As we approach the 10th anniversary of the historic formation of the EFF on July 26 2013, it is important to pause and look back at this momentous decade of struggle which has totally changed the political landscape in South Africa. Whether you love or hate the EFF, no-one can deny that its existence has brought vibrancy and fundamental changes to the body politic of this country. The current buzz about “coalition politics”, the introduction of which at national level seems to be imminent, was injected into the country in 2016 when the EFF effectively wrestled the control of urban South Africa from the ANC and relegated it to the mainly rural party it is today. This phenomenon was perfected in the 2021 elections which left Buffalo City as the only metro out of eight still in the comfortable control of the fast-dying ruling party.
With the EFF's capture of the urban electorate nearly complete, the next battle zone will be for voters in the mainly rural provinces of the Eastern Cape, Mpumalanga and Limpopo. These will be the real battlegrounds of 2024. A good showing by the EFF in these provinces, if complemented by holding the gains made in urban South Africa, should be the final nail in the coffin of the neoliberal ANC and spell doom for the ultra-right and racist “moon shot pact” which is the last stand of the forces of apartheid. Such a double blow to the right would never have been possible without the EFF.
But how exactly has the EFF defied all logic and become the only “big three” party to consistently register growth in the past 10 years? There is no single answer. Factors such as the radical nature of its message, the own goals scored by its opponents and enemies alike, the deliberate investment in student politics, obsession with the creation of a national footprint, a simple and consistent policy platform underpinned by seven non-negotiable pillars, the symbolic meaning of the red working uniform, its unambiguous antiracism character, and unshakeable pro-poor bias, to mention a few, all combine to explain the unique growth path traced by the EFF.
However, in my view, the single most important explanation for this government-in-waiting party's success has been its ability to define three terrains of struggle and master all three. Coming out of its first national conference in Mangaung in December 2014, the EFF defined three terrains of struggle — the courts, parliament and the streets or “the ground” in political speak. Its growth in numbers and political influence has been characterised by the creative utilisation of these three platforms towards the single goal of agitation for radical and fundamental change in the lot of the most marginalised and vulnerable sectors of the population in South Africa and the African continent.
The work done in the courts and the legislative houses is merely complimentary and largely tactical. It is possible that one day the EFF may decide that there is no longer any purpose in taking the current and favoured regime to court
Armed with the ideological tools of self-identification as a Marxist-Leninist, Fanonian and Pan-Africanist protest movement, the hybridisation of theory and practice comes naturally to the EFF. In that context, strategy and tactics as well as the continual sharpening of our tools of analysis lie at the centre of the necessary agility to respond to concrete situations.
Of the three terrains of struggle, the most important is the streets. The work done in the courts and the legislative houses is merely complimentary and largely tactical. It is possible that one day the EFF may decide that there is no longer any purpose in taking the current regime to court. It is also conceivable that the EFF may withdraw its parliamentary participation stance if the need arises. But it is inconceivable that it will abandon the streets as a terrain of mass protest and political expression.
To put it crudely, the spaces which are available in the courts and parliament may well be shut down from time to time. In fact there are ominous signs of that happening. But the day the regime and its satellite instruments goes as far as closing down the space for lawful protest will be an invitation to the EFF to invoke its founding manifesto position to bring about the total liberation of our people “by any means necessary”. It is hoped, of course, that such a day will never come. We trust the people of South Africa to defend their hard-won freedoms with everything at their disposal should the enemy go too far in its repressive ways.
In the first of this series of articles, we examine the work of the EFF in the terrain of the courts. What has been the modus operandi and the impact of the EFF’s involvement in this sphere? More importantly, why was it necessary to invest so much time, effort and, indeed, money in strategic litigation?
It must first be appreciated that the South Africa of today is supposedly a “constitutional democracy” with a supreme constitution and a justiciable bill of rights. We fought and achieved this as a first step away from the crudest forms of apartheid and the naked racism which underlied successive white regimes until 1994. In the current regime therefore, the courts are meant to fulfil the basic hopes of the victims of colonialism and apartheid. It is no coincidence that the opening words of the preamble to the constitution say: “We the people of South Africa, recognise the injustices of the past, honour those who suffered for justice and freedom in our land ...”
In short, the constitution is supposed to be a proxy for the aspirations contained in the Freedom Charter, which were the bare minimum demands of the struggle for political freedom or the attainment of the vote by those deliberately and violently excluded by successive racist regimes repeatedly and “democratically” elected in whites-only elections. In the new struggle for economic emancipation, it is therefore important to use our own victories scored in the fight for political freedom as a stepping stone. Indeed, the only purpose for the political struggle was to pave the way for the real struggle for economic freedom, the first step of which is the return of stolen land and minerals to the people as a whole. There can be no compromise on these issues, which were the very reasons for colonisation and apartheid.
In the fight to steer the country away from its present dangerous neoliberal and “reformist” regime which is, by definition, an enemy of those who seek true and radical change which favours the African victims of the past oppressive systems, it becomes essential to identify and, more importantly, to expose the stranglehold of those who want to maintain the status quo in the instruments of power and levers of the oppressive state. These instruments include the judiciary, the legislature, the executive and the so-called fourth estate, the profit-driven media.
