Despite the trial case against a warrant officer who was involved in the shooting and killing of 16-year-old Kwazi Ndlovu in 2010 having resumed this week, the family is disappointed with the State for ignoring the ballistic and forensic reports made available to assist in achieving a conviction against the accused.
This was after the parents expressed concerns over the National Prosecuting Authority’s (NPA’s) ignorance of the ballistic and expert reports.
They have raised these concerns through their representative, human rights defender Mary de Haas, who wrote to the Director of Public Prosecutions in Kwazulu-Natal (KZN) last week.
She submitted an expert report compiled by the late Detective Frank Dutto and a ballistic report from Cobus Steyl and Dr Steve Naidoo.
The family also raised concerns about taking the case to the Durban Regional Magistrate’s Court. They said it is a cause of great inconvenience and expense to travel between Empangeni and Durban, adding that it would add considerably to the time they would have needed to spend in court had the matter been heard in the regional court near them.
Ndlovu died under questionable circumstances when armed members of the controversial Durban Organised Crime Unit burst into his home at Esikhawini in Empangeni on the North Coast and fired shots in his direction.
Ndlovu was shot while sleeping on a couch.
The members of the unit later claimed that they were in pursuit of a prison escapee who was believed to be hiding in Ndlovu’s home. They also made statements alleging that the teenager was armed when he was shot dead, and this was refuted by his teachers, schoolmates and other witnesses.
In her letter, de Haas said the Dutton report contained a meticulous analysis of, among other very important things, a breach of legal procedures by the police present at Ndlovu’s home.
She added that there was a high probability of the scene having been tampered with given the full circumstances outlined in the ballistic report.
NPA’s regional communications director in KZN, Natasha Ramkisson-Kara, said she had a discussion with KZN DPP’s Advocate Elaine Harrison and she advised that since the trial is underway, the information pertaining to it is sub judice and she cannot comment thereon.
The Dutton report found that the unit’s entry into Ndlovu’s home and the shooting of their son was unlawful.
The report stated the behaviour of members of the unit after the shooting incident – key persons leaving the scene, including the shooter – affects the credibility of their version. Dutton said the presence of a firearm in a household not associated with criminal elements, next to a 16-year-old boy watching TV in a relaxed posture, did not seem plausible.
It said the posture of the deceased and the location of his fatal wounds did not correlate with the version that he was facing the police pointing a gun at them. Dutton added that the final position of the pistol next to the deceased did not seem natural nor feasible on the police version.
“Given the available evidence, it is probable that the deceased was lying on the sofa watching TV, or perhaps fallen asleep whilst watching TV when warrant officer Gonasagren Padayachee entered the room and fatally shot him four times with an assault rifle without a warning.”
Quickly realising their mistake, the members removed the parents of the deceased from the house and told them that their son was being questioned.
“It is highly probable that members used this opportunity to place a pistol near the deceased to create a foundation on which to build their case of ‘self-defence’ and present the incident as a justifiable homicide,” said Dutton.
Dutton said Padayachee fled the scene, denying the investigating and forensic officers an opportunity to reconstruct the scene and establish what exactly happened. He said members of the unit presented their version nine days later.
This was supported by the ballistic report which said the photographs suggested that there were minor changes in the body position between the death and the different photographs.
The ballistic report said the evidence also suggested that the deceased was in a reclining position at the time of the injuries.
“The general position and posture of the deceased suggest that they may not have had advance warning of the shots. The appearances of the blood staining indicate that the deceased was lying as depicted in the photographs at the time of the shooting, that he was likely in a relaxed position upon the couch when he sustained injuries,” stated the report.
Steyl and Naidoo said in their opinion, the handgun positioning as seen in the photographs required an investigation as there was the possibility that this could have been an altered scene.
De Haas said she believes that a failure to interrogate this evidence and call Naidoo to share evidence about his ballistic report will prejudice the outcome of the case, especially the family’s right to justice.
Sunday Independent