“Bring it on bloody racists, you don’t scare me at all. I’m born ready! No white man will decide my destiny, the poor masses of our people will…”
That was Julius Malema’s comment on Twitter on Thursday morning, in apparent response to the news that lobby group Afriforum intends to pursue a private prosecution against him.
For all Malema’s bravado, however, part of him may be quietly quaking. The matter that Afriforum wants to see him tried for relates to two counts of racketeering, five counts of corruption, four counts of fraud and 40 counts of violating the Prevention of Organised Crime Act.
These charges arise from the 2009 awarding of contracts by the Limpopo Department of Transport to Malema’s company On-Point Engineering. The matter has not been ventilated in court to date. But in a 2012 report, former public protector Thuli Madonsela found that the actions of Malema and his business partners were “unlawful, fraudulent and corrupt” and that “a crime has been committed”.
Advocate Gerrie Nel, who heads Afriforum’s private prosecutions unit, reminded a press conference on Thursday morning that the original case against Malema was struck off the roll in August 2015 because one of Malema’s co-accused, Kagiso Dichaba, was too ill to stand trial.
That is apparently no longer the case. Nel said that Afriforum’s monitoring of Dichaba on social media revealed that he was seemingly in good health and spirits currently: travelling, cycling, buying expensive sports cars – and, in Dichaba’s latest Twitter profile picture, posing with President Cyril Ramaphosa.
Given that it appears that Dichaba might be well enough to appear in court again, Nel’s team asked the National Prosecuting Authority (NPA) in March when the case would be placed on the court roll once again.
Afriforum was informed that the case had been transferred to the Priority Crimes Litigation Unit (PCLU), which was still “considering the matter”. The PCLU undertook to give a response as to whether or not they would prosecute the case by August 2018.
But Nel says he finds it “peculiar” that Malema’s case was transferred to the PCLU, when the original state prosecutor in the matter in 2015 had indicated that he was “court-ready”.
“Why the NPA would then decide to move the matter away from prosecutors and hand it to the PCLU,” said Nel, was strange.
Pressed by journalists, Nel confirmed that Afriforum believes there may be some political skulduggery behind the NPA’s failure to prosecute Malema to date.
Afriforum CEO Callie Kriel took things one step further, saying: “We can only hope that the fact that the ANC wants (Malema) back does not play a role here”.
Kriel asked: “If any normal citizen was guilty of corruption such as this, would it take more than two years and eight months for such a prosecution to proceed?”
There are two potential outcomes now, both of which would suit Afriforum just fine.
In the first scenario, the PCLU gets back to Afriforum by August to inform them that Malema’s prosecution will indeed go ahead. The purpose of Thursday’s press conference was clearly to incentivise the PCLU to make up their minds – Kriel acknowledged as much, saying: “In many instances, public pressure is needed.”
In the second scenario, the PCLU – and the NPA, by extension – declines to prosecute Malema, and a nolle prosequi certificate is issued, allowing Afriforum to pursue its own private prosecution.
To pursue a private prosecution, Afriforum has to be acting for an aggrieved individual with substantial interest in the matter. In the Malema case, Nel pointed out that Afriforum CEO Kriel was an original complainant in the matter, in July 2011.
Still, would this satisfy the requirement for direct personal involvement?
Kriel said that Afriforum hopes to “broaden the law” in this regard.
“Every one of us who pays tax has an interest (in the Malema corruption case),” he said. “We have a direct interest because it’s our money which is being stolen.”
For the PCLU to decline to prosecute Malema seems implausible, given the body of evidence that seemed to exist at the time that the case was put on the court roll in 2015. The unit is now under pressure to publicly commit to a prosecution – failing which, says Afriforum, we’ll do it ourselves. Either way, it’s unlikely that the EFF leader has heard the end of this one just yet. DM
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