Director of Gun Free SA, Adele Kirsten, said Sukhraj should be prohibited from owning a firearm.
Last week, Sibonelo Seni Mkhize, 39, was convicted of killing Sadia, 8, and his co-accused Siyabonga Bulose. He was sentenced to two life terms and 15 years for robbery with aggravating circumstances. The sentences will run concurrently.
During the trial, a ballistics report revealed Sukhraj had fired the shots that killed Sadia and Bulose during a botched hijacking on May 28, 2018, in Shallcross.
Commenting on the case, Kirsten said Sukhraj not being charged was a “grey area” as he was well within his rights to retaliate in a hostile situation, as per Section 49 of the Criminal Procedure Act.
However, she labelled him as “reckless and negligent” when it came to the use of his firearm.
“He is ideally covered by Section 49. But, under the Gun Control Act, he was extremely negligent when it came to the life of his daughter. For example, in the United States, it is the directive to police officers not to shoot at a moving vehicle.”
Kirsten was adamant that Sukhraj should “at the very least” be charged with culpable homicide.
“I would think the judge made her decision based on the social dimension of the law, that it was not in the public’s interest that the father is charged with murder.
“But then we have to look at cases like Oscar Pistorius, who was convicted under the ‘dolus eventualis’ principle. The father should have known that there was a possibility that his daughter would be shot.”
Dolus eventualis is when the perpetrator objectively foresees the possibility of his actions causing death and persists, regardless of the consequences.
She said the saddest part worth mentioning was that the gun he kept to protect his family did the opposite.
“This will have a severe impact on his family. It will damage relationships. One can never fathom how he would be able to live with himself.”
Legal expert Stiaan Krause, from BDK Attorneys, a firm specialising in criminal law, said the judgment appeared to be sound in law and Sukhraj should not have his licence revoked.
“The father was acting in private defence (self-defence), and therefore, his actions are not unlawful as private defence is a so-called ground of justification. In terms of our law, you can act in private defence of another. In these circumstances, a father attempting to protect his daughter.”
Former KZN law society president, Umesh Jivan said it was clear from the facts of the incident that Sukhraj acted on the spur of the moment at the time of the hijacking.
“The most traumatic experience for humans to experience is the death of a family member or friend, and in the case of Shailendra Sukhraj, I believe that he and his family have suffered enough anguish both of the death of his daughter and having to recall the events at the trial of the perpetrators of the hijacking and murder.
“Accordingly, I am of the opinion that circumstances in which we live in South Africa, and circumstances of this particular incident, be taken into account by the National Prosecuting Authority.
“Shailendra Sukhraj should not be prosecuted for the death of his daughter and should be allowed to continue to be in lawful possession of his firearm.
“As was the decision in the case of the former South African rugby player, who several years ago shot his daughter, under the belief that his car was being stolen from his driveway.”
NPA spokesperson, Natasha Ramkissoon said the acting Director of Public Prosecutions, Elaine Zungu, had yet to make a decision on whether or not Sukhraj would be charged.
“The National Prosecutions Authority will have to study the judgment before making such a decision.”
Police nor the NPA could confirm if Sukhraj’s firearm would be returned to him.
During sentencing, Judge Esther Steyn said whatever the outcome, it would never bring back Sadia.
“This family was not only robbed of a motor vehicle, but also a beautiful and talented young girl, who must have been terrified in her last moments as the vehicle was colliding with various vehicles and travelling at high speed.”
She described the hijacking as “brazen” as Mkhize and Bulose committed it in daylight.
Speaking of Mkhize’s previous conviction of receiving a stolen vehicle and stealing petrol worth R400, Steyn said: “This did not deter you from committing far more serious offences in 2018. You cannot claim to be a first offender.”
Mkhize’s attorney, Sizwe Masondo, said his client intended to apply for leave to appeal.