When celebrated prosecutor Gerrie Nel left the NPA to lead AfriForum’s private prosecutions unit in January 2017, UCT constitutional law expert Pierre de Vos explained how rare and difficult private prosecutions are in South Africa, particularly considering what appeared to be Nel’s ambitions – to lead cases of corruption against government officials the NPA was reluctant to pursue due to the politicisation of the prosecuting authority.

On Tuesday, AfriForum announced the first private prosecution case it plans to pursue and – despite widespread doubt about the efficacy of launching Nel’s unit – it appears to have found a case that both fits the applicable legal criteria and sticks it to President Jacob Zuma and his allies at the same time.

Nel wants to prosecute Zuma’s son Duduzane for culpable homicide.

On a rainy night in February 2014, Duduzane Zuma crashed into a taxi on the M1 in Johannesburg. The accident led to the death of Phumzile Dube. During a 2014 inquest, the young Zuma said he drove through a puddle that led his Porsche to collide with the taxi. The magistrate ruled that there was a prima facie case that his negligent actions caused Dube’s death. The NPA reviewed the evidence and said it wouldn’t prosecute.

“There exist no valid grounds for the NPA to decline to prosecute Mr Zuma, and Dube’s family deserves that justice is served,” said Nel, announcing the private prosecution plans on Tuesday. “This is a young family. When Phumzile Dube was killed her daughter was just two years old. She is now five and the family cannot afford to send her to creche. This is about bringing justice to a family who have never received closure. It’s about ensuring that people are held to account for their actions.”

Private prosecutions are difficult to lead in South Africa, despite the law long being in the books. First, they require a nolle prosequi certificate from the NPA stating that the prosecuting authority has officially declined to prosecute a matter. Second, they must include a private individual with a substantial interest in the case that can prove they suffered an injury from the alleged crime. Such prosecutions also cost money, including a potentially substantial deposit that will be lost if the case fails. While it might be difficult for Nel to tick all the boxes to charge government officials for corruption – considering the need to find individuals directly affected – AfriForum probably decided to target Duduzane Zuma for a reason.

“The matter is ready for trial. We thought it was perfect. We decided it with the Dube family. The NPA now has two options – whether it proceeds to prosecute Duduzane Zuma, or we will prosecute ourselves.”

NPA Gauteng spokesperson Phindi Louw said AfriForum hadn’t yet applied for a nolle prosequi and its application would have to be considered by National Director for Public Prosecutions Shaun Abrahams, who would judge it on its merits. But AfriForum was confident on Tuesday it could get the certificate or challenge any reasons for its denial.

AfriForum will not be able to instigate the private prosecution as it’s not an affected individual in the case against Zuma, but it will act on behalf of Dube’s brother Pezisani and mother Edina, who do appear to have a substantial interest in the case and – now taking care of Dube’s young daughter – have suffered an injury from the alleged crime.

“That’s what they would need to do. They would need a victim, so someone that was affected by the crime,” said De Vos on Tuesday.

University of Western Cape law Professor Jamil Mujuzi, who has studied private prosecutions in the past, cited a murder conviction secured by private prosecution last year. He said AfriForum appeared to meet the requirements, once it gets its certificate, to proceed with the case.

Nel might face challenges before he can cross-examine Zuma. The NPA might argue that they have discretion on whether to issue the certificate. Zuma or the NPA might challenge the constitutionality of private prosecutions. It’s unlikely to be successful, said De Vos, as private prosecutions are like a safety valve for when the NPA fails, but it could hold up the process.

“If you have the money you can launch such opposition in the High Court. Then from there you can appeal the Constitutional Court.”

He said it was impossible to comment on whether the matter was likely to proceed but said he would be surprised if it would immediately proceed as Duduzane Zuma has the resources to launch an opposition.

The president’s son certainly has resources. The #GuptaLeaks have shown how close he is to the Gupta family, making millions through empowerment deals with the family on state contracts, which they won through undue influence and networks of state capture. He’s also shown to have a close personal relationship with the family. When he slammed into the taxi on that wet Johannesburg night, the first person he called wasn’t his father, the president of the country, but Rajesh “Tony” Gupta, one of the family members paying him R300,000 a month in director fees, who won his family millions in contracts, and who helped him buy an R18-million apartment in Dubai. DM

Photo: President Jacob Zuma’s son Duduzane Zuma appears at the Randburg Magistrate Court on December 11, 2014 in Johannesburg, South Africa. (Photo by Gallo Images / Daily Sun / Lucky Maibi)