Dewani and the South African criminal justice administration
"Will Shrien Dewani get a fair trial?" is becoming a central issue in the media clamour preceding the extradition proceedings launched by the South African authorities which are pending in a court in London. Mr Dewani, a Bristol businessman, is accused of orchestrating the murder of his soon-to-be wife and has been fingered as a co-conspirator in the alleged plot to murder her by the taxi-driver who was with the couple on the fateful night last November.Under South Africa's post 1994 constitutional dispensation every accused person is entitled to a fair trial. The state is obliged to respect, protect, promote and fulfil this right, along with all of the other rights guaranteed in the Bill of Rights. For Mr Dewani this means that if the system is functioning properly he will get a fair trial. But can it be reasonably anticipated that the system is and will be functioning properly in his case?
It has long been acknowledged by the South African government that the criminal justice administration is, to use its word, "dysfunctional". In August 2008 the then Deputy Minister of Justice, Adv Johnny de Lange, presented a proposed 7 point plan to parliament aimed at addressing the various shortcomings in the system that had been identified in a comprehensive review of its track record. The review of present weaknesses in the system identified in a performance and capacity analysis "...provides overwhelming evidence of a dysfunctional criminal justice system that spans across multiple departments and agencies involving vast numbers of personnel, processes and information that has (sic) to function harmoniously, resulting in high levels of fragmentation, dysfunctionality, many blockages and obstacles, high levels of unaccountability and overall system weaknesses."
These shortcomings have not been addressed. A new deputy minister and minister were appointed in the post-Polokwane changes and the seven point plan faded into the background, like its champion.
The quantitative analysis of data gathered by the World Justice Project for its Rule of Law Index confirms the accuracy of the diagnosis presented to parliament by Adv De Lange. In 2009, South Africa had low scores for the following sub-factors of the rule of law index:
- court access without undue procedural hurdles
- judicial officers competent and of sufficient number (one appeal court judge calls this weakness "the affirmative action chickens coming home to roost")
- crimes against persons prohibited and punished
- safe and accessible courts and
- police sanctioned for misconduct.
While these systemic factors do not necessarily imply that a fair trial is impossible in SA, they do give cause for concern and will be given due consideration by the court seized with the extradition application, if the evidence of their existence is presented by the litigants.
It is however in the field of case specific factors that the formidable team instructed by Mr Dewani is likely to concentrate its efforts to persuade the court that a fair trial in SA is not attainable. While these case specific factors are in some ways symptomatic of the systemic malaise in the SA criminal justice administration, in other ways they are unique to the situation in which Mr Dewani finds himself.
It is quite clear that Mr Dewani does not enjoy the benefit of a professionally proper relationship with the Chief of Police in SA, Bheki Cele. At first, their interaction was cordial and Commissioner Cele in fact let Mr Dewani return to Britain saying "Mr Dewani is not a suspect in the matter." More recently however, and following the acceptance of a plea bargain by the Cape High Court, in which Judge President Hlophe presided, the Commissioner has seen meet to refer to Mr Dewani as a "monkey" and to prejudge his guilt in the case, notwithstanding the latter's protestations of innocence. This is evidence of a less than objective attitude on the part of the Commissioner and is likely to be exploited during the extradition hearing.
The order in which the various alleged conspirators are being dealt with in court and the allegations of police torture raised by one of them have bearing upon the fairness of any possible criminal proceedings against Mr Dewani. The acceptance of the plea bargain concluded by the taxi-driver puts the other accused, all of whom deny their guilt, at a subtle disadvantage. Whether there will be a separation of their trials is still an open question. The role of the Judge President in leading the court in which the case will be heard, is also problematic. Ever since the Cape Bench divided roughly equally on the issue of whether or not there was a conspiracy to discredit the Judge President (one judge actually changed sides in that peccadillo) there have been supporters and non-supporters of the Judge President in the many and varied controversies in which he has become embroiled from time to time. This is not conducive to an impartial hearing. The oft ventilated question marks that loom over the integrity and probity of the Judge President himself will be matters of considerable concern to the court hearing the extradition application. If, as is likely, the Judge President does not hear the case himself, it is still by or through him that the trial judge will be allocated.
While it is so that there will be no jury in the intended trial of Mr Dewani, it is fair to suggest that there is an ongoing trial by media because of the high profile attention accorded to the case by the SA authorities in their understandable desire to control the possible damage to tourism and SA's image which the murder of a beautiful young tourist could occasion. The sub judice rule no longer applies in SA, but an English court may be swayed by an argument that the firestorm in the press will be prejudicial to Mr Dewani. The televised hugging, patting and stroking of the father of the deceased by the prosecutor in court after the plea bargain hearing reflects poorly on his objectivity and may leave Mr Dewani with the perception that he is in an unnecessarily hostile environment. One in which he is not being prosecuted by a functionary whose office is supposed to act "without fear, favour or prejudice" in a professional and objective fashion, both according to the Constitution and the newly published code of conduct for prosecutors.
Other human rights, such as those to dignity, privacy and psychological integrity may also be raised by Mr Dewani, if he strenuously opposes the application for his extradition. As an awaiting trial or convicted prisoner in SA he will become acquainted first hand with one of the most dysfunctional aspects of the criminal justice administration in SA: the inaptly named correctional services facilities. The overcrowding, disease and risk of being raped in prison (all cruel, inhuman and degrading by the standards of the European Union) could weigh heavily in the scales of justice during the extradition application. Ironically, it may turn out to be the SA criminal justice administration which will be on trial at that hearing. Much will turn on the weight accorded to the evidence of systemic and specific factors militating against the prospects of a fair trial.
Paul Hoffman SC
January 2011
