AFRIFORUM AND GERRIE NEL’S
PRIVATE PROSECUTING UNIT – NEO-APARTHEID JUSTICE ERA
By: Paul Ngobeni
As
usual, the white so-called legal experts or apologists commenting on Gerrie
Nel’s decision to join the right-wing lobby group AfriForum have assiduously
avoided calling AfriForum a racist, misogynist, rape-promoting rightwing
organization whose primary objective is to restore and perpetuate white supremacy
in South Africa. This was confirmed in part in a court judgment, Afriforum NPC and Another v Pienaar (4357/16)
[2016] ZAWCHC 175; 2017 (1) SA 388 (WCC) (8 July 2016); http://www.saflii.org/za/cases/ZAWCHC/2016/175.html . There the Court accepted that Afriforum is “ a political organisation.” It has a “political purpose, and it
achieves its aims publicly, through demonstrations, on social media and in the
main stream media. It has engaged
the African National Congress on the issues challenging the university campuses.
It is enmeshed in politics and uses its voice to speak out on a range of social
and political issues which Afriforum believes demonstrate that Afrikaners are
in need of and deserve special protection.” Id at paras.6 and 7. The Court
further accepted testimony from Mr. Pienaar that “on 3 March 2016, Mr Pienaar
posted the following statement on his Facebook page:
“I witnessed Afriforum
supporters threaten to rape women today and then when they found out that the one protestor was a rape survivor mocked
her by shouting ‘don’t rape her again she’s been done.’ I will just leave this here for all you
guys who told me about the good work Afriforum is doing.”
The
Court heard that during “February 2016 the Stellenbosch SRC obtained permission
from the University to launch an “End Rape Culture” campaign (“ERC”) which was
intended to draw attention to certain incidents on campus which had, in the
view of the SRC, led to what they described as a ‘rape culture’ being
experienced on campus by women and trans women...The term “rape culture” refers
to an institutional treatment of rape as a phenomenon as being a problem for
women to solve, rather than a social problem requiring men to take
responsibility for their behaviour.” Id. at para 22. After reviewing a series of violent incidents of sexual
aggression by Afriforum members the court ruled as follows:
[53.] The ventilation by Afriforum supporters of
their support for whatever the JC Marais statue stood for – on respondent’s
version – went beyond the boundaries of lawful conduct… This shows that Afriforum supporters
sexually assaulted Ms S., Ms Matiwane and Ms Bruns and sexually intimidated
them. Respondent’s
affidavits also show that Mr Pawson and one Pieter de Villiers sexually
intimidated Ms S. and Ms Matiwane by shouting rape related comments. This behaviour of Mr Pawson and the
supporters of Afriforum, as described in respondent’s affidavits, embody the
phenomenon which the “End Rape Culture” campaign justifiably seeks to
eliminate. Whether or not
Afriforum supporters threatened to rape Ms S. in the literal sense of the word,
they nevertheless did inflict their rape culture on her and other women present…
[55.] Respondent’s affidavits establish conclusively
that, by attending upon the campus of the University of Stellenbosch, Afriforum
deliberately entered a public and very
politicised domain. Their object
was to engage in ventilating their political differences with student groups on
the campus.
[63.] By thrusting themselves into the public eye,
and by entering the premises of Stellenbosch University in order to confront
student groups with opposing political views, Afriforum opened themselves to
public scrutiny. They must
consequently display a greater degree of tolerance to criticism then ordinary
individuals. (Compare Cele v Avusa
Media Limited [2013] 2 All SA 412 (GSJ).
Afriforum’s promotion of a political confrontation by pamphlet, and by
the follow-up action of its members, resulted in violence erupting on the
campus: which on the basis of the
application of the rule in Plascon-Evans, involved Afriforum’s supporters commiting
assault, sexual violence, sexual aggression and intimidation, and expressing of
rape culture in an egregious form. The consequence was the employment of
the language of the End Rape Culture Campaign by its protagonist against
apparent perpetrators of rape culture.
According to the cases cited above Mr Pienaar’s robust political riposte
constitutes an exercise of freedom of expression which, in my view, does not
involve defamatory statements concerning the applicants.
[64.] The protection of the dignity of the women
violated by Afriforum supporters is of paramount importance under the
Constitution. The comment
on these unlawful acts in the present publications cannot give rise to a remedy
for the applicants based on a violation of their own dignity.
This
judgment was based on irrefutable facts including that a woman was groped and
touched by the AfriForum supporters. The victim yelled for them to stop, and
this was when Pienaar said he put himself between her and the AfriForum group. When
people told the AfriForum supporters the woman was a rape survivor, some in the
AfriForum group shouted, “Don’t rape her, she’s already been done” and one
laughed when he heard the information.
Judge Donen said the woman already had post traumatic stress disorder as
a result of her rape and that it was triggered by sexually aggressive actions
directed at her by men. “AfriForum’s promotion of the interruption via a
pamphlet led to the violence and the sexual assault, sexual violence and sexual
aggression and intimidation and expressing of rape culture in an egregious
form,” the judge said.
