Is it a moment that stops you in your tracks and leaves you in awe? Some people spend their whole lives looking for it. When you open yourself up to it, suddenly you find yourself in a place where true beauty isn’t something you will ever see because when you meet South Africa, you will reconsider what you think you know,” the male voice-over enigmatically suggests over a rousing piano score.

Meanwhile, away from the bustle and hubbub of this case that has preoccupied the court and the media for six weeks, some foreign journalists, well, particularly Alex Crawford of Sky News, went in search of a meaty back-story, scouring Cape Town’s townships in search of willing, but out-of-work hitmen. And we didn’t disappoint, apparently.

“When did you last kill someone for money?” Crawford can be heard asking a naturally heavily disguised hitman.

“Um, the last time I killed someone for money was um…last year…Last year, yes,” says the hitman.

“How do I know you are telling the truth?” asks Crawford.

“How do you know I am telling the truth? I can ask lots of guys here, you can ask them…” he says indicating to a group of witnesses in hoodies encircling them.

There we have it.

Judge Traverso’s ruling yesterday that the state had not provided enough evidence to convict Shrien Dewani of conspiring to have Anni murdered, brings to an end a four-year saga that has cost the state and South African taxpayers millions. These were also four years that the NPA apparently didn’t use at all productively to build a solid case against the Bristol millionaire businessman. In fact, during the trial the court heard that a week before he died in October this year, police had gone to measure the arms of the critically ill gunman, Xolile Mngeni, to determine if he had indeed shot Anni from the front seat of the VW Sharan.

The court also heard that police had hastily located a similar model of the vehicle used in the hijacking in September THIS YEAR, so that teams of ballistics experts could calculate various possible scenarios of what might have occurred. The defence, on the other hand, had managed to find the actual vehicle to conduct their tests.

Yesterday Judge Traverso delivered a two-hour ruling on the defence’s application for Dewani’s discharge under Section 174 of the Criminal Procedure Act. Her judgement was scathing of the state’s case, which she said depended entirely on the evidence of accomplice witness, shuttle driver Zola Tongo, who is serving 18 years for his role in the murder.

Tongo’s testimony, however, “was riddled with material contradictions” and fell  “far below the threshold” of what a reasonable court could hope to convict Dewani. In this case, she said, the court did not know “where the lies end and where the truth begins”.

Confronted about these material discrepancies, Tongo had consistently replied that he had made “mistakes” or had blamed investigating offers for doing so while taking his statement.

Traverso said that the state could not have hoped to gain a conviction through Dewani possibly incriminating himself should he have taken the stand. And even if he had done so and had been an unsatisfactory witness, the state would still have been left with a weak case. The judge said the state had tried to find corroboration for the conspiracy theory in only circumstantial evidence.

She also said that while she was aware that there was strong public opinion that Dewani should take the stand, that there were still many unanswered questions and that the Hindochas would have liked answers to these questions, she could not allow “emotions to influence” her judgment as that would result in “anarchy”.

In the end, she said, the state’s case did “not pass muster” and there was “no evidence on which a reasonable man can convict the accused”.

“The accused is found not guilty of the charge,” the judge announced just before lunch.

Dewani’s family, his father Prakash, mother Shila, sister Preyal and brother Preyen hugged and burst into tears immediately afterwards while Dewani stood expressionless in the dock, appearing to take it all in.

Dewani, who had been asked to stand while the judge delivered her ruling, eventually let out an audible sigh of relief as he headed back down to the cells below, now a man free to take selfies. The businessman was scheduled to fly out of Cape Town on Tuesday after spending eight months at the Valkenberg Psychiatric Hospital in Observatory.

Anni’s stunned family immediately left the court, while Deputy Director of Public Prosecutions, Adrian Mopp, and his junior counsel, Shireen Riley, remained behind to brief Ncube before he faced a barrage of cameras and journalists from all over the world and who had gathered outside.

Outside, Anni’s sister, Ami Denborg, flanked by her brother Anish, and mother and father Nilam and Vinod Hindocha, told those gathered: “We came here looking for the truth and all we have are more questions. We waited patiently for four years to hear what really happened to Anni, to hear the full story of what happened to our dearest little sister. The hope of finding that out has kept us going as a family. Unfortunately, we believe this right has now been taken away from us. Today we feel really sad because we never heard the full story of Shrien.”

Traverso said that Tongo, Qwabe, Mbolombo and the shooter, Xolile Mgneni (who has since died) had all acted in common purpose to at least kidnap and rob the couple, but she could not find that the evidence showed that Dewani was part of this conspiracy.

She said that a crucial part of Tongo’s testimony had been when exactly Dewani had made the request to arrange to have his “business partner” killed.

