He has threatened and abused. Incited violence with a nod and wink. Yet Julius Malema, self-styled Commander-in-Chief of the Economic Freedom Fighters, has seemed untouchable.
It’s one of the conundrums of South Africa’s supposedly even-handed law enforcement and judicial system. There we had a psychologically dysfunctional, old white woman jailed for three years for using the K-word, after unusually swift prosecutions in the Equality Court and then, criminally, in the Magistrates Court.
In contrast, Malema — who says he won’t call for white genocide “just yet”; who talks of “war”, “power through the barrel of a gun”, “cutting the throat of whiteness”, “killing for Zuma”, and that his opponents’ “lives could be lost”; and who wants to send “home” Indians and Chinese because they are all “racist” -- has never been held accountable in the criminal courts.
But things are changing. Not, it might be said, because law enforcement is doing its job.
The National Prosecuting Authority is still, after half-a-dozen years, waiting for “investigations to be completed” before deciding on whether to indict Malema on charges relating to R52m tender-fraud. The SA Human Rights Commission, too, has determinedly been spinning its wheels on dozens of complaints about his racist and misogynistic tirades.
Even the Zondo Commission appears reluctant to act in response to Malema’s and the EFF's contempt towards the inquiry, as well as the abuse of witnesses and prosecutors. All that has been forthcoming is a warning that criminal charges would be brought if the intimidation continued.
It probably won’t continue. Not for now. Malema specialises in psychological guerrilla tactics: harass here, snipe there, make explosive charges. And then melt away before your disoriented target has a chance to retaliate.
So, no, it’s not the mighty institutions of the state that are acting to contain Malema. It’s the citizenry that is taking the battle to Malema, using the legal mechanisms afforded by a good constitution. And like the individually fragile strands that the Lilliputians wove into a mesh that could constrain Gulliver, the marauding Malema is slowly being enmeshed.
Last week, journalists named by Malema has “apartheid-era spies” approached the courts to force an EFF retraction and the payment of R1m in damages.
This week, Private Enterprises Minister Pravin Gordhan, finally tiring of months of harassment and lies, laid criminal charges of crimen injuria and criminal defamation against Malema and his deputy, Floyd Shivambu. He has also laid unspecified charges with the Equality Court, where the process is speedier and the burden of proof less onerous.
This should worry the EFF. The Equality Court is the only legal arena where Malema has been successfully challenged, first by the Sonke Gender Justice activists, then by the AfriForum lobby group.
In 2010 Malema was found guilty of hate speech and harassment for saying that former President Jacob Zuma’s rape accuser had a “nice time”. In 2011, he was found guilty of hate speech, for singing the words “shoot the boer”.
AfriForum that has been particularly adept at using civil processes against the EFF. In the past 18 months, it has won five contempt and legal costs tussles, following a court order it obtained interdicting the EFF from inciting land invasions. The EFF has pay AfriForum over half a million rand and the amount is still rising, as the the party tries, rather ineptly, to have the judgments overturned.
In Nazi Germany in the 1930s, the theologian Martin Niemoller memorably pinpointed — in his poem, First they came … — the tendency of groups to be complicitly silent in the face of fascist scapegoating until they, too, are affected. The same is true in South Africa, eight decades later.
It took a Malema attack on the Indian community to rouse the Kathrada Foundation to bemoan his long-evident racism. And it has taken Malema’s attacks on journalists to cause the media to question their generally uncritical, often benign, depiction of him and his party.
Now, suddenly, the SA National Editors' Forum is concerned about the EFF’s “unacceptable and inflammatory” words. Now, suddenly, columnists are penning articles on how the media needs to be more circumspect about airing EFF statements that are clearly defamatory or potentially incitements to violence.
In fact, like the EFF, the media is already legally vulnerable to citizen activism, it just hasn’t happened yet. As the purveyor of EFF lies and abuse it can be sued for spreading defamations. Similarly, it can be held criminally liable for incitement to violence.
The government has in its armoury all that it needs to curb the dangerous behaviour of Malema and the EFF. Since it apparently lacks the moral courage use these weapons, it’s fortunate that activist citizens are stepping into the breach. They should step up their commendable efforts and take aim, also, at Malema’s media facilitators.