Could Malema's populist politics work as legal defence?

If Julius Malema is prosecuted in connection with the latest VBS allegations, the case could be turned into a political spectacle, and possibly shatter the barrier between politics and the law. Malema, if he does end up in court, is almost certain to choose a legal defence team with similar ideologies to his, which would be almost certain to bring ideological or political arguments into the case before the courts, writes analyst Ismail Lagardien in the Daily Maverick. An advocate like Tembeka Ngcukaitobi, who has previously defended Malema and shares similar ideologies, may even raise what is known as the justiciability doctrine or the non-justiciability doctrine, Lagardien writes. 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, a potential 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 SA. '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.' He says, with respect to the most recent VBS revelations by the Daily Maverick, 'political posturing, doxing and scapegoating, and political conspiracies about the funding of investigative journalists', can be expected. Lagardien says, 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.' Lagardien points out that, by one account, according to a set of practices that emerged in the US 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.' So it could well be that Malema's lawyers may draw on popular (populist) public opinion and argue that Malema is either misunderstood, or that he is simply a victim.

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