August 31, 2017

Engels v Mugabe: A fight for justice

If you thought the Mayweather vs McGregor fight was one for the books, the outcome of the Engels vs Mugabe fight most certainly will be worth the wait, especially with our famous and favourite Adv. Gerrie Nel in Engels’s corner!

As we all know by now, the Johannesburg model, Gabriella Engels laid criminal charges against Zimbabwe’s First Lady, Grace Mugabe after Mugabe allegedly assaulted her in a Sandton hotel on 13 August 2017. Mugabe, however, invoked diplomatic immunity which was subsequently granted to her by the Department of International Relations and Cooperation (DIRCO).

Most of the public was disgruntled with DIRCO’s decision and started cheering when Afriforum offered to fund a private prosecution against Mugabe.

Last year I wrote a blog about justice by way of private prosecution in the event of a criminal case not being pursued by the State due to a lack of evidence or in this instance, diplomatic immunity, who better than Adv. Gerrie Nel to lead “Team Engels”.

Nel is leading Afriforum’s Private Prosecutions Unit and you will recall the successful prosecution of former National Police Commissioner, Jackie Selebi for corruption and the paralympian, Oscar Pistorius for murder, which was mostly (if not all) Nel’s doing.

Even though private prosecutions are extremely rare in South Africa and the success rate very much underrated, for most aggrieved parties it is the light at the end of the tunnel, especially in circumstances where the National Prosecuting Authority (NPA) declines the prosecution of the wrongdoer.

The South African Criminal Procedure Act (the Act) makes provision for two forms of private prosecutions. Section 7 provides for private prosecution by an aggrieved individual on the basis of a nolle prosequi certificate (being a declaration by the NPA that they are not prosecuting). Section 8 provides for private prosecution under statutory right, meaning that any person can conduct a prosecution in a court competent to try the offence, the most common of which is the private prosecution by an aggrieved individual on the basis of a nolle prosequi certificate.

In terms of the Act, once the nolle prosequi certificate is issued, the person intending to prosecute must commence with private prosecution within three months of the date of the certificate by way of issuing summons against the accused. At this point the private prosecutor is required to pay over to court a deposit as security that he/she will prosecute the charge against the accused to a conclusion without undue delay, which amount is determined by the Minister, and a deposit as security for the costs which may be incurred in respect of the accused’s defence to the charge, this amount being determined by the court out of which such summons is issued.

Should the private prosecutor under these circumstances (prosecution under Section 7) be successful in his/her proceedings against the accused, the court may order the accused to pay the costs and expenses of the private prosecutor, or order that the State carries these costs.

Enough with the technicalities though, by the sound of things, especially considering the very confident words by Afriforum that they are willing to “fight this matter to the highest court” and Nel’s comment that “Afriforum will be pressing for prosecution rather than a settlement” following Engels’s rejection of a blank cheque offered by the representatives of Mugabe as an out of court settlement, it may very well be that Mugabe will have to “defend her title” in Court and the reluctance by the State to bring Mugabe to justice in the first place will cause considerable damage to the State’s pocket and also its dignity….definitely a fight to look forward to.

Author: Almie Fourie

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