A Malema prosecution could break the barrier between politics and the law

If the state’s prosecuting authorities have Julius Malema arrested, and he is brought before the courts of law, his choice of legal representation may effect a toxic rupture between politics and law. As in most societies, there is an umbilical link between a society and its laws, in the sense that laws are ostensibly made by elected officials – lawmakers within legislatures – and they tend to represent the political-economic trends, preferences, expectations and objectives of dominant political forces.

For the most part, however, this link is concealed, so to speak, by the belief that the law stands apart and is necessarily unaffected by what happens in society on a day-to-day basis. When a member of society appears before the courts, justice is considered to be “blind” – the belief that justice does not see differences between people who appear in court. This is not as simple as it may seem.

The laws of any society have the ability to induce submission to a dominant political, economic and broadly social view with attendant sets of practices, without the threat or use of physical force. Significantly, and this bears powerful implications for a likely Julius Malema prosecution, “the law” such as it is, is embedded, also, in a society’s culture, that system of representations that constructs the way citizens perceive and give actual meaning to their lives and structures their day-to-day practices and conduct. People shape their lives and behave according to the law, and it is people who make and change those laws.

For example: within a decade of its existence, Israeli law was purposefully crafted to reflect the interests and objectives of Zionist institutions, including legal systems and the foundational framework of the new state, with little or no consideration for Palestinian interests and objectives. The Israeli Supreme Court laid the foundations of case law from its style, contents, political role and its very social mission. Similar processes were put in place when South Africa’s Constitution was created and implemented – it sought a purposeful break with the apartheid state. The Israeli example is presented here as a way to demonstrate that almost all states – especially those with quite pronounced racial, ethnic or religious contestations – establish laws that help construct the way citizens (especially the dominant group) perceive and give actual meaning to their lives, and that structure their day-to-day practices and conduct. Enter South Africa, and a likely Malema prosecution.

It is passé, almost, to make the point that South Africa is deeply divided along racial lines. It is more difficult to make the argument that lawyers come out on either side of this racial divide – although in the popular imagination there are repeated celebrations about “black excellence”. Most recently there has been an extraordinary celebration of the meteoric rise of Advocate Tembeka Ngcukaitobi, who became senior counsel eight years after becoming an advocate. He is described as a “lawyer, public speaker and political activist”. There certainly is nothing untoward about that. The United States has legions of lawyers and legal scholars who have political or ideological leanings. He is part of the elite, nonetheless.

The French historian, Alexis de Tocqueville, famously explained (in 1840) that with respect to their political influence, if he (de Tocqueville) “were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar”.

From reports about Ngcukaitobi, it would appear that his promotion is deserved. Significantly, at the level of perception, Ngcukaitobi seems ideologically and politically closely aligned to the Economic Freedom Fighters, led by Malema. Ngcukaitobi was part of the EFF legal team arguing for the State Capture report to be released in the North Gauteng High Court. This may, or may not, mean that he could be called upon to defend Malema. If that were the case, there is every possibility that Ngcukaitobi would bring his (and Malema’s) ideological or political arguments into the case before the courts.

Ngcukaitobi may even raise what is known as the justiciability doctrine or the non-justiciability doctrine. This is essentially the doctrine that allows the courts to reach political decisions (see Oetjenv. Central Leather Co.1918; Baker v Carr 1962 and, of course, Nixon v. United States in 1993) which effectively extended the doctrine to determine which lawsuits may or may not challenge the legislative branch’s procedure for impeachment proceedings. In this sense, the case against Malema could get muddled, and become political, which Malema may well win (on political terms), and which may have dire consequences for the law in South Africa.

It may well be argued that Malema’s exhortations are simply expressions of the political will of society – of people who are hungry, poor, unemployed homeless and landless, all empirically verifiable statements of facts – and not actual directives or exhortations to violence. With respect to the most recent revelations by Daily Maverick, we may expect political posturing, doxing and scapegoating, and political conspiracies about the funding of investigative journalists which seeks to reconstitute the power of “white monopoly capital” – and by extension, of land redistribution, one of the hottest political topics in the country. There is every possibility that this latter topic may spill from the courts onto the streets, with Malema and his legal team gaining the most.

On the face of things, Ngcukaitobi shares ideological solidarities with Malema – especially on land, which is arguably the prime desideratum of the EFF, and the topic of Ngcukaitobi’s book, This Land is Ours; Black Lawyers and the Birth of Constitutinalism in South Africa. An important note should be emphasised. We have to respect Ngcukaitobi’s bona fides, his professionalism and dedication to the law – to the extent that it stands apart from politics and society. We also have to factor in his position in society as a public speaker and an activist.

All things considered (and in short), should Malema’s legal representation share ideological and political solidarities with the EFF leader, the case could be turned into a political spectacle, and possibly shatter (for all to see) the barrier between politics and the law.

There are very many fine legal minds who may be able to put all of the above a lot better, and possibly clean up any misconceptions contained in this brief analysis. We should probably not be naïve. Conventionally, liberal or leftist lawyers take on cases, or immerse themselves in areas with which they share solidarities, such as feminist legal theory, women in the law, immigration, human rights, welfare and disability law, critical race theory, and poverty law. Conservative or right-wing legal scholars and practitioners work on oil and gas, military law, estates’ planning, admiralty, securities and regulation, or sports law.

There are, of course, exceptional cases. Christopher “Dali” Mpofu has in the past defended persons accused of racism (Gareth Cliff) and has defended Tom Moyane, suspended boss of SARS who has been implicated in State Capture. It is probably unsurprising that Mpofu defended Malema against charges of racism towards people of Indian heritage. Then again, as a professional, Mpofu has the right to defend anyone. The point here is that, by one account, according to a set of practices that emerged in the USA in the 1920s, legal minds and practitioners rely on a belief that the law is inherently indeterminate. On this basis, judicial decisions have to be explained by factors outside the law. And so, judicial decisions are the effect of political ideas of judges, lawyers, societal elites, or popular public opinion.

Here we get to a point where Malema’s lawyers may draw on popular (populist) public opinion and argue that Malema is either misunderstood, or that he is simply a victim. The National Prosecuting Authority is busy scrutinising the details of Daily Maverick’s findings of the past week. The Malema team, I surmise, are working on a defence, which will most likely be political, but it will no doubt start with deflecting blame and raise dissonant discourses about “white monopoly capital” and use “the poor” and “the landless” as weapons of defence.

We should probably ignore the online trolling and misinformation, although it is part of a larger process of misinformation. As we wait for the next shoe to drop – and drop it will – the theatrics of politics and the law should start, sooner rather than later.

For better or for worse, a Malema prosecution may well be one of those turning points that most South Africans have been whispering about over the past few weeks. DM