Walking out of the swamp of graft into morass of racism

Private prosecution is an excellent idea anywhere, but especially in SA, where the inadequacies of the state’s prosecuting agency go at least three presidents deep, counting caretaker Kgalema Motlanthe. The National Prosecuting Authority (NPA) has been a threat to justice in the country for several years. If ever there was a good time to privatise justice, this is it.

Justice, private or otherwise, will always be in society’s interest, and it is not as though the state has a monopoly on the common weal. Any citizen is free to seek the common good and most claim to do precisely that. For citizens to help discover the law is not alien to the law.

In a sense, it means responsible citizens are obliged to seek justice when the state fails in its duty, especially a failed authority that selectively serves the interests of those who control the state. The captured South African state is a fine example of a partisan entity that, by definition, is incapable of seeking the common good. You could say this happens when the NPA declines to prosecute a suspect despite the evidence, creating a public perception of impunity.

So, for a moment, it seemed to be a good idea for prosecutor Gerrie Nel to take on a new job as private prosecutor with Afrikaner lobby group Afriforum. And it is totally understandable that Nel has walked out on the NPA. An ace lawman, a champion for justice, a man with locus standi, cannot be seen anywhere near the disaster the NPA has become. He did, after all, put former Interpol president Jackie Selebi behind bars and, against the odds, won justice for Reeva Steenkamp, who was murdered by some athlete or other.

The latter matter, which eerily echoed the murder trial more than a decade earlier of another athlete, one OJ, should be instructive about the potential of private prosecutions. The way OJ dodged justice in the state of California’s prosecution and was finally held responsible in a civil suit for two wrongful deaths was so racially charged and celebrity intoxicated, it could easily have happened in hero-starved, sports-mad, racist SA. And so it did. More or less.

The similarities between the cases end there, though. If our Gerrie hoped the scales would swing against SA’s notorious criminals, that is, ANC members in high office, as it had swung against OJ, he would be wrong. SA’s Constitution does not have fallible prosecutors in mind, and the Criminal Procedure Act allows for only a narrow pursuit of redress.

Also, as constitutional law expert Pierre de Vos writes in The Times, the privatisation of prosecutions is likely to be argued to be an injustice in itself in that it would constitute an unequal application of the law.

But, even if Nel is clever enough to get around the constitutional challenges and the obscene costs, and that he’ll be pressed to convince the prosecuting authority to grant him permission to prosecute their bosses, you have to wonder whether there isn’t an easier way to make a living.

Perhaps, he is a driven man. Consider that, as the founding head of the Scorpions police unit in Gauteng, he was pals with the then NPA chief, Vusi Pikoli. This is the same Pikoli who was suspended by former president Thabo Mbeki over the Selebi prosecution, just before the ANC put Mbeki himself out to pasture. Motlanthe, President Jacob Zuma’s seat warmer, fired Pikoli who then drifted off to the relative safety of the Western Cape.

SO, FOR A MOMENT IT SEEMED TO BE A GOOD IDEA FOR GERRIE NEL TO TAKE ON A NEW JOB AS PRIVATE PROSECUTOR WITH AFRIFORUM

A lesser man might have an axe to grind, though it seems an unlikely flaw in a man of our Gerrie’s stature. What, then?

Has Gerrie stepped into the same race doo-doo that motivates the criminal class he intends to hunt down? Does he really think he serves justice and the common weal by taking a pay cheque from a narrow-interest, race-based lobby that openly proclaims its Afrikaner bias?

It may be Nel’s perception that Afrikaners are being singled out for oppression by a belligerent state and that they need help, but he of all people should know that you cannot fight racism with racism. By its own racially divisive spirit, the ANC proved it so, and Gerrie and Afriforum must know that their prosecutions will just make it worse.