On Wednesday we got a whole new set of facts. The League set out, in public, its grounds for appeal, its strategy for the process involving the ANC’s national disciplinary appeals panel. It’s time to apply those facts to the process and evaluate their arguments to see how they will fare. Some of the arguments hold some water, some do not. And some could hold what looks like an early victory for the League, but actually turn out to be quite dangerous.

In Malema’s quest to become the ultimate focal point of our politics, there are several things he needs to do. He needs to make sure his political ponzi scheme keeps going, and thus he needs to create enemies. And for that to happen he needs to drag things out as long as possible. And if he’s lucky, he will be able to turn not just President Jacob Zuma into an open enemy, but also, possibly, the ANC itself. Once you’ve turned the elephant against you, there really is nowhere else to go. As a result, this process needs to be dragged out for as long as possible. Hence his arguments.

The first is that comments made by ANC secretary-general Gwede Mantashe showed the NDC ruling was predetermined. Uh, no. This is not going to fly. Mantashe’s comments were made in the run up to the decision to charge Malema. They were a response to what Malema said about Botswana. They could be interpreted as a warning to him: you’ve crossed the line here. But blaming Mantashe for making comments and then being part of the body (the national officials, the top six of the ANC) that decided to put charges to Malema is a bit like blaming a man for crying thief and then charging that thief with theft. Mantashe was crying foul, and then he went through with it. The fact Malama got the secretary-general of the movement all steamed up is his problem; he should have picked on someone else.

Malema would appear to be on safer ground with his claim that certain NDC members should have recused themselves. He says that panel chair Derek Hanekom lost his temper during the hearings, and made certain outbursts. “Losing one’s temper” and “outbursts” are highly subjective. Many a judge has had a cross word for an accused, that doesn’t mean the judge had to recuse him or herself later. But Malema does have a precedent he can bring in his back pocket. Several of the panelists did recuse themselves during Malema’s previous hearing last year. Some of them, it seems, because, they were in a conflict due to their views on policy, and Malema’s. Minerals minister Susan Shabangu was one, presidency minister Collins Chabane another (supposedly he was too close to Zuma to be neutral). Malema is saying nothing’s changed since that hearing and this one, thus they should have recused themselves again. Possibly. But ANC prosecutors could argue that the panel was dangerously close to not having a quorum. And you can’t allow a situation in which Malema just continues to get up so many people’s noses that the panel can’t sit. At some point, someone has to draw a line and get on with things.

Malema claims that the charges against him were not brought by a constitutionally recognised body, that the national officials are not actually an organ of the ANC. It’s an interesting argument. The ANC’s constitution goes into detail on the functions of the national working committee and the national executive committee, but doesn’t have a full section on the national officials. The intention by Malema here seems to be to get the matter kicked to the national working committee, where his support seems to be stronger. But the constitution does refer to each of the officials in turn, and gives them certain duties. As a result, the NDC said that it “can be inferred that an organ exists known as the national officials”. This is one for the lawyers, and Dali Mpofu is bound to spend much time on this issue.

The landmine waiting for Malema hides in his claim that the League was not given an opportunity to present factors in mitigation of sentence. They say that what should have happened is that the panel should have made its guilty finding public, and then allowed them to argue as to why the sentences should have been lenient. That happens in many courtroom situations. However the NDC is not a court, it’s a disciplinary panel of a political party. There is unlikely to be any constitutional duty on it to follow that procedure. It can surely make up its own mind, taking many factors into account. But this is an argument Malema should hope to lose. If he wins, arguments in aggravation of sentence will be introduced. Can you imagine? Malema was in a position of responsibility, he refused to act in a democratic manner, he cost the country mining investment, he insulted senior leaders, he is a serial offender. We could keep going if you like. This is dangerous for Malema; he could find that suspension turned into an expulsion. Which would give him a focal point: it might be the move that he really wants.

Now to the funny part. The League claims the NDC used an old version of the League’s constitution. Really. Firstly, and let’s all do this together, “We don’t believe you”. The claim is that the updated version was agreed to at the League’s national conference earlier this year. But, through a mysterious set of circumstances – no doubt relating to the actions of imperialist bladdie agents and the Queen’s white racist control of the internet – the new version only appeared (ta da!) on the League’s website on Wednesday. Okay okay, let’s calm down. But if it is true, so what? It’s not necessarily the constitution of the League that will matter, but the constitution of the ANC. In the end, surely, ANC prosecutors will argue, what the mother body says, goes. If not, then the League will cease to be a League, and become something else altogether. Right, let’s wipe our eyes, and move on.

The League claims there has been inconsistency. Its secretary-general Sindiso Magaqa and its spokesman Floyd Shivambu (bless him) are both first-time offenders. How is it then that Magaqa’s suspension was suspended, and Shivambu’s was not? Hmm. Interesting point. Well done Dali. However, Magaqa was charged with one count here (not including the breaking up of a meeting, which the League leaders faced together), that of attacking public enterprises minister Malusi Gigaba. It was one event, one action. Shivambu was charged with three counts, involving a series of actions over time. That surely was a part of the panel’s findings.

Malema says he’s been charged for making a statement that was issued in the name of the League. This relates to the Botswana comments. The issue here is that he didn’t make the statement, and the statement was the result of a collective decision by the League’s leaders. It’s a technical point though. Everyone knows that politically, what Malema says goes in the League. As the League’s leader, he can hardly hide behind lesser officials. Also, the fact he didn’t read it shows malice aforethought. He knew there was going to hell over this, as a result, he deliberately tried to avoid it. Why then, allow the “this” to happen in the first place? Surely he would be told to take some responsibility for it in the end?

Finally, the League claims the NDC provided a running commentary on the decisions it made during the hearings themselves. Technically speaking, the League might make some headway here. It does seem the panel is only supposed to release an outcome. Having said that, it would be asking for trouble to try to keep a total lid on proceedings. That’s just not how our politics works anymore. Everyone uses the media, and they use it pretty well sometimes. The appeals panel could also say that perhaps there was a small mistake here by the lower panel, but that would not have affected the outcome in any material way.

In the final analysis, some of these arguments are really grasping at straws. They will, maybe, buy Malema some time. It’s hard to see, at this point, and on just these arguments, that the NDC will be overturned in any massive way. But Malema is bound to make the wait quite fun. DM

Photo: REUTERS