Minority rights lobby group AfriForum will have to jump through several legal hoops before it can hope to see its first private prosecution case through, according to experts.
After resigning from the National Prosecuting Authority (NPA) this week, AfriForum’s new private prosecutor, Gerrie “The Bulldog” Nel, has indicated he is up for the challenge.
Meanwhile, Nel’s association with the “right-wing group” was “a match not made in legal heaven” and might be the biggest mistake of his career, a law professor said.
Research director at the Mapungubwe Institute for Strategic Reflection Ralph Mathekga said while its first private prosecution case would be a boundary-pushing endeavour for AfriForum, it would be very far from impracticable.
“Because there are not many cases of private prosecution, we do not have a precedent when it comes to the private prosecution on issues related to corruption,” Mathekga said, before adding that each case would have to satisfy the judiciary of being in the interests of justice.
But before that, he warned they would have to first have tried unsuccessfully to convince the NPA to prosecute.
“There are institutional hurdles they will face, but the key issue is that an interest group has to prove it has locus standi on that case – meaning you have a legal standing on that matter.
“This is a great opportunity to change and push the law and the country’s constitution.”
Constitutional expert Pierre de Vos’s take on the legal hurdles that lay ahead for Nel was less optimistic in his Daily Maverick column.
De Vos said that because AfriForum was not a statutory body, it had no right to privately prosecute anyone.
He said it might hope to aid individuals to launch private prosecutions in terms of Section 7 of the Criminal Procedure Act, but would face enormous challenges in convincing a court that a private individual had a substantial and peculiar interest in cases where public officials or private business persons were suspected of corruption.
Former NPA boss and DA MP Glynnis Breytenbach told The Citizen on Wednesday Nel’s sudden exodus “says nothing about the credibility of the NPA because it has none”.
She said it only highlighted that conditions at the NPA had become unbearable for Nel, and one would expect him to want to pursue justice elsewhere.
Breytenbach said, however, it was unlikely the DA would use AfriForum’s private prosecution services despite its criticism of the NPA.