Constitutional Hill

Clutching at straws?

It might well be that Shrien Dewani is completely innocent and that he had absolutely nothing to do with the killing of his wife. However, for an innocent man he is behaving rather strangely. Instead of rushing back to South Africa to clear his name, he seems ever more desperate to avoid facing his day in court in South Africa.  It reminds one rather of a famous South African politician who made sure he never got his day in court to avoid having to explain why he took millions of Rand from a crook and then did favours for that crook.

Now the Sunday Telegraph reports that Dewani fears that he will not receive a fair trial in South Africa because he will be tried by Judge President John Hlophe. For anyone with even a passing knowledge of the South African legal system, this argument must seem laughable and even a bit desperate.

As far as I know, a trial judge has not yet been allocated for the Dewani case. It is therefore far from certain that Judge President John Hlophe will hear the case. Advancing arguments at this early stage about the impossibility of receiving a fair trial based on nothing more than the possibility that the accused will be tried by a certain judge seems, well, a bit desperate and unhinged.

But even if Hlophe decides to hear the Dewani case, this does not mean that Dewani will not receive a fair trial. Now, as we all know Judge President Hlophe is a judge who has been mired in controversy, and any accused appearing before him has a right to ask the judge to recuse himself on the basis that he would not receive a fair trial. The problem for Dewani would be that such an application is almost certain to be rejected — and rightly so.

Last month the Constitutional Court in the case of Benert v Absa Bank once again dealt with the issue of when a judge should recuse him or herself. In a judgment written by Chief Justice Sandile Ngcobo the Constitutional Court once again succinctly set out the legal position in South Africa on this issue:

It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.9 And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.

This means that the mere fact that a judge has previously acted in a controversial manner — as Hlophe has done — is not in itself ever going to be relevant. The question is whether a reasonable person with all the facts at hand, a person not animated by the racial prejudices of your average British national (or journalist), will have a real apprehension that the judge will be biased because of what the judge had done or said either before or during the trial.

Now, personally I might not want to be tried before Hlophe JP because I have been rather critical of him and I might well have a reasonable apprehension — rightly or wrongly — that Hlophe would find it difficult to be completely impartial and unprejudiced in hearing my case. But Dewani does not have any similar history with Hlophe. Neither is there any direct link between the controversies in which Hlophe had been  involved in the past and the Dewani case.

No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case. Hlophe has not made any utterances about the case and neither can any of his previous actions or utterances be linked in any way with the facts or the circumstances of the Dewani case.

Dewani is, of course, free to rush back to South Africa to stand trial and if he were to be tried by Hlophe he would have a right at any time to ask for the recusal of the judge if anything happens during his trial that gives rise to a reasonable apprehension of bias on the part of Judge President Hlophe. Dewani would similarly be entitled to ask for the recusal of any other judge allocated by Hlophe to hear the case — but only if there are real reasons for Dewani to fear that he would not receive a fair trial.

In effect, these arguments presented by Dewani and his spin doctors are less about legal issues than about an attempt to win the media war. I suspect Dewani and his spin doctor Max Clifford has decided to try and create sympathy for Dewani by playing into fears and prejudices of the UK public about whether an Englishman could ever get a fair trial in “deepest and darkest Africa”. IF I was a member of the UK public I would be rather sceptical about this transparent move to tap into the racial prejudices of the  public or the erstwhile colonial master and would ask: if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?

  • http://deleted Anonymouse

    Hlophe would be stupid if he decides to hear the case, simply because he has heard (and accepted) an alleged accomplice’s plea of guilty implicating Dewani. Anyone can argue that, in such circumstrances, a reasonable apprehension of bias exists and that he should therefore recuse himself from the trial. This is what happens every day. When one or more of a number of accusede persons plead guilty, the trials are separated and, to prevent a reasonable apprehension of bias, the trial of those that pleaded not guilty (or intended doing so) is assigned someone else. Now, I don’t trust Hlophe in every respect, but I don’t think he is that stupid.

    Nevertheless, I agree with your point here that Dewani is indeed clutching at straws by trying to prevent his extradition. Let his plea of innocence be tested in a court of law against the available evidence. The Lotz murder trial should be enough indication that the Western Cape High Court would not allow fabricated police evidence to cloud judgment whether one is guilty or not – but, reading the circumstances surrounding the murder in casu, I think Dewani has got somethoing to hide (or is tying to hide something).

  • Nic Marais

    Pierre,

    If you were acting as Dewani’s lawyer in the UK, would you not advise him to fight extradition? Assuming—and this doesn’t seem an unnecessarily rash assumption—that there’s even a slight chance that (a) he is innocent, and (b) he’ll be found guilty, for reasons that may or may not reach bias (or Bheki Cele’s lack of clarity of thought, say), wouldn’t any lawyer fighting for their client use every tool available to them? In fact, I’d venture further: the mere fact that you see this reasonable procedural tactic as “desperate” may indicate the sort of bias Dewani and his lawyer fear they’ll face in South Africa. (That is, if a South African we all believed truly innocent was being head-hunted by the Argentinian police and press, would we not empathize with their decision to try and avoid a trial?)

    Thanks for the all-important prompts.

    Nic

  • Maggs Naidu – maggsnaidu@hotmail.com

    Hey Pierre,

    I think that Dewani was involved in the murder. The right thing to have done was for him not to have been allowed out of the country. Our police commissioner claimed to have suspected through “intelligence” of some skulduggery within two or three days of the murder.

    It would be good if he were to face the allegations in our courts.

