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 Less

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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….

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