Judges to test murder evidence

2012-09-18 00:00

HIGH court judges called yesterday for oral evidence to be led in the case of a Durban man, Rajiv Sewnarain (43), who says he was improperly influenced to plead guilty to killing his wife.

Sewnarain is serving life imprisonment for arranging the murder of his wife, Shanaaz, but says his confession to the crime was coerced.

His wife was shot dead in what the state says was a “staged” hijacking on December 10, 2010.

She survived an attempt on her life the previous month.

Sewnarain’s advocate, Yoga Moodley SC, argued that his client had not been fit to stand trial on the grounds of “mental incapacity” at the time he pleaded guilty.

Sewnarain says that prior to pleading guilty, he was deprived of the services of his attorney of choice, Carl van der Merwe, and influenced into accepting the services of legal aid attorney Devindran Moodley by the investigating officer, Warrant Officer Viresh Panday.

He says he was induced by assaults, threats and promises made by Panday to plead guilty.

Sewnarain claims he was not in his sound and sober senses, and was tired and drowsy from medication at the time of the plea.

He says he cannot recall much of what happened at court on the day and does not recall making two written statements to his attorney.

According to three psychological and psychiatric experts, Sewnarain was suffering from “survivor’s guilt” over his wife’s death and was still grieving for her.

Judge Kevin Swain, with Judge Jacqui Henriques, said in a reserved judgment handed down yesterday that the state had relied on evidence by magistrates Anitha Govender and Sharon Marks and attorney Devindran Moodley to refute Sewnarain’s claim that he was not of sound mind when the plea was taken.

Moodley said Sewnarain was “rational and coherent” during their consultation.

Asked if he had been assaulted or influenced to make a confession, Sewnarain said that he had made it freely and voluntarily.

Magistrate Marks, who has 27 years’ experience, with 20 years on the regional court bench, said that according to her observations, Sewnarain had been of sound mind.

Magistrate Govender, who recorded an earlier confession by Sewnarain, said she was convinced he had not been unduly influenced to make a confession.

The experts said in their replying affidavits, however, that it would not have been possible for a person without training to identify Sewnarain’s underlying symptoms.

Judge Swain said the interests of justice demanded that the evidence be properly evaluated and tested through oral evidence.

“The applicant [Sewnarain] has been convicted of the most serious crime — murder — for which he has been sentenced to life imprisonment,” he said

To dismiss Sewnarain’s application could cause a “grave injustice”.

Judge Swain said he had approached KZN Judge President Chiman Patel, who had ordered that the matter be given preference for oral evidence to be led.

The matter will be heard again by Swain and Henriques on a date to be decided.

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