    But on the question of our criminal justice system, I am not as confident.

    The implication of the Arrive Alive advert, which I pointed out elsewhere, is huge in so far as accused persons are concerned. Anyone who volunteers to be subjected to that has to be not, as the Blade would say, “all right upstairs”.

    More importantly, if “political solutions” can be found to let suspects off the hook then surely the opposite too can be a distinct possibility. Only the naive would suggest that our judicial system is not subject to serious political interference – it would be interesting to see what role Judge Khampepe and Deputy Chief Justice Moseneke played in the Zimbabwe elections before we jump to the conclusion that our judiciary is “independent”.

    Add to that the rather comical view of SCA Judge Cachalia who thinks that “If me or my family or anybody who appears before a judge I don’t want a judge that looks like me, I want a judge who is fair” and the rest of the scary stuff that emerged during the JSC hearings – http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=144200&sn=Detail

    Then there’s our Police Commissioner who has already declared that Dewani is a monkey and is guilty. I think that Dewani is a monkey and is guilty, but then I am not the Police Commissioner.

    It would be good for our country, it would be good for our nation, it would be good for the Hindocha family if Dewani were to face the accusations in our courts.

    But if he volunteered to come back and face trial here or did so without exhausting every trick in the book to keep out, I would regard him as a bigger monkey than General Cele thinks he is.

  • wrm

    Yes, what Nic and Maggs said.

    Bheki Cele has face to save. There is no way Shrien Dewani can have a free (of political interference) trail. If he’s innocent, Bheki Cele is the monkey and we can’t have that.

    (For the record, I believe he had some hand in all of this, I suspected as much from the very beginning. SAPS stuffed up the investigation, and stuffed up any chance of a free trial)

  • John-Michael

    “…if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?”

    Being deemed a flight risk he might be incarcerated (with all the attending horrors) during the trial. Was’nt there someone in Aus who was not extredited because of this possibility?

  • Graham

    Of course, none of this would have any currency if Hlophe were not a deployed ANC cadre instead of being a merit-based appointment. This has in turn been exacerbated by further ANC deployments to the JSC which has in effect protected Hlophe from any form of sanction vis-a-vis lying about being given permission to moonlight for Oasis by Dullar Omar, trying to pull a fast one on the constitutional court wrt Zuma’s accession to the presidency and so on. He also seriously cocked up the pharmacy medicine pricing case. The main violator on the JSC (but not exclusively) seems to be Dumisa Ntsebeza, a well known racist and ANC apologist noted for his anti-white rhetoric.
    So our judiciary is already tainted by the criminal ANC gang and this gives odious characters like Max Clifford ammunition to further frustrate the legal process.
    Your statement re Dewani: “However, for an innocent man he is behaving rather strangely”, prompts one to speculate on whether or not his putative homosexuality may possibly have something to do with this strange behaviour? I am told that this is sometimes the case.

  • John-Michael

    Apropos AIDS risk in SA prisons: De Bryn v minister of Justice:

    http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2004/334.html?query=De%20Bruyn

  • Maggs Naidu – maggsnaidu@hotmail.com

    Graham says:
    January 4, 2011 at 10:45 am

    Hey pervert,

    Since when is “Dumisa Ntsebeza, a well known racist and ANC apologist”?

  • Maggs Naidu – maggsnaidu@hotmail.com

    John-Michael says:
    January 4, 2011 at 10:48 am

    Hey J-M,

    It’s not unknown that policepersons threaten suspects with ‘slow death’, which is their euphemism for locking up suspects with brutal criminals to be raped and possibly infected with HIV.

    In any event, I have yet to find out why nobody has challenged the constitutionality of being incarcerated in South African prisons on the basis of it being cruel and inhuman punishment. For a country which is founded on human rights, it’s astounding that our authorities are allowed to get away with this unchallenged.

    Some time ago I went into one of the bigger prisons – those are the most appalling conditions to keep prisoners in and, in my view, totally inconsistent with the mandate of the Dept of Correctional Services. I would much rather visit an abbatoir and watch the sheep hanging by one leg, bleating and bleeding to death than to visit the inside of any of our prisons.

  • Mikhail Dworkin Fassbinder

    @ Pierre

    “If Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?”

    Quite right, Pierre!

    If I went on holiday to any given country, and was falsely accused of a crime carring a life sentence, and faced the prospect of years of trials and appeals, I would certainly waste no time in getting back there as soon as I could!

    Congratulations on turning this issue too into a question of RACISM. Very good.

    Thanks so much!

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “It’s not unknown that policepersons threaten suspects with ’slow death’, which is their euphemism for locking up suspects with brutal criminals to be raped and possibly infected with HIV”

    Maggs, this is precisely the kind of RACIST fear-mongering, Afro-Pessimitic crap that the gutter press of Fleet Street revels in. Although our prisons are not ideal, there is ample opportunity for rehabilitation, access to television, and exercise facilities. Also, all of our inmates receive free HIV-AIDS tests.

    Thanks.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder says:
    January 4, 2011 at 12:14 pm

    Hey Dworky

    “Also, all of our inmates receive free HIV-AIDS tests.”

    Maybe.

    But do they receive enough beetroot and garlic?

    And people are known to get terminally ill in prison, with miraculous recovery once released on medical parole.

  • Gwebecimele

    @ Graham

    Now that the ANC and BLACK racists have lowered the standards, we should go back to pre 94 assisted by people like you.

  • George Gildenhuys

    Prof, you left out the other bit in the Telegraph, where Dewani/Max Clifford alleges that seeing as SA doesn’t use juries and only a judge, he will not recieve a fair trail. Not everything is about the UK public looking down on “deep and dark Africa.”

