Malema: Law Versus Justice

The guilty verdict against Julius Malema may be a victory for the South African Firearms Control Act, but from a libertarian point of view, it is a loss for individual liberty.

Photo by Tingey Injury Law Firm on Unsplash

Written By: Charl Heydenrych

Despite the legal verdict finding Julius Malema guilty, a strict libertarian analysis, grounded in the Non-Aggression Principle (NAP) and consent axiom, suggests that the state’s conviction represents a triumph of administrative bureaucracy over the fundamental ethics of liberty.

From this perspective, the court’s decision to penalise an action that resulted in no physical injury or property damage highlights a fundamental disconnect between statutory law and natural justice.

The Victimless Crime Paradox

The central tenet of libertarianism is that a crime requires a victim. Without an aggrieved party whose person or property has been violated, the state has no moral standing to initiate force, in the form of fines or imprisonment, against an individual.

In the case of Malema firing a rifle at a rally, the facts remain that no one was hit, no property was destroyed, and no individual came forward claiming their rights were physically infringed.

By finding him guilty, the state has effectively criminalised a victimless act. To a proponent of the NAP, the conviction is an act of aggression by the state itself, using the threat of violence to punish a man for an action that, while perhaps reckless in the eyes of the public, did not actually breach the peace by harming another.

Licensing as a Violation of Property Rights

The conviction regarding the unlawful possession of a firearm and ammunition strikes at the heart of the libertarian critique of the regulatory state. Libertarians view the right to own and carry tools for self-defence or recreation as a natural extension of self-ownership.

Prior Restraint: Requiring a licence to possess a firearm is a form of prior restraint. It assumes the state owns the right to grant or deny the exercise of a fundamental liberty.

Property Rights: A firearm is a piece of private property.

The act of possessing it, regardless of whether a government agency has issued a piece of paper or plastic card authorising that possession, does not constitute an initiation of force.

By convicting Malema for lacking a licence, the legal system has prioritised compliance over conduct. The state is not punishing him for what he did to someone else, but for failing to ask the state for permission to exist as an armed individual. In a libertarian framework, the lack of a permit is not a moral failing or a criminal act.

Risk Versus Reality: The Problem With Proactive Law

The state’s justification for such convictions usually rests on the management of public risk. The argument follows that firing a gun into the air is dangerous, and the law must intervene to prevent a potential tragedy.

However, a libertarian rejects the idea that the state should have the power to punish individuals for potentialities. If an action could cause harm but does not, the NAP has not been violated. If we allow the state to prosecute people based on the statistical probability of danger, we invite a Minority Report-style system of justice, where the government regulates every aspect of life, from driving speeds to calorie intake, under the guise of safety.

By finding Malema guilty for an act that resulted in zero casualties, the court has ruled that the state’s desire for an orderly, permitted society outweighs the individual’s right to act freely, as long as they do not hit anyone.

Consent and Private Assembly

Furthermore, the rally was a private political gathering. The attendees were there voluntarily, participating in an event known for its militant aesthetics and provocative symbolism. In a purely libertarian society, the rules of conduct at a private assembly are determined by the property owners and the participants. If the participants did not feel their rights were being violated by the display, the state’s and AfriForum’s intervention as a third-party prosecutor is an unwanted and unnecessary intrusion into private association.

Conclusion: Law Versus Justice

The guilty verdict against Julius Malema may be a victory for the South African Firearms Control Act, but from a libertarian point of view, it is a loss for individual liberty. The conviction reinforces the precedent that the state can cage or fine an individual for actions that harm no one.

When the law punishes the unlicensed possession of an object or the unauthorised discharge of a weapon that strikes no victim, it ceases to be a system of justice and becomes a system of control. For the libertarian, the verdict is a reminder that under current legal paradigms, the state considers the violation of its own arbitrary rules to be a greater sin than the actual initiation of force against a human being.

Charl Heydenrych is a retired human resources practitioner and a libertarian.