A PROBATION officer recommended that “correctional supervision” was the most plausible sentence for a Reservoir Hills mechanic, who was acquitted on the charge of murdering his friend but convicted on two lesser charges.
Ashen Vishnudath was before Judge Jacquline Hencriques at the Durban High Court for a pre-sentencing hearing on Thursday, when Nqobile Luthuli’s recommendations were scrutinised.
Vishnudath was charged with the March 2019 murder of Navendran Govender, also a Reservoir Hills-based mechanic.
At the time, Vishnudath was seated in a Nissan Almera that he wanted to sell to Govender. It ended with Govender being shot thrice in the head.
Vishnudath testified previously that Govender attempted to shoot him and he acted in self-defence.
He was also charged with the unlawful possession of a firearm, unlawful possession of ammunition, robbery with aggravating circumstances, fraud and escaping from Westville Prison.
Although Henriques found that Vishnudath had lied during his testimony, she said that his self-defence claim couldn't be ruled out completely, based on evidence presented in court.
Therefore, he was acquitted on the murder charge.
He was convicted for the unlawful possession of a firearm and escaping from lawful custody.
In compiling her report, Luthuli also interviewed Vishnudath, his father and his partner, a registered nurse, who lived with him at his family’s home in Reservoir Hills.
The couple were parents to a young child.
Luthuli found that the accused hailed from a “well-structured and warm home” and that he was a “compassionate and responsible primary provider to his family”.
Luthuli said it was “natural” for the child to miss an absent father.
“The child did verbalise that she missed her father and it would be beneficial for the child to have interaction with him at a younger age.”
Luthuli said Vishnudath admitted to occasionally indulging in alcohol and dagga.
On being convicted for the two offences, Luthuli said he maintained his innocence regarding the firearm-related charge as it was owned by the deceased, but admitted he escaped from Westville Prison.
“He escaped from custody because he was brutally assaulted by inmates.”
Luthuli said Vishnudath’s family showed her pictures of his injuries after the assault.
About Govender’s death, Vishnudath told Luthuli that he was “not thinking straight. I was thinking about my safety. You can see me how you want to see me, but I am not a threat to anyone.”
Luthuli said Vishnudath informed her he had no previous convictions or pending matters and he had attained a mechanical engineering qualification from eThekwini College.
From her observation, Luthuli said Vishnudath could be rehabilitated and reintegrated into his family and society, and that his child’s right to emotional support was one of the main factors in her recommending correctional supervision, according to Section 276 (1)(h) of the Criminal Procedure Act 51 of 1977, with stringent conditions.
Senior State advocate Cheryl Naidu opposed Luthuli’s recommendations and asked that Vishnudath be handed direct imprisonment.
Naidu challenged Vishnudath’s assault pictures in relation to his escape from custody in August 2019. Naidu argued that the pictures in question were taken after an assault in 2021, during the trial.
Later, Luthuli accepted that she had been “lied to” about the assault pictures.
Naidu questioned Luthuli about Vishnudath being his family’s primary breadwinner as his mother and partner had jobs and, on the day of the Govender’s death, he was due at his place of employment, a car-hire company, where he was still under probation, but he absconded and was out drinking with a friend.
Naidu said it was untrue that Vishnudath had no previous convictions as he had been previously found to be in possession of dagga, when it was a prohibited substance.
She maintained Luthuli was misled by Vishnudath and his family.
Attorney Ravindra Maniklal, who represented Vishnudath, questioned Luthuli’s suggestion that his client spend a further 10 months in custody before his release, whether there were programmes outside prison for his continued rehabilitation and if she had considered the time he already spent in custody when compiling her report.
Luthuli said the further 10 months would aid Vishnudath’s rehabilitation.
She agreed that there were rehabilitation programmes outside prison but the ones inside prison were more intensified and confirmed that she was mindful of Vishnudath’s time in custody.
Maniklal maintained Vishnudath was the primary provider for his family as he ran a business from home and was employed at the time of Govender’s death.
He referred to an affidavit from a manager at the company confirming his employment and that he was once warned not to carry a firearm to work.
The attorney said his client had the skills to run a business and long-term imprisonment would be detrimental to his family, especially the child.
Luthuli agreed.
Henriquies asked, “when a primary caregiver or a parent are imprisoned, are there steps to accommodate this?”
Luthuli said “yes”.
SUNDAY TRIBUNE