Julius Malema's threats to take the African National Congress (ANC) to court if it goes ahead with plans to expel him is an attempt to force a political settlement after his legal team failed to delay the proceedings of the National Disciplinary Committee of Appeals (NDCA).
The NDCA, headed by ANC businessman Cyril Ramaphosa, has set aside 11 April for a decision on Malema's appeal. Oral arguments will be made on 4-6 April.
Dali Mpofu and Patrick Mtshaolana, Malema's legal team, have so far failed to delay the implementation of Malema's expulsion from the party. Malema is desperate to stay in the structures of the ANC ahead of its policy conference in May and its elective national conference in December. He needs to retain his access to ANC branches and other platforms to maintain the momentum of his anti-Jacob Zuma push in the party. He also needs to remain the public face of the anti-Zuma project and push the youth league to mobilise in favour of Deputy President Kgalema Motlanthe to become ANC president in December.
Threatening to take the party to court to protect his membership is a sign of desperation. It is also something of an irony. Traditionally the ANC frowns on its members going to the courts to settle political disputes. This was the case in disputes involving its leagues in Limpopo and the Eastern Cape. In these instances, both cases involved opponents of Malema who cried foul at his machinations to work them out of their positions in the league. Malema naturally backed the ANC's decision to oppose court action as it strengthened his hand in the league and allowed him to purge his rivals.
While Malema's own view on taking the party to court may have shifted with the realisation that his political life is on the line, the ANC for its part still has to make the same grim calculations. Court action would paralyse the ANC, and severely diminish its capacity to discipline its wayward members. It also opens the ANC's provincial leaders to challenges from rebellious factions in regional and branch structures. In a year in which disputes over membership and branch status becomes particularly vexed in view of the upcoming elective conference, the possibility of aggrieved members and factions in courts all over the country will concentrate the minds of ANC leaders when they have to deal with the Malema question.
But Malema himself will need to tread carefully: issuing court threats to the ANC is a double-edged sword. The threat could strengthen his allies in the National Executive Committee (NEC) and might persuade the ANC - particularly in its NDCA proceedings next month - to take a softer stance. But it could just as easily harden the NDCA's attitude and weaken his supporters' arguments inside the party. Many senior ANC leaders will no doubt be appalled at the notion of an NEC member taking the party to court.
The ANCYL president has been here before, and quite recently. Last month he managed to persuade the NDCA that the disciplinary committee had erred in sentencing him without giving him the opportunity to argue in mitigation after convicting him last year for bringing the ANC into disrepute and sowing division. It turned out to be a "victory" he could have done without, as his prosecutors were also allowed to present arguments in aggravation, and in the end Malema only managed to convert his original five-year suspension into an outright expulsion from the party.
There is another consideration for the embattled enfant terrible. While there is nothing to stop him going to court if he wishes, any such action could hurt his aim to stay inside the structures of the ANC for as long as possible. His 2010 conviction (on the same charges he faced in 2011) is in abeyance purely because of a political decision taken by the top six officials to allow the entire 2011 disciplinary process to be concluded. Nothing stops them legally or politically from implementing his (indefinite) suspension from the party immediately. If the ANC feels backed into a corner, they may do just that.
There is also the political cost that Malema's party supporters would have to carry to consider, if he takes court action. How would they explain to other power brokers and ordinary members that they were batting for a man who was fighting the ANC in court? This would be particularly difficult for Motlanthe, whose presidential ambitions, for better or worse, now hang on the resolution of the Malema question.
Whenever faced with similar situations in the past, ANC leaders and members have always chosen the party over the individual. This time will be no different.
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