The neocolonial and neo-apartheid state is made up of these instruments. Only their total overhaul and transformation can yield political and socioeconomic gains for the oppressed. The complex duality of seeking minor victories in court battles, while limited in real impact on the revolutionary path, is by far surpassed by the need to educate the people about the true instrumentalist role of the courts in propping up and maintaining the status quo as dictated by those who hold political and economic power and the monopoly of the views preferred by the owners of the media.
In this complex struggle it is wishful and futile thinking to expect the courts to side with those who do not wield political and economic power or those declared “enemies of the state” by the media. It would therefore be naive to expect the courts to live up to the image of the blindfolded “Lady Justice” whose sword knows no race, gender, class or other levers of power.
On the other hand and since the courts have no choice but to maintain the façade of total political, class and gender “neutrality”, which is an impossibility in such a historical and economic setting as South Africa, or any capitalist society for that matter, the platform they provide for short-term gains by the oppressed cannot be underestimated. In the rare instances where the poor can even muster the resources needed to articulate their plight in the assumed “neutrality” provided by the courts and a “blindfolded” constitution, these must be used as necessary but insufficient sites of struggle.
Many other cases, not directly involving the EFF, have also assisted much in driving these lessons down to the people
During the Zuma years, the EFF and other progressive forces managed to use the courts and the anti-Zuma consensus to drive the separate and opportunistic message that the ANC neoliberal path must be undermined because it is inherently corrupt and even violent towards the poor. Therefore at face value and to the naked eye, the EFF was teaming up with its ideological enemies. But in reality, the joke was on them. To be sure, it would have been impossible to break the political stranglehold of the ANC and its ideological allies without exploiting the artificial rift between them as to whether corruption should be outsourced to the Ruperts or the Guptas. In short, to fight with the Ruperts against the Guptas would have yielded the same results as the opposite. The fight was bound to awaken both sides in the final analysis. The temporary “winner” of the fight was irrelevant.
It is in this context that the major court “victories” scored by the EFF and others in the Zuma era must be politically understood. Whether it was the groundbreaking “Nkandla judgment” in 2016, the monumental “secret ballot” case or the narrow victory in the “impeachment case”, all these combined to weaken the status quo and to cause divisions among forces which, if allowed to operate in concert, would have spelt a delay of decades in the march towards the emancipation of the landless masses of our people. I do not even refer to the countless other minor legal interventions in which the EFF has successfully defended communities and social issues about land, housing, employment and racist incidents such as the Brackenfell issue.
Unbeknown to the unsuspecting suicidal cheerleaders of the EFF’s court victories, one of the most decisive EFF triumphs was not among the “big three” cases referred to above, but the order granted by the North Gauteng High Court in the two “State of Capture Report” cases. Without the last-ditch intervention of the EFF president on the eve of the hearing of the urgent application which was scheduled to be heard on October 13 2016, one day before the expiry of the term of the then public protector, that report may well have never seen the light of day. Most certainly the celebrated Zondo commission would never have taken place. Ironically no person in society even asked for the EFF, the mother of the commission, to be called to even give evidence. This did not bother the EFF because its objectives had been achieved and the political fruits of the intervention will only be realised in the coming decades.
Though the tables have now turned, and the EFF predictably suffered many significant losses in the courts, most notably in the Bosasa/CR17 cases including the ancillary and sad episode of the currently sealed e-mails, the value of these cases lies in the extent to which the population has been indirectly educated about the role of the judiciary as an arm of the state, in the evolution or preservation of the status quo. Many other cases, not directly involving the EFF, have assisted in driving these lessons down to the people. It would have otherwise taken centuries and countless textbooks to educate the people about the exploitive power of capital and the ruling class, whose face in South Africa is white and male.
Revolutionary patience is a difficult discipline. It is also unpredictable. But it is a necessary ingredient in any freedom struggle. The 27-year patience of Nelson Mandela should provide a useful barometer of the short-term sacrifices which are sometimes needed to reach the promised land. Not long ago supporters of the apartheid state and their homelands ridiculed the patient path chosen by Mandela and Oliver Tambo, or even the supreme sacrifices paid by Steve Biko, Robert Sobukwe, Victoria and Griffiths Mxenge, Chris Hani and many others, only to wake up when it was too late to reverse the march of history.
It is no coincidence that the majority of those mentioned were lawyers who knew the value of strategic litigation and were not deterred by the triumphalist postures of the regime at the Rivonia and treason trials and even the hangings of Solomon Mahlangu and many others in the name of “justice”, not to mention the “no-one-is-to-blame” findings after the deaths of Biko, Ahmed Timol, Neil Aggett and others. Without those “setbacks” and sacrifices, 1994 would never have come, and the EFF would not have been born on July 26 2013. The dream of our economic freedom would have been deferred. Now it is a reality, thanks to 10 years of a heroic and well-calculated strategy designed and carefully implemented by this generation of economic freedom fighters. History and the gods of Africa will judge them and the sacrifices they have made even more favourably than the heroes and “sheroes” who brought about the much-needed stepping stone of political freedom.
In Marxist theory, law is the product of economic forces and a tool of the ruling class to maintain its exploitive power over the ruled classes. As a Marxist organisation, the EFF has no illusions or exaggerated expectation that the courts in the current capitalist system can produce revolutionary change. However, the courts remain an important terrain of calls and ideological contestation and will remain a crucial site or terrain of struggle in the next decade towards the seizure of economic power which is the real driving force behind the dominant outlooks and ideas in law and society in general.
• Mpofu is the first national chair of the EFF and a practising advocate and senior counsel
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