The sudden withdrawal of a top law firm from representing ANC Youth League president Julius Malema in his “shoot the boer” case has divided the firm — a senior lawyer at the firm has apparently resigned in anger over it — and drawn the ire of the ruling party.
Malema this week wasted no time in accusing Edward Nathan Sonnenbergs (ENS), Africa’s largest law firm, of racism and ANC treasurer general Mathews Phosa ex-pressed his disappointment with the firm’s action.
But Peter Faber, the ENS chief executive, denied that racism was behind the withdrawal or that the move had caused ructions in the firm.
The firm filed a motion last week in the South Gauteng High Court withdrawing from the case, in which it had been representing Malema. Afriforum, a civil society group, took him to court last year, arguing that Malema’s singing of the song fuelled the country’s culture of violence, particularly against white farmers.
Malema claims it is his right to sing struggle songs. Supported by the ANC and trade union federation Cosatu, he has vowed to take the case to the Constitutional Court if the high court rules against him.
ENS gave no reasons for its withdrawal but insiders at the firm said the decision was “political” — it was driven by lawyers in the firm who “objected strongly to his views on this and other issues and felt uncomfortable being associated with the firm representing him [Malema]”.
Phosa said this week that senior partners at ENS, including the company’s chairperson, Michael Katz, had told him the decision to withdraw from the case was informed by internal politics.
The Mail & Guardian has been told that senior attorney Peter Tshisevhe, who was on the Malema case, was so unhappy with the firm’s move that he immediately handed in his resignation. He refused to comment when approached by the M&G this week.
But an insider close to Tshisevhe said that he was extremely unhappy about the company’s decision. “He is disappointed that, despite the fact that we are in a constitutional democracy, some sectors within the law firm could still conduct themselves in the manner they did on a matter that is before a court of law.
“His view is that the Bill of Rights in our Constitution allows anyone, including Julius Malema, to be represented by a law firm of their choice, irrespective of their political standing in society.”
According to the insider, one group of lawyers argued for the withdrawal because Malema’s singing of the song could affect their own families who owned farms. Another group, which included Tshisevhe, argued that the decision could not be based on personal interests.
ENS previously complained that Malema had failed to pay legal costs amounting to R900 000 but Phosa said he told the company that the ANC would pay Malema’s legal costs.
‘Racist, unprofessional’
Malema said this week he viewed the law firm’s decision as racist and unprofessional. “It is clear that some people [within the law firm] have taken sides on this matter. They still operate as if we are under the apartheid regime.
“They acted in a racist manner and must be exposed for that. They need to adjust [to the fact] that we are now living in a constitutional democracy. If they can treat the president of the ANC Youth League like this, how about ordinary people?”
ENS said in a statement to the M&G this week that the company was a nonracial and multicultural firm, comprising people from all South African ethnic groups. “Racism is not tolerated in our firm,” the statement said.
Internal politics
The firm also denied that Tshisevhe had resigned in protest against the company’s decision. “We have had in-depth discussions with Peter [Tshisevhe] and his reasons for leaving are not as a result of our withdrawal from this matter,” the statement said.
But Phosa said this week that he knew differently. “I met with Michael [Katz] and some senior partners regarding this matter. The reason for the meeting was for them to explain [the company’s withdrawal].”
They said the decision was based on internal politics, Phosa said.
“I told them if this [the withdrawal] was about money, I am prepared to pay them. I said to them the ANC would not allow freedom songs to be criminalised — that’s why we intervened in this matter.
“They [ENS] said they did not apply their mind [when they withdrew from the case] in the manner [in which] I had raised the issue. I told them they must live with that decision.”
Phosa said the company had expressed concern about the impact the decision would have on other business the company had with the ANC and the government.
“They thought we would withdraw business with them as a result of their decision. I told them that I would apply my mind on that,” said Phosa.
The Law Society of South Africa said it could not comment on the case because it did not have all the facts. But, generally speaking, an attorney could withdraw from a case at any time provided there were cogent reasons for doing so. These included a breakdown in trust between an attorney and a client, the emergence of a conflict of interest, or a breach of agreement on the payments of fees.
Timeline
March 10 2010: ANC Youth League president Julius Malema leads students at the University of Johannesburg in a song including the words ‘Shoot the boer [farmer], they are rapists”.
March 10 2010: Freedom Front Plus leader and Deputy Agriculture Minister Pieter Mulder lays criminal charges against Malema at the Brooklyn police station in Pretoria.
March 15 2010: Afriforum Youth files a complaint of hate speech against Malema in the Equality Court.
March 26 2010: The South Gauteng High Court rules that the use of the words dubula ibhunu (shoot the boer) is unconstitutional and unlawful. This is an unrelated case in which the action was brought by Delmas businessman Willem Harmse to prevent his colleague, Mahomed Vawda, from using the words on banners and singing them during a march.
April 1 2010: Malema is barred from singing dubula ibhunu after Afriforum is granted an interdict by the North Gauteng High Court against the singing of the controversial song.
April 2 2010: AWB leader Eugene Terre’Blanche is murdered on his farm outside Ventersdorp, sparking an outcry against the song. Malema subsequently dismisses suggestions that Terre’Blanche’s murder could be linked to his singing of the song.
April 7 2010: ANC secretary general Gwede Mantashe calls for restraint from all ANC members and asks them to avoid making statements likely to cause racial polarisation.
November 1 2010: The hate speech complaint against Malema is transferred from the Equality Court to the South Gauteng High Court in Johannesburg. On the same day, AfriForum announces its decision to withdraw its case against the ANC.
January 19 2011: The Equality Court in Johannesburg makes a cost order against Malema because of his failure to submit his plea on the charge of hate speech against him by the court’s deadline of November 30, in spite of several reminders.
January 22 2011: Malema attacks AfriForum for waging a ‘campaign” against him and vows to take the matter to the Constitutional Court if necessary.
January 24 2011: AfriForum receives plea documents from Malema defending his right to sing the ‘shoot the boer” song.