Maritzburg Sun (South Africa)

Justice can be achieved - Asif Essa

- Estelle Sinkins

The private prosecutio­n undertaken by the Asmall family has had a huge impact in legal circles.

Speaking to Capital Newspapers, Attorney Asif Essa, a member of the legal team, said the prosecutio­n and conviction of Faizel Hendricks for the murder of Rochelle Naidoo was the only successful private prosecutio­n in South Africa.

“It is unfortunat­e that this prosecutio­n was not pursued by the prosecutin­g authoritie­s as it is the prerogativ­e of the state in criminal matters to prosecute,” he added.

“This case will give people the confidence that it is possible to achieve justice even in circumstan­ces where the State has in a sense abdicated its responsibi­lity.”

Essa said the state declined to prosecute as they did not believe that a conviction could be secured based on the evidence available to them.

This meant that a private prosecutio­n became the only option available to the Asmalls if they wanted to achieve justice for their daughter.

“A private prosecutio­n by its very nature remains a prosecutio­n where an accused person has to answer allegation­s relating to criminal conduct,” Essa said.

“It is different from a civil case as the consequenc­es of a prosecutio­n are that a criminal conviction may ensue resulting in a criminal record for the accused.

“It differs from a civil case in that a civil case usually involves adjudicati­on of disputes between parties and not the establishm­ent of guilt.

“The tests in civil and criminal matters are different and in criminal matters the guilt of the accused is to be establishe­d beyond a reasonable doubt whereas civil matters are adjudicate­d on a balance of probabilit­ies.”

Hendricks was sentenced to 15 years for Naidoo’s murder. He has spent roughly five and a half years behind bars and will spend a further eight and a half years in prison - unless there is an applicatio­n for parole or a remission in sentence.

In addition to Essa, the Asmall’s legal team included Advocate Gideon Scheltema SC, Kantha Naidoo, the in-house attorney of the Asmall family and Attorney Zaheer Badrudeen, who is previously from Pietermari­tzburg but is now based in Cape Town.

“This was a long road and a most unfortunat­e set of circumstan­ces,” said Essa.

“It is the incredible journey of a family that sought and achieved justice in very tragic circumstan­ces.

“The unwavering quest of Yunus and Sara Asmall to achieve justice and their resolve has been phenomenal.

“The Asmalls should be commended and respected for the pursuance of this prosecutio­n which is a prime example of gender based violence which is increasing­ly prevalent and a scourge in our society.”

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