Mkhuseli Jack: ‘Bulldog’ on a private crusade

Prosecutor Gerrie Nel 

Gerrie Nel, the highly respected and retired public prosecutor, was in town this week at the invitation of the well-known law firm, BLC. He spoke about his new assignment – private prosecution and his crusade against corruption.

The man dubbed “the bulldog” is in the employ of the mainly Afrikaner rights group, AfriForum. He was very candid and open in his deliberations, making his speech as simple as it could be, strenuously avoiding being legally bombastic.

He told his audience that he had studied law because he “hates bullies”. The law, according to him, pays no attention to numbers, wealth, rank or any of those attributes. It has to be applied equally to all. The law provides equal justice for all.

AfriForum is the first group in South Africa to set up a private prosecution unit. The group believes that the National Prosecuting Authority (NPA) is politically biased and is involved in selective prosecutions.

Nel denied that he and the AfriForum were motivated by politics in his mission and in forming the unit.

He cited other countries that allow private prosecutions under common law, including Kenya, the United Kingdom and Canada. The idea is to provide recourse for people whose cases the prosecutors decide not to pursue, since there is no principle of compulsory prosecution. Nel said he would be after those cases, seeking justice for the complainants.

The establishment of the private prosecution unit relies on the Criminal Procedure Act of SA (CPA), which makes provisions for such prosecutions. The constitution also provides for private prosecution. Various sections in the CPA provide for private prosecution in the event that the NPA refuses to prosecute on behalf of a complainant. The aggrieved party must wait for the NPA to declare that it is not prosecuting through issuing of a certificate called a “nolle prosequi”.

The CPA permits any person to conduct a prosecution in a court who is duly authorised to run such trials. Though some people are excited about this system, given South Africa’s current environment, it has a lot of hurdles and stringent conditions to be overcome before any prosecution can take place. These include:

  • Upfront deposit of money with the magistrate before any court trial can process.
  • The accused in the pending private prosecution can reject the payment as being insufficient and call for more money from those who seek to prosecute him.
  • In the event of the acquittal of the accused, the prosecutor would have to cover all costs should the prosecution fail.
  • The accused can set the money he wants deposited before any such prosecution can take place, and without his approval no trial can take place.
  • Prosecution can only be done by one person per charge, unless a lot of people were prejudiced by the same offence.
  • Before prosecuting someone, you have to prove what the law calls a “substantial interest”, such as having been directly injured by the offence.
  • The state can do what Nel called “double dipping” in a case at any given time if it changes its mind, even in the middle of private prosecution.
  • If the accused pleads guilty in private prosecution, the state steps in and takes over the prosecution.

The constitution has created one single prosecution authority that must decide whether or not to prosecute based on the merits of each case as laid out in the NPA prosecution policy. All prosecutions have to be done on the principles of impartiality, that is, without fear, favour or prejudice. This is supposed to apply to all people.

However, one fears private prosecution could end up being of service only to those who are wealthy and can afford to deposit monies with magistrates. Those who cannot do so will be left out in the cold.

In my view, I do not believe that private prosecution will assist in strengthening our criminal justice system. Private prosecution is a stopgap measure that can only play a nominal role rather than solve the shortcomings of our criminal justice system.

It is my view that, other than pursuing Jacob Zuma, who many citizens want to see facing charges in court, private prosecution will serve to undermine and degrade the already pressured statutory systems.

The existence of other private services has done a lot to accelerate the decline and neglect of public services such as health, schools, security etc. The majority of the people have been left to share substandard services, while those who are fortunate enjoy the best medical care, schooling, security and other services and goods. These parallel structures will deepen the social tensions in our society.

The enthusiasm for private prosecution is short term, and is definitely not a solution. Citizens must speak out against political shenanigans in all facets of our society. We should never surrender our institutions to those who are hellbent on destroying them, through whatever mechanism.

We should strive to preserve our well-thought-of institutions and not create new ones that serve certain sections of our society.

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