Often cases are thrown out of court for lack of evidence and the perpetrators get to walk free without any prosecution. The Asmall family have experienced the same when their daughter Rochelle Naidoo died. It was later suggested that their daughter had committed suicide, but the inquest returned an inconclusive verdict.
Faizel Hendricks (boyfriend) pleaded not guilty for the murder of Rochelle. He was the only one present the night of the murder. The family refused to believe that their daughter had committed suicide. After their case was withdrawn they decided to hire a private prosecutor and experts in ballistics and forensic investigation to look into the death of their child.
In 2014 the Malmesbury Regional Court found Faizel Hendricks guilty of murdering Rochelle Naidoo, nine years after.
A private prosecution is a criminal proceeding started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority.
To get more insights into the story Capetalk/702’s Redi Tlhabi spoke to Yunus Asmall, Rochelle’s father, about their family's decision to privately prosecute.
Yunus says the advocate working on their case just didn’t want look at the evidence they presented and because of that they decided to pursue private prosecution.
We pursued private prosecution at a huge cost and we finally got some closure because he was found guilty of murder, even though it took nine years.— Yunus Asmall
The sentencing will take place on the 3 June. He says a light sentence would give other criminals some allowance to commit crimes because they'll simply get away with it.
He says that they had a good relation with Faizel when he was dating their daughter. He stayed with them in Durban for ten days when he was on holiday. Faizel has never spoken to them since their daughter died and Asmall says he shows no remorse.
Private prosecutions in the country are rare and expensive, as the private prosecutor has to hire his own legal team to prosecute the case and has to put down security for costs.
Redi Tlhabi also spoke to Criminal Law Professor at the University of the Western Cape Jamil Mujuzi about the procedure of instituting such a case.
According to Prof Mujuzi, there are two types of prosecution:
- Public prosecution – prosecution by the national prosecuting authority (99.9 percent of cases are public prosecutions)
- Private prosecution – rare type of prosecution by individuals or a statutory body
Anyone seeking to pursue private prosecution can approach the director of public prosecution and demand a certificate which allows them to present their case in court.
The NPA cannot in any way refuse to issue the certificate, he says.
According to law, the private prosecutor shall pay the costs and expenses incurred in private prosecution. However, if the accused is convicted, the court can either order the accused to reimburse the private prosecutor or the court will order the director of public prosecution (the State) to pay for the costs incurred, meaning the applicant can get their money back.— Prof Mujuzi
According to Mujuzi, lawyers specialising in criminal law are the ones eligible for private prosecution.
Is private prosecution privatisation of the justice system?
Mujuzi says that private prosecution is not in any way privatisation of the justice system. He says it is important for the these three reasons:
- Prevents people from taking the law into their own hands
- It is a way of defeating corruption
- It brings about closure
Here are some of the tweets commenting on private prosecution:
@RediTlhabi Unfortunately not all families have money/resources 2 go this route! These families r left 2 suffer in silence with no closure!— Mohammed (@moab_za) May 19, 2015
@RediTlhabi Cases are bungled not only by prosecutors but by police who are normally first on a crime scene. Maybe we need private police??!— Mohammed (@moab_za) May 19, 2015
@RediTlhabi that advocate who refused to take the matter should be reported to the Bar Council!— Maggs Naidu (@maggsnaidu) May 19, 2015