This morning , 18 May, SAPS member Gonasagren Padayachee was formally charged, in the magistrate’s court at Esikhaleni, for shooting dead Kwazi Ndlovu, who had just turned sixteen, in his family home in Esikhaleni, near Richards Bay just after his sixteenth birthday. Kwazi lay on the sofa watching TV after his parents and younger sibling went to bed, and was probably asleep when Padayachee and others forced their way into the family home and shot the child dead with a rifle. Padayachee was a member of the Cato Manor based Organised Crime unit and he and others (who presumably acted with common purpose, and should also have been charged with Padayachee) claimed that they were looking for escaped prisoners. To rub salt into the parents’ wounds, the SAPS then claimed that Kwazi was a criminal with a gun – despite this allegation, from the testimonies of teachers and friends, being a blatant falsehood. To its shame, the leading company holding funeral policies for the family, refused to pay for the burial expenses, reiterating that the boy was a ‘criminal’. That was only the start of the grievous suffering the parents and younger brother have endured for the past thirteen years at the hands of the State, which has kept the wound raw and denied them closure.
Immediately after the shooting, Mr and Mrs Ndlovu received assistance from the School for Practical Legal Training at UKZN, through its then head, Professor Robin Palmer, to pursue justice, including through a planned civil action. Overseas funding was raised for this purpose. The Director of Public Prosecutions (DPP) in KZN declined to prosecute and this decision was subsequently challenged by top detective and Zondo Commissioner investigator, the late Frank Dutton, who submitted a report on why a prosecution should have happened then. Advocate Palmer, who was skilled in such matters, arranged a formal inquest – as he was confident it would lead to criminal charges – and the docket was accessed and scanned (it subsequently disappeared from the SAPS at Esikhawini, to which it had been returned by the DPP). However, before the inquest could take place, members of the Cato Manor unit were formally charged in 2012 for, among other things, dozens of murders. These charges followed reports by Sunday Times journalists about the unit acting as a ‘hit squad’. It should be noted that the Sunday Times investigations had started with inquiries into North Coast taxi violence in which police members were implicated, and the trail had led to the Organised Crime unit (see April 2022 Monitor report ‘The myth that black lives matter in South Africa : The return of apartheid policing and justice’).
When criminal cases were opened (or re-opened in some instances), the formal inquest plan fell away. Mr and Mrs Ndlovu were terrified for their safety and funding was raised to fortify their home. When asked about these fears in a television interview, Mr Ndlovu commented that he had ‘died’ when they had killed his son. Instead of sifting through these cases to prosecute those with the strongest evidence, the National Director of Public Prosecutions (NDPP) sounded a death knell to the chances of success by adding puzzling ‘racketeering’ charges against the accused, and the then head of Organised Crime, Booysen, despite the operational head of the unit being his subordinate, Colonel Olivier. These doomed charges dragged on for years, rubbing more salt in the parents’ wounds as the men appearing in publicised court appearances, celebrated in media reports as heroes. To persecute them even further, SAPS management issued a subpoena for them to give evidence at an internal disciplinary hearing despite their not having been able to give any incriminating evidence, as they had been locked away in their room away from the events. Legal intervention was needed to stop this unnecessary trauma.
In July 2019, after all the charges were withdrawn against the accused, the dockets were sent back to the KZN DPP for decisions to be taken on an individual case basis about prosecution. Families were to be notified. When, over a year later, nothing further had been heard, a lawyer for the Ndlovu family ascertained that the DPP had declined to prosecute any cases, and had sent them for inquest. She claimed that IPID was supposed to have notified families and had not done so. Had an enquiry not been made, no families would have known about her decision.
Towards the end of 2020 a long appeal process commenced, providing the NDPP with further evidence supporting the call for those who killed Kwazi Ndlovu to be charged. This evidence included reports from top experts in forensic pathology and ballistics, based on a carefully re-constructed crime scene, questioning the state’s versions of events (it should be noted that, in its initial investigations, IPID (Independent Police Investigative Directorate) investigators had allowed the suspects, i.e. police members, to take their own statements). The application to appeal the decision was handled by a Deputy NDPP who turned the appeal down. The DPP offices (national and provincial) continued to argue for a formal inquest, despite full evidence already being in existence – and there being no funding for a suitably experienced criminal advocate to handle an inquest. A personal appeal was made to Advocate Batohi, the National Director of Public Prosecutions, pointing out that it was she, Constitutionally, who was responsible for deciding on appeals. Correspondence about the matter continued for well over a year and finally, in January 2023, the NDPP advised that the KZN DPP had decided to charge Gonasagren Padayachee. That it has taken almost four months to do so appears linked to crossed wires between the DPP and IPID in KZN, and internal problems in KZN IPID linked to a suitable provincial head not having been appointed (and should not be appointed until serious problems with the minister, who interferes in all senior appointments, have been dealt with).
The conviction rate for serious violent crimes, including murder, is extremely low in South Africa, so there are countless cases in which victims and their families are denied any justice, for which both police and the prosecution service must share the blame. Of these countless cases, that of the suffering at the hands of the criminal justice system of the Ndlovu family must be among the worst. Their child was mowed down in the safety of his own home by people who are supposed, constitutionally, to prevent crime, and then underwent secondary victimization at the hands of police and Justice Department officials. Their inability of obtain any type of closure has been painful to witness and one can only hope that the court process will shine light on the gross brutality of what happened to their precious son, and allow them long-denied closure.
The Violence Monitor 