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

Seldom has the decision of a single prosecutor to change jobs been so lauded and so criticised at the same time. Star prosecutor Gerrie Nel, who acted in two of SA’s highest-profile cases in the recent past, has decided to join AfriForum’s prosecution unit.

Nel was pivotal in gaining convictions against former national police commissioner Jackie Selebi and Paralympian Oscar Pistorius, and in doing so, built a fearsome reputation as a resolute and dedicated prosecutor.

His reason for leaving the National Prosecuting Authority (NPA) is to help establish a kind of a parallel prosecution service, an act that reflects very poorly on his former employer. The NPA is arguably one of the most dysfunctional institutions of government. For an already weak and dispirited organisation to lose its star prosecutor is simply devastating.

It must be even more demoralising when that star prosecutor confirms the worst suspicions of the public. The NPA, he said, was prosecuting cases selectively, implying that it was ignoring politically sensitive cases and prosecuting in support of factions in the government.

This is hardly news. Ever since the national director of public prosecutions launched and then was quickly forced to withdraw charges against Finance Minister Pravin Gordhan, it was obvious what had happened behind the scenes, and it was visible for all to see. But it remains a savage indictment of the NPA that such a prominent member of its team has lost confidence in the ability of the organisation to bring credible charges in an impartial way, which, is after all, its statutory and constitutional duty.

Still, there are two remaining issues that bear consideration. The first is whether it is possible, even for a formidable force of nature such as Nel, to establish a parallel prosecution service. His method will be to bring private prosecutions, which are technically legal, but such prosecutions are expensive, time-consuming, and rarely successful.

For a weak and dispirited organisation to lose its star prosecutor is devastating

The biggest problem facing Nel is that to prosecute, he will require a nolle prosequi — a decision not to prosecute — from the NPA. This is precisely the organisation Nel claims is prosecuting selectively. In other words, he will require the co-operation, even if it is simply to state unequivocally that they do not intend prosecuting a case, of the organisation he claims has ulterior motives in deciding against prosecuting in the first place. If the NPA does have ulterior motives in not prosecuting a politician, for example, what are the chances it will hand over the prosecution to an outside organisation? Not much.

But that is not where Nel’s problems end. Should a private prosecutor lose a case, they must cover all legal fees of the accused, plus, of course, their own.

Just bringing a case is, therefore, hugely risky and possibly terribly expensive. Neither can Nel arrest anyone or even investigate on the police’s behalf. What he can do is call witnesses and cross-examine them.

This is not to say a kind of reality check on the NPA will not be a good thing; it is just going to be difficult to do in practice.

There is also the issue of Nel using as his platform Afriforum, essentially a pro-Afrikaans lobby group. There is nothing wrong with that in principle. Clearly, in hiring Nel, Afriforum is trying to move beyond a narrow focus, and that too is a welcome event. But it could open Nel to the criticism that there is an ethnic or racial taint to his actions.

Whatever the case, Nel’s departure and his decision effectively to take criminal prosecution private demonstrates a political truism: wherever a political vacuum develops, it will inevitably be filled. Nel’s actions reflect a sense that the prosecution service is just not doing its job. The longer that lasts, the more success Nel will have — and good luck to him.

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