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Durban - The State’s case against honeymoon murder accused Shrien Dewani will remain on track, regardless of whether the man who pulled the trigger in the killing is around to testify.
That’s according to various legal experts contacted by the Daily News, following weekend reports that Xolile Mngeni had been admitted to Groote Schuur Hospital in Cape Town and that doctors had said he was in critical condition.
Mngeni was sentenced to life imprisonment for his part in the December 2010 killing of Shrien’s wife, 28-year-old Swede Anni Dewani. In May 2011 he was diagnosed with a cancerous brain tumour and was treated successfully.
The Western Cape High Court found Mngeni guilty of premeditated murder, robbery with aggravating circumstances, and being in possession of an illegal firearm. He was sentenced to life for the murder.
Anni Dewani was killed in an apparent staged hijacking in Cape Town in November 2010.
In April, her husband was extradited to South Africa to face charges of murder.
Two other men, Zola Tongo and Mziwamadoda Qwabe, had entered into a plea agreement with the State a month after Anni was killed.
They are serving 18 and 25 years respectively for their involvement in the alleged staged hijacking. In their plea they implicated Shrien Dewani in the murder, saying he was the mastermind.
Cape Town lawyer and criminal law expert William Booth said a date had not been set for the Dewani trial and a list of witnesses was not yet available. However, he doubted the State would have considered him to be a potential State witness in the light of Mngeni’s plea of not guilty and challenge of the evidence during his trial in the High Court.
“Even if the State had thought he would be a credible witness at the trial, the fact that he is so ill would certainly also have probably let the State decide to not call him as a witness. If he should, he would not be able to perform very well in the witness stand in light of the fact that he is ‘on his death bed’,” said Booth.
University of KwaZulu-Natal law lecturer Franaaz Khan said should Mngeni die it would not make a difference to the case against the British businessman as Mngeni had already been convicted of the crime.
“If Xolile Mngeni was still on trial for the murder and had died, then it would be a problem. The State still has the two other men who pleaded guilty that will testify. They’ve turned State witness as part of their plea agreement with the State,” she said.
Khan also said the State would not rely solely on the evidence of one witness as it had already proved its case against Mngeni, Tongo and Qwabe beyond reasonable doubt.
Gareth Newham, head of the governance, crime and justice division at the Institute for Security Studies, agreed with Khan and also said the evidence needed to be considered in context. He said it would depend on how important Mngeni’s testimony was and added that rarely did one person’s testimony lead to a “fundamental collapse” of a case.
Newham said the State would withdraw a case should it become clear that without the crucial evidence of one witness, there would not be a conviction.
“They wouldn’t knowingly prosecute a case they don’t have a chance of winning. Eighty to ninety percent of the cases prosecuted are successful convictions,” he said.
Poobie Govindasamy, attorney and president of the KwaZulu-Natal Law Society, who has also acted as a judge, said it was difficult to speculate, but he felt Mngeni’s possible death would not have a negative affect on Dewani’s trial.
The trial, he said, would need evidence beyond reasonable doubt and would depend on evidentiary testimony.
He felt the best way to come to a conclusion was to look at the court record and compare the evidence led. Should it be similar to Tongo’s and Qwabe’s guilty pleas, Mngeni’s possible death would not affect the trial.
Both Tongo and Qwabe indicated they would testify for the State and Mngeni had denied his involvement in the killing. In both men’s pleas they said Tongo freelanced as an airport shuttle driver in Cape Town in 2010, using his private vehicle to shuttle clients.
He said he met Dewani and his wife at the airport on November 12, 2010 and took them to the Cape Grace Hotel where Dewani asked him if he knew anyone who could kill a woman for him and he would pay R15 000 for this to happen.
Desperate for the money, Tongo agreed and discussed this proposal with his friend Monde Mbolombo - who turned State witness - and asked if he could recruit a gunman. Mbolombo wanted R5 000 and put him in touch with Qwabe, who was to be paid R10 000.