    The idea of trail by jury is very much part of the UK/American concept of liberty and a trail without a jury is seen as evil…

    On a other note, most of the peope I’ve spoken to here in London seems to think he is guilty, you won’t believe that he power of deduction that you’ve used also exists in places outside of the Western Cape.

  • RalphR

    The criminal justice system maintains that you are innocent until proven guilty. I am sure Mr Dewani was going to rush back to SA if he belived that we uphold that notion and he will be granted a free trial. With our nosense talking top cop, who just wants to comment on everything even issues pending I don’t blame Mr Dewani for thinking that SA sees him guilty until he proves his innocence.
    Reading through the debate I soon realise that most of you guys believe he is guilty. In future our top cop must learn to keep quite until it is time to say something. As for my fellow South Africans we must stop contradicting ourselves. There is a reason why an accused is innocent until proven guilty. In this case the NPA needs to prove that Mr Dewani is guilty beyond reasonable doubt. Take all of that from our criminal justice system then we go back to dark ages. All I am saying is that Mr Dewani is at this stage presumed innocent. If the extradition goes through let him land in SA with that innocence until he is found to be guilty beyond reasonable doubt.

  • Clara

    Hi RalphR,

    You’re perfectly correct; our entire nation has made up its mind and decided that Dewani is one evil bastard who dunnit. Just for that reason I wouldn’t want to come back to SA if I were him. Besides, I say he’s innocent: what could possibly have been his motive? Can you think of even a single one?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Clara says:
    January 4, 2011 at 15:35 pm

    Hey Claraty,

    Without much to support this, but I suspect that most of the world thought that OJ Simpson offed his then wife.

    The judge had no option but to find Simpson guilty!

  • Thomas

    It seems that many think that DEWANI is guilty. The Dewani case (debacle) is important because it shows how we as South Africans are hypocrites. Some on this blog now either don’t trust the justice system or feel the accused must be regarded as innocent until proven guilty. What a strange turn around. I remember some politician who was and is still being lambasted, criticised and found guilty by the media and some political analysts. Can we now also regard this politician as innocent until proven guilty.

  • John-Michael

    Thomas, it has been said before but seems in need of repeating:

    “…the term innocent until proven guilty is simply legal fiction, a device lawyers like to use in court as a basis in legal reasoning. Legal fiction is also a protective device. You cannot impose criminal penalties on a person until a court of law has found him or her guilty as charged.

    However, outside of court, legal fiction should have no standing whatsoever.”

    http://allafrica.com/stories/200903040167.html

    So I think we can freely speculate and be as opinionated as we like.

  • Randoman

    It is vitally important that the DPP appoint a decent prosecutor for the Dewani trial as, after all, no Judge can convict Dewani if the State’s case is not proved beyond reasonable doubt.

    The DPP delegated some non-entity prosecutor to go to court to handle Zola Tongo’s plea bargain before Judge Hlophe. I heard they guy on Cape Talk 702 presenting / reading the plea bargain in Court and he was singularly unimpressive – sounding like it was his first ever court case.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Thomas says:
    January 4, 2011 at 18:56 pm

    Hey Thomas,

    Luckily for the politician in question “being found guilty by the media and some political analysts” does not carry any legal weight – even though the then Deputy President was fired.

  • Maggs Naidu – maggsnaidu@hotmail.com

    @ Pierre,

    “No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case.”

    Maybe.

    But how hard will it be to paint a picture of a criminal justice system that is shaky at best?

    With courts that are literally falling apart, top cops that are corrupt, the NDPP being what it is – I reckon that this guy can make far more convincing case than Brandon Huntley made for his ‘asylum’.

    http://beta.mnet.co.za/carteblanche/Article.aspx?Id=4112&ShowId=1

  • Mikhail Dworkin Fassbinder

    @ Gwebe

    “I also want to be Spanish-Chinese when I grow up”

    I will never betray my Slovenian heritage. Yet, I consider myself an AFRICAN to my very core. Why? Because I have full embraced the spirit of UBUNTU!

    Thanks.

  • Gwebecimele

    Dworky

    Have you been to Home Affairs?
    Are u intending producing junior African Slovaks with help of some French African?

  • alison barrett

    It’s so sad that you think this is all about racial prejudice. It isn’t. I’m a white Englishwoman, Dewani is a British Asian, the Judge in question is a black African. I fear that Dewani will not get a fair trial in South Africa because of the rampant and wholly disgusting press campaign against him there (and in the UK), because of the inappropriate comments by the police chief, and because the speed of the conviction of his plea-bargaining accuser was unseemly. It’s clear that much of the press speculation has been fed by police ‘leaks’, and that also worries me. I’ll be honest that I have been unpleasantly surprised by the face SA has turned to the world on this – I have never had any reason to doubt the country’s legal system before. But something about this affair smells rancid, whether or not he is guilty.

  • Maggs Naidu – maggsnaidu@hotmail.com

    alison barrett says:
    January 5, 2011 at 15:04 pm

    Hey Alison,

    “I’m a white Englishwoman, Dewani is a British Asian”.

    Whew!

    For a while I thought he was an Englishman.

    It’s also good to know that an honest Englishwoman is free from racial prejudice.

    p.s. Our Police Chief could learn from the British Police over their involvement in the investigation of the McCanns over the disappearance of Madeleine.

  • Stewart

    Alison, the shooting of the Brazilian guy in the head was also reasonable police action, was it not?

