EFF leader Julius Malema faces a high-stakes appeal against a five-year prison sentence, which, should he lose, would trigger a significant test as to whether the party could survive without its leader.
Magistrate Twanet Olivier on Thursday sentenced Malema to five years in prison for unlawful possession of a firearm, two years for unlawful possession of ammunition and R20,000 or six months’ imprisonment for discharging a firearm in a built-up area.
After an immediate appeal of the conviction and sentence by Malema’s legal team, Olivier granted leave to appeal the sentence, but not the conviction.
Political analyst Ongama Mtimka, a lecturer at Nelson Mandela University, said a jail sentence puts the EFF leadership in a tough place. “When it comes to the position of Malema and implications of sentencing, there are two things. The EFF is caught between a situation in which the shepherd is stricken and therefore the sheep of the flock scatter, or a forced leadership transition that could result in the organisation continuing,” he said.
With former EFF MP Mbuyiseni Ndlozi and Malema’s former second-in-command, Floyd Shivambu, no longer with the party, Mtimka said the party may struggle to find a leader if Malema loses his appeal.
“Julius Malema, in the past 18 months, has made certain that the EFF is eroded of the capacity to lead, the capacity to survive beyond his tenure — if the fallout with senior politicians like Floyd Shivambu and Mbuyiseni Ndlozi is anything to go by.”
Shivambu and Ndlozi left the party months after the 2024 general elections in which the EFF lost its spot as the third-biggest party in the country to former president Jacob Zuma’s MK party.
Malema has led the party since it was formed in 2013. While the EFF might not perish should he lose the appeal and spend time in jail, the red berets could suffer support decline, Mtimka said.
“I think its impact and support will definitely decline.”
He continued: “An EFF in parliament without Julius Malema would have significantly reduced impact. I take nothing from the politicians that have been growing within the party … But I think that their growth trajectory would be cut short.”
Malema remains an MP pending the appeal because the constitution stipulates that one may hold that title until an appeal against a conviction is determined.
Arguments
One of Malema’s legal representatives, advocate Tembeka Ngcukaitobi, argued in the appeal application that his client had good prospects of success in the appeal against the sentence.
Ngcukaitobi argued there aren’t cases that set a precedent for imprisonment in circumstances similar to those of Malema’s.
“The state is unable to point to a single case of a discharge that results in direct imprisonment. Then you look at the finding … Can you be confident there is no other court that may realistically come to a different conclusion?” he asked.
Council for the Advancement of the South African Constitution (Casac) executive secretary Lawson Naidoo previously told Business Day that the granting of the appeal was reasonable. He explained that Malema’s legal team would need to convince the court that the magistrate erred in the application of law.
The matter will be heard in the high court in Makhanda.
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