Dewani case: Torture claims misleading

The reports making headlines, both in South Africa and the United Kingdom, regarding the impact of the torture claims by two of the accused in the murder of Anni Dewani are misleading.

Quite frankly, in Great Britain, South Africa, Europe and the rest of the world, police are frequently accused of torturing suspects into making confessions. If cases were decided on those claims then at least half of them would never see the light of day.

In Great Britain, South Africa and most other legal systems, the judicial process is geared to protect the accused against this type of irregularity while deciding if those claims have any merit.

What this consists of is a trial within a trial, which takes place during the main trial.

In addition, there is legislation which provides exactly what is required for a confession. I have dealt with this issue on a number of occasions, setting out the exact requirements and quoting the sections in full.

If the media believe that any judge at an extradition hearing would be swayed by claims of this nature then best they flick through their own caseloads and see how many times these types of allegations are made by accused in their country.

If regard was being had to say Iran or Burma, perhaps — and it is only a maybe — regard might be had to this factor in debating extradition. Even then it would be unlikely unless actual evidence of torture by the Iranian authorities could somehow be demonstrated.

The fact that the death penalty applies in Tehran is what would hold sway, not allegations of police torture.

In other words unless during the trial of the two accused — Mziwamadoda Qwabe and Xolile Mngeni — the judge rules that their statements are inadmissible because they were induced by means of torture rather than a procedural irregularity then these claims have no bearing on the extradition of Shrien Dewani.

Of course the fact that the trial of those two may — not definitely — be held over until the Dewani extradition is decided makes the issue academic for extradition.

Then there are the allegations that the plea and sentencing agreement in terms of Section 105A of the Criminal Procedure Act 51 of 1977 as amended, were concluded in 36 hours.

“The Guardian has also learned that it took only 36 hours for a plea bargain to be arranged with the third South African accused over Anni’s killing.”

I’m not exactly sure what the reporters are trying to convey.

Is it that from the time the attorney for Tongo first approached the state and introduced himself until the deal was concluded? Or was it from the time it was decided to draw up the papers until they were signed?

If regard is had to the requirements of the section, including the drawing of papers by the attorney for Tongo, submitting them to the prosecutors, their getting all the approvals required (many) and then finalising those papers that the state put before the court at Tongo’s hearing, I’d be staggered to learn that it took seven days.

If my memory serves me correctly the attorney for Zola Tongo started to suggest a deal whereafter a week went by and then finally events began to unfold.

Notwithstanding, unless they are suggesting that police chief General Bheki Cele is Tonga’s uncle, what is the point that they are trying to make?

If the police believe the conspiracy to murder theory given by Tongo, then he is the only accused who ties all the others together including Dewani, Qwabe, Xolile Mngeni and former hotel worker Monde Mbolombo.

So if it was feasible to put the deal together in 20 minutes what is the point that they are making?

The investigation into what Tongo was suggesting had been done before those discussions took place. The pieces of evidence — if they are to be believed — were on the table, Tongo just had to show police how they fitted together.

So it’s not a case of having to go and check whether Tongo was right but rather Tongo explaining how the sum of the parts made the whole.

Vitally, this was before Tongo even knew what the police had.

If his version contradicted the actual evidence gathered by the police — most of which he would not know about at the time his attorney submitted his version — no prosecutor in the world would use him because he would be the best witness for the defence.

What is compelling is his version obviously did not contradict what they already had and sight unseen it made sense of the chaos.

Worse, if the suggestion is that the police and Tongo were pals then that theory explodes immediately.

Section 204 of the Criminal Procedure Act 51 of 1977 provides that where any person is called as a witness on behalf of the prosecution and is required to answer questions which may incriminate himself — and he does so frankly and honestly — he shall be discharged from prosecution.

In other words if Tongo was their mate they could easily have justified a Section 204 (no conviction or sentence) as opposed to Section 105A (18 years in jail).

There are no time limits on a plea and sentencing agreement, each case will guide the state as to whether they wish to employ this section or not.