A case that made history and healed a heart

“If people read this as a comment on the failures of the criminal justice system, then I’ve succeeded,” says Advocate Gideon Scheltema SC about his book, Justice Delayed, an intriguing and heart-rending account of South Africa’s first successful private prosecution, brought by Pietermaritzburg-based Sara Asmall whose daughter, Rochelle, was brutally murdered by her boyfriend.

But Scheltema, a first-time book author, wanted to do more than expose cracks in a system: he wanted to share the story of a mother’s courageous 10-year quest for justice and her journey towards self-healing; he also wanted to give hope to women facing gender-based violence, which, he believes, is “out of control” in South Africa.

He chose to self-publish because he wanted full control over the end product, and the intellectual property, and unexpectedly ended up playing a major role in the cover design.

“Admittedly, what happened to the Asmalls was not a good advert for the justice system but I believe some good will come of it … Hopefully, it can inspire women to find the courage to speak out against perpetrators before it is too late,” Scheltema says over a cappuccino at a Pietermaritzburg coffee shop where he wrote 70% of the book, scribbling notes on the back of till slips and paper napkins.

Twenty-seven-year-old Rochelle, who grew up in Pietermaritzburg, died from a gunshot wound in her apartment in Cape Town on June 28, 2005. Present at the time was her live-in boyfriend Faizel Hendricks, a 29-year-old divorcee, who told the police Rochelle committed suicide by placing his gun in her mouth and pulling the trigger.

Despite the existence of some troubling evidence outlined in the book – including previous abuse at the hands of Hendricks – the police seemed to accept Hendricks’s version without question and showed little appetite for a murder investigation.

Perceiving the case to be going nowhere, Sara’s husband, Pietermaritzburg businessman, Yunus Asmall, intervened, hiring private ballistics expert Cobus Steyl. Scheltema was appointed as “watching brief” over the investigation.

To speed things up, Scheltema and the Asmalls also approached Deputy Director of Public Prosecutions Advocate Niehaus who moved quickly by assigning a senior detective, Inspector Lourens le Roux, to the case.

Le Roux made almost immediate progress of the sort one expects from routine police investigations, re-examining the evidence, questioning Hendricks and seizing the clothing worn by the suspect on the night of the killing.

Critically, he also obtained the opinion of specialist forensic pathologist Dr. Ganas Perumal who found that before Rochelle was killed, she was hit repeatedly on her head and face. A vicious punch broke her jaw. With this injury, he argued, it would have been painful and difficult for Rochelle to put a gun into her own mouth, as her boyfriend said she did, let alone push it to the back of her throat, where evidence indicated it was positioned when the bullet was fired.

Although devastating news for the Asmalls, particularly Sara, the forensic details were considered a boost for the prosecution. And yet, the case continued to flounder and was actually withdrawn on the day Hendricks’s trial was set down to begin in the Western Cape High Court on October 6, 2008.

The book raises serious questions about the role and integrity of public prosecutor Advocate Carine Theunissen who seemed to show an inexplicable reluctance to prosecute Hendricks and was instrumental in having the case withdrawn.

In the book, Scheltema provides extracts of court transcripts so that readers can make up their own minds about what transpired. He also quotes Yunus who says it looked as if Theunissen was “trying to get Faizel off the hook”.

When the director of public prosecutions issued a certificate nolle prosequi (declining to prosecute), the Asmalls had nowhere left to turn: they decided to pursue a private prosecution.

Over the next six years, Scheltema worked closely with both Asmalls. His extensive experience as a defence advocate and his involvement in the case since the inquest meant he was able to put together a solid and ultimately successful case against Hendricks on behalf of Sara.

The trial, which started in August 2010, led to a conviction four years later in July 2014, and a sentence of 15 years in May 2016 – more than a decade after Rochelle’s death.

Scheltema’s carefully crafted book traces the ups and downs of that tumultuous journey with both human compassion as well as legal insight.

During the six years it took to secure the conviction, Yunus developed lymphoma and Sara attended many of the hearings without her husband’s support. Travelling with her between Pietermaritzburg and the Cape Town hearings, Scheltema says he was “part of Sara’s suffering” for many years.

“This is the story of a woman who had the courage of her conviction to obtain justice and some closure without the assistance of the police and prosecuting authorities,” he says.

When he met her in 2006, Sara was understandably “shattered – a very different person to the one she is now,” he says.

Scheltema observed Sara’s healing as the trial progressed and eventually ended. In the book, he shares anecdotes which reveal a tentative return of Sara’s sense of humour. “I hope I show how humour and appreciation for the beauty of life go hand-in-hand with healing,” he says.

Thus, while the book is ostensibly about a ground breaking legal case, a commitment to human emotions lies at its heart.

For Sara, Yunus and their younger daughter Meskha, the case is finally behind them and has brought some closure.

“The book will always be there for them, and for their grandchildren. It will be part of the family’s healing.”