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Malema and the law on a collision course

Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession. He appears in these pages as a political correspondent.

ANC Youth League leader Julius Malema and his comrades want it both ways: They want to make up their own legal definitions as they go – such as that now-infamously narrow definition of “public opinion” – and then expect the courts to enforce them. It is only a matter of time before other ruffians within the ruling party realise this and simply sweep the judiciary aside if it continues to disagree with them.

After he lost an urgent appeal in the South Gauteng high court to have parts of a City Press story blocked from being published, Malema was telling a crowd in Venda that “they can write their nonsense, we don’t care about them”. Well, which is it? If he really doesn’t care, why the urgent appeal? Why the soundbite uttered last week, in another “urgent” press conference convened to brusquely tell the press to sod off, that he was concerned about how reports of his wealth might be read?

It’s been amusing watching those who’ve sided with Malema on this issue collectively forget that he had recourse of the courts to make the press go away. And now that Malema himself remembered the courts and went down that path, he’s had to accept the consequences of that choice.

Malema is quickly learning that he can’t have it both ways. On Wednesday last week, he crafted a rather narrow definition of what constitutes a “public official”, and therefore of legitimate public interest, and refused to brook any challenge on this point. After all, it is pretty much the only argument he made against press interest in his finances. When City Press forged ahead and dug up a more on Malema’s finances, the Youth League president quickly ran to the courts to try to have them suppress the bits in the story that linked his trust fund to the words “linked to illicit payments”. His advocate was effectively asking the courts to accept Malema’s definition of “public official” that he had used to ward off press interest earlier in the week.

No biscuit. Judge Colin Lamont (who must be thoroughly sick of Malema by now – he heard the “Shoot the boer” case earlier in the year) declared “the question of Mr Malema’s income is topical and relevant. The public is entitled to have full disclosure by persons who stand in public positions, and who are high-profile personalities who invite comment about themselves”.

Pierre de Vos pointed out in his blog post on the case that by reverting to the court to gag City Press, Malema has now not only legitimised questions about his finance, but must either sue the Sunday paper for defamation or implicitly accept the corruption allegations levelled against him.

It’s not only the maligned press that thinks Malema has questions to answer about where he gets his money. The Congress of South African Trade Unions wants the ANC’s committee on ethics and members’ interests, the SA Revenue Service and the Special Investigations Unit to have a look at Malema’s finances too.

Now that Malema finds himself in disagreement with the press, the courts and a major tripartite alliance partner over what constitutes legitimate interest in his affairs, what will he do? He certainly can’t force agreement, although how long this will remain true remains to be seen. Lest we forget: One of the greatest worries about a media appeals tribunal is that it could be forced to accept trumped up definitions – such as those Malema has concocted – to hide corruption and wrongdoing.

Then there’s always the chance that the likes of Malema may gain enough influence to make the ANC radically change its stance on the courts themselves. It’s not like we’ve never heard an ANC leader speak in threatening terms towards the judiciary – the most recent being Zuma himself. In 2008, ANC secretary general Gwede Mantashe said the courts were part of “counter-revolutionary forces” ready to pounce on Jacob Zuma. It isn’t difficult to imagine how Malema might feel the same way at the moment.

People like President Zuma continually elevate the ANC to the position of highest moral authority in the land on the strength of its majority vote in Parliament. We may soon see a future where this elevation is used to hide activities like those of Malema. Zuma already thinks that a majority-winning body shouldn’t have to listen to the courts – how long before Malema decides that they shouldn’t have to listen to the courts, period? DM


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