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Advocates Gerrie Nel and Barry Roux are set to face off again in court, this time in the private prosecution of a man who is accused of raping his grandchild.
The accused, who cannot be named as it would identify the victim, made his first appearance in the Pretoria Magistrate's Court on Wednesday in what will be lobby group AfriForum's first private prosecution.
Proceedings started with AfriForum's Nel telling the court that the matter was a private prosecution as the National Prosecuting Authority had issued a nolle prosequi certificate on the matter.
READ: AfriForum's Gerrie Nel to take on businessman for alleged rape of 3-year-old grandchild
According to Wico Swanepoel, who is part of AfriForum's private prosecution unit, the certificate was issued after the State declined to prosecute based on insufficient evidence.
The incident is alleged to have happened in 2016 when the victim was 3-years-old. The mother of the child approached AfriForum in 2017 to take the case.
News24 previously reported that the child told her mother and father about the incident and that it was also confirmed by a psychologist, according to AfriForum.
The court also heard that Roux would be representing the accused in the private prosecution. Nel, who was a State prosecutor, and Roux went head to head in the trial of the blade runner, Oscar Pistorius, who was eventually found guilty of murdering his girlfriend, Reeva Steenkamp, on Valentine's Day in 2014.
Application for proceedings to be held in camera
The accused's lawyer, Anel Jacobs, brought an application to have the case held in camera, meaning that the trial would not take place in an open court and that the media would not be allowed to sit in on the court case.
Jacobs said it would be in the interests of the child that the matter be held in camera.
"Certain provisions are made in the Criminal Procedure Act that certain court proceedings may be held in camera, especially because we are dealing with minor children," Jacobs told the court.
She added that the revelation of the accused's identity would lead to the revelation of the identity of the victim because they are related.
READ MORE: What the law says about AfriForum's private prosecutions unit
She also argued for a gag order preventing all parties in the matter from sharing any information relating to the case before the court.
Nel opposed the application, stating that all criminal trials should be held in a public court. He added that every accused should receive the same treatment and that there be equality before the law.
He argued that the provisions of section 154 of the Criminal Procedure Act already made allowances for trials under these circumstances, where the accused cannot be named. He argued that these provisions protect both the accused and the victim, and that no court order is needed.
The court dismissed the application, adding that it was needless to say that some of the evidence would be held in camera, but that the trial must proceed in open court.
Magistrate Adriaan Bekker also granted an order that no photographs of the accused may be taken, the accused may not be named and no information may be published by media that could reveal the identity of accused and victim.
Court conditions
Nel also asked the court to impose a condition that the accused not be allowed to have direct or indirect contact with the victim.
Because it is a private prosecution, the accused appeared on a summons, meaning that there was no bail hearing.
Had this been a State-mandated prosecution, it would have been a schedule offence and the State would have asked for bail conditions that the accused have no contact with the victim, Nel argued.
Despite this, Nel said the court had the power to fix conditions in the way of a court order.
Jacobs argued against this, saying that there was ongoing civil litigation dealing with the safety of children in similar instances.
Bekker found in favour of AfriForum and ordered that the accused must have no contact, directly or indirectly, with the victim.
Why Afriforum took the case
Swanepoel said that AfriForum's prosecution unit took the matter on after it looked at the evidence.
"We were absolutely in shock when we looked at the evidence and saw that the police did not even take the statement of the most important, independent witness," Swanepoel told media.
He added that this matter also fell into the organisation's focus area which includes corporate bullies and people sheltered from prosecution because of political connections and their position in the community.
"This falls into the category of who and what the accused is."
The matter has been postponed to June 13 for Roux to take over the case and for disclosure.
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