Should Zuma be worried about Private Prosecutor Gerrie Nel?

Gerrie Nel surprised us all this morning with the news he is quitting the National Prosecuting Authority (NPA) and joining AfriForum to head up a private prosecutions venture.

There are so many things one could say about this, but you can’t escape the big headline that this is just another reflection of our two-system society: the private one for people who can pay for excellence, and the public one, for everyone else – who just have to take what they can get.

Not long ago, most of us didn’t even know there was such a thing as private prosecution. Then we came across the story of the Asmall family, who refused to accept their daughter Rochelle Naidoo had committed suicide more than 10 years ago. The state at the time refused to prosecute her boyfriend, Faizel Hendricks – due to what they said, in their professional opinion, was a lack of evidence.

The family then hired a private prosecutor and forensics experts to collect a neat little pile of evidence the police completely missed and, nine long and expensive years later, Hendricks was found guilty of her murder in 2014 and sent to jail.

One can only wonder how many other people have been denied justice by virtue of our completely captured and otherwise sloppy, lazy and ineffective public justice system.

Much like with education, our postal service, our safety and our healthcare, those who refuse to be at the mercy of the state go private. It perpetuates our inequality in myriad ways, though it also appears inevitable. It’s sad, but the only way to prevent people with money turning to private solutions is to ensure the state becomes a well-run, transparent and efficient deliverer of services for the public good … and no one is holding their breath for that.

I’m told even big corporations are nowadays agreeing on private arbitrators in the event that one side wants to sue the other, thus side-stepping the traditional court system, which is no longer entirely trusted.

Anyone seeking to pursue private prosecution can approach the national director of public prosecutions and demand a certificate stating the state is not willing to prosecute. That will allow the applicant to pay for a private prosecution by someone qualified to bring their case.

A private prosecutor will have to pay the subsequent legal costs and expenses, but if there’s a successful conviction, the court can either order the accused to reimburse the private prosecutor or order the state to reimburse him or her.

Now, if recent history is anything to go by, the NPA has no intention of prosecuting President Jacob Zuma. All the same, don’t expect Gerrie Nel to get his certificate anytime soon. There will doubtless be years of legal nitpicking and wrangling to prevent that from happening.

But according to law, the NPA can’t refuse to issue a nolle prosequi certificate if they have no intention of prosecuting or no appetite to do so.

Nel has offered a lot of clarification at his Tuesday press conference about how his new office will work. Much of it is encouraging and will certainly make for some interesting headlines in the months ahead if he manages to find any traction.

1. He and his new team will be focusing on corruption, though they haven’t ruled out taking other cases they believe will be for the public good or in the interests of justice.

Making this largely about corruption, though, makes sense – because to expect our state to have the maturity and transparency to investigate and punish its own corruption clearly isn’t working.

2. Nel is fed up with the NPA’s cherry-picking of which corruption cases to prosecute and which not, and there almost always appears to be a political agenda behind its decisions. The Bulldog intimated he’d be “blowing the dust” off some old case files – an utterly tantalising prospect for the interests of society, and a terrifying one for the bad guys.

3. AfriForum says it will be hoping to fund this expensive project through its members and public donations, and be taking cases on merit and without bias (to some that’s a bit of a joke, but let’s see). They say they’ll also be willing to prosecute on behalf of people who aren’t even AfriForum members. For all our sakes, let’s hope they also won’t just champion the causes of white people.

The initial reaction to all of this has been an outcry that someone of the calibre of Nel would dare to associate himself with a group that is so clearly aligned with the interests of Afrikaners and the alleged protection of white privilege.

But that aside, finding a way to hold the powerful to account is a good idea, and are we going to shoot it down simply because a group that doesn’t tick all the right boxes of political correctness didn’t come up with this idea first or have the balls to give it a go?

Someone like our slippery president is probably far too heavily protected by the NPA and the rest of government to fear being prosecuted “privately” for those 783 charges he’s been ducking and diving for a decade. But imagine if the Bulldog could get Zuma’s case in his jaws and give Msholozi a good old shake in court? Feel free to ask the Blade Runner how that felt.

Like I said, that’s unlikely, but I have little doubt that taking down Zuma and all who sail with him is ultimately AfriForum’s holy grail.

That’s not going to happen, but what they could possibly achieve is a gradual tightening of the accountability noose by targeting the vast network of cronies (allegedly) linked to the president and other (yes, yes, I know … allegedly) corrupt state officials who are just pottering on with their own independent orgies of looting.

We can only hope that if they are able to topple some of those dominoes, they may eventually get to the president himself and force him to have that day in court he once told us he was so keen to have.

Charles Cilliers, Citizen.co.za digital editor