The bulldog retired to AfriForum and as University of Cape Town law professor Pierre de Vos explained, he will have more bark than bite. He will, however, feather his nest quite nicely.
To understand this move from an AfriForum perspective, it is important to understand how the organisation functions. In a rather nice turn of phrase, Professor Christi van der Westhuizen describes them as ethnic entrepreneurs in her essay, The Paradox of Post-Apartheid 'Afrikaner' Identity: Deployments of Ethnicity and Neo-Liberalism. What AfriForum has done over a period of years is not only position themselves as an unelected, unaccountable spokes group for Afrikaners but they have in fact managed to monetise ethnic fears. They are literally in the business of politics.
Behind every move of theirs, including the appointment of Advocate Gerrie Nel to head a prosecutions unit is not a principle or a need, but rather a business plan to monetise the fears and prejudices of their intended target market, the Afrikaners.
The way the Nel resignation was staged, is just another in a long line of publicity stunts to effectively fleece the pockets of their customers at the cost of improving their own bottom-line. As many legal experts, have pointed out, this "Unit for Private Prosecutions" is pretty much stillborn. Nel admitted as much in the press conference.
What isn't stillborn is the AfriForum public relations machine. As soon as the move was announced AfriForum sent out an SMS to beg for donations from the public at large. On point, not an issue of legal principle but rather the PR-value of having Nel on board. You can be sure that this is the material that will be used in their extensive call centre for weeks and months to come. Even if Nel does not successfully prosecute a single case, his value to AfriForum is not that of a prosecutor but rather as a celebrity spokesperson. He will soon learn this lesson for himself, or it is quite possible that he is fully aware of this already.
AfriForum has a long history of using courts and legal processes for publicity and even the most cursory glance at the judgment that went against them in 2016 confirms this. Normally this process starts with a charge of some sort at Brooklyn Police Station, which is not the closest station to the AfriForum head office but is conveniently located near several media outlets in Pretoria. Very few if any of these criminal charges are ever brought before a magistrate, I am certainly not aware of any.
What is assured is that these charges will be front-page news in an Afrikaans media publication that serves largely as an advertising front for AfriForum and its agenda these days. An SMS campaign will be launched begging a few rands from the public to help fight this outrage and the call centre will dial and ask new potential members to support them in this latest quest.
In some instances, they will start civil action on dubious legal grounds, fully aware that it will ultimately fail. The purpose of these actions will not be to enrich our legal system or to clarify a point of law, in fact, most of the time their pleadings will only serve to obfuscate the matter at hand. You don't have to take my word for it. Listen to the judges in civil cases AfriForum brought before court. Look at how legal processes are abused.
Donen AJ in AfriForum and another v. Pienaar:
"The protection of the dignity of the women violated by AfriForum supporters is of paramount importance under the Constitution. The comment on these unlawful acts in the present publications cannot give rise to a remedy for the applicants based on a violation of their own dignity."
"The orders sought by the applicants have a chilling effect on political free speech. The limitations sought are oppressive and unjustified. There is no merit in the application..."
Cameron J and Froneman J in a minorty opinion in Tshwane v AfriForum:
"But for that AfriForum has largely itself to blame. In its founding affidavit AfriForum repeatedly refers to the municipality's attempts at correcting 'so-called 'historical injustices of the past'. It supplies evidence that the old street names were of historical figures of Pretoria, artisans, business people, surveyors who played a central role in the layout as it currently exists, prominent figures in history (most have made their contributions long before the so-called apartheid), city fathers and legal practitioners (including attorneys, advocates, magistrates and even a judge). It is clear that these people played a direct and positive role in the city as it exists today. It would therefore be grossly inaccurate to suggest that these persons have a direct connection with the so-called historical injustices.
"So-called! This embodies the kind of insensitivity that poisons our society. There were historical injustices. Apartheid was all too real. And it was profoundly pernicious. These facts are not "so-called" figments of black people's imagination. Pretoria was created as the capital of an Afrikaner Republic that expressly subordinated black people. It became the capital city of a South Africa that grossly magnified that discrimination by systematic segregation and exclusion. Until just decades ago, black people could not own and live in property along Pretoria's beautiful jacaranda-lined streets. The historical figures after which those streets were named benefited directly from the fact that they, unlike black people, could own and live on city properties."
Moegoeng J in majority opinion in Tshwane v AfriForum:
"Pretoria does not belong only to the Afrikaners or white South Africans. It equally belongs to all of our people white and black, united in their diversity. All racial groups in this country deserve to have their culture, heritage, history, heroes and heroines respected and honoured by all."
"And it is thus ironic that AfriForum seeks reliance on this preamble (of the constitution) in the furtherance of the interests of essentially one racial group to the exclusion of all others, even freedom fighters. And that happens to be the irreparable harm on the basis of which the interim interdict was granted and is sought to be preserved."
Moegoeng J in majority opinion in Tshwane v AfriForum:
"Accordingly it can hardly be further from the truth when the Applicant (AfriForum), in its founding affidavit, describes the language policy of being part of a 'focussed countrywide clampdown on Afrikaans as language of learning and tuition'. Such language in the founding affidavit, only serves to impermissibly deepen the fault-lines that already characterise our fragile democracy and one should caution against it."
There are more examples, from the unsuccessful hasty action against Unisa, to the Supreme Court of Appeal in the Bloemfontein Language case, and their actions on behalf of members who broke the rules in an SRC election. In the last instance, they managed to go through four student court hearings, one high court application, another threatened one, used three advocates against a final year law student and somehow still managed, never to provide a shred of evidence that could exonerate their members. Conservative estimate of their legal costs in this matter? Upwards of R100,000.
Private prosecutions are a legal remedy fraught with caveats for the society at large. Whilst there are legitimate uses for this tool, the danger of the rich using it as a private tool for petty revenge is a very real threat that bears with it enormous responsibility. In the hands of an organisation with deep pockets; (in a recent interview AfriForum admitted to collecting monthly membership fees of around R10 million) and a petty, whites only disposition to constitutional matters, it is downright dangerous.
Gerrie Nel has mounted this tiger. Before destroying his reputation completely he should start his drive for private prosecutions with the crimes of apartheid highlighted by the Truth and Reconciliation Commission. Let's see if AfriForum, Kallie Kriel and Ernst Roets will allow him to prosecute one of the white offenders
Disclaimer: In March 2016, AfriForum laid frivolous criminal charges against me and tried to interdict me in the Western Cape High Court. Judge Donen rejected their application with costs in a scathing 40-page judgment.