Let’s do a quick tally. Among the court smackdowns that Julius Malema and his Economic Freedom Fighters have recently experienced (please understand that this is, at best, a threadbare and partial list):
1) In early June the South Gauteng High Court ruled in favour of broadcaster Karima Brown, determining that the EFF contravened parts of the electoral code after Malema urged his Twitter followers to “attend to [her] decisively”.
2) Malema lost a defamation case brought against him by former finance minister Trevor Manuel, after — again on Twitter — the EFF Führer claimed that the former finance minister’s relationship with the new head of SARS, Edward Kieswetter, was manifestly corrupt. (This cost the Fighters a whopping R500,000; they have promised to appeal because the VBS bank vaults were only so capacious.)
3) A recent judgment, in relation to charges that Malema violated sections of the Riotous Assemblies Act of 1956, was reserved by the Bloemfontein Magistrate’s Court — widely viewed as bad news for the EFF and its land-occupation programme.
It’s the last matter that seems to have opened up a brave new populist front. The whole thing started when Malema incited members of his party to occupy land that they deemed to be vacant — an age-old South African practice that dates back to the apartheid years, at least. By facing the Riotous Act down in court, Malema was hoping to eventually challenge the constitutionality of an ancien régime law — a law so retrogressive that it should serve as a legal condiment for those who wear Nazi uniforms in burger joints.
Still, it’s the law.
“Every time such rulings are made against us,” Malema spat, outside the Bloemfontein court, “you must know that it is not a ruling against the leadership, it’s a ruling against the struggle for the land. You must know that when you are EFF, you are the enemy of the Rothschilds, you are the enemy of the Ruperts” — random super-rich white people did not come off well in this speech — “you are the enemy of the establishment. The establishment is white monopoly capital, it’s the army, it’s the police, it’s the courts, every institution that existed 300 years ago, that’s what an establishment means.”
In other words, the judges are with them.
“South Africa be warned,” fulminated Malema, “something is happening to the judiciary, something wrong is happening to the judiciary.”
Malema’s speech seemed like another in the long line of flip-flops the EFF’s followers are routinely subjected to. After all, wasn’t it just last week that Malema was proclaiming the unmatched awesomeness of the judiciary — the institution that was instrumental in stalling the rapaciousness of the Zuma regime while transforming Malema and his cronies into lawfaring political celebrities unmatched in the history of this democracy?
So, is the judiciary being captured by Trevor Manuel’s bazillionaire pals and Pravin Gordhan’s Stratcom minions?
Not so fast.
Late last week, again on Twitter, Malema took time out of his schedule to praise Concourt Justice Chris Jafta. (“Judiciary in the safe hands. #JudgeJafta [sic]”, he posted.) Did the court suddenly become uncaptured? Maybe it did. Malema’s tweet apparently referenced a unanimous judgment written by Justice Jafta, stating that the Concourt could not entertain an appeal in the matter of former acting head of the National Prosecuting Authority, Nomgcobo Jiba, and her partner in slime, Lawrence Mrwebi, whom the General Council of the Bar of South Africa wanted struck from the roll of practising advocates.
This means that the two lawyers will remain lawyers — a boon to their factional defenders, who deem their dismissal from the NPA to be an affront to justice. That Jiba and Mrwebi are widely regarded to have been the sine-qua-non of shitty Zuma-era appointees doesn’t matter — for the faction battling President Ramaphosa, of which Malema is a ranking member, their competence is immaterial and their dismissal more evidence of a purge of black professionals from state-run institutions.
In other words, it’s time to break the judiciary. But how can this be done without blowing up courtrooms and shooting judges in their homes? As ever, Malema seems to have a plan.
It’s a good one.
American Horror Story
First, some context.
It should now be clear to most that Cyril Ramaphosa leads what we’ll describe as a caretaker presidency — he’s the soy meat-replacement product between two slices of populist kleptocracies. We’ve already seen the damage that resulted from nine years of Zuma thieving, and whoever succeeds Ramaphosa promises to be worse. But Zuma’s cabal was more than a magical robbery machine — it was an attempt to degrade the institutions that constitute democracy’s scaffolding, and to loot from the ruins.
There was, however, a number of institutional bulwarks that held up remarkably well during those years, the most important of which was the judiciary. Judges judged, and for the most part — this is the consensus speaking, you understand — those judgments matched both the letter and the intent of the Constitution. Not everyone along the legal food chain was a winner — there are those without the means to retain fancy legal teams, and they would probably dispute this assessment.
