Dewani extradition still in play

British Judge Howard Riddle ruled last Wednesday that Bristol businessman Shrien Dewani, who is accused of murdering his wife Anni while on honeymoon in Cape Town during November 2010, can be extradited to South Africa to face charges of murder, robbery with aggravating circumstances and kidnapping.

The decision is, however, not the final word on this aspect of the matter.

The next step is for British Home Secretary Theresa May to elect whether she is happy to allow the extradition to go through or not. Simultaneously therewith the Dewani camp is deciding whether or not to appeal Judge Riddle’s decision.

In this regard Dewani’s appeal would be to the Supreme Court and if he fails there, he can go to the European Court for Human Rights.

When the legal team elected to fight extradition, on the instructions of their client, they would have been mindful of the fact that any decision in his favour would be tantamount to victory in itself. If you can’t put the accused before the court you cannot convict him in South Africa.

The alternatives, which they may still pursue ie the appeals if the home secretary rejects their submissions, are more of the same because in each instance a decision in their favour is for all intents and purposes game over for the trial.

What was the sacrifice Dewani made by following this route?

The obvious one is bail because if he had simply flown down to South Africa he would have demonstrated that he was not a flight risk and would probably have been granted bail pending the trial.

That option is no longer feasible.

Did the Dewani legal team make the right choice in the circumstances?

Without any question of a doubt. Most attorneys confronted with these circumstances would have elected to opt for blocking extradition because if they succeed there, as stated above, they don’t run the risk of a trial. If they don’t succeed there is no downside — as ugly as sitting in prison with bail denied may be — as far as the case goes.

At the trial the fact that Dewani has opposed extradition can in no way be held against him. His conviction or acquittal on the charges posed will depend on whether or not the evidence to prove the elements thereof is present in each case.

At the close of the state’s case in a criminal trial in South Africa many lawyers make application for their client’s discharge in terms of Section 174 of the Criminal Procedure Act 51 of 1977.

This provides: “If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”

In bringing that application the accused can be acquitted but not convicted. If there is any chance that it may succeed defence attorneys will employ it knowing that their client can only benefit. A court in South Africa — even where the accused is represented — is required to apply the section if the state’s case warrants it.

Extradition is like having four Section 174 applications at your disposal before the matter has even begun.

As such the Dewani legal team — from a tactical point of view, regardless of innocence or guilt — would have been remiss if they did not canvass opposing extradition with their client before the decision was made.

As we witnessed in the trial of Glenn Agliotti the fact that many people decide that you are guilty beforehand is meaningless before a judge who is only interested in the evidence not the depth of the mud thrown.

Don’t pre-judge Dewani until the evidence has been led, opposition to extradition makes a lot of sense to the parties who are acting in the matter. It does not make him more guilty or less innocent if the trial should go ahead.