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.
