Nel’s move is a moot point

Pros­e­cu­tor’s shift to AfriFo­rum should be seen in the broader con­text of the ero­sion of pub­lic trust in state in­sti­tu­tions, writes Bru­tus Mal­ada

CityPress - - Voices & Careers -

The pub­lic de­bate gen­er­ated by the res­ig­na­tion of cel­e­brated state pros­e­cu­tor Ad­vo­cate Ger­rie Nel is mis­placed and false. The de­bate deals with in­nu­endo rather than the real is­sue at the core of Nel’s move from the Na­tional Pros­e­cut­ing Au­thor­ity (NPA) to a new po­si­tion as pri­vate pros­e­cu­tor at the con­tro­ver­sial lobby group, AfriFo­rum.

Like all false de­bates, they are driven by spec­u­la­tion. The chief spec­u­la­tors sug­gest Nel may have been pushed to re­sign from the NPA. Whether this was the case is nei­ther here nor there; Nel can choose to re­sign when he likes and as­so­ciate with whomever he pleases.

De­bates such as these are point­less, and akin to a med­i­cal prac­ti­tioner who wastes his time try­ing to cure the symp­tom rather than the cause of the ail­ment. In the end, the ill­ness will re­cur and the pa­tient will be back again, pre­sent­ing an­other symp­tom of the same disease.

The crux of the de­bate about Nel’s res­ig­na­tion should fo­cus on what makes cit­i­zens be­lieve in the value of pri­vate over pub­lic pros­e­cu­tion.

This has to do di­rectly with South Africans’ per­cep­tions of the le­git­i­macy of the state.

Bar the ju­di­ciary, the state – un­der the lead­er­ship of the ANC – has be­come sus­pect in the eyes of the pub­lic, par­tic­u­larly so un­der Pres­i­dent Ja­cob Zuma.

The South African govern­ment is le­git­i­mately en­trenched as it has been given an elec­toral man­date.

But in ap­pear­ing to act con­stantly against the in­ter­ests of the peo­ple it pur­ports to rep­re­sent, the state’s le­git­i­macy has been eroded in the eyes of the pub­lic.

In ad­di­tion to com­pro­mis­ing it­self legally and eth­i­cally, cit­i­zens have lost con­fi­dence in the abil­ity of govern­ment to pro­vide ba­sic ser­vices such as de­cent in­fra­struc­ture, proper healthcare, safety and se­cu­rity.

So, what hap­pens when the peo­ple lose con­fi­dence in the state? They ei­ther es­tab­lish their own al­ter­na­tive in­sti­tu­tions or they re­volt. The for­mer ac­tiv­ity re­sults in a pri­vate sub­state, while the lat­ter breeds an­ar­chy.

It seems that, un­til now, South Africans have re­sorted to the for­mer op­tion. But the lat­ter is a dan­gling car­rot. A cur­sory look at the cur­rent sit­u­a­tion re­veals that where medi­ocrity, in­ef­fec­tive­ness and in­er­tia have been nor­malised in the pub­lic ser­vice, peo­ple have formed al­ter­na­tive in­sti­tu­tions par­al­lel­ing those of the state.

The growth of pri­vate se­cu­rity ser­vices and the mush­room­ing of gated com­mu­ni­ties, manned 24/7 by pri­vate se­cu­rity per­son­nel, have been a com­mon fea­ture on the South African land­scape for years.

They at­test to peo­ple’s lack of con­fi­dence in the govern­ment’s abil­ity to keep them safe.

When Madibeng municipality in the North West failed to pro­vide clean wa­ter, fix pot­holes or re­move refuse, cit­i­zens started their own ratepay­ers’ as­so­ci­a­tions, col­lect­ing taxes and tak­ing over the role of the mu­nic­i­pal coun­cil.

When teacher union Sadtu be­came a menace in pub­lic schools be­cause of strik­ing or ab­sent teach­ers and in­ci­dents of bribery and cor­rup­tion, cit­i­zens chose to take their chil­dren to pri­vate schools.

