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Cape Town - A video of a man making admissions in connection with the murder of Anni Dewani could have been tampered with, the Western Cape High Court heard on Monday.
Xolile Mngeni instructed his lawyer that a recording of him in Bellville on the evening of November 16, 2010, was interrupted numerous times and paused while people entered and left the room.
Qalisile Dayimani, for Mngeni, said the video could thus have been doctored, putting its authenticity into question.
Judge Robert Henney said Dayimani had not previously raised this issue.
The court was hearing a trial-within-a-trial to determine whether the State could admit into the court record a statement Mngeni made to police.
The defence objected to the admission of the statement, contending that it was not valid for a number of reasons.
Dewani was shot dead in Gugulethu in an apparent hijacking on November 13, 2010, while on honeymoon with her husband Shrien.
Mngeni has pleaded not guilty to charges of kidnapping, robbery with aggravating circumstances, murder, and illegal possession of a firearm and ammunition.
The State wanted to use the statement, containing “incriminating admissions”, during cross-examination later in the trial.
The defence objected on the basis that Mngeni was apparently viciously assaulted during interrogation, his pleas for a lawyer were ignored, he was told what to say by police officers, and he gave in to pressure.
Dayimani questioned the video's authenticity only after it was played in court. The video shows his client agreeing to make a statement of his own will to Justice of The Peace, Captain Adolf Jonker.
Mngeni, through an interpreter, tells Jonker he is “just a bit scared of the other guy, the one who did this”.
When he shows doubt about making an admission, Jonker repeatedly says the recording can be stopped until Mngeni has consulted with a lawyer.
After a lengthy period of deciding what to do, Mngeni tells Jonker: “I can give a statement now, (and) then I can take a lawyer when I'm in court as a lawyer (now) is going to delay.”
At one point in the video, Mngeni is asked to take his green shirt and blue jacket off so Jonker can see if he has been assaulted.
Mngeni removes his top and no visible marks can be seen on his chest or arms. There are no visible marks when he turns around to show his back.
Jonker reminds the accused that he can be given protection if he feels threatened. He can also file a complaint with the Independent Police Investigative Directorate.
Dayimani interrupted the video at times to object to the way the interpreter translates Jonker's statements to Mngeni. He said critical information had not been relayed to his client.
The video was replayed for the court interpreter to decide whether the translation was correct. He concluded that the gist of what Jonker said was accurately relayed to Mngeni at the time.
Dayimani also eventually conceded that Mngeni had been accurately informed of his rights.
Henney criticised the lawyer for constantly raising new allegations without warning.
“You can't expect the State to close every avenue of escape. This is not a game,” Henney said.
He postponed the trial until Tuesday, instructing Dayimani to go home and look at the video closely to see if there were time gaps or clues showing the video had been tampered with.
He could then cross-examine Jonker on the stand and, if necessary, call in his own expert to testify. - Sapa