Is NPA shielding Mandla Mandela?

2013-11-03 14:00

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Estranged wife considers private prosecution.

For three years, Mandla Mandela has eluded prosecution on a bigamy charge that is growing mould at the National Prosecuting Authority (NPA), which either can’t – or won’t – bring him to trial.

Now, in desperation, lawyers for his estranged wife Tando Mabunu-Mandela have asked the NPA to drop the case so he can be privately prosecuted.

Mabunu-Mandela’s lawyer, Wesley Hayes, has asked the NPA for a certificate of nonprosecution – an agreement that states the NPA will not prosecute an individual.

This would allow Mabunu-Mandela’s legal team to embark on a private prosecution – a rare last resort – to bring her ex to justice.

A second criminal case against Mandla was opened by his aunt Makaziwe and other family members in June.

He was accused of grave-tampering, after having the remains of three of his grandfather Nelson Mandela’s children removed from Qunu without consent.

It, too, is at the NPA.

The NPA’s failure to bring Mandla to book on any of these charges is what finally drove lawyers to take what constitutional law expert Professor Pierre de Vos described as a “drastic” step.

In emails between Hayes and Advocate Jacolean Pretorius, Mthatha’s senior public prosecutor, Hayes complains that “we’ve had nothing but excuses from your office”.

He recommends either that the NPA appoints “a competent senior prosecutor” or “that your office indicates that the NPA will not prosecute Mr Mandela so that my clients (Tando and Makaziwe) can?…?do the job the NPA should be doing.”

He adds: “This will prove to the nation that private practitioners can do the job of the state competently and without delay.”

While there is a perception Mandla is “untouchable” because of his famous grandfather, it is unclear what the legal delay is.

In her response to Hayes, Pretorius assures him: “The matter is receiving urgent attention and the case will be discussed with the chief prosecutor. Your office will receive a response within the next few days.”

But Hayes says the mail sent on October 17 was the last they’ve heard from the NPA.

“My clients are very frustrated because they are not getting any justice,” he told City Press this week.

“Why can’t the NPA prosecute him? Is it because he is the grandson of former president Nelson Mandela?

If he were an ordinary citizen, he would have been arrested and prosecuted a long time ago,” says Hayes.

But Mthatha’s NPA regional communication’s manager, Luxolo Tyali, sees nothing sinister in the delays, saying both the bigamy and grave-tampering cases had to be sent back to police for further investigation.

“We need to satisfy ourselves that there is enough evidence to prosecute, and if there isn’t, we will send the docket back to the police,” he says.

Tyali confirmed a decision to prosecute all the cases – including the latest in October when Mandla allegedly assaulted a man and pointed a firearm at him – is “still pending”.

“We are not doing anybody favours and nobody is above the law, including Mandla. We cannot prosecute under pressure because that will have repercussions, where individuals would be prejudiced. If there is a case to be answered, we will enroll the case,” Tyali said.

De Vos said though very rare, private prosecution was possible using the same processes applied in the Criminal Procedure Act. In a private prosecution, Mabunu-Mandela’s lawyers would do the prosecuting.

“But the question one needs to ask is why these lawyers would want to resort to such drastic measures. Why is the NPA dragging its feet?”

Mandla Mandela himself declined to comment, saying only: “They must do what they have to do.”

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