Private Prosecutions, Inc: Gerrie Nel leaves a deeply compromised NPA behind
- MARIANNE THAMM and REBECCA DAVIS
- South Africa
- 31 Jan 2017 09:54 (South Africa)
After 36 years as a state prosecutor, the man who put Oscar Pistorius behind bars is leaving public service. Tuesday’s announcement that Gerrie Nel was leaving the National Prosecuting Authority at 24 hours’ notice was unexpected – but even more surprising was the revelation that the “Pit Bull” was joining Afrikaner rights group AfriForum, effectively to set up a parallel prosecuting system to the NPA. By REBECCA DAVIS and MARIANNE THAMM.
Tuesday 31 January 2017 was the day on which AfriForum hit the bigtime. An organisation previously associated with protecting a niche interest group – white Afrikaans farmers – enjoyed rolling live coverage of its press conference and prominent headlines in all major media outlets. The individual to whom they owe this newfound limelight: Gerrie Nel, the tenacious prosecutor who claimed the scalps of disgraced athlete Oscar Pistorius and crooked former police commissioner Jackie Selebi.
It was confirmed at a briefing at AfriForum’s Gauteng offices that Nel will be leaving the National Prosecuting Authority (NPA) with immediate effect to run a private prosecutions unit for AfriForum.
Addressing the media, Nel explained that the unit will be making use of a clause in the Criminal Procedure Act which allows for private prosecutions in situations when the NPA declines to prosecute.
“My main concern has been that everyone should be equal before the law,” Nel said. He refused to be drawn on what potential targets his new unit would single out for prosecution, saying only that they would “not only be high flyers”. In the course of conversations stretching back a year with AfriForum, Nel said he had made the point that a corrupt official in local government could have as great, or greater, an impact on ordinary lives than someone higher up the chain.
A direct effect on the life of a private individual will be necessary in order for the unit to persuade the court that it should be allowed to prosecute. Constitutional law professor Pierre de Vos has said that Nel “will have his work cut out” in this regard.
Nel clarified that the unit will not only tackle corruption matters. Although AfriForum will be funding all prosecutions, Nel also said that anyone would be able to approach the unit, and not only AfriForum members.
Both Nel and AfriForum CEO Kallie Kriel were at pains to paint the establishment of the unit as a public good which will potentially be of utility to all South Africans. Given that AfriForum appears to be funded largely by members’ donations, however, it remains to be seen what appetite the unit will have for prosecutions of little relevance to its core base.
“The fact is that from AfriForum’s side we are not ashamed of the fact that we take on issues of interest to Afrikaners,” Kriel told journalists. Nonetheless, he claimed: “Most of the work we do is in the interest of all South Africans.”
Speculation is that Nel will work closely with corruption-buster Paul O’Sullivan, who was brought on board by AfriForum last year to run an anti-corruption unit. At Tuesday’s press briefing Nel said he had not yet met O’Sullivan.
After O’Sullivan joined AfriForum in October 2016, however, he told an interviewer of the plan to prosecute cases. “We will force the state to make a decision to prosecute, or if they decide that they’re not going to prosecute, to issue a certificate that they’re not going to prosecute and then we will cherry-pick those cases, we will pick the ones that have the best evidence in them and we will prosecute them ourselves,” O’Sullivan said. “We will, in other words, run a parallel activity to the national prosecuting authority.”
Asked if that amounted to privatising the criminal justice system, O’Sullivan confirmed that it did. “But it’s necessary in South Africa because the criminal justice system has been captured by state-sponsored criminals,” he said.
On the matter of the NPA, Nel remained diplomatic. He declined to comment specifically on current NPA head Shaun Abrahams, saying: “In all my years in the NPA our paths never crossed.” He paid tribute to the NPA’s “brilliant” prosecutors, and said: “I don’t know enough about NPA management to even venture a view.”
From the NPA’s side, too, cordiality was the order of the day. “[Nel] has prosecuted in various high-profile cases and was a skilled, formidable and feisty prosecutor who left no stone unturned to ensure justice to the victims of crime and has left an indelible mark in the criminal justice system,” NPA spokesperson Luvuyo Mfaku told the Daily Maverick. “We wish him all the best in his future endeavours.”
There is reason to believe, however, that behind the scenes things have been considerably less rosy between Nel and the NPA.
Nel’s resignation on Tuesday must be viewed against the backdrop of the putrid and dysfunctional atmosphere that has pervaded the NPA for over a decade. No individual appointed to head this, an authority that should be the most important player in the Criminal Justice System, has ever served out a full term.
