Kuga fire victim's family faces delays in private prosecution of Ford

21 September 2017 - 11:31 By Graeme Hosken
Reshall Jimmy who died in a burning Ford Kuga.
Reshall Jimmy who died in a burning Ford Kuga.
Image: Courtesy of his brother Kaveen Jimmy

The family of Reshall Jimmy‚ who died in a burning Ford Kuga‚ says the National Prosecuting Authority is prolonging their agony after declining – for now – to issue a private prosecution certificate.

The Western Cape Director of Public Prosecutions (DDP) declined to prosecute the matter in May‚ instead referring it to a magistrate to hold an inquest.

And now‚ the DPP has declined to issue the family a certificate they need to pursue a private prosecution.

Instead the DPP wants a magistrate to first hold an inquest to determine whether Ford is responsible for Jimmy’s fiery death‚ and if so‚ then recommend to him that he consider prosecuting the global car manufacturer.

On Tuesday the DPP sent a letter to the Jimmys‚ saying that he would not issue them with a certificate for private prosecution.

In the letter the DPP stated: “Ford Motor Company is not the subject of the inquest but may well be a suspect in the sense that the magistrate holding the inquest may find prima facie evidence of criminal conduct by the company or its employees.”

Western Cape NPA spokesman Eric Ntabazalila said it would be “premature” to issue the certificate now as an inquest still needed to be held.

But the Jimmy family are crying foul‚ saying that since the NPA declined to prosecute Ford in May they had not been told when an inquest into the December 2015 death would be held.

Jimmy burnt to death when his Ford Kuga burst into flames while he was on holiday in the Wilderness in the Western Cape. Since his death over 60 Kugas have caught alight in South Africa.

The family’s lawyer‚ Rod Montano‚ said they were considering petitioning the National Director of Public Prosecutions for assistance.

Ntabazalila said if the magistrate concluded that there was prima facie evidence of an offense‚ then the magistrate would be compelled to return the inquest back to the DPP for him to consider whether to prosecute or not.

“If the DPP‚ after receiving the docket from the magistrate and studying the recommendations‚ decides not to prosecute‚ the family can make the request for the certificate.”

Ntabazalila said the inquest date would be determined by a magistrate.

Legal experts say there are other legal options available to the family.

Professor James Grant‚ of Wits University school of law‚ said if there was an ongoing investigation‚ such as in the case of a pending inquest‚ the DPP may legitimately decline to issue a certificate.

“In this unfortunately real world we live in it takes forever for an inquest to conclude.”

However‚ this does not mean that all avenues are closed to the Jimmys.

“While the DPP has for now said that he will not prosecute‚ and the family may be hamstrung by the criminal law for now‚ there is nothing stopping them from pursuing the matter in the law of delict – which is a civil claim.

“If they pursued the case against Ford as a civil matter‚ they would not need to wait for anyone’s permission to proceed.

“I am more and more giving up on our current criminal justice system for justice. The answer‚ I believe‚ lies in the law of delict‚ which is a civil remedy for compensation for harm caused.

“Instead‚ you go after the wrongdoer for money and for enough money so that it hurts.”

Jimmy’s sister‚ Renisha‚ said: “For 18 months we have been seeking justice for Reshall. We have been told it’s up to a magistrate to say when the inquest will be held‚ but the silence on that date has been deafening.

“We want Ford prosecuted and will ensure that they are.”