South Africa

ANALYSIS

Politics of lawfare, 2018 – legal challenges mount in unsettled and insecure times

Politics of lawfare, 2018 – legal challenges mount in unsettled and insecure times
Leader of the opposition party Economic Freedom Fighters (EFF) Julius Malema gestures ahead of South African Finance Minister Pravin Gordhan’s (not pictured) Budget Policy speech to Parliament in Cape Town, South Africa, 22 February 2017. EPA/NIC BOTHMA

The use of the courts for political ends has a long and fairly sorry history in post-apartheid South Africa. Perhaps too often we see the political players using a rules-based system to achieve an essentially political goal. At the same time, many of those who have won court victories have been able to say, with much justification, that those victories have proven that opponents have behaved illegally. Now, two cases have been instituted that suggest the tension between politics and the law is about to be tested again. One is the case brought by Minister of Public Enterprises Pravin Gordhan against EFF leader Julius Malema. The second involves AfriForum and Parliament, over land. Both of these cases could show how the courts have to step in when politics fails. But they may also reveal that the legal process is not a proper substitute for a proper, and legitimate, political process.

Given the strategists involved in the ANC nowadays, it is entirely possible that there was a little bit of orchestration with the timing of Pravin Gordhan’s decision to walk into a police station and lodge crimen injuria charges against Malema and the EFF. On Friday the ANC’s head of the Presidency, Zizi Kodwa, publicly supported Gordhan on behalf of the governing party. On Sunday night, President Cyril Ramaphosa said that “it was our task to support and defend people like Pravin Gordhan and others….” for his testimony at the Zondo Commission of Inquiry into State Capture. Having gathered political momentum in that way, it may have felt correct for Gordhan to finally take the legal route.

Outside the police station he explained that “enough is enough”, that he and his family had been victims of lies and attacks by the EFF. He also said that the EFF had been “propagating hate speech”. Malema, of course, has a long history with hate speech litigation, and has gone several rounds with the Equality Courts on this issue. He famously lost the Dubhula Ibhunu case, after singing the song translated as “Kill the boer”, but not before he was able to use his own testimony in that case as a rallying point for identity arguments during the 2011 local elections campaign.

Meanwhile, Parliament was lodging its legal response to AfriForum, which is challenging the decision by Parliament’s Constitutional Review Committee to recommend to the National Assembly that it change the Constitution’s land clause. This appears to an attempt not to argue the actual outcome, but to play the rules as much as possible. AfriForum obviously wants to stop any change to laws around land, and will play technical to do that. For them, time matters. If they lose this application, they can appeal, then appeal that. Finally the Constitutional Court would rule in Parliament’s favour, and then move to the next step. Before AfriForum takes the outcome of that next step to court as well. And so on, as the lawyers might say, ad infinitum.

However, the risk AfriForum might take in the case is that while they may from time to time have legal victories, they will continue to lose on the politics of it. In other words, they will be seen as the people preventing any chance of real land reform from happening. One of the drawbacks of using a legal process to resolve a political dispute is that it may not actually solve the bigger problem. And the bigger problem in this case is that this country needs land reform urgently. If AfriForum is seen as preventing poor black people from getting something that could turn into an asset, their court actions could increase the temperature in an already volatile situation.

The first consequence of this could easily come during the 2019 elections. It is entire possible for some in the ANC to point fingers loudly at AfriForum, to turn the election into a poll about identity. This might actually suit AfriForum, because it would create a situation that strengthens their base. However, it would also mean that once again, our politics is determined only by our extremes, while those in the middle ground, who may wish to consider various solutions to the land question, would be ignored. Or worse, pulled to the extremes themselves.

Meanwhile, while Gordhan may well be on stronger ground legally, Malema may also believe that he has much to gain from a legal process. He was able to make AfriForum’s bid to silence him on the Dhubulu Ibhunu issue into a major political point which eventually strengthened him. He may well believe that by being taken to court by Gordhan in this way, he would be able to stand outside a courthouse and claim that he is being silenced from speaking the truth about our racial past and present, white monopoly capital and especially the one-sidedness of the “racist” media. He would be able to campaign on the same issues, again pushing the wedge issues to divide the nation, and the ANC itself.

However, it may also be that Malema’s strategy would actually have some limits. Firstly, if he were to be found guilty (and considering that that his likely prefered advocate, Dali Mpofu, has his hands full at the moment, representing both Supra Mahumapelo and Tom Moyane), there may be many South Africans who have a certain respect for the rule of law. Considering that many appear to believe our judiciary helped to contain a recent tsunami, it may be that a ruling that Malema is guilty of hate speech would actually drain him of some support and deplete his fuel reserves in time for the 2019 elections. In the end, it may come down to a classic politician’s dilemma would such a trial merely strengthen his base (those who already support him) or would it actually gain him more supporters and votes? It is difficult to know this. But, considering that Ramaphosa still appears popular, Malema may find it hard to broaden his support using this tactic.

To make matters more complicated for the EFF leader, he himself said on Monday that he would be instituting criminal charges against Gordhan. He said on Twitter that the charges would include money laundering and perjury.

This would surely make it harder for Malema to then criticise the process that finds him guilty of anything, if he himself trusts and institutes a similar process. On the merits, at least as far as can be seen at the moment, it is also far less likely that he would be able to prove any such claims against Gordhan. While Gordhan has plenty of video evidence against Malema, because it is based on his comments, speeches and tweets, this could end in humiliation for Malema, should the police simply announce one day soon that Gordhan has no case to answer.

In the meantime, Malema would also have to await a decision by the National Prosecuting Authority on whether he will face a full-scale corruption trial for his alleged role in the determination of tenders in Limpopo in the years leading up to 2012. A judge halted the prosecution in that case in 2015 after Malema’s co-accused was constantly ill. AfriForum threatened to bring a private prosecution if the case was not retried.

The NPA’s spokesperson Luvuyo Mfaku says that AfriForum has now had a meeting with the prosecutor involved, and that the prosecutor “has directed the investigators to conduct further investigations”. Which may mean the case can return almost at any moment.

While legal processes are vital to any democracy, in that they ensure all of the players stick to the rules of the game, court cases and judges are surely not able to foster unity. Court decisions create winners and losers. Only proper legal processes, involving all parties, can lead to a situation where everyone agrees, or at least accepts an outcome because they have been a part of it.

That is extremely difficult in a country with so many fringe players as in South Africa today. The next round of “lawfare” has a far greater potential of further dividing South Africa, rather than uniting it. Such are the times we’re in. DM

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