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
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