Gerrie Nel. Picture: ALON SKUY/THE TIMES
Gerrie Nel. Picture: ALON SKUY/THE TIMES

Advocate Gerrie Nel‚ head of Afriforum’s private prosecuting unit‚ will privately prosecute Julius Malema and co-accused for fraud and tender corruption should the National Prosecuting Authority (NPA) not yield to Afriforum’s demand that the case against Malema be reinstated.

EFF leader Julius Malema said on Thursday he was prepared to face prosecution for fraud and corruption.

"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 ..., " Malema tweeted.

The case involves the company On-Point Engineering in Limpopo‚ in which Malema’s family trust had an interest. In 2009, On-Point was appointed to assist the Limpopo department of roads and transport with infrastructure development‚ maintenance and planning and in doing so‚ allegedly received bribes from successful tenderers.

Afriforum said it laid a charge against Malema at the Brooklyn police station in Pretoria on July 24 2011 in terms of the Prevention and Combating of Corrupt Activities Act‚ in connection with On-Point’s activities.

After the Hawks investigated the charge‚ the NPA started the prosecution of Malema. However‚ on August 4 2015 the case against Malema was struck from the roll of the High Court in Polokwane, after one of Malema’s co-accused could not attend the hearing due to illness.

However, Nel said: "We have done a search and found the accused has recovered from his illness."

Afriforum said that because of the NPA’s failure to act further‚ on March 19 2018 Afriforum sent a letter to the NPA in which it demanded the reinstatement of the prosecution‚ it said.

"In reaction hereto‚ the NPA informed Afriforum in writing that the reinstatement of the charges against Malema is currently being considered and that a final decision will be taken by August 2018."

Nel said it was unacceptable that the NPA, after more than 30 months, had failed to take the corruption case against Malema any further.

"Afriforum’s private prosecuting unit was established for the very reason of ensuring that equality before the law is upheld and that the NPA does its work effectively. The NPA neglected its duty by simply abandoning the case against Malema‚" added Nel.

In 2012‚ former public protector Thuli Madonsela was hard-hitting about Malema’s involvement in the lucrative roads and bridges tender‚ saying he improperly benefited from the Limpopo government contract.

"Our primary question was: did Malema benefit? We are saying ‘yes’ — an emphatic yes‚" she said at the time.

The report was the result of investigations launched the previous year after Madonsela received complaints about the awarding of a multimillion-rand tender to On-Point Engineering‚ a company from which Malema subsequently resigned as a director.

Madonsela said her evidence was to be handed to the state agencies, including the Hawks.

The Limpopo roads and transport department paid R43m to On-Point and Madonsela found that:

• On-Point paid R2.17m into Malema’s Ratanang Family Trust over 17 months,

• The trust received R200‚000 in "unspecified loans",

• Five days after one of the alleged "kickbacks" to the trust was made‚ R1m was withdrawn and paid towards the purchase of a farm,

• Amounts of R160‚000 and R100‚000 were paid from the trust to "Sandton Property" and "Sandowns Property" respectively, and

• There was evidence that the trust "was probably used as a vehicle for the transfer of funds obtained through an unlawful process".

Madonsela found that Malema used his political position to influence the awarding of the tender that benefited his trust. She also found a series of contraventions of Treasury regulations by the Limpopo government.

"The awarding of the tender to On-Point by the department was unlawful‚ improper and constituted maladministration‚" she said.

Madonsela’s report — On the Point of Tenders — found that guidelines for the awarding of tenders had been ignored, and she called the way in which they were awarded "mind-boggling".

She said that‚ despite stark differences between the bid document and On-Point’s tax clearance certificate‚ the company was not disqualified from tendering.

The tax certificate was from a five-month-old shelf company.

Kallie Kriel‚ CEO of Afriforum‚ said that apart from the corruption case‚ Afriforum was also busy with two other cases that implicated Malema.

Afriforum, in conjunction with Afribusiness, is currently preparing for a case of contempt of court by Malema. This follows after a court order was obtained against Malema in 2017 that forbade him to incite people to occupy land.

"With his latest statements, Malema is contravening this court order and therefore is acting in contempt of the court order‚" he alleged. The other case against Malema is a charge of incitement to commit crime‚ that was submitted by Afriforum and is to be heard in the Bloemfontein Regional Court. The court postponed the matter to July 2018.

Afriforum‚ asked by journalists at its Centurion media conference on Thursday why it targeted figures such as Malema and Duduzane Zuma‚ said it was true the organisation took on high-profile cases with a political link. But there was a reason.

Kriel said they were only entitled to bring private prosecutions in matters where the NPA decided not to bring cases to court. And if they found it politically difficult to proceed‚ then Afriforum would attempt to step in.

"If the NPA doesn’t do their job‚ then we have to intervene in these matters."