Durban — The Durban Magistrate’s Court is expected to hand down judgment in a murder case that has drawn on for over 14 years, where a former police officer of the ex-Organised Crime Unit’s Cato Manor branch – the so-called “Death Squad” – is the accused.
Gonasagren Padayachee is accused of shooting and killing Kwazi Ndlovu, 16, while Kwazi slept on a couch in his Esikhawini home in Empangeni.
Acting magistrate V Alamachand is expected to make her ruling in a week after hearing submissions from the State and the defence this week.
Attorney Carl van der Merwe, who is representing Padayachee, did not call any witnesses.
Alamachand’s judgment will be made without forensic evidence, including ballistics.
It is alleged that in the early hours of the day on which the shooting occurred in April 2010, members of the unit burst into the Ndlovu home and fired at Kwazi. The police said they were in pursuit of a prison escapee they believed was hiding there when they encountered Kwazi, who they said was armed.
Padayachee, who was promoted to the rank of detective warrant officer with the Hawks in 2021, was in the dock in 2012, among 27 police officers, mostly from the Cato Manor unit, facing 116 charges involving 45 murders and other alleged crimes.
The charges were eventually withdrawn, but reinstated in 2016 by former National Prosecuting Authority head Shaun Abrahams, but in 2019 his successor, Shamila Batohi, withdrew them following an internal investigation.
During proceedings this week, State prosecutor, advocate Sandesh Sankar, led four witnesses – Kwazi’s parents and two police officers.
The post-mortem report confirmed that the teen died from multiple gunshot wounds. Previously, in Padayachee’s formal admissions, he did not dispute the identity of the deceased and that he was shot.
Sankar said the evidence of Kwazi’s mother, Lindiwe, was key to the case. Lindiwe testified that Padayachee said, “Sorry, he had a gun,” when she confronted him at the scene of the shooting. This after Padayachee was pointed out by another police officer.
Sankar questioned Padayachee’s stance not to testify and challenged Lindiwe’s evidence.
“If we accept her (Lindiwe’s) evidence, that makes the accused guilty of murder. Did I prove that the deceased was unarmed? His father testified that he had been with him watching TV and left him going to sleep and there was no gun at that stage.”
Sankar said challenges with the docket, the passage of time, Covid-19 and the death of key people counted against the case he hoped to make, but he was satisfied that he proved that the accused shot Kwazi.
Van der Merwe said the State failed to prove who shot Kwazi and relied on the evidence of a single witness based on the alleged utterances of the accused.
“If we accept these words were uttered, (Padayachee) showing sympathy and saying sorry does not mean guilt. I submit those words were not uttered by the accused and the court can’t connect those words to who shot the deceased.
“Ballistics were expected to be presented to the court. There’s no nexus of the accused shooting the deceased, and being the sole shootist. There’s no evidence pointing to him as the shooter,” said Van der Merwe.
The case was initially investigated by the Independent Police Investigative Directorate, and then the Hawks. The case was eventually prosecuted 14 years later after much dithering between the NPA’s national and KZN offices.
In between, KZN’s Violence Monitor Mary de Haas wrote to the NPA, requesting that they prosecute the case until they relented.
Sankar had told the court that ballistic evidence had eroded over time.
According to De Haas, the State had been provided with a commissioned independent combined ballistic and medical report by Cobus Steyl, an independent ballistics expert, and pathologist Dr Steve Naidoo based on their reconstruction of the crime scene using the original couch Kwazi was on and all available evidence. The report pointed to the possibility of an altered scene.
De Haas said: “Dr Naidoo had also done a report based on the autopsy report of the State doctor which was in the original docket. Sankar didn’t even call Naidoo about that report. And he is in Durban.”
De Haas said the report was crucial to the case. The Hawks from North West did a crime scene reconstruction after a thorough investigation. She said Steyl and Naidoo’s report found that the crime scene photos showed it was unlikely Kwazi held a gun.
The NPA’s KZN spokesperson, Natasha Ramkisson-Kara, said: “The matter is before court and thus sub judice. We cannot comment.”
Sunday Tribune