The Trial of Xolile Mngeni – a cesspit of controversy

To anyone who has followed the story of Anni Dewani’s horrific murder, it may comes as a surprise to hear that the trial of Shrien Dewani was actually much less controversial than the 2012 trial of Xolile Mngeni, one of the two hijackers. Handled by Justice Robert Henney, Mngeni’s trial was marred by glaring anomalies and controversy that raised numerous red flags, particularly when viewed in concert with revelations that came to light during the trial of Shrien Dewani in late 2014.

Before discussing the anomalies, it is worth mentioning as an aside, a claim that has often been put forward by those who suggest that Anni’s shooting was a murder planned by her husband. The claim proposes that Mngeni’s defence was funded by the Dewani family, using the cover of a mysterious Kenyan philanthropist, “Mr Edmondo”, in order to get a preview of the case against Shrien. No proof has ever been put forward to support this allegation, so it remains pure speculation, however its worth bearing in mind that even if this allegation were true and Mngeni’s defence was funded by the Dewanis, there would be nothing illegitimate or underhand about such a legal tactic. In fact, faced with a malicious prosecution on foreign soil, such a tactic may well have been prudent.

The background to Mngeni’s trial and conviction

Xolile Wellington Mngeni was arrested in the early hours of 16th November 2010. He was the first of the suspects to be taken into custody and quickly confessed to his role in a robbery that went terribly wrong. This confession is on video tape, and was made to Captain Jonker of the SAPS.

Later than same day, Mngeni took police on a “pointing out” excursion – also videotaped – in which he walked them through the areas where the crime occurred and described the events in detail. This completely independent account largely mirrored the account given by Shrien Dewani in the immediate aftermath of the hijacking.

At trial 2 years later, Mngeni, now riddled with the latter stages of brain cancer, made the nonsensical decision to plead “not guilty” and claimed to have an alibi proving he had nothing to do with the crime. This strategy, of course, failed and he was convicted of armed robbery, murder and firearms offences. During the trial, Mngeni’s defence team contested the admissibility of his videotaped confessions, alleging that his self-incriminating statements to police had been extracted via torture. This application prompted a “trial within a trial” with Judge Henney eventually ruling the confessions admissible and using them as the basis for finding Mngeni guilty of the premeditated shooting of Anni Dewani.

Anomalies

The first and most obvious anomaly in the trial of Mngeni, was Judge Henney’s erroneous conclusion that Mngeni was the shooter. This issue has been comprehensively dealt with in a prior article – who pulled the trigger and why it matters. No primer residue tests were carried out and the ballistics tests were flawed. Simply put, there was obvious negligence in Henney reaching conclusions without the benefit of easily obtained forensic results. In Shrien Dewani’s 2014 trial, the Judge ordered these forensic tests be carried out properly and they proved conclusively that Qwabe was the shooter, not Mngeni. This finding is set out comprehensively in paragraphs 24.1.24 through to 24.1.28 of the Dewani Judgement. The revelations beg the question: why was Judge Henney so ambivalent to the absence of the primer residue tests that are stock standard in every shooting case?  

The second obvious anomaly, was the fact that Judge Henney’s verdict in the Mngeni trial was based partly on Mngeni’s own confession to a robbery gone wrong – not a planned murder. Essentially, Henney accepted the guilty aspect of Mngeni’s confession whilst ignoring the particulars which described a completely different scenario, one where Shrien Dewani was an innocent victim of a bungled robbery resulting in Anni being shot dead by Qwabe during a struggle. This crucial issue is glossed over in the Mngeni Judgement, which references Mngeni’s taped confession to Captain Jonker, but totally omits those parts of Mngeni’s confession that fly in the face of the planned murder theory. Why would Judge Henney not even attempt to address or explain this anomaly? Or worse, why would he knowingly disregard key aspects of the confession that didn’t fit with the ‘hit’ story?

A third significant problem with the Mngeni trial, was the fact that the two most important witnesses (Qwabe and Mbolombo) perjured themselves when giving evidence. Monde Mbolombo admitted to this perjury when he testified in the trial of Shrien Dewani.

At the heart of Mngeni’s conviction, was Justice Henney’s acceptance of the truthfulness of the testimony given by Mngeni’s hijacker accomplice – Mziwamadoda Qwabe. Paragraph (92) of the Mngeni Judgement states:

[92] Mr Qwabe was consistent right from the beginning about the precise role he played in furthering the crimes with which he had been charged.

This unfortunately phrased paragraph has proven to be thoroughly misguided. Qwabe’s “consistency” did not commence “right from the beginning” and come the Dewani trial two years later, “consistency” would prove yet again to be Qwabe’s achilles heel when the extent and frequency of his material contradictions rendered his testimony worthless. Paragraphs 24.1.17 through to 24.1.30 of the Dewani Judgement outline Qwabe’s lies and deceptiveness in more detail.

Confessionand collusion

Paragraph [42] from the Mngeni Judgement reads:

[42]They saw each other again on the Sunday when the accused (Mngeni) brought the firearm back to him (Qwabe). He (Qwabe) was arrested later in that week following the incident. He (Qwabe) told the police that he would co-operate with them after he had the opportunity to speak to the accused (Mngeni) who had been arrested before him. He (Qwabe) asked the accused (Mngeni) if he told the police the truth and he (Mngeni) said “yes”. Thereafter he (Qwabe) also told the police what happened and made a confession on 18 November 2010.

