Suspended African National Congress (ANC) member Julius Malema - who also happens to have been ANC Youth League president - has threatened to take the ANC to court if the mother body's disciplinary committee does not reverse decisions to expel him and, more recently, to summarily suspend his membership.

This raises a pointed yet difficult question: in the event of a court challenge to the disciplinary process and expulsion, would Malema win a legal battle?

The likely answer is no, Malema would lose a legal battle against the ANC. The ANC, however, is not sure about its chances. This is why it hastily decided to summarily suspend Malema when he recently stated that, under President Jacob Zuma's leadership, the country has slid from a democracy to a dictatorship.

No doubt the National Disciplinary Committee's (NDC) decision was motivated in part by a fear that, unless he is immediately suspended, he could try his luck in court, asking for an interdict to halt the operation of a confirmation of his expulsion until the court case has run its course.

All of this would buy Malema time. Even if he lost such a case eventually, the ANC would not be in charge of the time it takes for him to be finally, officially, out of the party.

And, time matters: if he is nominally a party member, and youth league president, Malema has access to ANC structures. During an elective year, that is the last thing his enemies inside the party want.

But here's the interesting part: the ANC is needlessly scared of a court challenge on the part of Malema. A court does not grant an interdict just because you ask for it. It is not obvious that Malema would succeed in buying time in the form of a court interdict.

Furthermore, on the merits of an actual court challenge on the substantive aspects of his disciplinary fate, Malema is confusing political grief with legal entitlement.

Could Malema successfully interdict the ANC?

Malema would have to show that unless the court stops the expulsion from kicking in immediately - pending the outcome of a court challenge thereafter - a) he is likely to suffer irreparable harm; b) that unless such an interdict is granted he would be more inconvenienced than the ANC; c) that there would be no other remedy available to him; and d) that he has a prima facie right to retain his membership of the party. All of these criteria would have to be met. It is highly improbable that Malema's lawyer could succeed.

First, it is not clear what irreparable harm Malema's suspension would constitute. If he went on to win inside the ANC, for example, any reputational loss would be restored, and can't be regarded as genuinely irreparable.

Second, it is not clear that it is more convenient for him to get the interdict than it is for the ANC to resist it, given the impact his speeches are having on the unity of the party, and the leadership debates ahead of Mangaung.

Third, there clearly are other remedies available to him. The case itself, for starters, is still under the processes of the disciplinary committee, and he can appeal to the National Executive Committee (NEC), as well as having a motion tabled at the conference at the end of the year to reverse his sanctioning.

Fourth, there is no prima facie right not to be expelled or to be summarily suspended, since this flows from the ANC constitution. He might have a final case, but no prima facie one. He is therefore unlikely to be granted an interdict.

Was Malema's right to free speech violated?

The letter sent to the party by Malema's lawyers informing it of intentions to go to court if the disciplinary sanctions hanging over his head are not withdrawn by the NDC, contain many arguments. This is an approach that lawyers call "the kitchen sink approach": you throw every possible argument at the court hoping it will accept at least one as sufficient to justify the relief you are seeking.

But these arguments only contain one serious legal challenge, which is the claim that Malema's right to free speech is unduly limited by the NDC since it is punishing him for expressing opinions. Expressing opinions should be protected speech.

To its credit, the argument rightly does not appeal to the national constitution. Hopefully this is an indication that the lawyers are aware of the fact that, since membership of the ANC is voluntary, public standards of free speech do not have to be adopted by the party. The party is the equivalent of a private members' club. You do not have a legal right to be a member. And the voluntary membership implies that the club - or political party in this case - can have its own standards of speech and debate. It need not be the same as those we are all entitled to in public spaces.