Despite
the damning judgment against the racist and sexist outfit, Afriforum, there is
a well-orchestrated effort by white apologists of apartheid to use
ex-prosecutor Gerrie Nel’s socalled “ethical profile” to white-wash
Afriforum. Some “legal experts”
have euphemistically referred to the "dubious political profile" of
AfriForum without revealing that there is a judicial finding (through an extant
judgment) that Afriforum is racist, misogynist and rape-promoting
organization. One Professor De Vos
has simply referred to Afriforum as a group "with a white nationalist
organization" and asserted that AfriForum “was pursuing the interests of
white people, adding that Nel's job was going to be difficult.”
Another
white lawyer Ulrich Roux said he believed Nel would be the best person to head
the private prosecution unit. "He is a formidable prosecutor and we
shouldn't read too much into him joining forces with AfriForum. The work they
want to do is very important and he has proven himself in the many years he has
been with the [National Prosecuting Authority].” Id. Another lawyer James Grant
said
it was about time that the country had such an initiative, however, he was
concerned that AfriForum was perceived as "partisan"."It would
be better if it was launched out of a politically objective organisation,"
he said.
It
is not surprising that whites blinded by their panegyrics on Gerrie Nel would
adopt an overly forgiving view of a despicable racist organization such as
AfriForum. An objective,
fact-based legal analysis is required from African people who subscribe to the
principle of a non-racist and inclusive constitutional democracy. We must first interrogate the
implications of the explicit court findings against AfriForum and examine the
pernicious influence such extremist hate-mongering groups have on our
democracy. We must also examine
whether the new prosecution unit of the right-wing outfit can be fought and
defeated in court or neutralized through a coherent sustained legal strategy.
According
to AfriForum, the newly-established prosecuting unit, to be led by Gerrie Nel,
will continue the “watchdog” function of the organization.[1]
The reason for “establishing the
unit was based on the perception that the NPA was selective when it came to
prosecuting matters. This was where the unit would step in. Its aim was to
ensure that "all be equal before the law," both Kriel and Nel said.”
Id. Nel “stressed that the unit would not run parallel prosecutions, but would
only deal with matters which the NPA had opted not to pursue.” Even assuming that the NPA is guilty of
the selective prosecution alleged, the question is on what basis would a
“political” sexist and racist organization have locus standi to bring private prosecution against individuals after
the NPA has chosen not to pursue certain cases? Would ideologically driven private prosecutions at the
behest of a racist and sexist organization be consistent with the
Constitution’s requirements for a fair trial and independent prosecution? That cannot be!
Almost all democratic constitutions guarantee the right to a fair trial
and stand solidly against misuse
of the legal process by persons with an axe to grind.
See, Smyth v Ushewokunze and Another
1998 (3) SA 1125 (ZSC). In that
case the applicant sought, inter alia, an interdict restraining the
prosecutor from taking any further part in the preparation or presentation at
the trial of certain charges laid against the applicant. It was alleged that the prosecutor had
involved himself in a personal crusade against the applicant and that he lacked
the objectivity, detachment and impartiality necessary to ensure that the
State’s case was presented fairly.
Having assessed the evidence Gubbay CJ said at 1134 B-J:
“I have no
difficulty in acknowledging the inherent danger of unfairness to the applicant
attendant upon the first respondent prosecuting at the trial. Hence the question that arises is
whether the applicant’s right to a fair hearing by an independent and impartial
court established by law, as enshrined in s 18(2) of the Constitution, is
likely to contravened. To put the
enquiry more pertinently, whether the words ‘impartial court’ are to be
construed so as to embrace a requirement that the prosecution exhibit fairness
and impartiality in its treatment of the person charged with a criminal
offence. In arriving at the proper
meaning and content of the right guaranteed by s 18(2), it must not be
overlooked that it is a right designed to secure a protection, and that the
endeavour of the Court should always be to expand the reach of a fundamental
right rather than to attenuate its meaning and content. What is to be accorded is a generous
and purposive interpretation with an eye to the spirit as well as to the letter
of the provision; one that takes full account of changing conditions, social
norms and values, so that the provision remains flexible enough to keep pace
with and meet the newly emerging problems and challenges. The aim must be to move away from
formalism and make human rights provisions a practical reality for the
people. See Rattigan and Others v
Chief Immigration Officer, Zimbabwe, and others 1995 (2) SA 182 (ZS) (1994 (2)
ZLR 54) at 185E-186G (SA) and 57F-58E (ZLR); S v Mhlungu and Others 1995 (3) SA
867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793) at para (8); R v Big M Drug
Mart Ltd (1985) 18 DLR (4th) 321 (SCC) at 359-60. Section 18(2) embodies a constitutional
value of supreme importance. It
must be interpreted therefore in a broad and creative manner so as to include
within its scope and ambit not only the impartiality of the decision making
body but the absolute impartiality of the prosecutor himself, whose function,
as an officer of the court, forms and indispensable part of the judicial
process. His conduct must of
necessity reflect on the impartiality or otherwise of the court. See, generally, Chaskalson et al
Constitutional Law of South Africa at 27-18-27-19.
