AfriForum to approach court to force NPA to make decision regarding prosecution of Malema

The civil rights watchdog AfriForum today indicated during a media conference in Centurion that they will approach the court with a mandamus application to force the National Prosecuting Authority (NPA) to make decisions regarding the prosecution of Julius Malema, Leader of the EFF, concerning three pending cases against him. These three cases in which Malema is implicated include the corrupt activities of the company On-Point Engineering, Malema’s alleged assault of a policeman, as well as firing off shots with an assault rifle. AfriForum was compelled to take this step after the NPA unnecessarily kept postponing their decisions regarding Malema’s prosecution despite repeated requests by AfriForum.

AfriForum’s Private Prosecution Unit also indicated in a letter to the NPA that the organisation will apply for nolle prosequi certificates to privately prosecute Malema themselves should the NPA decide not to prosecute Malema.

On-Point fraud and tender corruption

AfriForum demanded in April 2018 that the NPA reinstitute the case against Malema regarding the then corrupt activities of the company On-Point Engineering in Limpopo. On-Point, in which Malema’s family trust has a vested interest, was appointed in 2009 to assist the Limpopo Department of Roads and Transport with infrastructure development, maintenance and planning and in doing so received bribes from successful tenderers.

AfriForum had already in July 2011 submitted a case against Malema at the police in connection with On-Point’s corrupt activities. After the Hawks investigated the charge and found proof of corruption, the NPA started the prosecution of Malema. The case against Malema was however struck from the court roll after one of Malema’s co-accused could not attend the hearing due to illness. The NPA neglected to place the case on the roll again. In March 2018 AfriForum sent a letter to the NPA in which it demanded the reinstatement of the prosecution. In reaction hereto the NPA informed AfriForum in writing that the reinstatement of the charges against Malema is being considered and that a final decision would be taken by August 2018.

“The NPA has however still not made a decision on whether to prosecute Malema and also failed to supply valid reasons to AfriForum for the delay in having justice prevail. The NPA’s failure to quickly prosecute Malema for this alleged crime is a disgraceful negligence of their duty and creates the false impression that Malema is considered to be above the law. AfriForum wants to send out a clear message with its legal action against the NPA that Malema is not considered to be above the law. Malema is pretending to be an advocate for the poor, but is instead enriching himself and his family by allegedly committing fraud and tender corruption. The police and NPA have a special mandate to protect the rights of defenceless people and tender fraud such as this is nothing else than stealing from the poor,” says Kallie Kriel, CEO of AfriForum.

Assault of policeman

Malema and Mbuyseni Ndlozi, EFF Spokesperson, in April 2018 allegedly assaulted a senior policeman in uniform in an incident that was caught on closed-circuit television (CCTV) cameras. The senior policeman opened a case at the police, but it received no police attention until AfriForum’s Private Prosecution Unit enquired about the investigation in January 2019.

In answering one of AfriForum’s enquiries regarding the case, the investigating officer indicated that the docket disappeared. The investigating officer’s excuse was that his colleague submitted it to the prosecutor on his request, but that he couldn’t recall the office or prosecutor. The complainant was furthermore informed by the investigating officer that he already obtained warning statements from Malema and Ndlozi, while it was not the case.

“The police’s disgraceful negligence of their duty to investigate all complaints and the NPA’s failure to prosecute without fear, favour or prejudice undermine justice. AfriForum’s Private Prosecution Unit was particularly established to guarantee equality before the law. It is a shame that we need to bring a mandamus application to force the NPA to execute its constitutional duty. The NPA’s inability to make decisions with regard to prosecution has however a crippling effect on the criminal law system and that is why we need to intervene,” says Adv. Gerrie Nel, Head of AfriForum’s Private Prosecution Unit.

Firing off of shots

AfriForum submitted complaints against Malema at the Lyttleton Police Station in August last year after he fired off various shots using an assault rifle during the EFF’s 5-year festivities in Mdantsane in the Eastern Cape.

The video clip from which the charges originate was distributed widely on social media. It was allegedly recorded by a police member who also attempted to lay charges against Malema using the video. According to this person the police however refused to accept the charges.

“This, together with the fact that the NPA only indicated informally that they are in the process of considering Malema’s prosecution, give rise to questions regarding the independence of both the NPA and the police and if the principle of equality before the law is in fact still applicable in South Africa. We are already seeing that many of Malema’s followers are imitating his actions by firing off shots at, among others, funerals. When a prominent figure such as Malema gets away with committing a crime, it sends out the message that it is acceptable,” says Ian Cameron, AfriForum’s Head of Community Safety.

On 11 December 2018 AfriForum requested Lt. Gen. Sithole, the SAPS’s Registrar and National Commissioner of Police, to investigate Julius Malema’s actions and determine whether he is fit to own a firearm.

In terms of Schedule 102 of the Firearms Control Act, 2000 (Act No 60 of 2000), a person can be declared unfit to own a firearm after an investigation by die Registrar. This occurs when the person among other indicated that s/he is intends to kill her-/himself or someone else with a firearm or other dangerous weapon, and/or because of the person’s tendency towards violence, which means that it is in no-one’s interest for her/him to own a firearm.

AfriForum obtained numerous statements pointing towards Malema’s violent disposition. This, together with his statement “When it comes to my wife and kids, I shoot to kill”, justify an investigation by the Registrar, as indicated above.

“If the NPA is not willing or not able to prosecute Malema for these crimes, AfriForum’s Private Prosecution Unit will gladly take over the reins. It is inconceivable that an individual like Malema gets away with so many breaches of law because both the police and the NPA are failing in their duty to teach him a lesson. When it seems that certain individuals are considered to be above the law, it creates a dangerous precedent of lawlessness,” concludes Kriel.