AfriForum and their Nonsensical Private Prosecution of Julius Malema

It is exactly 366 years since the Azanian people were dispossessed of their Land by
the European White invaders. Throughout the years of dispossession, the relationship
between the dispossessor and the dispossessed has remained intact. It is the
relationship between the master and the servant, the teacher and the learner and most
recently, the rich and the poor. This relationship has been ingrained and naturalised
through education system, media propaganda, religion and other mechanisms.

Fast forward 1994, the undemocratical democratical government was elected to

suspend the revolution. This government was also instructed to adopt an
unconstitutional constitution so to legitimise Land theft and to maintain white
supremacy as demonstrated above by the relationship between the dispossessor and
the dispossessed.

The neo liberal government has at times brought about some radicals within their
ranks, the likes of Julius Malema. This person has been calling for Land expropriation
without compensation since time immemorial. It led to him being expelled from the
ruling party and I want to assume that it was because the handlers did not want the
Land debate to permeate through the minds of the youth.

Juliuas Malema wasted no time in forming his own political party (EFF) after being
expelled from the ANC. It is this organisation that constantly called for Land
expropriation to the disgust of white people. The Land question is now fashionable
than ever.

In response to the howling of Land by Julius Malema, the AfriForum is seeking to

silence him by attempting to privately prosecute him for his alleged fraudulent activities
related to On Point Engineering.

It is against this background that I seek to ascertain whether or not they have authority
to do so. Section 179 of the unconstitutional constitution vests the power to prosecute
in the National Prosecution Authority (NPA). It further says that all other matters
concerning prosecuting authority must be determined by a national legislation. The
Criminal Procedure Act is one such legislation and of particular relevance is section 7.

Section 7 of the Criminal Procedure Act reads as follows:

 “(1) In any case in which a Director of Public Prosecutions declines to prosecute
for an alleged offence- (a) any private person who proves some substantial and
peculiar interest in the issue of the trial arising out of some injury which he
individually suffered in consequence of the commission of the said offence; (b)
a husband, if the said offence was committed in respect of his wife; (c) the wife
or child or, if there is no wife or child, any of the next of kin of any deceased
person, if the death of such person is alleged to have been caused by the said
offence; or (d) the legal guardian or curator of a minor or lunatic, if the said
offence was committed against his ward,”

The prerequisite of this provision is that the NPA should decline to prosecute for an
alleged offence. It is then followed by subparagraphs enlisting the post-conditions after
the NPA has refused to prosecute.

Applying the prerequisite to the Malema case, it is clear that AfriForum is running out
of farms to farm because the NPA has not declined to prosecute. AfriForum is
misconstruing legal system to farming system. This was depicted in their media
Afrikaans press conference when they admitted that they are just trying to put pressure
on the NPA to prosecute. This is contrary to the reason why they called the press
conference. The press was called to announce the individual they were going to
privately prosecute.

Let’s assume for a moment that they meet the prerequisite. The next hurdle is to satisfy
those post-conditions contained in the subparagraphs.

Section 7(1)(a) is instructive on this matter:

“any private person who proves some substantial and peculiar interest in the issue of
the trial arising out of some injury which he individually suffered in consequence of the
commission of the said offence”.

It has been held in BARCLAYS ZIMBABWE NOMINEES (PVT) LTD v BLACK 1990
(4) SA 720 (A) that a company is not a private person as intended by section 7 of the
Criminal Procedure Act and therefore does not have a locus standi to institute private
prosecution.

In applying the principle to the facts, AfriForum is a non-governmental organisation,

registered as a non-profit company, with the aim of protecting the rights of minorities.
It therefore cannot privately prosecute Julius Malema. It can only do so as a
representative of someone who has a direct and substantial interest in the matter. (I
reserve the direct and substantial interest discussion for some time)

It is clear from the discussion above that AfriForum is just trying to be relevant even
though it is clear that they do not or would not have an authority to prosecute. What
they are trying to achieve is to disturb the signal that Mama Nomzamo gave to Julius
Malema.

Lerato Moela

#IzweLethu