To interpret the
phrase ‘impartial court’ literally and restrictively would result in the
applicant being afforded no redress at this stage. It would mean that in spite of prejudicial features in the
conduct of the first respondent towards him, the applicant would have to tolerate
the first respondent remaining the prosecutor at the trial. I cannot accede to the obvious injustice of such a
situation.
I am satisfied
that the applicant has shown that his right under s 18(2) of the Constitution
to a hearing by an independent and impartial court is in jeopardy if the first
respondent proceeds as the prosecutor in this matter”
Section 35 of the South African Constitution also
gives a right to a fair hearing by an independent, impartial and competent
court established by law and, in my view, that constitutional right should be
interpreted in the same way as in the Smyth case (supra). The words ‘impartial court’
are to be construed so as to embrace a requirement that the prosecution exhibit
fairness and impartiality in its treatment of the person charged with a
criminal offence. Owing to its tainted,
racist and sexist bias, AfriForum can never achieve that level of fairness,
independence and impartiality. Accordingly, if black political parties and
professional organizations were astute, the AfriForum’s “prosecuting unit”
would be still-born and could be successfully challenged every time Gerrie Nel
and his motley crew of sexists and racists venture into court. Even the most biased judge would be
confronted with the undeniable political and ideological litmus-test AfriForum
uses to select targets for its private prosecution.
We
know that our Courts have now definitively ruled that a prosecutor’s decision
to pursue or not to pursue charges is reviewable and liable to be set aside if unlawful,
irrational or arbitrary. A
privately financed prosecution by a racist outfit is gratuitous and legally suspect
from the onset. Second, Afriforum
is a “political” ideological outfit whose involvement in a criminal prosecution
would raise questions about equal treatment under the law and potentially
violate the Constitutional right to a hearing by an independent and impartial
court – a prosecutor working in cahoots with a racist organization is a
non-starter no matter how squeaky clean his previous image may have been. And
finally, treatment of Gerrie Nel like that of Glyniss Breytenbach is a clear
example of how white-dominated political parties and news media perpetuate
unequal treatment of blacks and whites especially in the public service. Breytenbach resigned from the NPA while
she was facing serious criminal charges but the Democratic Alliance promoted
her as its member of parliament where she is involved in justice matters
including appointment of our judges.
Her criminal case is proceeding apace and she regularly attends her
trial. In a display of unabashed
hypocrisy, the DA has argued that public servants accused of crimes must be
suspended or resign while their cases are pending. Gerrie Nel resigned when
facing an investigation by the NPA for alleged serious misconduct and possible
corruption but he is being hailed as a hero by whites who accept the DA double
standard and disparate treatment of blacks.
We are witnessing the second stage of the anti-transformation
agenda where blatant attempts are being made by white elements to regain power “lost” in the post-1994
constitutional dispensation. As Advocate Ramatlhodi stated, “the effect of the
pre- 1994 constitutional settlement was to surrender of elements of political power to the black
majority, whilst immigrating substantial power away from the legislature and
executive and investing it in the judiciary, Chapter 9 institutions and civil
society movements.” The result was that the black majority was handed “empty
political power while forces against change reign supreme in the economy,
judiciary, public opinion and civil society.” The likes of Gerrie Nel and
Breytenbach provide clear examples of the white supremacists using white moles
within the NPA to undermine and discredit the NPA. It should not surprise anyone that when the project for the
takeover of the NPA failed, these individuals joined white racist parties or
formations such as the DA or AfriForum to carry on the agenda of vilifying and
discrediting the black-led NPA.
These white minority parties and civil society outfits run to the
courts with regularity to challenge as many NDPP decisions and policy positions
as possible. They have succeeded in converting some judges into their
mouthpieces on many issues affecting criminal justice matters. In the context
of the separation of powers, it actually takes mutual respect and cooperation
by all three branches for the democratic project to be sustainable. A healthy tension is inherent in the
constitution’s design but through it all, the branches of government have a
constitutional duty to work together for our democracy to work. When the anti-government mindset openly
manifests itself in the form of mistrust or hostility to every position of
government including sensitive national security matters the democratic project
is endangered. In a sense, the
greatest threat to democracy is not just a corrupt government bureaucracy but a
loose cannon judiciary that either through sheer incompetence or partisanship
appears to be ready to rule against government at every turn. Our judges must fairly and squarely
answer one question – what happens to the credibility of the entire criminal
justice system when racists are allowed to pick and choose who is to be
prosecuted?
[1] See, New
prosecuting unit in the interest of all South Africans - AfriForum
2017-01-31; Mpho Raborife, News24; http://www.news24.com/SouthAfrica/News/new-prosecuting-unit-in-the-interest-of-all-south-africans-afriforum-20170131
