The common thread in President Jacob Zuma and Julius Malema’s corruption cases was that they both claimed that they came about through a political conspiracy. Zuma’s legal team argued that the conspiracy contaminated the case and therefore he would not receive a fair trial. The corruption charges continue to haunt the president; opposition parties claim he evaded his trial and some sections of society believe he ought to have cleared his name when he had the chance. The Democratic Alliance is trying to have the charges reinstated.

Malema’s strategy was different. He claimed consistently that there was a political agenda driving the corruption case and the tax case against him. But he went head-to-head with the National Prosecuting Authority (NPA) and the South African Revenue Service (Sars). In June, after a long-running battle with Sars, the sequestration order against Malema was withdrawn in the North Gauteng High Court.

On Tuesday, the fraud and corruption case against Malema was struck off the roll in the Polokwane High Court after numerous delays in getting the trial started. Malema was charged with fraud and money laundering in September 2012 and two months later, another charge of racketeering was added. One of Malema’s co-accused, Kagiso Dichabe, was absent from court proceedings this week as he was apparently in hospital suffering from depression. Malema’s legal team had wanted a separation of trials so that the case could proceed in Dichabe’s absence. The state opposed this.

Judge Billy Mothle said three years was too long for the accused to await trial. He said had the NPA not delayed in getting the trial started previously, the problem confronting the court this week would not have arisen. Motlhe told Malema and his co-accused they were “free” to go but warned that the NPA could reinstate the charges when they were ready.

The merits of both the Zuma and Malema corruption cases were never tested by the courts, and until they are, the public will never know for sure if they derived benefits from the proceeds of crime. One of the major differences, however, is that Malema was ready to face trial and was actually pushing the NPA to proceed. Zuma’s legal team used the spy tapes to argue that the case against him cannot proceed, even though he claimed for years that he wanted his day in court. It was a judge who struck off Malema’s case while it was the former acting NPA boss who withdrew the charges against Zuma.

The result is that Malema has come out saying he has nothing to hide and would still be prepared to go to trial if the charges are reinstated. In Zuma’s case, the argument from his legal team is that the case could and should never be reinstated.

Who is the ultimate comeback kid between the two?

Zuma was fired as Deputy President, charged with corruption, charged with rape, shook off both and became president. Malema was expelled from the ANC, charged with fraud and corruption, charged with tax evasion, had his assets seized, launched a political party out of thin air with both cases hanging over him and is now the leader of the third biggest political party in the country. He too has shaken off both cases.

So what will he become?

Perhaps not president, and certainly not as fast as Zuma did, but Malema has a to-do list. The inability of the state to trip him up on the corruption and tax cases, whether through genuine and vexatious intent, means that his path is now unhindered.

Malema has certainly redefined South African politics from the time he became ANC Youth League president. First he set his sights on Thabo Mbeki, being the first to suggest publicly that the former president should be recalled. Then (by his own admission at The Gathering 2015) he was assigned to target ANC secretary general Gwede Mantashe. Later his chief enemy became Zuma himself. While keeping the pressure on Zuma with “Pay back the money”, he has taken on Deputy President Cyril Ramaphosa, vowing to see him prosecuted for the Marikana massacre.

Malema has so far been a master strategist, both politically and the way his he handled his legal woes. After the release of the Farlam Commission of Inquiry report, one of the people he singled out to attack was the newly appointed National Director of Public Prosecutions (NDPP) Shaun Abrahams. Judge Ian Farlam had recommended that the NPA investigate and prosecute all those involved in the Marikana massacre and the killings prior. Malema said at a media briefing in July that he did not trust Abrahams. He claimed the new NDPP was part of a faction in the NPA protecting the president.

Guess who will have to ultimately decide whether to reinstate the corruption charges against Malema?

Imagine Abrahams’s discomfort when that prosecution file lands on his desk, and he knows he has already been accused of bias. Consider how Abrahams will hate having to drink from the well-used poison chalice if he does reinstate the charges and the case goes awry again.

Malema already had Abrahams in his sights before he knew what would happen to his own case. The Economic Freedom Fighters (EFF) had laid charges against a number of people including Ramaphosa with a view towards pursuing a private prosecution against those they believe were involved in the Marikana massacre. That hot potato has already been foisted on Abrahams.

All this means that Abrahams is firmly wedged between a rock, a hard place and Malema wrath.

As Zuma will discover on Thursday, Malema has every intention to continue being a thorn in his side, particularly on Nkandla. The new parliamentary rules to ensure discipline in the House are set to be tested during the president’s question time when Malema will again be asking Zuma when he intends paying back the money in line with Public Protector Thuli Madonsela’s recommendations on Nkandla.

Nkandla has fuelled the EFF’s popularity, even though there is some level of public fatigue with the continued disruptions in Parliament. However, the EFF has shown that it is only them that can really rattle the ANC’s cages with other opposition parties participating in the ad hoc committee on Nkandla but failing hopelessly to make any impact on the outcome.

In the next few months, as the ANC’s succession battle starts to simmer, Malema and his EFF will shift focus. Already Ramaphosa is a prime target for their attacks so that if and when the time comes that he is the EFF’s chief political opponent, the campaign against him will be well in progress.

When Judge Mothle said in court on Tuesday that Malema was “free”, it meant more than being free of the charges. Malema said so outside court. “The judge said I’m free. We are free to be parliamentarians… I am free to go and represent my people.”

But Malema is free to do much, much more, for as long as he is able to keep out of trouble with the law and the NPA dithers with its case. There will be many people rueing just how free he is. DM

Photo: EFF CiC Julius Malema, at the EFF congress in Bloemfontein, 15 December 2014. (Greg Nicolson)