Advocate Gideon Scheltema is sharp. He has a sharp mind, a sharp tongue and a sharp wit. In the courtroom, Scheltema is a fierce adversary. Like an army general, he thoroughly prepares for the battle. Victory, while never certain, is often his.
Now he has self-published Justice Delayed (2020). It is a compelling account of the murder of Pietermaritzburg-born Rochelle Asmall, 28, in her flat in Cape Town in June 2005 and the subsequent events that led to South Africa’s first and only successful private prosecution for murder. He took centre stage as the private prosecutor.
Although now mainly a criminal defence lawyer, he cut his teeth as a young prosecutor on the staff of the office of the then attorney-general in KwaZulu-Natal. He successfully prosecuted police-captain-turned-bank-robber André Stander and was one of the prosecutors in the international hijacking trial of the mercenary Colonel “Mad Mike” Hoare, who died in February 2020.
Rochelle’s mother, Sara Asmall, instituted the private prosecution of Rochelle’s boyfriend, Faizel Hendricks, for the murder.
“The book is the story of Sara and her courageous efforts to overcome many stumbling blocks on her journey to find justice,” Scheltema writes in the foreword. “[It] deals with the importance of forensic evidence in the reconstruction of the shooting incident which resulted in Rochelle’s death.
“Private prosecutions for murder are rare even on a world-wide scale.”
For this reason, he writes, he has gone into detail about the intricacies of how private prosecutions are conducted and the importance of ballistic evidence, “which does not lie”.
“This is not a textbook but it may be of some value to aspiring young lawyers who want to make a career in the field of criminal law,” he writes.
Eleven years to justice
Scheltema was first appointed in 2006 as a “watching brief” for the family when the criminal case against Hendricks was going nowhere.
Hendricks told police Rochelle had taken her own life. She had grabbed his firearm, forced it down her throat and shot herself. Her parents did not believe the story.
Apart from Scheltema, they also hired ballistics expert Cobus Steyl and private pathologist Reggie Perumal, both of whom concluded Hendricks had shot Rochelle.
But a murder charge against Hendricks was withdrawn.
In 2008, an inquest was convened. A year later, the magistrate ruled that while Hendricks had seriously assaulted Rochelle that day, she could not “determine who held the firearm at the fatal moment”.
Walking out of court, Scheltema told Sara: “Your daughter did not commit suicide. Let’s go home and get some rest. We will study the judgment and then decide the way forward.”
They made representations to the director of public prosecutions asking that Hendricks be charged again. But instead, they were told that the director was declining to prosecute. This opened the door for a private prosecution. But it was an expensive risk.
There was no precedent to assist them, Scheltema writes, and there had only ever been one private prosecution in England for murder – and it failed.
“The Asmalls are required to make a courageous decision. We again review the evidence and conclude that the case is strong enough to obtain a conviction,” he writes.
The trial began in August 2010, more than five years after the shooting. It took another four years before a guilty verdict was handed down.
“The atmosphere [in court after the verdict] is surreal,” Scheltema writes. “I have been in the legal profession for many years and this was unlike anything I have experienced before. I decide to leave the courtroom to get to grips with what has just happened. It all started so many years ago with a body, a gun and blood spatter against a wall.
“What has just happened hasn’t been a victory that calls for congratulations or celebrations. Instead, it has been a mere vindication of a mother’s love for her daughter and her belief that she did not commit suicide.”
Murder he wrote
A few days later, Scheltema got a call from a reporter asking when he would take another case like this one. He responded: “It may be the first time that this has happened but I certainly hope that is also the last. I hope that in future the police and prosecuting authorities will pay careful attention to serious crimes such as murder and prosecute deserving cases. It should not be left up to private individuals to undertake prosecutions of this nature.”
In May 2016, Hendricks was sentenced to serve 15 years in jail.
An appeal process is pending, but Scheltema said the journey he and the Asmall family undertook for justice was complete – even if Hendricks is acquitted or gets early parole.
Remarkably, Scheltema does not ordinarily support private prosecutions. “They verge on almost being unconstitutional. It was very important that Hendricks got a fair trial. We had to be so careful.
“There were times when he would ask for more time to call more witnesses, and we would always support those requests, even when the magistrate wanted to decline them. We did not want him to be deprived of any opportunity to present his case.”
The toughest part of writing the book was not the forensic details but the human aspect. Used to the protective veneer of the criminal defence practice, Scheltema found the writing emotionally taxing. But ultimately it helped him come to terms with parts of his own life, including surviving a great white shark attack as a young man.
The Asmalls are private people but support the book and have found more closure through it. Scheltema remains friends with the family.
“I didn’t choose to write this book. It chose me. And for that, I feel privileged.”