EFF shutdown may be pantomime but DA interdict move is legally shaky

Having read both DA leader John Steenhuisen’s and EFF leader Julius Malema’s affidavits in the DA’s urgent interdict application to stop the EFF’s planned national shutdown on Monday, I want to explain what they argue and offer a political interpretation of the lawfare between the two opposition parties.

Let me make my position clear upfront. First, I would be surprised if the DA succeeds in getting an urgent interdict granted.

Malema’s legal team has responded with some beautiful legal rebuttal of the basic structure of the DA’s case.

I believe that most judicial officers would dismiss the DA application provided they ignore the political controversy habitually associated with the EFF and pay attention to the narrow, clear, legal questions in the matter.

The DA case is fatally vague in key respects and also too wide in argument scope.

Second, I think the EFF should be politically described in terms that clearly detail what it as a party is all about. The EFF loves pantomime. Its members live for it.

There is no chance of President Cyril Ramaphosa resigning and therefore we can say with certainty this march will not achieve its stated objective while it clearly has many known potential downsides beyond the control of even the EFF leadership.

But the DA’s legalistic response will make Malema laugh with joy; instead of engaging him politically and reminding voters why he is rehearsing the worst of EFF politics ahead of 2024, Steenhuisen missteps politically with a poorly thought-through legal adventure.

The first problem for the DA is an important and boring one. It will have to convince the court that its urgency isn’t of its own making, including why it filed its papers outside the urgency application window.

This doesn’t speak to the merits of the main application but if the judicial officer is either a conservative rules-addict or secretly lacking in judicial appetite to decide the main issues, he or she could simply halt the matter right here. I hope not, since it would be great to hear an adjudication of the other issues, but lawyer friends have taught me that a win is a win, whether on procedural or substantive grounds. By the time the DA has another go, having remedied any process defects, the march would have happened.

A more interesting procedural weakness is whether the DA is a rights bearer, in this case for purposes of being entitled to seek an interdict against the EFF. You cannot willy-nilly rock up at court as a Good Samaritan. You must justify why you should be admitted as a friend of the court or explain why and how your own rights as a person or legal entity are at stake.

Essentially, the DA is saying it is acting in the public interest because our rights to freedom and security of the person, freedom of trade, occupation and profession, and — don’t laugh — even to all of the socioeconomic goods enshrined in section 27 of the Bill of Rights, would be shredded if the urgent interdict on behalf the public and in the public interest isn’t granted.

It is at this point that one feels the desperation in legal strategy, an appeal to a very broad set of fundamental rights to which it wishes to hook a tough question of why it, as a political organisation, is a rights bearer with salient legal interest in the planned EFF march. It is not the most compelling part of the DA argument.

But the EFF’s response, in law, seems in turn very cogent.

The DA cannot derive a right to appear with such circuitous reasoning. More crucially, here we have legal rights analysis also beginning to then intersect with hidden factual assumptions. Even if one granted the DA the legal claim that crucial rights are implicated in this case, its entire case rests on the assumption that the state cannot enforce law and order on Monday.

The DA does not say so directly but students of logic can easily identify a major hidden premise in its case. The hidden premise is that we are stateless and only a court can protect us from mayhem. This is in flagrant factual disregard of Ramaphosa outlining the steps taken by the security cluster to guarantee peace and order on Monday.

If the DA fears EFF supporters using political rhetoric it does not like (which is insufficient for an interdict to be granted), then it is to the executive — and the ministers responsible for police and justice in particular — that it should turn, not to the courts for an interdict to take away a right to protest.

But between the minister of police and the head of the executive, the state’s commitment to enforce law is a sufficient guarantee that Monday will not be the coup attempt the DA fears. A judge may not want to side with a DA that assumes the state will not do what it must do, which is to keep us safe.

Now, in reality, our policing is not great, especially when it comes to protests. We cannot blindly believe that the security cluster will always do what it must, constitutionally. But here is what the EFF legal response says in correct pre-emptive rebuttal: the prayers sought by the DA are too premature.

The DA wants the court to declare illegal action to be prohibited when it is trite in law that that is the case. No one asks a judge to declare theft unlawful. It is really hard for someone who is scared (even if we sympathise with the fear) to accept the following but in law you must, that is to say that only once, if at all, laws are broken, should the police respond. Not least when there is no proof of imminent violence even.

The right to protest peacefully is too crucial to democratic engagement to blunt it with an interdict that preemptively assumes that illegality will definitely accompany the march.

A court must be very careful not to undercut the right to assemble and march on such a speculative basis about how the march will play out. Besides, as the EFF papers say, the police do not need court orders to stop or arrest someone destroying property. Other remedies flow from the Regulation of Gatherings Act and also within delict.

To be clear, the DA framed the interdict application in terms of illegal activities that are allegedly planned, such as the incitement of violence or illegal blockages of roads. So it might claim to respect the general right to a peaceful march. However, the details of the application are a practical attempt to prevent Monday from occurring, peacefully or otherwise.

The DA knows it cannot literally ask for a right to peaceful protest to be undercut by a court of law. But then there is a dilemma: if it respects peaceful marches then the application falls away; if it fears lawbreaking then it must seek help from the political heads of policing and justice, making the interdict application moot.

On a balance of rights, the constitutional value of upholding protest rights, plus taking cognisance of the steps the government has outlined of what it will do to secure public space on Monday, means an urgent interdict will likely not be granted.

But politically it is important to call out the EFF for a pointless piece of drama.

Malema gets so much air time that he doesn’t need more for its own sake. From a political strategy viewpoint, we then must ask: what, strategically, do you gain from the march, knowing Ramaphosa won’t resign? Absolutely nothing. That makes it literally pointless. All it underscores is a perception among EFF critics that they are all about pantomime.

Why not outshine Ramaphosa by being brilliant local government coalition members? Why not outshine Ramaphosa with intellectual brilliance and giving voters fresh, innovative, compelling ideas on how to solve the energy crisis, unemployment, crime and other ills highlighted in the opening paragraph of Malema’s affidavit?

The only saving grace for Malema in this interdict application is that the DA is so prone to strategic misstepping itself that the EFF often gets away with major political gaffes. Unfortunately, it is our democracy that is poorer when both the major opposition parties respond badly to an ANC that is a shadow of its former self.

LISTEN | The poor will suffer most from Malema’s shutdown, says Mbalula

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