Mom’s daring bid for truth

2014-06-30 00:00

A NINE-YEAR-LONG quest to find answers about her daughter’s death in Cape Town will soon be over for a KwaZulu-Natal mother who instituted an extremely rare private prosecution for murder in a bid to uncover the truth.

The last-known private prosecution for murder in this country was brought over two decades ago by the families of three youngsters killed by security forces in 1985 in what became known as the “Trojan Horse” case in Cape Town.

Rochelle Naidoo (27), whose parents, Yunus and Sara Asmall, live in Pietermaritzburg, was shot dead in her flat in Cape Town, which she shared with her boyfriend Faizel Hendricks, on the night of June 28, 2005.

She had a clothing boutique in Cape Town at the time.

Hendricks was the only other person present on the night Naidoo was shot in her mouth, allegedly with his gun.

It was after the Director of Public Prosecutions in Cape Town decided to withdraw the murder charge which the state had instituted against Hendricks, and a formal inquest into her death in 2008, returned an inconclusive verdict, that Naidoo’s mother, Sara Asmall, took the highly unusual step of instituting a private prosecution of Hendricks.

Final arguments have already been presented in the matter, and regional court magistrate Michelle Adams is preparing to give judgment in a few weeks.

The Asmalls are hoping that the judgment will provide insight into some of the unanswered questions and circumstances that plague them concerning their daughter’s death.

The Witness approached them for an interview in connection with the extremely rare private prosecution, but they declined, saying they would prefer to wait until the judgment has been handed down before making any public comments on the matter.

Sara Asmall is the appointed private prosecutor in the case and is being represented in the proceedings by KwaZulu-Natal advocate Gideon Scheltema SC, instructed by A.K. Ayoob of Pietermaritzburg.

The Witness has determined that private prosecutions in this country for any offences are very rare.

One reason is cost, since the individual has to provide security for the costs of the trial that would normally be run by the state, including security for “ reasonable costs” incurred by the defence.

Extremely strict criteria must be met before a private prosecution can be instituted.

In order to embark on a private prosecution, the Criminal Procedure Act specifies that a prerequisite for a private prosecution is that the individual instituting it has a special interest in the outcome of the proceedings.

It also requires that a certificate “nolle prosequi” be issued by the director of public prosecutions, which states that the DPP has declined to prosecute the matter after examining all the available evidence.

After obtaining the certificate from the DPP, a private prosecutor has three months to launch a private prosecution.

The evidence at Hendricks’s trial mainly revolves around the testimony given by top forensic experts, called on behalf the private prosecutor and by the defence.

Well-known forensic specialist pathologist Dr Reggie Perumal of Durban and ballistics expert Kobus Steyl were called by the prosecution, while Dr Jakob Dempers, head of forensics at Stellenbosch University and ballistics expert Hermanus Dicks, testified on behalf of the defence. Dr Yolanda van der Heyde of the University of Cape Town, who did the post mortem, also testified.

The private prosecution led evidence suggesting that Naidoo was in an abusive relationship with Hendricks, and that she sustained injuries indicating an assault on her the night she died, which were not related to the gunshot that killed her.

They included lacerations to her forehead and upper lip.

There was also evidence in the form of CCTV footage, that on the night before she died, Naidoo stayed in her car parked outside her flat for the entire night, whilst Hendricks observed her from inside.

The couple also allegedly quarrelled at Naidoo’s workplace during the afternoon prior to her death.

The private prosecution also relies on the alleged behaviour of the accused after the shooting in that he failed for a long time to call for help or the police.

At the inquest into Naidoo’s death in 2008, it was suggested that Naidoo had committed suicide, but the inquest court couldn’t reach a conclusive finding.

Hendricks, who is being defended by advocate John van der Berg, pleaded not guilty to the murder charge in the private prosecution. He elected to remain silent and not testify at his trial.

Looking back: The ‘trojan horse’ case

THE private prosecution in the “Trojan Horse” case arose when security forces who had hidden in wooden crates on the back of a railway delivery truck opened fire on a crowd of anti-apartheid protesters in Cape Town on October 15, 1985, killing Jonathan Claasen (21), Shaun Magmoed (15) and Michael Miranda (11). Thirteen other adults and two children were injured.

At the time a state of emergency had been declared in parts of the country.

An inquest in March 1988 held 13 policemen responsible but the attorney-general declined to prosecute.

The families of those who’d died then launched the country’s first private prosecution, but in December 1989 all 13 accused in the case were acquitted.

The accused in that case were indicted on a charge of murder, alternatively culpable homicide.

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions. publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
Comments have been closed for this article.

Inside News24

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.