  • RickySA

    Of course, it is important whether Shrien Dewani can get a fair trial in SA – but I do not find the arguments put forward so far as to why he would NOT get a fair trial very convincing.

    Of course, the Chief of Police thinks that Shrien is guilty – if not, it would be very worrying for the Police and the Prosecution to keep investigating him and asking for extradiction. The “monkey comment” was stupid but the Chief of Police does not belong to the judiciary so – in my humble view – it is neither here nor there when considering whether Shrien D can get a fair trial in RSA.

    I assume that it is correct that most people in SA thinks that Shrien D was involved in the killing of his wife. But in most criminal cases there is a general consensus among the people who know about the case that the person being charged is guilty – and this is not so strange, as the prosecution is not supposed to charge somebody without having good evidence. So the fact that that most South Africans think Srien D is guilty of something, does not – again in my opinion – give any valid reason for assuming that Shrien D cannot get a fair trial.

    The jury issue, well, several countries does not use juries – an example is the Netherlands. Some countries have abandoned jury trials, e.g. because the greater risk of undue influences and considerations, e.g. India in 1960 and Malaysia in 1995. So only the most Anglo-centric persons could – in my view – find that the lack of trial by jury means that Shrien D cannot get a fair trial in RSA. I believe there were some considerations in an Nothern Irish case not so long ago about the impossibility of finding an unbiased jury for which reason trial by judge was accepted even in UK – arguably Shrien D’s fear of a biased South African public should be somehow allayed by the fact that no jurors will take part in the case in RSA.

    I have noticed that neither the commentators on this blog nor the very outspoken Max Clifford have come with examples of serious miscarriages of justice in RSA after 1994 (I am talking about innocent people being convicted, not the other way around). This would be a much stronger argument for Shrien D than what has so far been brought forward.

  • Maggs Naidu – maggsnaidu@hotmail.com

    RickySA says:
    January 5, 2011 at 16:38 pm

    Hey Ricky,

    “I have noticed that neither the commentators on this blog nor the very outspoken Max Clifford have come with examples of serious miscarriages of justice in RSA after 1994″

    Do you think that the Schabir Shaik trial was an example of the fairness of our judicial process?

    I think that Shaik is guilty as charged and found. I don’t think he was terminally ill. But mine is a kangaroo court.

    But charging him for the “generally corrupt relationship” while not simultaneously charging Zuma sounds to me like the guy was being setup.

    As Judge Cachalia wisely taught us, accused persons want to face a trial that is “fair” :)

  • RickySA

    Hi, Maggs,

    I have no reason to think that Schabir Shaik did not get a fair trial, looking at that case in isolation (and you seem to be of the same opinion). And this is what should matter when considering the change of a fair trial for Shrien D in SA (if he is indeed extradited).

    Of course, I agree that it was very strange that no one else was tried in this connection – just like I think it horrific that the arms deal corruption will now be swiped under the carpet.

    But the fact that powerful and well-connected persons (with few exceptions) seem to go free (and probably no only in RSA) does not in any way substantiate that Shrien D would not get a fair trail here.

    Agree, Maggs?

    Ricky

  • Maggs Naidu – maggsnaidu@hotmail.com

    RickySA says:
    January 5, 2011 at 18:17 pm

    Hey Ricky,

    Broadly speaking I am confident of our courts and our system.

    The exceptions however leave a lot to be desired.

    I am not sure what the solution is.

    “The right side of the law” is a very grey area – take for example the hacks who got arrested for taking pics in Hillbrow recently and had their equipment confiscated by the SAPS.

    I am not sure whether we can assume that a fair trial is a matter of course.

    Presumably you read the comments of Judge Satchwell re the Jhb Hiogh Courts – how could it be possible to have proper trials without judges having access to the library and other essentials?

  • Clara

    Let’s assume that Dewani will never be brought to trial in SA, which I think is quite likely. What, then, will happen to Zola Tongo? How can he still be guilty even if Dewani is not? Will our courts release him “on medical grounds” for lack of a better excuse?

  • Maggs Naidu – maggsnaidu@hotmail.com

    RickySA says:
    January 5, 2011 at 18:17 pm

    Hey Ricky

    “But the fact that powerful and well-connected persons (with few exceptions) seem to go free (and probably no only in RSA) does not in any way substantiate that Shrien D would not get a fair trail here.”

    Perhaps you missed this.

    but the judgment leaves many questions still to be answered, not least of them being why both the High Court and the Supreme Court of Appeal refused to address the obvious injustice that had occurred in this case.

    http://constitutionallyspeaking.co.za/was-this-corruption-callousness-or-both/

    And this.

    The judgment by Basson J consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing.

    “The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like “it is submitted” and emotive comments on The Gap and Stuttaford’s contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttaford’s heads of argument, except for references carried over from Salt’s heads of argument.”

    http://constitutionallyspeaking.co.za/cutting-and-pasting-judicial-decisions/

    Given that some of our senior judges, at least, are suspected of taking orders from the executive, in the light of the international spotlight that this matter has brought on our country, the suspect ethics of the NPA and the political context which surrounds it, the state of our courts – should Dewani come “would it be wise for him to come “rushing back to South Africa to clear his name” as Pierre suggests if he is not guilty?

    What about if he is guilty?

