Two Khayelitsha men accused of the murder of Swedish honeymooner Anni Dewani claim they were tortured or assaulted by police in custody.
And Billy Gundelfinger, the South African lawyer representing her husband, Shrien Dewani, announced unexpectedly on Wednesday that he was withdrawing from the matter. He had been hired to keep a watching brief. Citing client privilege, Gundelfinger would not give reasons for his decision.
Attorney Vusi Tshabalala claimed this week that police tortured his client, Xolile Mngeni, by suffocating him with a plastic bag and assaulting him.
Mngeni is accused of working with people known to the state and “in furtherance of a common cause purpose, unlawfully and intentionally killed Anni Dewani by shooting her with a firearm”.
According to the charge sheet the murder “was planned or premeditated and committed by a person, persons or syndicate in a common purpose of conspiracy”.
Tshabalala said: “As far as the law requires, any evidence obtained in an irregular manner is inadmissible in a court of law.”
But Mngeni (23) was not taken to see a doctor after the alleged torture.
Tshabalala, when asked if he had laid a complaint with the police watchdog, the Independent Complaints Directorate, said he had not done so yet.
“My biggest concern is that you have a client who is tortured by police and is not then taken to a doctor for medical examination,” he said. “Therefore, in the absence of medical evidence to corroborate the allegations of assault, this would diminish the prospects of being successful with a complaint.”
The torture allegations raised questions about the way evidence was extracted from his client, said Tshabalala, but these would be expanded on in court. “It could result in a trial within a trial to test the admissibility of the confessions obtained by police.”
Thabo Nogemane, 25-year-old Mziwamadoda Qwabe’s attorney, also said this week that his client alleged he had been tortured when he was arrested, despite his cooperation with police. Nogemane would not comment on the allegations that his client had been kicked and beaten. He said the allegations would be detailed in court.
Tshabalala said the Constitution provided everyone with a right to the security of person, which included the right to be protected from all forms of violence and torture.
“In instances where suspects in a criminal case have to be interrogated, to prevent any torture or any abuse of any kind, it would be prudent that such proceedings be recorded,” he said.
“This will require amendments to the law. As the law stands now, there are no requirements that police interrogations have to be recorded.”
Tshabalala and Nogemane said they had not been given copies of their clients’ alleged confessions. Nogemane placed it on record during the court appearance of the three accused last week that they had requested copies of their clients’ confessions from the police.
The police did not respond to a request for comment.
‘Happy with his treatment’
William da Grass, the attorney for 31-year-old taxi driver Zola Tongo, the third man charged with Dewani’s murder, said his client had not complained of police ill-treatment.
“My client has not complained and he is quite happy with his treatment by police,” said Da Grass. “I’ve been involved with him since before his arrest, so I am pretty sure I would have known if anything untoward happened to him.”
Tongo drove the honeymoon couple, 28-year-old Anni and her husband, a 30-year-old British businessman, to Gugulethu on November 13, the night of the murder.
The couple took a late-night detour through the township, although even the popular Gugulethu restaurant, Mzoli’s, suggested in the media as their possible destination, closes at 7pm because of the high crime rate in the area.
Shrien Dewani claimed their taxi was hijacked by two armed men and Tongo was released unharmed. Dewani alleged he was later pushed out of a window of the vehicle.
Anni’s body was found the next day in the back seat of the taxi, with a single bullet wound to her head.
Tongo is negotiating a plea and sentence agreement with the state and details of this are likely to be revealed in the Wynberg Regional Court on Monday.
Although Tongo has allegedly admitted to his part in a conspiracy, Da Grass would not be drawn on what his client has said.
But three reliable sources close to the case said that Tongo had implicated Shrien Dewani in the murder of his wife.
Shrien Dewani had been free to leave the country because, at that stage, he was not a suspect, the Mail & Guardian‘s sources said.
If he could not be persuaded to return voluntarily to South Africa, the National Prosecuting Authority would have to start extradition proceedings, they said.
Gundelfinger, asked last week whether he was aware that his client was a suspect, declined to comment.
In November South Africa extradited Darren Finch, a fugitive, back to Britain.
He fled to Cape Town while out on bail for drug dealing and fraud. Finch was living the high life in the luxurious seaside suburb of Llandudno when he was arrested by South African police.
Earlier this week Gundelfinger said that police had not asked Shrien Dewani to return to South Africa for an identification parade. He said Dewani was traumatised and under sedation at home in Bristol and had not returned to South Africa, as reported in weekend newspapers. The murder made headlines around the world and highlighted South Africa’s high crime rate and extreme poverty.
Mngeni and Qwabe live in Elitha Park, an impoverished area of Khayelitsha. Tongo lives in a granny flat on a property in the more upmarket suburb of Bothasig.
Identification parade
The three accused, who are in custody in Pollsmoor Prison, have been charged with murder, kidnapping and robbery. They have not yet applied for bail.
Last weekend two township witnesses picked out the three men at an identification parade. The witnesses had been asked if they had seen them in the hijacked vehicle in Khayelitsha.
The M&G was told that one of the witnesses allegedly claimed to have seen the trio together in the vehicle on the afternoon of the murder.
Tshabalala said he had recently been approached by Mngeni’s family to take on the case. Mngeni had been living with his grandmother in a small house in the township.
Initially he was given the free services of a Legal Aid attorney, Kim Kinnear, who held one consultation with him. Kinnear stepped down after being informed that Tshabalala was to be appointed.
“Family members were willing to band together to fund his case but, because they are not wealthy, I won’t be charging my normal fee,” said Tshabalala. “I feel strongly about wanting to give back to society, particularly in a case involving an indigent accused.”
Nogemane said Qwabe’s mother, a domestic worker who lives in New Crossroads, had asked him to help.
“It is not a wealthy family, but family members were willing to finance his case,” he said. “They wanted me to represent him.”