Cope continues to refuse to make the right calls on the right issues at the right time. The latest strategic error is its reaction to last Friday's silly order handed down by Acting Judge Leon Hagryn in the South Gauteng High Court in which the court declared the phrase "kill the boer" unconstitutional and - ipso facto (?) - unlawful. Lekota, no doubt with the help of his foot soldier Dexter, hurried to put out a statement welcoming the court's order. (Well, the Independent Democrats beat them to it; but that's besides the present point.) But the crucial questions now are this: a) is this court order (legally) sound? b) More importantly, does it make political sense for Lekota to be welcoming the court's order with such zeal?

First, the facts. So, a couple of folks who are part of the same anticrime organisation wanted to know what words they could put on a banner. And, disagreeing on the matter, one filed an application to have the court express a view on the legality of the phrase "shoot the boer." The court, without giving reasons, declared the speech as unconsitutional.

The court reportedly ordered:

1. That the utterances and/ or publication of the words "Dubula ibhunu" are unconstitutional/unlawful". "Dubula ibunu" translated means shoot the boer or white man.

2. That the publication and chanting of the words "Dubula ibhunu" prima facie satisfies the crime of incitement.

So, two questions arise: is this order legally correct? Is Lekota/Cope being politically smart in welcoming it?

On the order: in my opinion this is a poor legal decision. To be fair on the Acting Judge, for now, he did not furnish reasons for his order and, until he does so, full and final disagreement with his decision must wait. But, we can offer some good initial reasons for why it is probably a terrible legal order. Here are just a few:

a) Halgryn does not cite which Act it is in terms of which the speech is illegal; instead, there is simply a direct appeal to the constitution itself. Now, it is possible that he was simply being amazingly concise - lazy? - and meant to imply that the Equality Act (which, in its turn, is an expression of the constitution) had been violated, and that that is all he is picking out in declaring the speech unconstitutional.

However, given how unusual such a direct reference to constitutional provisions are in the ratio of a judgment about a horizontal matter between two citizens, it really would have helped to spell all of this out more clearly, more fully. In the absence of detail, the unqualified declaration of the speech as unconstitutional represents legal magic.

b) It is also unclear whether "intention" and "context" were taken into account. In other words, surely one cannot declare text in ALL contexts to be constitutive of illegal speech? If I use the phrase "kill the boer" in a lecture on the ethics of political speech, for example, does the use of potentially inflammatory language, in THAT context, where I am reporting the speech rather than performing it as an act designed to motivate my audience, constitute an illegal speech act?

I think the intuitive answer is "No...and if it is does amount to hate speech, under current law, then such a law needs to be suitably modified."

The central point is this: the acting judge needed to circumscribe the circumstances under which such speech is not allowed; as it stands, rather oddly, the order implies - on an ordinary reading of the pithy sentences we were given- that the words are banned in any and all contexts. That cannot be right.

These are some of the reasons why the order is shoddy. There may be others too, but the point is made. [ And, incidentally, the African National Congress' gripe is legally odd too: it was not a party to the case, and the court had no legal duty to invite them to court -- how does the ANC think court processes work?! Come on folks; next the judge will be 'invited to explain himself' at Luthuli House...let's keep this clean. ]

Now, given all this .... is Lekota's rush to embrace the judgment politically sensible?

Not at all. For two reasons.

Firstly, REGARDLESS of whether a court order may be bad news for one's political opponents, it is useful to first evaluate whether the court order, and the reasoning behind it, is more or less sound. This is not to suggest that the courts should be challenged left, right and centre. But it does mean, that in a case like this one, a few quick calls to the constitutional law pundits in your party ranks or friendship circle are a good start when an order looks intuitively weak.

After all, nothing stops you from BOTH criticising a court order and, nevertheless, finding non-legal grounds for criticising your political opponent's speech also. Indeed, that is what Lekota and Cope should have done: remain agnostic, for now, on the legal soundness of the judgment and criticise Malema on grounds of political and ethical (in)decency.

Secondly, the near desperation to reach out to white South Africans with this incessant non-racialism motif on Lekota's part is going to cost him politically. It is not just a dislike of Malema and the ANC that motivate Lekota's approval of this court order. It is, more importantly, his well-worn, newfound colour-blindness in the aftermath of Polokwane that now infuses his politics in the most profound of ways. This is a mistake. Not because white voters, or white supporters within Cope, do not or should not matter. Nor because non-racialism sucks (though I do think it is overrated but that's another topic for another essay). But rather because Cope needs to reach out to SA's political equivalent of middle America in electoral terms --- the poor, marginalised black majority. You do NOT reach out to them by focusing the bulk of your political energy on a narrow nonracialism stemming from an ahistorical fear of alienating the white section within your party ranks. This is the confused strategising that underpins Lekota's political choices. It is very tomorrow, but not very now.

And, because there are no established rules about how the party's position is to be reached on ad hoc issues that arise as the news cycle unfolds with lightning speed in this twitter age, Lekota, it would seem, can make declarations in the name of Cope without needing to consult widely --- and, critically, without having to consult a sober devil's advocate who might spar with him. I suspect that Phillip Dexter does not fulfil that kind of role.

The bottom-line is this: Cope will do well not to be led by Lekota after its May congress; furthermore, it would do well to emerge with a clear decision procedure for how to react to the fast-moving news cycle. They can start by recruiting an excellent political strategist or two (perhaps even folks not currently inside Cope) to help them step back from the detail and consider the big political picture when making important decisions.

It will be interesting to see how it all unfolds....

Eusebius McKaiser is an associate at the Centre for the Study of Democracy. He is also a contributing editor at Business Day. He blogs at www.safferpolitics.co.za and hosts a weekly show on politics and morality at 11pm on Sundays, on Talk Radio 702 and Cape Talk 567 which is streamed on-line.

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