Here is the relevant excerpt from the Malema camp's letter to Derek Hanekom, chair of the NDC:

• In terms of Rule 25.2 of the ANC Constitution, "disciplinary proceedings shall not be used as a means of stifling debate or denying members their basic democratic rights". One of these basic democratic rights is freedom of expression of views and opinions. (See section 16 of the Constitution of the Republic of South Africa.) Another such right is the fundamental right to participate in the activities of a political party of one's choice (see section 19(1) (b) thereof).

• The utterances were also obviously made in the course of the continuing process of leadership assessment which is not banned in the ANC.

In other words, the lawyers would say to the court, "Our client's right to free speech, as guaranteed by his membership of the party, was violated. The ANC violated its own constitution."

Will this argument hold in court? No. But the reason why it will fail is not the reason most commentators have offered so far - that, because the ANC is a voluntary membership-based organisation, Malema has no recourse to the court. Yes, it is true that such organisations do not have to abide by public standards. But it does not mean that fundamental human rights, like the right to dignity, can be violated privately. The courts have to decide on a case-by-case basis whether a particular practice of an organisation is constitutionally accepted or not. There is no general rule.

Rather, the reason why this line of argument will fail is because the ANC's constitution itself is selectively interpreted and quoted by the Malema camp. The ANC constitution must be interpreted holistically. Section 25.5 (i), in particular, makes it clear that one cannot "provoke serious divisions" in the course of what one says about the party. This restriction would not apply in the public space, but as a voluntary membership organisation the ANC can impose such a constraint. Describing the country under Zuma as a dictatorship could reasonably be regarded by the NDC as a violation of this clause.

A court of law would be very reluctant to impose its own interpretation of the standard of acceptable speech that flows from this clause, and would recognise that it is acceptable to defer to the body within the political party mandated by the party's constitution to decide the issue.

Finally, the court would also have to accept that the ANC's constitution mandates the NEC to take binding decisions between conferences. Rule 12 sets out these powers. One of the binding decisions the NEC took - which Malema was party to - is that the kind of divisive campaigning, outside of the formal, bottom-up, branch-located processes (due to start this year in October), which characterized the lead-up to Polokwane, are not desirable, and members should desist from them.

Indeed, as is documented in the report of the 2010 National General Council - a sitting midway between ANC elective conferences - the party's NEC had taken a clear decision in May 2010 "banning all public spats as well as the discussion of the 2012 succession and related leadership preferences". This was decided on in order to "prevent undermining the confidence of the membership in the leadership that has been elected to lead this organisation until the next conference".

A court of law would have to take this NEC decision into account, in addition to the express clauses of the ANC constitution. And the facts about Malema's utterances in recent times contradict this agreement to approach the leadership debate differently to what happened before Polokwane.

Political objection, not legal argument

Whether Malema can win in court is not a simple matter. One cannot simply say, "The ANC is a voluntary membership organisation, therefore Malema cannot run to the courts for relief". However, the fact that courts might sometimes intervene when there is a gross violation of natural justice principles, or where a person's inviolable right to dignity is violated, equally does not guarantee that Malema will win. One has to look at the merits of the case at hand.

In this instance, Malema is likely to lose a court case for two broad reasons: a) the ANC's own constitution and NEC rulings provide strict rules for how free speech should play out within the party and Malema is bound by these rules and decisions; and b) courts, in general, would be reluctant to step in and interpret the rules of a private members' club - unless there is an express violation of natural justice principles. This has not been so, courtesy of careful procedural correctness on the part of the NDC and the NDCA, and the courts will defer to the party's internal mechanisms.

Does this mean Malema has not been hard done by the ANC? No, it does not mean that. It is clear that the ANC is intolerant of criticism of its leaders. That is a bad thing. It is ridiculous that a party member cannot refer to Zuma as a dictator without getting disciplined. But here is the point: this is a political objection to the ANC's standards of free speech, best addressed inside the ANC by persuading the party to raise its standard of free speech. It does not amount to a legal argument that will hold sway in court.

McKaiser is a political analyst and an associate at the Wits Centre for Ethics. Follow him on twitter @eusebius