Opinionista Bongani Mbindwane 3 August 2015

Julius Malema cannot have it both ways

Julius Malema’s assertion that the public protector’s report on the security upgrades at Nkandla ‘is not to be questioned but simply implemented’, scuppers his argument that she is a mere ombudsman and that her reports have no further authority in relation to his corruption trial. It will be interesting to see how the Economic Freedom Fighters leader tries to wiggles out of the corner into which he has painted himself.

Julius Malema’s own words will be a weapon in the prosecution’s arsenal at his corruption trial, where the Economic Freedom Fighters (EFF) leader faces multiple charges of fraud, racketeering and money laundering.

Malema has been adamant that the public protector’s report on the security upgrades at President Jacob Zuma’s private residence at Nkandla “does not contain mere recommendations, these are remedies”.

“These should always be referred to as such and in order for the committee to not lose track of what is required. The public protector’s report does not share the same status as the other reports, it supersedes the others. The report is not to be questioned but simply implemented,” Malema told a meeting of the ad hoc committee established to consider the president’s response to the public protector’s report on 25 September 2014.

Through his comments, Malema indirectly endorsed the damning public protector’s report accusing him of various malfeasance. In her On-Point tenders report, Public Protector Thuli Madonsela recommended that the National Prosecuting Authority and the South African Police Service investigate Malema over an elaborate corruption scheme which saw him buying farms, homes and various luxury items from the proceeds of the business called On-Point.

On-Point, then a new engineering firm, had been established to take advantage of an opportunity to provide services to the Limpopo provincial government’s roads and transport department. Without a tax clearance certificate or an established business, On-Point won the tender, beating out established companies whose bids were invalidated for minor infractions.

This month may be Malema’s only chance to escape a guilty verdict. The former African National Congress Youth League will have to convince the judge and assessors that he was a dupe and not the On-Point mastermind.

Having now contradicted his claim that the public protector is a mere ombudsman and her reports have no further authority – as he has aggressively argued inside and outside of Parliament – it will be interesting how Malema wiggles out of the corner into which he has painted himself.

The ANC in Parliament’s declaration that the public protector’s reports should be viewed with circumspection could have been a gift to his defence team. Instead, his insistence on the reports’ superiority and claim that they are beyond scrutiny will be a gift to the prosecution.

In contrast to his appearances in Parliament, where he insists on wearing boiler suits in contravention of the dress code, Malema has shown the utmost respect for the bench at his court hearings by wearing his bespoke Sunday best – even though the court is hearing allegations of sartorial extravagance funded by corruption.

With Malema’s gift of the gab, it is a safe bet that he will testify in his own defense.

It is likely the media will make an application to broadcast the trial and the public will surely be entertained by Malema’s zingers and signature non-sequiturs.

Defence lawyers for the other co-accused will be on tenterhooks as they wonder what bombshells Malema may drop. Malema is unlikely to be the kind of client who does what his lawyer says.

There are likely to be surprises too, as defence attorneys question the reliability of many witnesses for the prosecution, and query whether any have plea bargains.

Malema must convince the court that he is not as smart as he claims, and didn’t know the nature of On-Point’s business; that trading one public act for another, a form of logrolling, is fundamentally different from swapping an official act for a private payment or thus corruption. If he can prove logrolling and the benefit to the state he may have a chance. If he fails to do so, all that is left is conclude that Malema had a shakedown business and that the state paid him for services while he charged other businesses for services rendered; double dipping.

Should it proceed, the case will be less about the State vs Malema than Malema vs Malema. Will he put his bravado and arrogance in his pocket? Will he turn the trial into a media circus including political campaign rallying?

Malema has argued that his prosecution is a political ploy by Zuma, though he has not said how Zuma got Madonsela to recommend the investigation into his affairs. Having praised Madonsela’s probity, Malema cannot not claim that On-Point was targeted for political reasons. One of the complainants to the public protector on the On-Point matter is the Democratic Alliance, which have partnered with Malema’s EFF in elevating the office of the public protector to the status of a court.

Having inadvertently turned Madonsela into a credible and unimpeachable witness, Malema may have dug a deep hole for himself. If I were a prosecutor I would call Madonsela as a state witness to present her findings in court and state why she suspected grand corruption on the part of Malema.

Simply, Malema can not have it both ways, if Madonsela’s reports are final, he ought to enter a plea bargain and admit to all of the charges in the On-Point tenders report.

As Malema will be in Limpopo and not interrupting proceedings, Zuma will have time to answer questions from MPs on Thursday.

It is unclear whether the EFF has received the speaker of Parliament’s permission for some of its members to take a leave of absence while the party’s leader fights a court case that could deal a devastating blow to its morale, especially after retired Judge Ian Farlam’s report belied the party’s cry that ANC members bear responsibility for the deadly labour dispute in Marikana.

Malema goes to trial after trying hard to starve off court proceedings. In what could be seen as an act of duplicity, he made representations to the national director of public prosecutions asking that the charges be dropped, after previously denouncing Zuma when he used the same strategy in trying to have the charges against him dropped.

Malema would also be advised to be careful with his extrajudicial speeches to the crowds of EFF supporters who will live and sleep outside the court buildings for the duration of his trial should it proceed as expected.

The EFF knows that without Malema, it is nothing. As does Malema. As he fights to stay out of prison, the new anti-corruption crusader Malema will aim to be given the benefit of the doubt. Winning the case will further embolden the new Malema.

In the meantime another corruption-accused-turned-anti-corruption activist, Zwelinzima Vavi, will be marching to the Union Buildings against corruption this month. The march will not go to the Limpopo High Court nor pass the Johannesburg Securities Exchange where the key purveyors of corruption, price fixing, economic oppression, collusion and tax dodging are.

Hasta la victoria siempre?!? DM

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