There were judges who were racist assholes. There is the decade-old misconduct complaint against Western Cape judge president John Hlophe, which promises to last another decade at least. And there is the academic literature that casts the Constitution as anti-poor, anti-black, anti-redistributive and patently neoliberal. (After all, the National Party helped draft it.)
Regardless, if you’re looking for an example of a dike holding back the sewerage of state-sanctioned criminality, look no further than the courts.
So we should probably destroy the fuckers, right? Zuma, of course, gave it a decent shot.
One of the most important moments of his tenure arrived in 2011 when he was given an opportunity that most presidents would literally have killed for: The chance to appoint the Chief Justice of the highest court in the land. uBaba simply could not screw this up: All he had to do was pick a relatively inexperienced Justice with a slew of conservative, evangelical-church-tinged rulings, and watch the court transform South Africa into Alabama, except with more rhino poaching. Turns out that Mogoeng Mogoeng was not that kind of conservative evangelical, but it’s worth noting that even if Msholozi had gotten it right, the South African version of a Chief Justice is merely the first among equals — while a lapdog could have wreaked havoc, he or she could not have easily undermined the functioning of the court itself.
The former president and his cronies didn’t require any help understanding that populist, illiberal regimes cannot work alongside judges who refuse to bend a knee. Look at Big Oomie in ’Merica, whose greatest legacy will be the fact that he stocked the Supreme Court with date rapists and right-wing judicial revanchists. Combine this with a Republican programme of conservative circuit judge appointments, and the complexion of American jurisprudence has been skewed far to the right for at least a generation.
No matter who wins the presidency in 2020, this process is irreversible.
Pretoria by the sea
Obviously, Malema would love it in Washington DC. And if he ditched the bullshit leftist rhetoric, he’d also probably love it in Brazil, where the judiciary is a gong-show of farcical — if farcically deadly — proportions.
I wanted to get a sense of how life there contrasted with our own budding nightmare, so I reached out to the Sao-Paulo-based Benjamin Fogel, a contributing editor for Jacobin who studies Brazilian political corruption. (Let’s just say that Mr Fogel doesn’t take much time off.)
“The Brazilian judiciary is quite different from its counterpart in SA,” Fogel told me. “And it doesn’t really fit within the South African legal paradigm. While the judiciary is bound to the constitution, the institution itself has multiple centres of power. It is much more dependent on the personal whims of individual justices. For instance, the Supreme Court could have a massive judgment pending, everyone watches, then they decide that they’re going to postpone it until after the holiday.”
Gimme some of that sweet judgey goodness, Malema is thinking.
“The higher up you go, the more captured the judiciary becomes, which is unlike the South African case,” Fogel continued. “The judiciary are a caste within Brazil — they’re (an) extremely privileged faction within the state that looks after their own backs.”
Is there an example of how this works?
Fogel and I discussed the infamous Operação Lava Jato (or Operation Car Wash) investigation that has hurled Brazilian politics into an era of regressive far-right insanity. Very briefly, Car Wash was an anti-corruption dragnet commandeered by a former federal judge named Sergio Moro, who now serves as a steroidal Justice Minister for the lunatic, Amazon-forest-slaughtering Jair Bolsonaro regime.
Lava Jato started out as a money laundering investigation, but it morphed into a wide-ranging inquiry concerning the state-owned oil powerhouse Petrobras, from which cash was hosed into the hands of construction company execs, and then onward to an array of political party operatives. The Intercept recently broke a cache of bombshell leaks detailing how an ostensibly independent Moro was directing both the legal and media strategies that would eventually result in the conviction of former left-leaning president Lula da Silva, and the destruction of his PT (Workers Party.)
A judge-led right-wing insurgency that has far-reaching consequences for Brazil’s social, economic and environmental future, none of which are positive.
But Fogel assured me that a similar golpe — a Brazilian term that loosely means “coup” — is not an immediate possibility in South Africa.
“In Brazil, the judiciary is more like a system of the rule than it is the result of state capture,” he said. Lava Jato effectively originated from a faction within the Brazilian judiciary located in the southern city of Curitiba which, according to Fogel, “is much whiter than the rest of the country — a Brazilian version of Pretoria, a provincial city full of weird racists. It came down to a bunch of political interest groups using the anti-corruption thing to fight political battles”.
Nada bem, homefries.
And while the differences remain stark, Fogel promised me that there are many lessons to be learnt from our big BRICS brothers across the Atlantic.
“Anti-corruption campaigns are not necessarily apolitical,” he noted. “They can serve as cover for specific political interests. I mean, who is actually for corruption? No politician would say that.”