Although this paragraph disingenuously implies that Qwabe made a single confession, it is a matter of factual record that Qwabe actually made two confessions on November 18th 2010. He was arrested at 00:05 on that day, and according to police, was highly cooperative and confessed to his role in the operation within an hour of his arrest, after being allowed to speak with his accomplice, Xolile Mngeni, who had already confessed to a robbery that turned fatal. In his initial confession, Qwabe made no mention of the operation being a planned murder. He told of a robbery that went awry, and he described Shrien Dewani as a victim who pled for his wife and himself to be freed unharmed. Qwabe’s version of events largely corroborated the story told by Mngeni. And the one told by Shrien Dewani. 

When Mngeni told Qwabe that he’d been truthful with the police, Qwabe realised that he was cornered; he could not deny his involvement in the heinous crime. He had murdered a tourist during the commission of a violent armed robbery, and his accomplice (Mngeni) had already provided the police with the information they needed to convict Qwabe and send him to jail for life.

The facts suggest that after Qwabe was allowed to consult with his second arrested accomplice, Mr Mbolombo, they made the joint decision to attempt to salvage what was left of their own lives, and in the process unleashed a firestorm of collateral damage that would change the course of the investigation and affect many lives. Some 16 hours after his initial confession, Qwabe made a second “confession” in which he changed his story to say that the operation was actually a planned murder. In so doing, he gained leverage that would enable him to negotiate a minimum non-parole sentence of only 17 years behind bars, in exchange for testimony incriminating “the husband”. Mbolombo followed suit the next day, also changing his story to incriminate Shrien Dewani – in exchange for total immunity from prosecution. This sequence of events is fully chronicled in the list of true claims regarding the case.

Given the fact that Qwabe obtained a lighter sentence in exchange for his testimony, and notwithstanding Qwabe’s denial that this was his motivation for “confessing”, it is striking that the Judge in Mngeni’s trial appeared to place a large degree of trust in Qwabe’s broadly untested version of events.

Judge Henney

It would appear that Judge Henney was unduly keen to accept Mr Qwabe’s evidence as being truthful. This seems strange, particularly when one considers that Anni Dewani’s murder was a case that had attracted global interest and the court was acutely aware that the veracity of the “hitman” story was itself a matter of considerable conjecture. In actual fact, 3 of the 4 known conspirators to the crime initially admitted that it was a robbery gone wrong – not a planned murder. Any scrutiny of the actual sequence of confessions would have highlighted the alarming inconsistencies.

Perhaps even more interesting than the evidence that was submitted in the trial of Mngeni, was the evidence that wasn’t submitted. The absence of standard primer residue testing has already been discussed, but what other evidence might one have expected the prosecutors to put forward when seeking to convict an alleged hitman?

Paragraph 7 of the Judgement reads:

[7] Tongo was the only person part of this “alleged” conspiracy who knew the deceased and her husband due to the fact that he was the driver who transported them whilst they were guests at the Colosseum Protea Hotel.

Aside from the bad grammar and factual error (the Dewanis stayed at the Cape Grace Hotel, not at the Colosseum), this paragraph should act as a flashing red beacon to anyone seeking to understand this case. Its there in black and white; Tongo was the only member of the gang who had actually spoken to the alleged orchestrator of the “hit”.

Why then did the State not call Mr Tongo as a witness? Surely it was of crucial importance in building their case against Mr Mngeni, and to corroborate the evidence of Mr Qwabe? The Court even states explicitly in its Judgement that despite contradictions in Mr Qwabe’s evidence, the court had no option but to accept it, since Mr Tongo wasn’t called as a witness, and therefore alternative versions of events could not be adequately tested.

If Zola Tongo was telling the truth about the “hitman” story, surely it would only have served to bolster the State’s case against Mngeni, and add further weight to their push to extradite, prosecute and try Shrien Dewani?

Was the NPA worried about subjecting Zola Tongo to the rigours of cross examination?

Did they fear that a poor witness performance from Tongo would scupper their ongoing battle to have Shrien Dewani extradited from Britain?

Why did the NPA neglect to perform stock standard primer residue tests for the Mngeni trial? Why were they so keen to avoid Qwabe’s version of events being put under the microscope?

Did Judge Henney adequately discharge his duty in ascertaining the veracity of Qwabe’s evidence when using it to convict another man of the most serious of crimes? 

Was Judge Henney acting to give the impression of pursuing the truth, when in actual fact he was merely rubber stamping a conviction to facilitate the eventual overarching prosecution of Shrien Dewani? If so, what might have driven Judge Henney to such action?

Does any of this sound like the legitimate pursuit of truth and justice for Anni Dewani? 

Could it be that the Section 204 and Section 105A plea deals entered into by Rodney DeKock’s Western Cape prosecutor’s office, placed an enormous amount of pressure on the South African judicial system? 

Did this pressure to pin the killing on a foreigner come from even higher powers within South Africa’s establishment? 

We may never know the answers to these questions. However it is clear that Judge Henney has a lot to answer for. His handling of Mngeni’s trial was not in keeping with his oath to uphold the law without fear, favour or prejudice. His negligence caused a great deal of unnecessary heartache, pain and suffering.

Judge Henney failed many people but first and foremost he failed Anni Dewani.

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