It’s hard to find explanations for the bizarre and failed “prosecution” of Shrien Dewani. Nothing we saw or heard suggested that the National Prosecuting Authority had the remotest intention of succeeding.
Case dumped on juniors
Director of Public Prosecutions, Rodney De Kock inexplicably dropped out very late, dumping the case on a pair of inept juniors. Adrian Mopp failed dismally in every area – not for a moment in court did he appear confident or competent. Riley, his almost silent partner, was reportedly seen playing games on her phone during cross-examination of their witnesses. People who have seen the file say the state had a strong case, but that it wasn’t presented as such in court.
They should have recognised that Tongo and others were poor witnesses and relied less on them, beefing up other evidence and calling other available and relevant witnesses. They should have re-examined their witnesses and done proper damage control, instead of just giving up feebly. They should have been aware of the areas of really poor police investigation (nothing new), commissioned further investigations and called other experts. They shouldn’t have been too proud to refuse expert legal and technical advice, which could have greatly helped. It really looked as though they did everything in their power not to be effective.
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They gave the unfortunate impression that their highly relevant and important evidence about Dewani’s sexuality was merely intended to make him look bad, and should have far more clearly articulated the importance of this evidence as to motive. It was also odd for the judge to demand to be convinced of the total relevance of any witness before allowing the state to call them, and they should have objected fiercely when she insisted on excluding any of their evidence without even hearing it.
Naïve concepts of sexuality
Some commentators have spoken naively about the sexuality issues. How can anyone possibly argue that Dewani “gave a full disclosure of his sexuality”? He did no such thing. Anticipating state evidence of the homosexual behaviours he totally denied for years, he claimed to be bisexual, although there has been no shred of evidence of any sexual encounter with a single woman.
Some have sneered that his sexuality could not be considered a motive. Only someone with profound cultural ignorance could even think this, and Leopold Leisser’s evidence would have helped to illustrate that. If, as one writer claims, the judge “pointed out the fact that (he) is bisexual” she would have been seriously at fault. As there was never any properly tested evidence on his sexuality, even from himself, the plea argument merely contained untested claims by Dewani and could not be assumed to be factual.
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The omens were obvious. The amount of time the honourable judge gave herself to prepare for her ruling made it abundantly clear that she had already made up her mind to dismiss the case. It wouldn’t have taken her long to argue why the proceedings should carry on.
She did some other very irregular things. When she unreasonably refused to allow Leisser to testify, she gave no real justification for this, but said she would do so later. (She never bothered to do this.) She also oddly seemed to treat Dewani’s plea statement as though it was beyond question and had been properly tested in court. She seized on contradictions in statements of state witnesses, but ignored contradictions in Dewani’s own statements.
Indeed, one noticed that although she was severely critical of state witnesses for any variations or forgetting details in their statements made four years earlier, she herself stumbled frequently when reading her own notes. She actually accidentally granted Mbolombo immunity from prosecution and then hastily corrected herself. She twice confused the words “judicially” and “judiciously”.
The preceding extradition proceedings were deeply suspicious, ridiculously lengthy and needlessly expensive. Many strange medical witnesses were involved and never properly expertly cross-examined. They also made technically improbable or even impossible claims, which were never competently challenged.
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At one stage it was discovered that neither the “expert” for the state nor the “expert” for the defence were recognised experts. They were also business associates, offering to provide lawyers with reports to use in court cases. Not disclosing this fact to the court was seriously offensive, legally and in terms of professional ethics, yet it was completely ignored.
And, having controlled the case for so long, why did de Kock suddenly wash his hands of everything shortly before the trial started, dumping it on two more junior staff? Why, when it has been very obvious that the trial was being handled badly, did he not intervene and get things on track?
There’s another sneaky aspect to the case. The fact that the testimony of Leissner and Johnson wasn’t heard meant that nothing of what they might have said is in the court record, and therefore not available to any court that might hear an appeal.
Is this outcome fair to Dewani?
He may now be free to go home to his video games and a fresh Gaydar account, but was this a really good outcome for him? Not really. Despite his frequent earlier statements about how he wanted his day in court to establish his innocence, this hasn’t happened. Though his lawyer made a bog hoo-ha about what he would say when he testified, he was never able to explain his version of events. A great many people are convinced he’s guilty, and without the usual conclusion, they’re likely to stick to that view. And by his attempts to avoid extradition, he effectively sentenced himself to several years in mental institutions.
He has not been found innocent. Nobody is ever found innocent in court. Courts are not in the innocence business. He was not properly tried and all one can say is that his guilt is “unproven”.
Our system is adversarial, and as Eusebius McKaiser wrote in The Star: “Our lawyers do not expect to be treated with kid gloves.” But it is wrong when the judge ostentatiously treats one lawyer with the softest of kid gloves, and the other with contempt. That is bias, and not the normal adversarial process.
After the State has spent years wasting millions of our money to get the case to court, I don’t blame the judge for being irritated by the mess the prosecution eventually served up. Perhaps she should have reported them for their sloppy failures. Coincidentally, the very next day we saw the state appeal the verdict and sentence in the Pistorius trial – and seeing Gerrie Nel again reminded us of what a real prosecutor should look and sound like.
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Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.