  • Charles Scheepers

    Maggs Naidu says:
    January 5, 2011 at 21:04 pm

    These are but a few of the examples of the culture of incompetence/ignorance/corruption of our legal system. There are many more. Anybody that cares to read the Waterkloof 4 judgement will clearly see that the accused in SA courts are far from innocent until proven guilty and no amount higher (“wiser”) courts will make any difference if a point needs to be made. When orders are given they are followed up the CC. The judgement by Kotze was laughable, Seriti copied most of the defense paper and did not even attempt to explain himself, the SCA and CC refused to look at the findings even though the incompetence/ignorance/corruption was clear as day. The only official explanation came from JP Bernard Ngoepe that stated in writing that it is irrelevant when judges are wrong.

    The point is, guilty or not, Dewani would be an absolute moron to trust the SA courts (and therefore SA politics) in any way.

  • Deloris Dolittle

    @ Clara

    Zola Thonga pleaded guilty to a crime so he will stay in jail to serve his sentence. The fact that another person who might be guilty of the same crime is not brought before court does not change this.

  • RickySA

    Maggs,

    The judgments in Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others that Prof. de Vos criticised were the lower court judgments that were then changed by the Constitutional Court – this does not in any way condemn the judicial system of RSA.

    Similar, in the Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and others, the Constitutional Court rebuked the original judge for the way he had written the decision. Again, this would indicate that the system works.

    I am not intimately familiar with the judgments in the Waterkloof 4 case but do know that Charles S has been very vocal about this case. Consequently, I will not venture an opinion on this case. But even if there was miscarriage of justice in the Waterkloof 4 case, this hardly proves that Shrien D cannot get a fair trial in RSA – there are examples of innocent people being wrongfully convicted in the UK, the US and any other country that prides itself with a very good court system.

    In some cases, a fair trial for the defendent is very much dependent on whether he (most criminals tend to be men) gets a good lawyer or a state appointed attorney with insufficient time and experience. At least in the US, this tends to make a huge difference. Since Shrien D have been able to afford top representation in the UK and even a hot shot (even though he – in my view – has done more to damage the case of Shrien D than almost anyone else) publicist, I am sure he will be able to secure the best possible representation also in RSA. This should very much help assure that he gets a fair trial.

  • Maggs Naidu

    RickySA says:
    January 6, 2011 at 8:37 am

    Hey Ricky,

    As I said elsewhere, broadly speaking I have confidence in our courts and our justice system.

    I have no doubt that most judges, prosecutors, policepersons, corrections officers are determined under very trying conditions – they have done some amazing work to deepen and strengthen our democracy.

    Given that, would I like to face the criminal justice system or even do I trust it enough?

    A definite NO!

    Not even for a traffic violation.

    It’s the exceptions for me that are the cause for concern and the way those are responded to.

    Insofar as the CC is concerned, we no longer have a Judge Mohammed so I dunno whether I would try my luck at my rights being protected by relying on the CC.

  • John-Michael
  • RickySA

    Well, John-Michael, it does seem like these gentlemen are not getting a fair deal at all. But, again, it does not seem to have any bearing on the question as to whether Shrien D can expect a fair trial or not in RSA.

  • John-Michael

    Ok, let’s assume its one of Maggs’ exceptions to a fair judicial system. But like him I would be loathe to put it to the test personally.

  • Claire hopkins

    The artcile is a load of tosh!!! Shrien is innocent so stop wasting time talking about it!!!!!

    We all know he will not get a fair trial in SA – your long winded article is such a load of nonsensical rubbish!

  • Claire hopkins

    Shrien Dewani had nothing to gain by murdering his wife, he was the wealthy one not his wife, there was no life insurance to gain. Its obvious the black SA tried to rape her, she tried to defend herself and sadly the gun went off in error!! There is nothing else to the case so get over it … we all know you south africans are trying so desperately to convince the world your country is not a dangerous place…oh come on..pull the other one!!!

  • Simon Ketrell

    Pierre …your article is ‘clutching at straws’

  • umqombothi

    Claire – seeing as you must have been at the scene personally to be so convinced of the ‘facts’ of the case I hope that you are assisting the investigating team with your inside knowledge. Probably not though as the hordes of “black SA” might be waiting to rape you at the airport.

  • Maggs Naidu

    Claire hopkins says:
    January 6, 2011 at 15:49 pm

    Hey Cuckoo Claire,

    “The artcile is a load of tosh!!! Shrien is innocent so stop wasting time talking about it!!!!!”

    How is us wasting our time, talking about a load of tosh (or a load of anything else) your business???

  • alison barrett

    Claire makes a fair point and one which desperately needs answering – where is the motive? So far all we have had are smears about him being gay. Well, duh, gay people marry all the time and very rarely murder their wives!

    As for the idea that it’s fair play to consider him guilty, why else prosecute – the idea in a fair system is that evidence is used in a court of law, not the gutter press prior to trial. I’m saddened so few people seem to be bothered by it, or to appreciate how mountains of negative publicity & deliberate smears give the wrong impression about your justice system.

    And why is no-one even concerned that the ‘fixer’ – the one with the odd Facebook message – will face no trial at all? Is that justice? Does Tongo’s ‘confession’ even have any kind of internal rationality? Not to my eyes.

    Dewani didnt get bail because of Clifford’s efforts, but because SA chose to introduce spurious claims to the High Court about a murder he could not possibly have committed, and he had his passport to hand to prove it.

  • Pierre De Vos

    Claire hopkins (sic) and Simon Ketrell, thanks so much for your sharp, intelligent and analytically brilliant responses to the article. It really raises the level of the debate and demonstrates with forensic precision why Mr Dewani is innocent. Well done! You are clearly both intellectuals of the highest order with a deep and abiding respect for the opinions of others. High class stuff.

