Gerrie ‘The Bulldog’ Nel barks up wrong tree on Kelly Khumalo’s rights

A rule of thumb which has served me well is to never attribute to malice that which is adequately explained by stupidity. Given his prestigious career as an advocate and a former prosecutor, one may call Gerrie “The Bulldog” Nel many things, but ignorant is not one of them. This makes Nel’s recent comments regarding Kelly Khumalo, and its implied threat to the legal protections afforded to all South Africans, all the more puzzling.

Nel, a maverick in the legal fraternity, recently weighed in on the decision by the singer and socialite to appoint an advocate to observe the trial of the five men accused of murdering her partner, Senzo Meyiwa. Responding to reporters, Nel expressed his doubt about the motivations behind Khumalo’s actions. “If you do not fear that your rights might be involved in a trial”, Nel asks, “why would you appoint someone?”

Though Nel is careful to leave the true meaning of his statement unsaid (“That is all I can say really.”), it isn’t hard to read between the lines. He is suggesting that Khumalo’s guilt can be ascertained, not by objective evidence and an appeal to logic, but by the mere fact that she has appointed legal counsel (as is her right). Perhaps The Bulldog’s experience as a public prosecutor has granted him the preternatural ability to smell guilt.

Those of us not imbued with similar olfactory gifts may find Nel’s statements perplexing. That is because they are. His assertion amounts to what is known in philosophical lingo as a non-sequitur (Latin for “it does not follow”).

A non-sequitur is a rhetorical trick often used to confuse or misdirect an audience or an opponent. Its effectiveness relies on the intended target of the deception not realising that the speaker’s conclusion does not logically follow from the premise. In Nel’s case, his implied conclusion (Khumalo was involved in a crime) cannot be deduced – at least not using anything approaching sound legal reasoning – from his premise (Khumalo appointed an advocate).

Had these comments been made by Joe Public, or even a less experienced jurist, they may have been excusable. However, Nel is a seasoned advocate with multiple awards under his belt. He, more than most, should know that a person should not be suspected of a crime just because they have exercised their legal rights. One can only hope that this same line of reasoning (I use this word loosely) did not guide his actions during his three-decade tenure as a prosecutor at the National Prosecuting Authority.

To avoid the appearance of bias, let me assure the jury that my diatribe has nothing to do with Khumalo, per se. This witness will gladly testify that until approximately 8pm on the night of Wednesday 13 April 2022, not a single thing about Khumalo, her music, her relationships, or the controversy surrounding Meyiwa’s death, were known to him. There has been little improvement on this front in the intervening week.

Instead, my motivations are much more mundane: pure and unapologetic self-interest.

Nel’s attempt to bring into question Khumalo’s innocence for the non-crime of soliciting a lawyer does not only affect her rights. It also jeopardises the rights of every South African who may one day depend on those very same rights for protection. The court of public opinion is fickle. If society, egged on by legal “experts”, were to start associating the exercise of rights with an admission of guilt, it is not hard to see where this road leads.

In her book, The Friends of Voltaire, Evelyn Hall quotes the French philosopher as saying: “I disapprove of what you say, but I will defend to the death your right to say it”. As it is with speech, so it should also be with rights. As individuals we have a vested interest in ensuring that the rights of others (no matter their history or perceived guilt) are respected. Life is unpredictable. Perhaps someday we may also need to rely on those very same rights for our life and liberty. If that day ever comes, would you want to sit across from a state prosecutor who is convinced about your guilt simply because you hired a lawyer?

I rest my case.

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Werner van Wyk
Werner van Wyk is a recovering actuary who traded in his calculator for life in the bushveld and the opportunity to write about global trends in culture, politics and philosophy.

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