11 September 2024
From left to right: Regan Naidoo’s uncle Jeffery Mahalingan, his cousin Keenan Naicker, his widow Kerosha Naidoo, and his father Timothy Naidoo outside the Durban Magistrate’s Court. The trial of 17 police officers for Naidoo’s death in custody has again been postponed. Photo: Benita Enoch
The police brutality case involving 17 officers accused of the wrongful death of Regan Naidoo in custody suffered yet another pre-trial delay in the Durban Magistrate’s Court on Wednesday.
The six-year long case has been marked by numerous postponements, prompted by changes in legal representation, an unprepared defence advocate who admitted he had underestimated the volume of documents in the case, and an objection by the state to a possible conflict of interest by former State prosecutor turned defence advocate, Kuveshni Pillay.
On Wednesday, Magistrate Maryn Mewalal heard submissions from advocate Pillay, representing accused Rajen Saunders, that the State had not responded in a reasonable timeframe to her request for particulars. This, Pillay contended, prejudiced Saunders as there wasn’t enough time to consult with him on the State’s response.
Magistrate Mewalal agreed with Pillay that her client should be allowed suitable time to digest the State’s response, but also said the court had not stipulated when the State should reply to requests for further particulars.
Pillay also proposed Section 342A of the Criminal Procedure Act be acted on. This provision seeks to ensure that an accused person be protected from any injustice they might suffer from unreasonable postponements in court proceedings.
Magistrate Mewalal said, “In my view … the court must first come to the conclusion that the delays were unreasonable and could cause substantial prejudice.
“I agree that it is a delay, but I cannot conclude that it is an unreasonable delay by virtue of what has been put forward before me.”
Mewalal said she would not accept the defence’s invitation to hold a Section 342 inquiry, but this did mean that she might not do so in the future.
Mewalal was at pains to reiterate that she was “desirous and anxious” about getting the trial in this matter underway for the sake of the family of the deceased, the accused and their respective families.
Pre-trial conferences are a means to iron out matters before the parties head to trial.
“Let us not be mistaken that there has been no movement in this matter; there has been progress, although it has been very small progress, but it is progress that is dictated by how the parties choose to address the issues in this matter,” said Mewalal.
She also asserted that it would not be prudent to have proceeded with a pre-trial conference on Wednesday in the absence of accused number 15, Eric Carson.
Carson’s lawyer, Christo Van Schalkwyk, told the court that his client had had knee replacement surgery and as a result had not been able to attend the past two court hearings. Van Schalkwyk agreed with Mewalal that to continue with hearings in absentia would prejudice Carson’s right to a fair trial.
Naidoo’s widow, father, uncle and cousin attended Wednesday’s hearing.
Timothy Naidoo, his father, told GroundUp that his mental and emotional health was declining with each postponement. “I’m just sick and tired of this,” he said, and declined to be interviewed further.
The case dates back to August 2018, when Naidoo was arrested at a petrol station in Chatsworth. According to an investigation by the Independent Police Investigative Directorate (IPID), Naidoo and two others travelling with him, were assaulted by members of the SAPS and taken to the Chatsworth Police Station for further questioning. IPID’s investigation revealed that Naidoo was found unresponsive in his cell at around 3am and was taken to RK Khan Hospital in a police vehicle where he was declared dead on arrival.
Initially, 22 cops were charged with murder, attempted murder, torture, kidnapping and defeating the ends of justice, but charges were dropped against four of the accused and one was killed in duty during a shootout at The Pavilion Shopping Centre, last year.
Naidoo’s widow, Kerosha Naidoo, told GroundUp outside court on Wednesday that before Naidoo went to the petrol station, she had dished out his dinner of a piece of KFC chicken, chips and gravy. But Naidoo had not returned.
“Instead of him coming home, we had the police busting down our door, ransacking our house and ordering us to give them what they wanted,” she said.
She said their daughter was present when the police barged into their home and she suffers from an anxiety disorder as a result of being intimidated by them. Naidoo’s widow was pregnant with their son at the time. The children are presently 12 and six years old.