AfriForum’s Private Prosecution Unit this week served a mandamus application on the Director of Public Prosecutions (DPP) in Pretoria, as well as three other respondents, in order to force the National Prosecuting Authority (NPA) to issue a nolle prosequi certificate in the matter of André Fourie. This certificate will enable the Private Prosecution Unit to represent Fourie in the private prosecution of Sello Mojela on charges of crimen injuria. The incident from which Fourie’s charges stem took place in 2018.
During the incident Mojela, following a disagreement at work with Fourie, falsely claimed that Fourie had called him (Mojela) a “baboon”. He also indicated this in writing during the course of the employer’s grievance procedure. Mojela changed his version when he went to lay a complaint at the police, during which he then falsely claimed in his affidavit that Fourie had called him the k-word (the NPA refused to prosecute Fourie on these charges). In reaction to this, Fourie laid a criminal charge against Mojela.
The Private Prosecution Unit assisted Fourie on 25 October 2019 with the application for a nolle prosequi certificate after the NPA indicated that they would not prosecute Mojela. After numerous items of correspondence the DPP informed the Private Prosecution Unit that he refuses to issue a nolle prosequi certificate because, according to him, it would not be in the interest of justice to do so.
According to Natasha Venter, Advisor at AfriForum’s Private Prosecution Unit, the DPP’s irrational and unfounded refusal to issue the nolle prosequi certificate for more than two years makes private prosecution in this case impossible. “Legislation does not provide the DPP with the discretion to decide not to issue a nolle prosequi certificate – he is obliged to do so if the NPA does not prosecute. The continued refusal to enable Fourie to privately prosecute Mojela violates Fourie’s fundamental rights, as well as justice, therefore the Private Prosecution Unit has now taken steps to force the DPP to issue this certificate.”