It was a Tuesday in August 2015. August 18 to be exact. AfriForum chief executive Kallie Kriel was driving in his car listening to the radio when a news bulletin came on. National director of public prosecutions Shaun Abrahams announced that perjury charges would be withdrawn against prosecutor Nomgcobo Jiba, just one day before her trial was due to start.
Abrahams had been the prosecutions boss for just two months and many viewed this decision as a litmus test, indicating where he stood in a deeply divided National Prosecuting Authority (NPA).
Kriel was despondent and frustrated. Twelve separate judges on four different benches in three high-profile cases had all rebuked Jiba in scathing fashion. She had committed perjury, he believed. The charges related to the prosecution of former KwaZulu-Natal Hawks head General Johan Booysen. Kriel knew something had to be done.
“I was driving in my car and then on the news it came through that Shaun Abrahams decided to withdraw charges against Advocate Jiba. And then I said, well, when I get to the office I need to send out a statement. And I started thinking what can I say in such a statement. In the end, it became quite clear that we would only be one of many organisations that condemned the decision and we were not able to do anything.
“So I started then to say: Well, what can we do in cases where justice is not served and people who should be prosecuted are not? That’s where the idea of Gerrie Nel came.”
Kriel phoned the veteran prosecutor, known as the Bulldog, at the first opportunity he got.
“I left my first message for him on that day. So we’ve actually been through a process of 16 months speaking on this issue, on what we want to do and what the things are that would make it harder to do. And in the end we said this is something that is plausible, without saying it would be easy.”
For Nel, a fastidious lawman with near-obsessive attention to detail, the prospect of leaving the NPA wasn’t even on his agenda. This was despite his reported long-running feud with Jiba and those positioned in her “faction”. The idea of a private prosecutions unit wasn’t immediately enticing either.
“When I was approached by AfriForum with this concept of a private prosecutions office, you know, at first you listen to it and then you start dealing with it, you start engaging and I just thought … it’s brilliant.
“You know it’s not a parallel prosecution, it’s in instances where the National Prosecuting Authority decides not to prosecute, only then will we even have a chance of looking at the facts of the matter … I don’t see why anyone should even be concerned that we’re prosecuting that matter at that time,” argues Nel.
The law to do with private prosecutions is clearly set out in the Criminal Procedure Act. Sections 7 and 8 of the CPA allow for private prosecutions under South Africa law but the definition of who can pursue such an avenue is narrow. It must be brought by a private person, who must “prove some substantial and peculiar interest” — such as a husband if the offence was committed in respect of his wife or other close relationships.
A private prosecution cannot go ahead unless a certificate of nolle prosequi is issued by the director of public prosecutions. This document states that a decision has been taken based on the available evidence not to prosecute the case.
A private prosecutor must also provide security for the costs of the prosecution and would have to pay a deposit. Vast resources of time and money are required.
Successes are rare — in 2014, Faizel Hendricks was convicted in the Malmesburg Regional Court of killing his girlfriend, Rochelle Naidoo. Her parents spent nine years and thousands of rands pursuing a private prosecution.
Nel and Kriel are under no illusion about the very obvious challenges such a unit would face.
“I worry about is it possible? Is it possible to do a private prosecution? How would we get the application done? How would we get the nolle prosequi certificate? Will we be able to prove an interest?” Nel rattles off.
“And I think there will be lots of challenges. But I think somebody should be bold enough to challenge the law if the law is too difficult to do a private prosecution. But there are ways and means of doing that and I’m confident we will be able to do private prosecutions.”
He said the new unit would either prosecute in terms of its own right or interest or support somebody who would be able to prove that person has an interest.
As Nel explains, the two immediate barriers would be the massive costs of lawsuits and the fact that the law prohibits entities or organisations from pursuing private prosecutions.
The National Council of SPCAs has already attempted to challenge the legislation by going to the Constitutional Court in a case involving the slaughter of camels during a religious ritual in Lenasia in 2010.
AfriForum and Nel’s unit may well have to follow the same route to Braamfontein; or they could choose to work within the parameters of the law. Or both, says Nel.
There is also the possibility that the unit could face a constitutional challenge before Nel and his team can even get their hands on the dusty old files discarded by the NPA. But Nel is “not at all” concerned about this.
“You see what is very important is [that] it is not a parallel prosecutions stream. The NPA is the one prosecuting authority in the country and only when they decline to prosecute can we step in.”
The NPA is also — under the law — allowed to take over a private prosecution at any time. “In terms of the Act they can take it over. And I think they should take it over to save costs,” says Nel.
There is concern among the public that AfriForum will only pursue cases of interest to the particular group it represents and this unit will allow them to pursue a political agenda.
“The courts will keep us under control,” says Kriel. “The judicial system and the judge will still have to make a decision.”
There is also a defence team, which would make sure both sides are heard.
“So the system has built-in mechanisms that would make sure that
we won’t waste the courts’ time and that we only go to the court with cases that have substance,” assures Kriel.
Nel flatly refuses to name names and reveal which cases or individuals they will pursue. “I’m not going to identify cases.
“But what I will say is, one should consider all the matters where the NPA declined to prosecute, where people would think there are merits in the matter. Those are the only matters we can look at.”
The most obvious case that fits this description is the very one that sparked the idea for this unit in Kriel’s mind: that of Nomgcobo Jiba and Johan Booysen. The former Hawks general could well fit the definition of a private person with a substantive interest who has suffered as a consequence of Jiba’s alleged offence.
But in true AfriForum style, this project may well turn out to be more of a public relations gambit than anything groundbreaking.
Kriel says that, if all goes according to plan, there won’t be a long-
term need for a private prosecutions unit.
“What my hope is in that regard is, if we are successful with one or two cases then it will reduce the number of cases we need to take on dramatically because the NPA would know that there would be egg on their face,” he says.
“They’ll know that there is a watchdog. If you are able to bite once, the next time you just have to bark.”
With a bulldog like Nel leading the charge, the lobby group is confident that this tactic will have its desired effect.