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[OPINION] A parallel legal system, virtue or vice?

Last week lobby group AfriForum announced that it intended to privately prosecute EFF leader Julius Malema for his involvement in a case which was struck off the court’s roll back in 2015. This case had entered into litigation and was to be tried in court following the findings of then Public Protector Advocate Thuli Madonsela back in 2011. On-Point Engineering, a company in which Malema’s Ratanang Trust owned a significant share, had improperly benefitted from a dubiously acquired tender worth R52 million in Limpopo province during Malema’s hey days as the ANC Youth league’s president.

Now, Gerrie Nel, the much-respected and feared prosecutor is poised to launch a private prosecution bid on Malema in this regard should the NPA fail to prosecute him by August this year. AfriForum’s practical ability and appetite to do so is yet to be tested and demonstrated given the very strenuous legal battles it must traverse before permission for such a private prosecution is granted. Among the challenges it will face in this attempt is the acquisition of an official certificate of non-prosecution by the NPA should it (the NPA) decide to abandon all official efforts to prosecute Malema. Be that as it may, this is not an insurmountable obstacle because the law and Constitution allow for the arrangement of a private prosecution. However, is the constitutional provision of the possibility for public prosecutions a desirable provision in our law?

Following this announcement, the debate has predictably been about the motivation behind this line of action by AfriForum. And, predictably it has been diagnosed as having been motivated by nothing else but rabid racism against Malema who has angered white supremacists (such as AfriForum) by his call for land expropriation without compensation. “This is nothing more than a racist attempt to silence the son of the soil!” Sadly, this is what the conversation has been limited to. We need to go beyond.

There can be no doubt that this announcement is heavy-laden with political motivation which is patently spirited by what can be aptly described as “white fears”, hence it would not be incorrect to understand this motivation as being racially inspired. Indeed, perhaps it is important to call out AfriForum on its narrow white, particularly Afrikaner, focus and highlight the political unsavouriness of a formation that seeks to protect white, Afrikaner interests in post-apartheid South Africa, given the painful history of white privilege in this country. It’s just not cool.

But uncool ain’t illegal. And frankly speaking, AfriForum is not trying to win a popularity contest; they are in a battle for survival and relevance where the alternative, in their minds, is total annihilation of their identity and presence. Swag is the last thing on their mind. Perhaps we need to make peace, for the sake of progress, with the fact that AfriForum makes no secret of the fact that its priority is their specific constituency, which happens to be white and particularly Afrikaner. This may be historically unfortunate and politically incorrect, but not illegal as things stand. Is AfriForum a racist organisation? You decide.

So, yes indeed, those who ignore the underlying racial and political dimensions of AfriForum’s announcement last week are both myopic and ahistorical in their diagnosis of that aspect of AfriForum’s actions. This moment in time demands, however, that we look beyond, not ignore, but look beyond the obvious and regard even what may seem to be opaque.

In the same week of AfriForum’s announcement, literally hours apart, Duduzane Zuma, the son of former President Zuma, received a notice of the fact that the NPA had eventually decided to prosecute him for culpable homicide. This is in respect of what was found to have been the negligent driving of Duduzane, who in 2014 crashed into a mini-bus taxi with his Porsche, which resulted in the death of Phumzile Dube. The case was also struck off the roll in 2015 by the NPA on the basis that it was unwinnable. It did not even go to court.

The NPA, under the leadership of Shaun Abrahams, an individual considered to be highly compromised by his expedient loyalty to then President Zuma, simply did not have the appetite to even try this case. However, upon learning that the case would not be prosecuted by the NPA, AfriForum announced that it would take up the case on behalf of Phumzile Dube and privately prosecute Duduzane.

No one made any noise about the fact that Phumzile, a black woman, was denied justice by the official national prosecuting authority of our country on the basis of painfully arbitrary reasons. You see, she was poor and politically insignificant. However, upon hearing that the much-maligned AfriForum wished to privately prosecute Duduzane, the NPA suddenly jumped into action and are now ready to prosecute. We dare not forget that for more than a decade former President Zuma was able to evade allegations of fraud, corruption and racketeering related to the arms deal because of the ineptitude and suspected corruption of the NPA under then acting head Mokotedi Mpshe. Again, the reasons advanced for dropping charges against Zuma were that they were politically motivated allegations despite the fact that there was a legal case to answer by Zuma.

Over the years, South Africa’s justice system has been weakened by what is perceived to be a compromised National Prosecuting Authority. It cannot be trusted. It is captured. Under normal circumstances, the constitutional provision for private prosecutions would be undesirable because we would all be assured of fair, uncompromised prosecutions. It is undesirable that private individuals should have the power to exercise a power that should be reserved for the state. It creates the uneasy feeling of the existence of a parallel justice system. This is regrettable. However, when the state has been captured by elements of nefarious intentions, we thank heavens that there is a private option for accessing justice.

To his credit, Malema has said, ‘Bring it on’. He has not at any stage of his accusations in the On-Point matter attempted to avoid court. In fact, had it not been for the NPA’s ineptitude, he was ready and willing to go ahead with the case in court. But it was struck off the roll. Significantly though, it must be borne in mind that this case was not struck off the roll because of a determination of the guilt or innocence of Malema and his co accused, but rather because of the operational ineptitude of the incompetent NPA.

Notwithstanding the political considerations, is there a legal case for Malema to answer? The answer is an unequivocal yes. The findings of the Public Protector have not yet been disproved. Surely the victory of vindication will be the sweeter as he proves his innocence in a case rehashed by the racist AfriForum. Surely his credibility, even amongst his harshest critics, will be enhanced when he goes to court to disprove the former Public Protector’s findings.

We owe it to ourselves as South Africans to look beyond the obvious political machinations and motivations of formations and fearlessly entrench the principle of the rule of law, regardless of where the opportunity to do so hails from.

Aubrey Masango is a presenter on Talk Radio 702. Follow him on Twitter: @702Aubrey

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