A "confession" made by a man on trial for Anni Dewani's murder should not be admitted because it was made under duress, the Western Cape High Court heard on Tuesday.
Qalisile Dayimani, for accused Xolile Mngeni (25) said his client was assaulted between 5.20am and 7.30am on November 16, 2010, and thus forced to give a statement and then point out linked crime scenes the following day.
He said the court should be mindful that the State could not account for what happened in this time.
The court was hearing closing arguments in a trial-within-a-trial to decide whether it should admit the statement and pointing out as evidence.
Mngeni has pleaded not guilty to hijacking, robbing and killing Dewani in Gugulethu on November 13, 2010. She was on honeymoon with her husband Shrien at the time.
Judge Robert Henney wanted to know what evidence the defence had to prove the assault.
"We have a barrage of policemen saying he did not get assaulted," he said.
Dayimani hinted at a possible conspiracy to cover up the assault by the nine police officers who testified, thus making evidence hard to pin down.
The judge said it was hard to believe the officers would go to all the trouble of making a video of the statement being taken and then present the evidence in court.
"[If that is true,] they must be very clever to think they could get away with it," Henney said.
The defence criticised the manner in which Captain Adolf Jonker took the statement.
Firstly, he did not check Mngeni's whole body for any injuries.
"Jonker could only look at the upper body of the accused. The assertion was that the accused was assaulted on his lower parts," Dayimani said.
Secondly, the policeman did not allow Mngeni to exercise his constitutional right to a lawyer.
Henney said he would have to decide whether the law made it the duty of a police officer to arrange legal representation for an accused or whether it was simply to explain their rights.
"If they know the suspect was walking into a minefield, is there a duty to stop him from detonating that minefield?"
The trial continues.