Cape Town - After fighting for justice for more than a decade, a Pietermaritzburg family secured the harshest sentence they could - 15 years’ imprisonment, in South Africa’s first successful private prosecution for murder.
The Asmall family’s hard work may have secured them a spot in South Africa’s history books, but it was achieved only because Western Cape prosecuting authorities declined to press charges themselves.
The family’s ordeal dates back to June 28, 2005 when their daughter, 27-year-old Rochelle Naidoo, was shot dead.
Her boyfriend, Faizel Hendricks, was initially charged with her murder.
He denied playing any role in her death and claimed he was in Rochelle’s Palm Mews flat in Woodstock when he saw her grab his unlicensed .38 Special revolver and shoot herself.
The Directorate of Public Prosecutions later withdrew the charges against him on the basis that there was not enough evidence to secure a conviction.
A judicial inquest followed in 2008 when it was suggested Naidoo could have committed suicide. The inquest concluded the cause of death was unclear.
But Rochelle’s father, Yunus Asmall, and his wife, Sara, would not rest until they had justice and opted to prosecute Hendricks privately.
They succeeded in their efforts when the Malmesbury Regional Court found Hendricks, now aged 43, guilty in 2014.
The case recently returned to the Malmesbury Regional Court for sentencing.
Magistrate Michelle Adams pointed out that the legislature had prescribed a minimum sentence of 15 years for Hendricks’ crime. A court can only deviate from imposing that sentence if it finds there was substantial and compelling circumstances to justify such a departure.
However, she said she was unable to find such circumstances in Hendricks’s case .
She was unimpressed by a report which Paarl probation officer Eugene Moulder had submitted to the court; describing it as “lacking”.
Moulder recommended correctional supervision be imposed.
Adams said Hendricks did not show remorse for his actions and he had misled the court, the police, and even his own advocate over time.
This week private prosecutor Gideon Scheltema SC told Weekend Argus the family was satisfied Hendricks received a fair trial.
He confirmed the verdict in a private prosecution for murder was a first for South Africa.
“Despite the fact that the private prosecution was successful, I certainly hope that, in future, it wouldn’t be necessary for private individuals to prosecute each other because that constitutional obligation rests with the police.”
Yunus Asmall spoke to Weekend Argus about the family’s 11-year ordeal.
He said they refused to accept Rochelle had committed suicide as there were many aspects of her death which made no sense to them.
Asmall said he recalled Rochelle had told her mother she had bought her and her sister gifts.
When he and his wife went to view her body, the two gifts were in the boot of her car.
He said anyone who had been beaten as badly as Rochelle had been would not have had the energy to turn a gun on themselves and pull the trigger. “Nobody believed that she would have done that to herself.”
He said he had been confident a private prosecution would be successful.
However, it meant he and his wife had to invest much of their time preparing to try Hendricks.
“We just wanted to know what happened.”
They spent many nights poring over documents and evidence.
It all came at an enormous cost - both financially and emotionally - which Asmall said he had not yet even begun to calculate.
The expenses include flights, accommodation, car hire, the cost of a private prosecutor, paying experts and the printing of documents.
In addition, Asmall had to spend time away from his business.
He said he was fortunate he had the resources to take on such a massive task.
“I don’t think it’s fair to do that to people, that’s the State’s work.”
He has not yet made any decision on whether to take action against the State to recover costs.
Hendricks, of Cloetesville, has lodged an application for leave to appeal, which is scheduled to be heard next month.
He is in custody after an application for his release on bail, pending the outcome of his leave to appeal application, was refused.
First case of its kind to succeed
The Asmall family’s case was not the first private prosecution in South Africa.
In 1988 the then-attorney general of the Cape Province Niel Roussouw declined to prosecute the 13-man task force responsible for the murder of two youths and a 21-year-old in Athlone in October 1985, in what is now known as the Trojan Horse Massacre.
An earlier inquest found the task force was negligent and caused the deaths of the three when they opened fire on stone throwers while hiding in crates on the back of a moving South African Railways truck.
Michael Miranda and Shaun Magmoed, aged 11 and 16, and Jonathan Claasen, 21, were killed.
But Roussouw refused to press charges and was supported by then-justice minister Kobie Coetzee.
Magmoed and Miranda's families attempted the first private prosecution against South Africa’s security forces, but the case did not yield the same result the Asmall family achieved.
In December 1989, the Cape Town Supreme Court found they had failed to prove the accused shared a common purpose to kill the youths. The 12 policemen and an army officer were acquitted.
The Asmalls’ private prosecution is the first in South Africa in which a conviction was achieved and a long-term imprisonment sentence imposed.