  • Maggs Naidu

    alison barrett says:
    January 6, 2011 at 19:05 pm

    Hey Alison,

    “I’m saddened so few people seem to be bothered by it, or to appreciate how mountains of negative publicity & deliberate smears give the wrong impression about your justice system.”

    It’s heartwarming that a honest Englishwoman is concerned about the welfare of South Africa and the British Asian.

    Be assured that the image of South Africa is robust. We are a very politically sought after nation internationally. Hey you guys even need us to sort out the mess you made in our neighbouring Zimbabwe.

    Perhaps it’s worth suggesting that the British consider that their BFF (best friend forever) i.e. the US thinks that Britain sucks up to the US like grovelling little sycophants (refer Wikileaks).

    BTW did your army ever find the WMD that your Prime Minister Blair tried to convince the world that Saddam had hidden under his bed? What happened to the investigation into corruption between BAE and the Saudis?

    Did anyone in your police service get prosecuted for shooting an innocent British Mexican who was going home to his young family after work?

    Never mind our drunken judgments, philandering and stoned out judges, we’re doing pretty ok. We’re less than 20 year old – we will sort ourselves out.

  • Maggs Naidu

    Pierre De Vos says:
    January 6, 2011 at 19:33 pm

    Hey Pierre,

    “You are clearly both intellectuals of the highest order”

    Oh, really???

    It’s really surprising that you think that.

    I think they’re both idiots!

  • And You Too

    Simon and Claire,

    Firstly, I think you are one and the same person.

    Secondly, If your man is innocent he surely doesnt need you to defend him, does he?

    The question is whether he would receive a fair trial here or not, not whether he is guilty so where exactly do you come in to defend is “innocence”, is there something you know?

  • Maggs Naidu

    And You Too says:
    January 6, 2011 at 21:49 pm

    Hey AYT,

    “Firstly, I think you are one and the same person.”

    Ok, so maybe I erred.

    If you’re correct, then Simon and Claire are one big idiot!

    :)

  • And You Too

    Mags,

    Dont worry, at least there is one less idiot around. Rather one than two.

  • http://deleted Anonymouse

    Hi, I’ve been unable to blog on this issue for some time, but here goes:

    Mikhail Dworkin Fassbinder to Maggs – “Although our prisons are not ideal, there is ample opportunity for rehabilitation, access to television, and exercise facilities. Also, all of our inmates receive free HIV-AIDS tests.”

    What do you think about the new TV add against drunken driving that stared the begining of the Fesive Season? (A few male inmates in a cell together threatening rape/sex for every new inmate – especially the guy with the tattoos who in the end says, “Pappa ek wag vir djou!” comes accross as quite scary.

    Clara – Yes, Dewani must be presumed innocent when in a court of law, but, since he is not yet in a court of law, except for the bail proceedings where he was granted bail (and extradition cannot in the strict sense of the word be regarded as a ‘judicial process’), people are free to debate his innocense or guilt, and what they think the outcome of the case might be if he is indeed extradited (which is something that the UK’s Executive must decide, not the courts). Being praciced in piecing all pieces of a puzzle together in criminal trials, and having read what was said during the middlema’s plea and in the press at the time, I also think that he is guilty, and that, therefore, there is a good chance of him being convicted if he is in the end tried. (‘Motive’ – as in the old ‘Anglo-American jury trial system’ is not a requirement for conviction in SA law of evidence – it is merely one of the pieces of circumstantial evidence that can be considered together with all other available factors to determine whether guilt has been proven beyond reasonable doubt. Here are a number of factors that will have to be considered if Dewani is tried:
    1.) He told police and the press that he was never in SA before the incident – Security videos in the Hotel show that he was there some weeks before the incident.
    2.) He says he never met or conspired with the guy who pleaded guilty – Security videos in the hotel show that he and the guy exchanged something after the incident.
    3.) Why was only the wife killed during this so-called hijacking, while Dewani was freed by the hijackers? Why was the guy that pleaded guilty, and who could have been a witness to the so-called hijacking (if it happened) also set free by the captors.
    4.) Why wasn’t anything robbed?
    5.) Why was no ransom claimed from Dewani?
    6.) ….

    I think, ‘guilty as sin!’

  • Maggs Naidu – maggsnaidu@hotmail.com

    The New Agent is crossing swords with the PP – maybe a sign that the PP is to be redeployed.

    It seems that Ms Thuli Madonsela suggests that the New Agent lied!

    “It is regrettable that The New Age would want to stand by their story, which is obviously, in part, factually incorrect,”

    http://www.timeslive.co.za/local/article838347.ece/New-Age-story-regrettable–Public-Protector

  • http://www.newstime.co.za/columnist/PaulWhelan/5 Paul Whelan

    The problem is if My Dewani is guilty he obviously will not want to come back; if he is innocent why does he need to come back to a country that has largely decided he is guilty?

  • http://www.newstime.co.za/columnist/PaulWhelan/5 Paul Whelan

    Mr Dewani above – not my. We are not related.

  • Pierre De Vos

    Paul Whelan, this very argument was of course used by supporters of President Jacob Zuma. BUt luckily for everyone, the “country” does not finally decide on criminal guilt (moral guilt is another matter). The Courts get to decide whether he is criminally guilty and whether the country has decided he is guilty or not is not relevant for a court. A court looks at all the evidence and decides whether the state has proven its case beyond a reasonable doubt. Not an easy burden to overcome – that is why many accused individuals are acquitted in South Africa – especially if they can afford good lawyers.