Instead the NPA has been mired in scandal and been accused of pursuing malicious, politically driven prosecutions (including that of Finance Minster Pravin Gordhan and former acting SARS Commissioner Ivan Pillay) while stonewalling, obstructing or ignoring politically sensitive cases, most notably Jacob Zuma’s 783 charges of corruption, fraud and racketeering.
Most recently Nel’s name cropped up among those cases Advocate Torie Pretoruis, Acting Special Director of the NPA’s Priority Crimes Litigation Unit (PCLU), has been tasked with investigating with regard to the so-called SARS “rogue unit”.
It was Pretorius who current NPA head, Shaun Abrahams, had claimed was keen to press charges against Pravin Gordhan, Ivan Pillay and former SARS Commissioner Oupa Magashula before these were later withdrawn as a vital piece of exculpatory evidence, the so-called Symington memorandum, had not been considered. In withdrawing the charges it became apparent also, through a series of letters Abrahams made public, that Hawks head Lieutenant-General Mthandazo Ntlemeza was livid that Gordhan, Pillay and Magashula would not be prosecuted.
Nel is no stranger to being hounded. In 2008 the seasoned prosecutor, then head of the Directorate of Special Operations (the Scorpions) and who was pursuing Police Commissioner Jackie Selebi at the time, was dramatically arrested by 20 armed members of SAPS outside his Pretoria home in front of his wife and children after they had returned from a holiday. The charges of fraud, defeating the ends of justice and perjury, were later withdrawn.
It was Nomgcobo Jiba who in 2007 and as a senior deputy director of public prosecutions with the NPA, along with her colleague advocate Lawrence Mwrebi, then head of the NPA’s commercial crimes unit, assisted then Gauteng deputy police chief, Richard Mdluli, to secure the warrant for Nel’s arrest. Mdluli spearheaded investigations into Nel during the Selebi saga, which proved as a proxy war for factions in the ANC.
It was also Nel who in 2005 had prosecuted Jiba’s husband, former Scorpions member Booker Nhantsi, who was convicted and jailed for stealing around R190,000 from a trust fund. President Zuma issued a presidential pardon for Nhantsi in 2012, thus expunging his criminal record.
In 2012 Jiba called on Mdluli’s assistance at a later labour court hearing after her suspension as acting NPA boss.
Jiba has, over the years, been seared by 12 judges on four benches in three massively high-profile matters, including for her role in the Zuma “spy tapes” matter, for her delays in the Freedom Under Law case regarding the dropping of charges including fraud and murder against former Crime Intelligence Head Richard Mdluli as well as her decision to charge KwaZulu-Natal Hawks head, Johan Booysen (who was investigating people close to President Zuma’s family).
Jiba was later charged with perjury and for lying under oath in the Booysen matter but new NPA head Shaun Abrahams withdrew the charges soon after taking office, claiming he had done so based on the decision of another prosecutor, Advocate Marshall Mokgathle. This was later contradicted, however, in an explosive affidavit by another NPA deputy, Willie Hofmeyr (since shafted to Legal Affairs, but more about that later), who claimed Abrahams had disregarded legal opinion from two other NPA prosecutors.
Mdluli has been at the centre of the erosion of the country’s criminal justice system and is seen as a key player in the obtaining of the “spy tapes” recordings relating to Zuma’s prosecution. Former prosecutor and now DA Shadow Minister of Justice, Glynnis Breytenbach, also felt the Jiba burn when she [Breytenbach] was suspended after penning a memorandum to Mwrebi that Mdluli should be prosecuted.
Mwrebi instructed Breytenbach to withdraw the charges, claiming that the Hawks did not have the “authority” to investigate intelligence funds Mdluli had been charged with abusing.
Jiba and Mwrebi were this month granted leave to appeal the decision but it is unlikely that they will succeed. If they fail in their endeavour to hold on to their jobs President Jacob Zuma will be compelled to sideline one of his staunchest supporters in his ten-year bid to escape prosecution.
In essence the NPA has come to be viewed as the personal bodyguards of Jacob Zuma and his cronies against the criminal justice system.
In June 2016, after years of costly litigation driven by the Democratic Alliance, the Zuma’s Stalingrad strategy deployed by individuals like Jiba came to a grinding halt when the Pretoria High Court ruled against the NPA and the decision by its then head, Mokotedi Mpshe, to withdraw the 783 charges of fraud, corruption and racketeering against Zuma. Zuma’s legal team challenged the ruling in August 2016 and applied to the SCA for leave to appeal. The SCA has called for arguments in open court, due to take place this year.
So, from Vusi Pikoli’s suspension in 2007 (in the aftermath of a stand-off with the Scorpions and former president Thabo Mbeki with regard to charging Police Commissioner Jackie Selebi) to the appointment of the unsuitable Mokotedi Mpshe (who the courts have ruled was incorrect in withdrawing corruption charges against Jacob Zuma), the “irrational appointment” of Menzi Simelane, who was by replaced Jiba who was in turn replaced by Advocate Xolisi Nxasana, the NPA has never known stable leadership.
