Durban - The bullets that killed Sadia Sukhraj were fired from her father’s gun, a ballistic report presented to court confirmed.
Sadia was shot twice in the chest during a botched hijacking in May last year.
Shailendra Sukhraj also shot and killed the alleged suspect Siyabonga Balose, who died from a single gunshot wound to the hip.
During closing arguments in the Durban High Court last week, State prosecutor Kelvin Singh said that any father would protect their immediate family when under attack.
“Here is a father with all these thoughts going through his mind, that his daughter could be raped or murdered. Any right-minded father would act in the same manner. Any other person would have reacted. You don’t punish the action, you punish intention,” said Singh.
Sukhraj has not been charged.
Singh argued that the accused, Sibonelo Seni Mkhize, 39, and his alleged accomplice, had acted in common purpose and could have foreseen that harm would result from their conduct.
Mkhize faced charges of robbery with aggravating circumstances and two counts of murder.
Sadia was seated in the back seat of her father’s car when the two men attempted to hijack the vehicle on Himalaya Drive.
Singh argued that both the suspects had jumped into the Hyundai and fled the scene.
“They foresaw that harm would result from their conduct of robbing Mr Sukhraj of his motor vehicle with the child inside the car.
“Despite Mr Sukhraj firing the shots to stop the vehicle, the assailants continued to drive away, crashing three times before stopping, as well as causing two other accidents. They were both reckless.”
Singh said that Sukhraj, who had earlier testified that he had fired 15 rounds of ammunition at the assailants as they fled, had acted as any right-minded father would.
“The shots were directed primarily at the driver’s door. However, the shots fired are irrelevant, and are not extreme under these circumstances.”
Defence attorney Sizwe Masondo argued that if Sukhraj had wanted to stop the vehicle, he could have fired at the tyres.
“I accept Mr Sukhraj’s evidence that he aimed at bringing the car to a halt, but he could have fired at the tyres. Mr Sukhraj knew the presence of the child but he fired shots at the car.”
However, Judge Esther Steyn responded that he “simply panicked”.
“He did everything he could to stop them from taking his precious child.”
Masondo further argued that the assailants did not stop as they feared Sukhraj would kill them.
“It can also be argued that the lives of the assailants were endangered. You cannot say that when they stopped the vehicle, Mr Sukhraj would not have shot them. They were persistent to get away for safety,” he said.
Judgment was expected in June.
Law expert Professor Karthy Govender said one had to wait for judgment. This would determine how the Director of Public Prosecutions (DPP) would proceed on the matter.
“They will look at whether the father acted in self-defence, what his intention was at the time and whether or not he acted negligently or recklessly.”
Govender said this case was different from the one in Gauteng where a father accidentally shot and killed his son thinking he was a hijacker. “That father is facing a murder charge but in Sadia’s case, the circumstances are different and this will be taken into consideration.”
A well-known Durban attorney, who did not want to be named, said that the principle of dolus eventualis should apply.
“This means when a person acts in a manner where they can foresee their actions is going to cause harm to others. This is the equivalent to murder or in some cases calculable homicide.”
He said in the case of Sadia’s death the father should have foreseen the outcome of firing at the car multiple times with his daughter in it. The bullets were bound to hit someone.
“This is similar to the Oscar Pistorius case where the defence argued that Pistorius should have foreseen the outcome four bullets would have on a small bathroom.”
Visvin Reddy, a community activist, said while it was a tragic accident, the rule of law should follow its course.
“When he fired the shots, his intention was not to kill Sadia but to stop the hijackers.
“However, he did kill her and the suspect. The law of the land must take its course. He should be held to account for his actions.”