As one of the respondents in Economic Freedom Fighters (EFF) leader Julius Malema’s attempt on Wednesday to overturn the 1956 Riotous Assemblies Act in the North Gauteng High Court, the National Prosecuting Authority (NPA) is going to have the easiest time defending integral legislation.
The NPA has filed its notice of intention to defend the legislation in question.
“The crimes of intent and incitement to commit a crime needs to be redrafted and revisited, but is actually necessary in any criminal justice system, so I cannot see them being struck down,” said former law professor and now practicing advocate James Grant.
Malema faces two charges of allegedly inciting people to move onto unoccupied land.
“He’ll have a fight on his hands in terms of trying to establish that the crime of inciting others to commit another crime cannot be a crime, and attempting to convince a court when you attempt something and fail, you cannot be convicted of an attempt,” Grant said.
It was the preamble of the Act that Malema had a problem with: “To consolidate the laws relating to riotous assemblies and prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Union …”
“Speaking generally, it is really outdated, at the very least,” Grant said. “Public violence is very broad. Now we live in a completely different era and the broadness of that crime needs to be revisited and narrowed down.”
However, the incitement to commit a crime clause – under which Malema has been charged – was essential to any criminal justice system, Grant said.
“The criminal justice system cannot operate without those.”
In November, a motion by the EFF to repeal all apartheid era laws failed. Also in November, AfriForum laid charges against Malema with the Human Rights Commission.