Nxasana, who was keen to review the withdrawal of Zuma’s charges as well as reinstitute charges against former Crime Intelligence Boss, Richard Mdluli, suddenly found himself the target of an investigation and resigned in 2015.
In July 2014 Breytenbach, then a DA MP, in a speech during the Justice budget vote in Parliament said:
“The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organisation to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons,” said Breytenbach.
It was prosecutor Willie Hofmeyr, former head of the Special Investigating unit, Deputy Director and Public Prosecutions and head of the Asset Forfeiture Unit, who outlined the current atmosphere at the NPA during his August 11 interview during Parliament’s Special Parliamentary Committee as one of 14 short-listed candidates for appointment as the public protector.
In the interview, Hofmeyr was asked what the scope of his work was at the NPA and why he wanted to leave. Hofmeyr responded that he was no longer able to do the job for which he had been recruited and for which he had the expertise, describing himself as “an efficient postbox”. Hofmeyr was moved by Abrahams to an obscure legal department doing a job, he told the committee, that only keeps him busy for about three hours a day.
Members of the committee were concerned by Hofmeyr’s admissions, with chair Dr Makhozi Khoza proposing that members take the matter to the appropriate parliamentary portfolio committee.
Hofmeyr’s interview prompted activist John GI Clarke to write to then PP Thuli Madonsela in August 15, lodging a complaint against NPA head Shaun Abrahams for “maladminstration, misuse of official resources and abuse of authority because of his failure to make optimal use of the exceptional skills, ability, experience and commitment of one of his senior deputies, Mr Willie Hofmeyr.”
Clarke, a social worker, told Madonsela that he had clients who had lost faith in the criminal justice system.
“For example, the Amadiba community in the Eastern Cape with whom I have been working for over a decade still await justice after well documented failures by the SAPS and NPA to deal with conflict and violence that has led to several unsolved murders, going as far back as 2003,” said Clarke.
Clarke received a reply in December from Paul Tjale, acting executive manager of the Good Governance and Integrity Unit at the Office of the Public Protector, informing him that the complaint was being investigated.
At a press conference on Tuesday, Nel said that one of the issues with regard to his perception of the “current management” is “it doesn’t only matter where people are not prosecuted, it also matters where people are prosecuted and matters are later withdrawn”.
This is an ill-disguised reference to the Gordhan et al case. It also emerged that Nel had been in discussion with Afriforum for at least a year. The beginning of the onslaught on Pravin Gordhan in February 2016 that continued throughout the year until the withdrawal of charges in October may have much to do with Nel’s move.
The NPA might still gun for Nel with regard to the “rogue unit” and his alleged role in bugging the offices of the then NPA who were investigating Selebi. Considering the manner in which the entire SARS rogue unit narrative has exposed a set of individuals who are close to President Zuma, his friends and Zuma family business associates, whoever comes for Nel had better make sure not a shred of evidence is missing or accidentally e-mailed to a witness.
News that Nel was joining Afriforum prompted mixed reactions online and beyond.
EFF spokesperson Mbuyiseni Ndlozi took to Twitter to announce: “We are not scared of Gerrie Nel; we will never be scared of Ku Klux Klan AfriForum – we know that they have EFF as the target! We are ready!”
The Freedom Front Plus appeared to endorse the notion that the EFF might find itself in the firing line. “Examples of [prosecutions] could include the president and individuals such as Julius Malema,” party justice spokesperson Dr Corne Mulder said.
Oscar Pistorius’ uncle Arnold, meanwhile, told TimesLive that the fact that Nel gave only 24 hours notice was evidence of “the character of a man who specialises in half truths”.
For Afriforum, the appeal of the likes of Nel and O’Sullivan is clear: they give a stamp of legitimacy to an organisation struggling to cast off a right-wing reputation. ANC Secretary-General Gwede Mantashe told an audience in 2009: “Organisations like AfriForum are becoming bolder in fighting for the racist cause.”
As a result of this perception, the organisation has been increasingly conscious of the imperative of establishing a palatable public face. A January Foreign Policy article on Afriforum recorded that AfriForum had one central mission: “Rebrand the Afrikaners from oppressors to the oppressed in order to save them from black retribution and secure them a stable place in their new country.” DM
Photo: Prosecutor Gerrie Nel questions a witness during the murder trial of South African Paralympian Oscar Pistorius at the High Court in Pretoria on 02 July 2014. Pistorius is accused of murdering Reeva Steenkamp on Valentine's day in 2013. EPA/GIANLUIGI GUERCIA / POOL