The decision by civil rights group AfriForum to announce plans to privately prosecute Julius Malema is a simple manoeuvre to place the National Prosecuting Authority under pressure to act, according to its chief executive Kallie Kriel.
At a press conference on Thursday, Kriel announced that Advocate Gerrie Nel, who heads the organisation’s private prosecutions unit, was gearing up to prosecute Malema, leader of the EFF, on charges of fraud and corruption if the NPA failed to do so.
In August 2015 the matter was struck off the roll due to one of Malema’s co-accused being  seriously ill.
The charges relate to a R52-million Limpopo roads tender awarded to a company called On Point Engineering in 2009. Malema was the sole trustee of the Ratanang Trust, which held an interest in the company.Kriel himself had opened a case against Malema in 2011 regarding the matter.
“If you look at the Gupta/Jacob Zuma cases there has been a lot of pressure on them [NPA] to actually be left with no choice but to do that [prosecute],” Kriel told Times Select on Thursday. 
“It seems they are now also going to prosecute Duduzane Zuma – which they didn’t want to do before – so we had to exert pressure to say if they don’t, we will. That is our role at the moment, to make sure they do their job and if they don’t, we will,” Kriel added.Kriel agreed this was the same reason why the announcement over Malema was made now, despite the NPA writing to AfriForum that state prosecutors would make a decision in August.
“Definitely … like what happened in the Duduzane Zuma case. We have to announce and make it public and then there is pressure, and then they decide to do their job. The same will happen now.
“It is also helpful, that they know if they don’t prosecute we can and will.”
Nel  said during the press conference it was unacceptable that the NPA, after more than 30 months, has failed to take the corruption case against Malema any further.
“AfriForum’s Private Prosecuting Unit was established for the very reason of ensuring that equality before the law is upheld and that the NPA does its work effectively. The NPA neglected its duty by simply abandoning the case against Malema‚” he said.The EFF responded with a fiery statement, labelling AfriForum “ultra right-wing” and “racist”, explaining that this move was nothing more than an attempt to deflect attention from the EFF’s land expropriation agenda.
“We know with absolute certainty that AfriForum’s pursuit of EFF leader and commander-in-chief Julius Malema is not about the rule of law, but an attempt to deflect the attention of the EFF from economic emancipation struggles, in particular land expropriation without compensation,” the statement read.
Kriel denied that the decision was motivated by Malema’s stance on land.
“We lodged this complaint on June 24 2011, before there was this debate on the land issue. It’s something that has been going on for seven years, but also the fact is that we cannot abuse the legal system for political purposes.”
The only way they can prosecute Malema is if the facts are on their side, Kriel said.
“Has he done something wrong and should he be prosecuted? On both those counts the answer is yes.”Legal expert Ulrich Roux, of Ulrich Roux and Associates, explained that long before the question of a private prosecution arose, the party seeking to initiate the prosecution would have to prove to the NPA they are an interested party, and then request a nolle prosequi certificate – an official document declaring the prosecutors declined to pursue the matter.
AfriForum has declared intentions to privately prosecute in three matters, but to date no such certificate has been issued. They are Malema’s matter, Duduzane Zuma’s culpable homicide charges and the matter of Alexis Bizos, son of George Bizos, who allegedly assaulted his wife.
Also on Thursday, Nel provided an update on their work on the former Zimbabwean first lady Grace Mugabe’s assault case. She allegedly assaulted Gabriella Engels with an extension cord in a Sandton hotel where Mugabe’s sons were staying.
She was granted diplomatic immunity and not charged – but AfriForum is challenging this decision and will appear before the Pretoria High Court on May 10 and 11.
If the immunity is set aside, Afriforum will ask the NPA to prosecute, failing which, the civil rights group will do so.AfriForum is also waiting for an NPA decision on whether it will prosecute Nomgcobo Jiba, who is facing charges of fraud and perjury for the unlawful authorisation of racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen.
“Malema’s possible prosecution is a bit of a strange announcement at this stage given the fact that the NPA has indicated they need until August to make a decision,” Roux said. 
He added there is no time limit for the NPA to decide whether or not to reinstate the charges against an accused in any matter that has been struck off the court roll.
Centre for Constitutional Rights director Phephelaphi Dube said it is a necessary move by AfriForum.
“In a sense, it’s a welcome development on the part of AfriForum to insist that prosecution must go ahead. It’s important to hold public institutions accountable,” Dube said.
“From a purely legal perspective, anyone could have done that and it’s important for the NPA to be seen to be acting in the interest of the country as a whole.”