“Time becomes very significant,” she said.

In his statement, Tongo had told police that Dewani had made the request during a 10-minute conversation in the car outside the hotel soon after the couple had arrived on Friday, 11 November 2010. Later he said that Dewani had actually asked him the following day, the Saturday, after they had gone to exchange money in central Cape Town. The obvious discrepancy here is that Tongo immediately drove to Mbolombo on the Friday night to set up the alleged assassination plot.

Tongo also admitted that he had “imagined” that Dewani had tried to conceal the “money trail” by not taking his passport with him when he exchanged money.

“He said this was a ‘mistake’, but it was a serious ‘mistake’. It shows that Tongo was prepared to lie to create an atmosphere of suspicion,” said Traverso.

The judge also found that Tongo’s testimony that Dewani had been “in a hurry” to change the money on the Saturday proved untrue when compared with CCTV footage captured at the Cape Grace hotel that showed the couple relaxed and en route to breakfast that morning.

Another material discrepancy was that Tongo had initially said he would be willing to arrange the murder for R5,000 but had later said he did so because Dewani had promised to send more business his way. Qwabe had testified that it was the shooter Mngeni who had suggested the fee of R15,000 and not Dewani.

Further discrepancies were that on the night of the killing Dewani could not have placed the alleged R15,000 in the cubby hole and that when Tongo drove the couple into Gugulethu where the vehicle was due to be hijacked, the money was not where he had promised the killers it would be.

“The was no evidence that he [Dewani] had handed the money to Tongo and the accused was not instrumental in getting the money to him. On the night Tongo did also not know that the accused had the money with him,” said the judge.

She also said that for Tongo to expose his vehicle to “this kind of risk” when he needed it to earn between R30,000 and R40,000 a month “cannot be believed”.

She found that Monde Mbolombo had played a far greater role in the planning and execution of the hijacking than he was prepared to admit and that audio recordings had captured him on a call to Qwabe on the Saturday, saying, “that thing, it must happen today”.

“Clear objective facts point to a bigger role for Mbolombo,” said the judge.

She later ruled that the immunity that Mbolombo had been granted by the NPA in order to testify against Dewani was no longer valid and it was now up to the NPA to decide whether to charge him. Mbolombo has been working as a receptionist at another hotel in central Cape Town after being dismissed from his previous job because of his involvement in the case.

The judge also said that the alleged co-conspirators would not have taken part in “this crime for just a few thousand rand” and the inference was that these “three gentlemen anticipated that much more would be in it for them”.

She also said that telephone records between the various conspirators and Dewani as well as CTV footage of Dewani and Tongo at the hotel did not prove anything except for the fact that the calls were placed and that the men had interacted.

After the judgment Ncube told a pack of journalists, “We have successfully prosecuted three people who participated – not just participated but were actually part of the planning and executed the plan. It is unfortunate that Mr Dewani has been acquitted because we believe that he was involved.”

He denied that the prosecution had failed because of shoddy police work, saying, “The judgment centres around evidence that was given by three people. Nothing has been said about the police, nothing was said about how the prosecution could have done better. The fact of the matter is that we were relying on people who were themselves involved and implicated in the case.”

Well, that didn’t turn out too well, now did it?

Journalists covering this trial have spent weeks picking over the evidence and the plot holes like a scab on a festering sore. As Traverso correctly pointed out, while many questions still remained, the evidence was not convincing enough to convict Dewani of the crime. But was he guilty, as the NPA suggests?

Meanwhile Dewani will return home free, but with his deepest secrets, that he is a bisexual man who enjoys paying for sex with male escorts, revealed to millions across the world.

In time, the more baffling aspects of this trial might end up as part of a series, like This American Life or the internationally popular spinoff, Serial, by investigative journalist Sarah Koenig, detailing the 1999 murder in Baltimore of high school student, Hae Min Lee, and her apparent killer boyfriend, Adnan Syed. These have become the world’s most popular podcasts, achieving around 5 million downloads on iTunes. DM

Photo: Ami Denborg (L) sister of Anni Dewani weeps as she makes a statement expressing the familys shock at the South African justice system as she stands with Anish Hindocha (C) brother of Anni Dewani and father Vinod Hindocha (R) at the Western Cape High Court, Cape Town, South Africa 08 December 2014. Judge Jeanette Traverso dismissed the case against British busnessman Shrien Dewani who was accused of masterminding the murder of his wife Anni during a staged car-jacking on their 2010 honeymoon. Judge Traverso said the evidence presented by the prosecution fell “far below the threshold” of what a reasonable court could convict on. EPA/NIC BOTHMA

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