Watch the Sitholes every Thursday at 17h30 on e.tv
London - For most South Africans it is frustrating. For the family of murdered honeymoon bride Anni Dewani, it must be torture.
Just when the British courts appear to endorse the extradition of murder suspect Shrien Dewani, he finds a new legal route to block his extradition and possible trial.
Last Friday saw the latest chapter in the saga when Dewani signalled his intention to appeal to Britain’s Supreme Court in his near three-year battle to avoid deportation.
On the same day, the South African authorities issued a written undertaking to return Dewani to the UK if he was not well enough for trial, his legal team was applying for “certification of points of law of general public importance” to enable him to proceed with an appeal.
Dewani, who remains remanded in a Bristol hospital where he is being treated for depression and post-traumatic stress disorder, denies any involvement in the murder of his wife who was shot in a bogus hijacking and kidnapping in Gugulethu in 2010.
But while Anni’s family and the South African authorities keep saying that the due legal process must be observed, what options are still open to Dewani and how long might it take for a final, final decision?
Anand Doobay, an extradition lawyer at Peters & Peters in London and a member of the Extradition Lawyers’ Association, said Dewani still had to clear several hurdles before his case could be heard by the Supreme Court and that an appeal to the European Court of Human Rights – the court of last resort – was not a foregone conclusion.
The care home owner’s application to the High Court last week for “certification of points of law of general public importance” would probably be decided in the next few months.
The High Court judges could refuse to issue a certificate – which he needs for an appeal to be heard in the Supreme Court. That would effectively block any further legal moves in the UK. However the judges could issue a certificate, yet not grant permission to take the case to appeal in the Supreme Court.
Under British law, if the High Court does issue Dewani with such a certificate, he could go directly to the Supreme Court for permission to appeal.
Doobay said: “The High Court quite often issues a certificate but refuses permission for an appeal to the Supreme Court because it wants to allow the Supreme Court judges to decide if they want to hear the appeal.
“If the Supreme Court grants permission for an appeal, then that could take about nine months to be heard. However, they don’t normally interfere with the findings made by the magistrate’s court or high court.
“… the Supreme Court could consider any significant change in his medical condition by the time of the appeal or (it could consider) the legal approach of the lower courts.” That would focus on whether the lower court had interpreted the law correctly.
If Dewani loses in the Supreme Court, theoretically he could apply to the European Court of Human Rights (ECHR) in his battle to fight extradition, said Doobay. He would have to act quickly though to win a “Rule 39” interim measure to prevent his removal from the UK before a possible full ECHR hearing.
“These interim measures are only granted in exceptional circumstances and the applicant would normally have to prove that their extradition posed a risk to their life or health. It’s entirely possible that this risk could apply in any country, but it’s rare. If he applied for interim relief, it can take three to four weeks for a decision but this needs to come quickly in order to stop extradition.
“If he was given interim relief in time, remained in the UK and successfully applied to get his case heard at the ECHR, that could take many years.”
His opinion was echoed by Bill Bowring, a professor of Law, Birkbeck College at the University of London who specialises in human rights legislation. He said on average only 12 cases a year were heard in Strasbourg and he could not remember a recent one involving South Africa.
He said: “It’s a terribly slow process and can take up to six years to come to court. But even then, if it’s gone through the courts here, judges are very thorough on human rights issues because they know it could be overturned in Strasbourg.
“They won’t leave any room for manoeuvre.”
Independent Foreign Service