  • http://www.newstime.co.za/columnist/PaulWhelan/5 Paul Whelan

    Pierre

    As you are convinced that Mr Dewani will get a fair trial, I do not wish to argue about it. I cannot say one way or the other. Any doubts about a fair trial could only be settled by going through the process of a trial.

    My point is how are things to appear to Mr Dewani, guilty or innocent, and what there is in it for him to put his future at risk by returning to SA if he can get away with not returning. Who, if they were rich enough, would behave differently from Mr Dewani in the circumstances?

    I know you agree that it was predictable from the start that President Zuma would not face trial and in the end, as forecast by many, he did not.

    Of course Mr Zuma is a very powerful politician. And we are told that Judge John Hlope will not, or cannot, preside over the Shrien Dewani’s trial. But won’t one of his Judge Hlope’s appointees?

    Put that point aside also, if you wish. My question remains, and it must remain uppermost in the mind of Mr Dewani: after all the public outrage, huge fuss and hopes for vengeance on the killers of a beautiful young girl, what guarantee is there for the accused, a foreign national, that his trial will not be politically tainted?

  • Maggs Naidu

    Paul Whelan says:
    January 10, 2011 at 8:35 am

    Hey Paul,

    “and it must remain uppermost in the mind of Mr Dewani”

    SCA Judge Cachalia will probably tell us that Dewani will want a ‘fair’ trial.

    I reckon that Dewani will want to get away, whether or not he dunnit!

  • alison barrett

    ”Security videos in the Hotel show that he was there some weeks before the incident.”

    really? that would be dynamite, but I don’t think it’s true.
    If it were, it would also of course tend to suggest that Tongo’s story is lies, as he claims this self-assured instigator of murder approched him to have his wife killed after meeting him for the first time that day.

  • alison barrett

    maggs, why are you turning this into an anti-British rant? Isn’t that a bit pointless? I am well aware the US think us their poodles, most Brits think the same thing I can assure you.

    But this isnt supposed to be about going ‘nurrnurrnurr’ to our favourite bugbears, whether it be the Brits (which it seems to be for you) or the US; it’s about whether the case against Dewani is credible and whether he should be extradited.
    I’m pretty sure he will be actually because on the list of countries who get to have an almost no-questions-asked poke at our citizens is……South Africa.

    So you will probably get to try him. I really hope you make a decent job of it, for his sake and yours.

  • Maggs Naidu

    alison barrett says:
    January 10, 2011 at 22:53 pm

    Hey Allison,

    “maggs, why are you turning this into an anti-British rant?”

    My comments are not an anti British rant – your imagination is wild.

    My comments were specifically at you and intended to point out the ludicrousness of your wrongly generalised comments (and of your contention that Claire hopkins “makes a fair point” – Claire is nuts).

    That I am turning this into an anti-British rant or that “few people seem to be bothered by it, or to appreciate how mountains of negative publicity & deliberate smears give the wrong impression about your justice system” is best described in the words of Claire hopkins i.e. a load of tosh.

    You seem dead set, irrationally so, on defending Dewani irrespective of whether or not he arranged to have the young woman murdered. I have said above, and will say again, that I think that he was involved. Our authorities should exhaust all means to get him here to trial and throw the full might of our laws at him if he is extradited.

    Is Dewani clutching at straws – I think so. Maybe our system has thrown some logs at him.

    This matter however is an opportunity for us to engage over those things (of which there are many) that ought to be corrected in our criminal justice system. Our Police Commissioner, for example, has been made to realise that he is not only vulnerable to Kryptonite. Our authorities are being made aware that the nature of the politicisation of the judiciary can have a profound impact.

    Our judiciary is amongst the finest in the world. It, like other good ones, is not without faults and flaws that needs to be exposed and remedied.

    Most South Africans, as irritated and annoyed as we get over some of the day-to-day happenings, are proudly so. We can hold our heads high here as individuals and across the world as a nation because we have earned it and we do what we need to do to keep it that way.

    When people, like you and Claire, attempt to undermine that expect a response.

  • Maggs Naidu

    Kamlesh Vyas, the panditji or priest at the Bristol Hindu Temple, who has known Mr Dewani for more than 10 years, said: “You couldn’t think about him killing even a fly.

    “He is honest, down-to-earth, he comes to the temple whenever it is possible and is very humble in talking to everyone.”

    Vyas claimed Mr Dewani is being used as a scapegoat to protect South Africa’s tourism industry. -Daily Mail

    http://www.iol.co.za/news/crime-courts/honeymooning-dewanis-never-kissed-1.1012739

    Kamlesh Vyas should stick to prayers.

    His pronouncements on this matter, to borrow a phrase from Claire hopkins, is a load of tosh.

  • alison barrett

    You can tosh away all you like maggs, you are clearly inordinantly fond of the droning of your own boring and self-opinionated voice, so I’ll leave you to it.

    There are plenty of people who can debate this without resorting to blethering ‘tosh’ at others without even bothering to try and answer the questions raised. The more you try to evade them (as in the crucial question of motive), the more it looks like you have something to hide.

    Funnily enough, just what you accuse of Shrien Dewani of.

  • Maggs Naidu

    alison barrett says:
    January 17, 2011 at 22:03 pm

    Hey Alison,

    “Funnily enough, just what you accuse of Shrien Dewani of.”

    I am not accused of murder, maybe.

    Of course I like my voice. In fact I like all of me – but that’s another matter.

    The crucial question of motive will be addressed by our criminal justice when Dewani faces trial here.

    I reckon that he will get extradited.

