Advocate Gerrie Nel will head a private prosecutions team intended to bring justice to South Africa’s political and economic untouchables.
The man who relentlessly prosecuted track star Oscar Pistorius for the fatal shooting of his girlfriend announced his shock resignation from the National Prosecuting Authority yesterday.
The team’s first cases could be politically charged, such as that involving President Jacob Zuma, who faces 783 corruption charges.
For months NPA head Shaun Abrahams has sat on a Pretoria High Court order that charges against Zuma be reinstated.
Private prosecutions are permissible under the Criminal Procedure Act when the NPA declines to act.
In 2014, after a private prosecution in Malmesbury in Western Cape, Faizel Hendricks was convicted of the murder of his girlfriend, Rochelle Naidoo. She was shot dead in her Cape Town flat in June 2005.
Hendricks pleaded not guilty and the NPA’s case had been withdrawn.
An inquest in 2008 suggested that she had committed suicide but her family refused to believe that and launched a private prosecution.
It was South Africa’s first murder conviction by private prosecution.
Nel refused to identify the cases he is considering taking on but The Times understands that they include those involving acting national police commissioner Khomotso Phahlane, Hawks head Lieutenant-General Berning Ntlemeza, former Eskom CEO Brian Molefe and SA Airways board chairman Dudu Myeni – all of whom are knee deep in allegations of corruption and maladministration.
Nel is one of this country’s top criminal prosecutors. He successfully prosecuted former national police commissioner Jackie Selebi for corruption and Paralympian Pistorius for murder.
AfriForum CEO Kallie Kriel, making the announcement yesterday of the formation by his organisation of the private prosecutions team, denied that it was being done in pursuit of a political agenda .
“It is about ensuring that justice is delivered to all South Africans,” said Nel.
He said his decision had not been taken lightly.
The focus of the team, which Nel said would include other top prosecutors, would be to ensure that corruption cases unreasonably withdrawn were prosecuted.
“This is not a parallel justice system. If the NPA decides to prosecute we have no right to prosecute and our job will be done. We have 100% faith in South Africa’s criminal justice system, we just want to help them,” he said.
But he said public perception was that the NPA had been selective in some of its prosecutions.
“That is what we are here to test. We hope it will not be the case.
“People involved in corruption, regardless of their status, must understand that they will be looked at.”
Nel said a certificate had to be granted before a private prosecution could go ahead.
“We must show good reasons why we want to prosecute. Once we have the certificate we have three months in which to bring the matter to court.”
Asked about the possibility that the NPA would delay issuing certificates, Nel said that then an appeal to a court would be made.
“If we believe there needs to be a prosecution, then we will prosecute. We will not be stopped.”
Llewelyn Curlewis, vice-chairman of the SA Law Society’s criminal law committee, said nothing in law could stop the establishment of a private prosecutions team.
He said that – theoretically – the state would decline to prosecute a case only when it was believed that there was no reasonable chance of success.
“But we all know of the many examples of decisions being taken not to prosecute which were based on political influences instead of the strict application of the law.
“It is obvious that some of these cases had reasonable prospects of success even though the state declined to prosecute.”
Constitutional law expert Marinus Wiechers said: “The establishment of this team will go far to help ordinary citizens who feel robbed of justice.
“A team like this will become a watchdog over the NPA, holding it to account, especially when cases in which there is a reasonable chance of success,” he said.
The Helen Suzman Foundation’s Antonie Francis said the team could be just what South Africans needed.