Johannesburg - A constitutional law expert says minority rights group AfriForum may have difficulty proving that it has substantial interest in the money-laundering charges against EFF leader Julius Malema.
Unisa Emeritus Professor Shadrack Gutto said AfriForum’s plan to pursue a private prosecution against the former ANC Youth League leader would have to satisfy the Criminal Procedure Act requirement that a person seeking such prosecution must have a substantial and peculiar interest in the matter.
"It is not substantial interest because they are not the ones who were defrauded, if there was any fraud or corruption,” he said.
Gutto added that the matter was hanging in the balance and that it was not a foregone conclusion that Malema would be prosecuted.
In terms of the act, private individuals may launch a private prosecution once the National Prosecuting Authority (NPA) declines to prosecute and issues a nolle prosequi (unwilling to pursue) certificate.
On Friday, the NPA said it had informed AfriForum that it would make a decision whether to prosecute Malema and his co-accused on or before August 18, as a new prosecutor had been assigned to the case and had asked for further investigation.
In 2012, the NPA charged Malema with money laundering for receiving an amount of almost R4million, which was deposited into his Ratanang Trust to buy a farm outside Polokwane.
Three years later, the case against Malema and his co-accused, Lesiba Gwangwa and Kagiso Dichabe, was struck off the roll.
Malema on Thursday dared AfriForum to “bring it on”, after former senior prosecutor advocate Gerrie Nel announced the organisation's intentions to privately prosecute him.
The EFF's commander-in-chief tweeted: “Bring it on bloody racists, you don’t scare me at all. I’m born ready! No white man will decide my destiny, the poor masses of our people will.”
The EFF also labelled AfriForum’s decision to prosecute Malema as a plot to distract the party from its quest for land expropriation without compensation.
“It is not a secret that the EFF is at the forefront of the struggle for land expropriation without compensation and that AfriForum is one of its right-wing opponents.
“Instead of engaging in a democratic debate and engagement on the land question, AfriForum do what their colonial and apartheid forefathers did to freedom fighters, which is criminal persecution and prosecutions for political reasons.
"There’s no doubt that AfriForum’s private prosecutions are part of an onslaught against the EFF,” the party said.
Nel, however, said AfriForum’s interest in prosecuting Malema was simply “equality before the law”, as stated before the start when the organisation recruited him to privately prosecute cases not pursued by the NPA.
He said he simply followed the law and did his job in court.
AfriForum had approached the NPA to make a decision whether it would prosecute Malema and his co-accused, and if not, by April it would apply for a certificate to privately prosecute him.
AfriForum’s Kallie Kriel said he was disappointed that the NPA had transferred the case against Malema to the Priority Crimes Litigation Unit, which did not have a mandate to prosecute the case.
Kriel added the NPA had taken more than two years and eight months before Malema was back on trial.
The charges against Malema related to alleged corrupt activities of On-Point Engineering, a company that was contracted by the Limpopo Roads and Transport Department.
Prosecutors accused Malema of making an arrangement between him and Gwama Properties, the company represented by his business associate, Gwangwa, and ended up buying the farm.
According to the charge sheet, the NPA said Malema was guilty of acquisition, possession or use of proceeds of unlawful activities in contravention of the Prevention of Organised Crime Act.
”The accused (Malema) did unlawfully and intentionally acquire ownership of, or, and/or use the amount of (the) money well knowing, or in circumstances he ought reasonably to have known, that the money was, or formed part of proceeds of unlawful activities, to wit (that is to say) corruption and fraud,” reads the charge sheet.
Malema was accused of receiving proceeds of unlawful activities for his own benefit.