    But if you like we can dissect Panditji’s views and see if it can stand elementary interrogation.

    In the meanwhile – here’s the petition.

    http://www.gopetition.com/petition/41710/sign.html

  • Maggs Naidu

    alison barrett says:
    January 17, 2011 at 22:03 pm

    Ok Toshess,

    It seems your guy now wants to dictate to our courts. Upping the stakes is not wise. Maybe you should tell him that not even the United Nations has been able to bully us. Either he comes voluntarily or he goes through the extradition process.

    One other fellow tried that – now he’s in jail somewhere in Belarus. Now that guy was a clever fellow. He was at one time the Chairperson of the Independent Bar – a credit to all advocates in South Africa. Our dear Dworky will tell you that an exceptional legal pedigree is required to be that highly regarded.

    Extradition application means that the dirty laundry gets aired both in UK and again in the Republic of South Africa (aka the world’s most notable democracy).

    Maybe he is a contortionist of note, able to wriggle all of his 6 ft frame out the rear window of a moving VW Sharan and landing unscathed, but whether he is able to do that with our criminal justice system is yet to be tested.

    Shah, who has known Dewani since he was a student at Manchester University, told the BBC: “There are certain issues and questions and guarantees which must be answered and given, such as, if Shrien were to go to South Africa, would he be given bail?

    “It is for Shrien’s legal team and the South African authorities to discuss this and agree (on a) programme.”

    http://www.iol.co.za/news/crime-courts/dewani-wants-to-clear-his-name-1.1013288

  • Niel

    Alison Barrett. To answer just one question that you have raised more than once – motive. Motive is irrelevant. It is not an element in the crime of murder.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Niel says:
    January 18, 2011 at 10:05 am

    Hey Niel,

    “Motive is irrelevant. It is not an element in the crime of murder.”

    Oops.

    So Alison, the Englishwoman championing the cause of the British Asian, fooled me. Damn. Blame that on me watching too much LA Law.

    But like the wise man once said “Fool me once, shame on me. Fool me twice – nah, you can’t fool me twice”.

  • http://deleted Anonymouse

    Niel et Maggs

    I wouldn’t say that motive is irrelevant – whilst it is not an ellement of a crime, motive might assist the prosecution in proving the crime (or at least, intent, which is an ellement of the crime of murder). However, we are no longer living in times where the prosecution only had to establish ‘motive, means and opportunity’ in oder to take a trial to a jury (and, possibly, get a conviction on that).

    alison barrett says:
    January 10, 2011 at 22:47 pm

    I was of course relying on newspaper reports saying that security video footage places Dewani in the same hotel some time before the incident, not necessarily him speaking with Tongo at the time. The security videos showing him meeting with Tongo were taken after the incident. = But, I do not say that the reports on Dewani’s presence in South Africa before the incident are correct, but, on the other hand, if they are, indeed that would be dynamite that can be used in getting him extradited and facing trial.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Anonymouse says:
    January 18, 2011 at 11:19 am

    Hey Mouse,

    Thanks for that.

    Dewani’s claim that he was ‘pushed’ out of the rear window from the moving car is perhaps going to be one of the most interesting aspects when he gets to trial. The guy is reportedly around 6 ft. Even a dumb criminal would have thought it easier to stop the car and toss him out. Through all that tussle he sustained no bruises. He can sure teach kids on jungle gyms a trick or two.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Claire hopkins says:
    January 6, 2011 at 15:49 pm

    Hey Claire,

    “We all know he will not get a fair trial in SA – your long winded article is such a load of nonsensical rubbish!”

    There’s a rumour that Fruit & Veg City has secured a load of bananas for Cape Town.

    Any idea where the anticipated demand emanates from?

  • Maggs Naidu – maggsnaidu@hotmail.com

    alison barrett says:
    January 17, 2011 at 22:03 pm

    Hey Alison,

    You guy is trying new tricks.

    Briton Shrien Dewani, who is suspected of orchestrating the hijack and murder of his bride of two weeks, Anni, in Cape Town in November last year, is probably faking a meltdown to stall his extradition, according to a local psychologist.

    http://www.iol.co.za/news/south-africa/kwazulu-natal/dewani-may-be-faking-it-1.1015614

    Not to worry, we do medical parole for people who fake terminal illness!

  • Brett Nortje

    OK, being a really nice person I’ve given you all a month to rid your faculties of festive-season-drag but now I’m forced to call you all on another Sanet moment?

    Why is no-one asking the hard interesting questions? Was Anni the victim of an arranged marriage? Should her family be investigated for human trafficking?

  • Maggs Naidu – maggsnaidu@hotmail.com

    @ Alison and Claire,

    “Last week Dewani’s British publicist, Max Clifford, said his client was ill as a result of grief and stress, and had lost 10kg.” http://www.iol.co.za/news/crime-courts/judge-orders-shrien-to-court-1.1023413

    So sorry to hear about his troubles but he is “required to attend his next court hearing on March 23. His full extradition hearing was expected to go ahead on May 3.”

    Of course he’s grieving at the though of facing the charges here and stressed at the though of being jailed in our infamous ‘Sun City’.

    Losing 10 kg is very little compared to Anni who lost all!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Alison and Claire,

    Are you there???

    We’re getting a visitor soon!

    Send gifts.

    Shrien Dewani can be extradited to South Africa, to face trial for organising the murder of his wife Anni on their honeymoon last year, a district court judge has ruled.

    http://www.guardian.co.uk/world/2011/aug/10/shrien-dewani-can-be-extradited