Civil Case Against Dewani Unlikely To Work

Sunday Argus
Sunday, 14 December 2014

Fatima Schroeder

Civil Case Against Dewani “Unlikely To Work”

South African  prosecutors  failed to prove  that  British  businessmen  Shrien Dewani
had a hand  in the murder  of his Swedish wife, Annia , but there are some  prospects
for this being  done in a civil action  in the UK , according to several local legal
experts.

It would be  difficult  for her family to  prove Anni  would not have married Dewani  if
he had  disclosed his  sexual preferences  prior to the wedding and an  action against
him  for the loss of  her life  was  a much  stronger  option , several experts said.

Such an action,which  does not exist  in South African law ,  is allowed  in the UK ,
said  personal injury attorney Tzvi Brivik.

All the  family would need to  do is prove that , on a balance of  probabilities ,
Dewani  was  responsible  for her death.

This  is a much lower  hurdle than the burden of proof  the South African  criminal  trial
carried,  which was to  prove his  guilt beyond  reasonable doubt,  Brivik explained.

The Western Cape High Court  this week  acquitted  Dewani  of Anni’s  murder,
finding that the case against  him was weak and that there was no reason  for him to
answer to it.

It was  a heart-wrenching scene on the  steps of court when the Hindocha family
broke down  as they addressed  the media after  the court ruling.

Anni’s  uncle, Ashok Hindocha, later  issued  a statement in which he said the  family
was seeking legal advice  on instituting  a civil action for damages  against Dewani.

It is their view  that , had Dewani  disclosed  his  sexual  orientation  and his sexual
history with men  prior to the  wedding Anni  would not have  agreed to marry him.,
and her  family  would not have agreed to it either .

But  Brivik said that it  would be  hard to  prove that  Anni would not have gone
through with the  wedding because she might   have gone  against her family’s
wishes.

She is not available to  confirm that she  would have  called it off, he added.
“They  would have  to  show that the decision  to  wed  was  not  hers and that  it was
the  family’s decision,” he explained.

He added  that all the  family  would probably  be able to  do in such a case was
recover  the costs of the  couple’s  lavish  wedding in India.

However,  a better option  would be  for the  family  to  sue for the loss of the love
and  companionship they would  have had from her and  prove on a balance of
probabilities that he was  responsible  for her death.

Her youth  would  weigh heavily in favour of a greater  amount of damages , he said.
“There  has been  mention of the  possible  basis  for a  civil suit being the deception
of his orientation. I am not sure  how far that will  stretch  for a damages  claim  to
stick.

“In my view  a civil suit , depending on the  justice system employed,  would rather
be  orientated  around a “wrongful death” suit. The burden of  proof  would rest on
the plaintiff  to prove that on a balance of probabilities  Shrien was  responsible  for
her death.  Schreuder explained that , “the  barometer is set at a roughly 51{dcbd125d7e4001924a4d570ec927b32311b1a9a7ffee167db7c5dd7f2fba3134}
possibility  or probability  that  Shrien  had been responsible  for her death.  Civil
Litigation  attorney Karusha Lyer added that the  kind of action  the Hindochas were
considering  was  risky.

“Just  because he was  gay  or  bisexual , it  doesn’t   mean that she wouldn’t  have
married him. We don’t  know  that Anni  didn’t know that already , she said.

At the end  of the  day , the  decision to wed would have been hers , unless they
could  prove that she would have  listened  to them  if they  forbid  the marriage.