“Not the A-team of contract killers” is how the prosecutions advocate described shuttle taxi driver Zola Tongo and his accomplices, who have accused British businessman Shrien Dewani of masterminding the murder of his wife Anni on their honeymoon in Cape Town.
Advocate Adrian Mopp told the high court in Cape Town that the co-conspirators were all in financial difficulties and lured by the money they had been offered.
“They could barely organise transport from Khayelitsha to Gugulethu,” Mopp said. “We are dealing with an amateurish attempt. If it were not for the killing of the deceased, it would actually be comical, the manner in which this matter was set about.”
The spotlight at the trial of Dewani for the murder of his wife has now turned to 35-year old Tongo’s reliability as he is the only witness who had contact with Dewani.
From the maximum section of Malmesbury Prison, where he is now serving an 18-year term in prison for his involvement in Hindocha’s murder, Tongo is keeping a close eye on proceedings.
A first-time offender who has no previous criminal convictions, Tongo regularly phones the prosecuting team to complain about the way the trial is going or what journalists have written, said Mopp.
Dewani has pleaded not guilty to the five charges against him, with his defence team maintaining that the couple were the victims of a kidnapping and ransom plot that went wrong.
Lack of evidence
The defence has applied for a dismissal of the case in a discharge application under section 174 of the Criminal Procedure Act, claiming a lack of evidence against Dewani after the state closed its case.
“The state’s whole case was based on a conspiracy. Tongo is the pillar on which this case rests and if that pillar falls then the whole case collapses,” defence advocate François Van Zyl told the court. “Tongo proved to be a completely unreliable witness.”
The trial proceedings have been pushed to a knife’s edge as the Deputy Judge President for the Western Cape, Judge Jeanette Traverso, has courted controversy with her frequent scathing criticism from the bench of the state’s case against Dewani.
On Tuesday, Traverso asked Mopp what he thought about the evidence of Tongo. “Do you agree with me that the state’s case rests on the evidence of a single witness, as regards the conspiracy?” said Traverso. “He was an unsatisfactory witness, even on your account.”
Mopp responded that the judge should not “draw the proverbial line through it”.
Swedish engineer Anni Hindocha was found dead in the back seat of Tongo’s vehicle on November 14, 2010 with a single bullet to her neck. Both Tongo and Dewani were released unscathed from the vehicle.
Tongo struck a plea and bargaining deal with the state, which was approved by the Hindocha family. The taxi driver asked his former attorney William da Grass in 2010 if he could arrange a meeting with Anni’s father Vinod Hindocha so he could apologise for her murder.
Hindocha, who has since relocated with his wife and family to Cape Town for the duration of Dewani’s trial, declined to meet with Tongo at the time because he was too emotional.
Life in ruins
Tongo told the court his life was now in ruins, as he faced the Hindocha family from the witness box to give testimony against Dewani. “It was a very bad period in my life,” said Tongo. ” I did a terrible thing.”
The father of five was asked by prosecution advocate Shireen Riley why he had handed himself to police on November 20, 2010. “Because what I did was wrong,” Tongo told the court. “Secondly, I was a fool. Thirdly, I was misled.”
If Traverso decides in the defence’s favour in this section 174 application, Dewani would be found not guilty and free to go home. Traverso said she would give her decision on December 8.
The Criminal Procedure Act does not allow for an appeal on the section 174 application, which is frequently lodged in clear-cut criminal cases, where to proceed would be a waste of time, legal experts told the Mail & Guardian.
In a case like the Dewani trial, where the State has one key witness who had contact with Dewani and there is a wide array of circumstantial evidence, it rests solely on one individual to make a ruling. Traverso’s two assessors, who sit on either side of her in court, play no role in this Section 174 application when Traverso makes her factual finding.
Views of the assessors
However, if Traverso makes a ruling against the defence, and the State closes its case, or decides to call witnesses, then the critical role of her two assessors comes into play again. In this instance, the views of the assessors will be taken into account when Traverso gives her judgment.
In a 127-page submission to the court, Van Zyl argued there is “no credible evidence” that implicates his client in the case.
The defence also argued that the state’s other witnesses Mziwamadoda Qwabe, who is serving 25 years for his role in the murder, and hotel receptionist Monde Mbolombo, who was granted immunity, were “poor” witnesses whose evidence could not be relied upon.
Tongo’s accomplices have backed up his version of events, apart from Xolile Mngeni, who was sentenced to life for killing Hindocha and died of a brain tumour last month.
In his submission opposing the application for dismissal, Mopp referred to other court examples that would support the propositions he put forward for how the court should approach discrepancies in witnesses’ versions of events.
“In criminal cases, discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time or due to mental disposition such as shock at the time of the occurrence,” said Mopp. “Irrelevant details which do not erode the credibility of the witnesses cannot be labelled as contradictions or omissions.”
While the defence submitted in its application that it was improbable that the accused would request Tongo to find hit men to kill his wife within 30 minutes of meeting him, the taxi driver testified that when Dewani said he had a job he “thought the hunger was over”.
The state stated in its submission that there were no detailed discussions regarding how and where the murder should take place.
“It took two attempts to get the plan off the ground and there clearly was no checklist of what to do for the participants to tick off as they went along,” stated Mopp in his submission. “Sadly, all of the participants were drawn by the lure of the money, including Tongo, who expected his business to grow with the support of the accused.”