As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Julius Malema, leader of the ANC Youth League, has become a symbol of what is wrong with our politics and he may well cost the ANC a million or two votes come the next election. Most recently Kortbroek Malema urged students at the University of Limpopo not to allow Cope to lobby on their campus.
The ANC announced afterwards that no disciplinary action would be instituted against Malema but that other ways will be found to deal with Malema. This comes after Mr Jacob Zuma had said that he had spoken to Malema about his tendency to put his foot in his mouth.
If I was one of the COPE leaders I would hope and pray that the ANC’s relationship with Malema remains as dysfunctional as it is at present and that Malema continues to talk before he thinks, as this could only scare away more conservative voters from the ANC into the hands of COPE. The ANC and Jacob Zuma is of course faced with a dilemma, as Zuma depended on the Youth League in his battle against Thabo Mbeki and cannot now ditch Malema. This is because Zuma is beholden to Malema and cannot afford to alienate him until he is firmly ensconced in the Presidency.
That is why no disciplinary action will be taken against Malema, no matter what he says or how much he damages the good name of the ANC. This is what happens if you play the kind of politics that Zuma is playing, trying to be all things to all people – all at the same time. And it is only going to get more difficult for Zuma to deal with this situation, so good luck to him.
But there is a real legal problem for the likes of Mr Malema and for the ANC in the run-up to the election. This is that the Electoral Act requires political parties to sign a code of conduct which prohibits any party or candidate from using language that may provoke:
The code also prohibits any candidate or party from publishing false or defamatory allegations in connection with an election in respect of a party, its candidates, representatives or members or a candidate. If a person is found guilty of breaching this code the party ‘s representative is liable for a prison sentence of up to ten years.
Malema’s statement at Limpopo University may well have been in breach of this Code and if he had said this after the declaration of the election he might have been in very big legal trouble. But the ANC does not seem to take this very seriously and will not institute disciplinary action against Mr Malema for something he had said which might well carry a ten year prison sentence when it is said during an election campaign. So much for respect for the Rule of Law.
Meanwhile opposition parties must not be able to believe their luck. Here the ANC has a leader that is so stupid and outrageous that he is bound to say many more controversial and even illegal things during the election campaign. If I was an opposition party strategist I would be working on a “Malema strategy” to exploit the words and wisdom of Julius Malema to scare decent, conservative, voters (if that is not a contradiction) of any race into not voting for the ANC.
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