The growth of in­de­pen­dent school op­er­a­tors such as Curro, Pioneer Acad­e­mies and Spark Schools can be traced to the de­cline in the qual­ity of pub­lic schools.

In re­cent years, we have seen the for­ma­tion of civil so­ci­ety or­gan­i­sa­tions such as Cor­rup­tion Watch, the Coun­cil for the Ad­vance­ment of the South African Con­sti­tu­tion, Save SA and oth­ers – all es­tab­lished against the back­drop of a govern­ment that has lost its moral com­pass.

The for­ma­tion of a pri­vate pros­e­cu­tion arm by AfriFo­rum should, there­fore, be viewed in this con­text. Like the or­gan­i­sa­tions above, it too re­flects pub­lic scep­ti­cism re­gard­ing the abil­ity of the NPA to act in­de­pen­dently and im­par­tially. Last year’s fi­asco in­volv­ing NPA boss Shaun Abra­hams’ with­drawal of fraud charges against Fi­nance Min­is­ter Pravin Gord­han ex­posed the shenani­gans tak­ing place in that of­fice. The tar­nished rep­u­ta­tions of many of our state in­sti­tu­tions make pub­lic ser­vice unattrac­tive to South Africa’s finest tal­ent. A per­son who se­cures a po­si­tion there is per­ceived to have medi­ocre skills at best or to be a dodgy char­ac­ter who is out to loot state cof­fers. Cit­i­zens are the losers as the ex­is­tence of a par­al­lel sub­state only du­pli­cates the work at hand and wastes re­sources. After all, it is the same pub­lic whose taxes sub­sidise dys­func­tional state in­sti­tu­tions and pri­vate ini­tia­tives. The tragedy is that it is the poor who suf­fer most as they re­main marginalised. Their con­cerns are com­pro­mised by govern­ment’s in­ef­fec­tive­ness, while the ef­fi­ciency of pri­vate providers is too costly for them to af­ford. This is not sus­tain­able and will only serve to fo­ment anger and, ul­ti­mately, re­volt. So, where to from here? Two pro­pos­als of­fer a way for­ward. The first is to con­tinue with our civic ac­tivism. It is ironic that we have the pres­i­dent to thank for gal­vanis­ing the pub­lic, since many civic or­gan­i­sa­tions have been formed in response to Zuma’s as­sault on pub­lic in­sti­tu­tions. Cit­i­zens have been un­der siege and are find­ing ways to fight to main­tain their hard-won rights and free­doms. In­stead of be­ing the de­fender of our Con­sti­tu­tion, Zuma has been found guilty of fail­ing to up­hold its tenets. He con­tin­ues to be­have with im­punity and un­der­mine pub­lic in­sti­tu­tions, all the while avoid­ing his day in court.

This civic ac­tivism should con­tinue be­yond Zuma and serve as an em­blem of hope that South Africans will not sur­ren­der their free­doms to any fu­ture despot who may fancy the idea of pub­lic of­fice.

Se­condly, we need to in­ter­ro­gate this propo­si­tion from philoso­pher Karl Pop­per: “The ques­tion we should ask is not ‘Who should rule?’, but ‘How can we so or­gan­ise po­lit­i­cal in­sti­tu­tions that bad or in­com­pe­tent rulers can be pre­vented from do­ing too much dam­age?”

Let us come up with solutions to this au­then­tic chal­lenge rather than en­gage in point­less de­bates.

Mal­ada is a mem­ber of the Midrand Group TALK TO US Do you think Ad­vo­cate Ger­rie Nel’s move from a na­tional to a pri­vate pros­e­cut­ing au­thor­ity is rel­e­vant? SMS us on 35697 us­ing the key­word NEL and tell us what you think. In­clude your name and prov­ince. SMSes cost R1.50


CIT­I­ZEN AC­TIVISM Mem­bers of the Save SA move­ment mo­bilise to ef­fect pos­i­tive change

Ger­rie Nel

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