Fogel’s point is that the measure of success for most anti-corruption campaigns is the number of people that end up in jail. But does that really solve the problem? In Brazil, a bunch of people have been locked up for corruption — including former president Lula — which led to a power vacuum, and in turn to Bolsanaro, and incalculably more corruption.
“The judiciary is not the panacea,” said Fogel. “Corruption fighting needs to be a political mechanism.”
That much is certainly true. After all, judges do not judge in a vacuum. Unless the court has a large marsupial on the bench, there is a whole system of policing and lawyering that must happen prior to judgments being handed down.
Which brings us back to our question: Is the South African judiciary captured?
“Um, I would definitely say no,” said Franny Rabkin, a legal reporter at the Mail & Guardian, to whom I spoke over the phone. “Captured by who? I haven’t seen any evidence.”
The first thing that we need to remember is that, in terms of section 178 of the Constitution, South African judges are appointed by an independent body called the Judicial Service Commission. This isn’t the case for Concourt appointments, where the president gets a bit more leeway (See: Mogoeng Mogoeng). But even there, he or she must pick from a lore-selected list, so that even Concourt justices are mediated by the JSC. Critically, while the JSC is by no means a perfect institution, it is cobbled together from a broad cross-section of politicians and legal professionals. As Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, told me, “Malema knows as well as anybody, and has played a role in, how robust the processes are for appointing judges.” (This could be a reference to the fact that Malema is a member of the fucking JSC.)
“Remember, in our Constitution judicial independence is protected,” added Rabkin. What about capturing the judiciary by replacing judges with pliant replicants?
“Impeaching a judge is really very hard,” she said. Doing so would require the JSC to start an impeachment process, followed in turn by Parliament. By the time it was all over, everyone would be dead.
“The whole way it was designed was to safeguard the independence,” continued Rabkin.
Yes, but how about ideology? Are these guys Stratcom operatives looking to prop up the Ramaphosa regime?
“As a legal culture in SA, we’ve never had a Constitutional Court that divides down ideological lines,” Rabkin said. “It’s much harder to discern whether these judges are pro- or anti-executive authority. You don’t see them lining up as you do in the States.”
But still, the JSC has encountered plenty of criticism, in no small part because it represents the legal establishment that Malema has suddenly taken to bashing. If the legal process in South Africa is inherently corrupted by liberal bias and a colonial mindset, then it’s game over before the game has begun — which is essentially Malema’s argument.
But most commentators don’t really buy this line. “It would be one thing if there was a lack of transformation of the judiciary,” Rabkin noted. If the benches were stacked with only white male judges, it would be much easier to undermine them as an apartheid hanging court. And while the JSC was knocked by some for transforming the judiciary too fast, those criticisms have not been borne out by the quality of the judgments.
Whichever way you slice it, these folks are not amateurs.
So why all the drama?
“Obviously there are certain judgments not going the way of the EFF, and they’re probably staging a bit of a pre-emptive strike,” said Lawson Naidoo, ominously.
These lawyer-types are smart.
On point of order
If the NPA ever gets its shit together, Malema is not in a particularly good position. Do you recall the On-Point saga, wherein a construction company of which Malema was once a director fed a portion of a R43-million tender into the EFF president’s infamous Ratanang Trust?
Former Public Protector Thuli Madonsela found that Malema improperly benefited from the Limpopo contract — to be fair, few people have ever properly benefited from a Limpopo contract — and handed the paperwork over to the Hawks, who flubbed it. It’s an open-and-shut case, and should the On-Point thing come back to life, and should it be successfully prosecuted, Malema would likely go to jail for a long time.
Oh, and I don’t want to delve too deep into the VBS bank robbery, which will just get everyone upset. But this publication has published a series of pieces that detail how thoroughly the EFF and its leaders benefited from the looting of the bank. There, once again, is so much documentary evidence that should a prosecutor find themselves with a free day or two, Malema has a problem on his hands.
And so, the same judiciary that turned Malema and his party into political celebrities, who handed them judgment after judgment making them look like the smartest faux-leftist party in the room, may not be so kind in the future.
The game goes like this: Begin a process of degrading the judiciary in the eyes of the EFF’s followers and other sympathetic parties, while maintaining a flood of political pressure against the judges themselves. If you can’t break the system itself, break the women and men with it.
What is certain is that this isn’t the first, and it won’t be the last, assault that Malema wages, employing usual populist logic: They are captured because we say they’re captured. The judiciary is the final, and the strongest, pillar holding up South Africa from ruin. Time to take a jackhammer to it. DM
HP Lovecraft wrote an entire essay on why cats are better than dogs.