25/04/2018 12:23 SAST | Updated 25/04/2018 14:13 SAST

Relax, Folks, AfriForum Is NOT Prosecuting Julius Malema

As is often the case in instances like this, the devil is in the details.

EFF leader Julius Malema.
Gianluigi Guercia/ AFP/ Getty Images
EFF leader Julius Malema.


AfriForum wishes to create the impression that it is pursuing and prosecuting Julius Malema, but this is not true. To much fanfare, the "feared" prosecutor Gerrie Nel was shuffled into a room full of journalists, but before he spoke, the Afriforum CEO announced that the organisation would be prosecuting EFF leader Malema.

He added that Nel, from "the private prosecution unit of Afriforum", would go into the details. As is often the case in instances like this, the devil is in the details.

The devil in the detail

Nel, going through those details, revealed that Afriforum is not actually prosecuting Malema — but hopes to do so at an as yet undetermined point in future; if the NPA has finalised the matter and decided not to prosecute.

What this means is that the Malema docket is still with the NPA, being processed according to the relevant laws regulating the process. It was further revealed by Nel that the NPA had written to Afriforum to inform it that the matter is still receiving their attention. The latest movement on the issue was the docket being reassigned to another unit — due to an appreciation of the complexity of the prosecution, which includes charges of organised and commercial crime.

August is too late

The NPA advised Afriforum that it would make a determination by August 2018, and if the decision is not to prosecute, Afriforum can then take the matter up through a private prosecution.

But August 2018 will be too late, and doesn't fit well into the political plans of Afriforum. The land expropriation without compensation constitutional amendment clause could be finalised by August, and that would render AfriForum's litigation against Malema politically moot. So instead of waiting for the slow wheels of justice to grind, Afriforum has resorted to playing fast and loose with the public.

It prematurely announced that it would be prosecuting Malema, knowing full well that the announcement is factually inaccurate, but relied on an uncritical media without enough space in headlines to articulate the nuances of the announcement.

Let us not forget that Gerrie Nel is no longer a public prosecutor and is therefore no longer pursuing prosecutions in the public interest or the interest of justice, Gerrie Nel is now a prosecutor with a political mandate.

True to their estimation, eNCA tweeted "Breaking News: Gerrie Nel to prosecute Julius Malema: fraud and corruption charges"

A more accurate headline would have been: "Breaking News: Gerrie Nel hopes to prosecute Julius Malema, provided the NPA declines to prosecute him; they will await the decision of August 2108".

So if there is no factual basis to announce that AfriForum is prosecuting Malema, we are left to conclude that it's a political ploy — but what is the endgame?

What is the motive behind making a thorough and detail-orientated prosecutor like Nel make an announcement full of gaping holes that falls apart at the first prodding? The answer is politics, of course.

Let us not forget that Nel is no longer a public prosecutor; he is no longer pursuing prosecutions in the public interest. Nel is now a prosecutor with a political mandate, so there is a disjuncture between his legal pursuits and political pursuits. With prosecutorial pursuits that must suit political narratives, Nel inside AfriForum will be less factually and analytically robust than he was inside the NPA.

For AfriForum to announce that it is prosecuting Malema is taking liberties with facts — the announcement was 30 percent fact and 70 percent fiction; a cocktail of political communication.