Malema land grab comments: ConCourt rules on incitement laws

The Constitutional Court has declared the Riotous Assemblies Act unconstitutional and invalid insofar as it makes incitement to commit even “minor” crimes an offence.

This is on the back of Economic Freedom Fighters (EFF) leader Julius Malema’s challenge to the Act, as part of a last-ditch attempt to dodge criminal prosecution.

Malema has been charged with inciting trespassing under the Act for encouraging land grabs, no less than three times over the course of the last six years.

He and his lawyers have been in and out of court for the past four years trying to have the relevant section of Act thrown out.

Judge Aubrey Ledwaba last July ruled against them, but the Constitutional Court on Friday morning overturned Ledwaba’s ruling.

The Act made it a crime to incite another person to commit “any offence” and Chief Justice Mogoeng Mogoeng – who penned the apex court’s judgment with six justices concurring – said it was as a result “widely phrased” and “far-reaching”.

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“It will be difficult to know beforehand what is really prohibited or permitted,” he said, adding that the wording was “unquestionably over broad”.

He also spoke about the Act’s impact on freedom of expression and said the court had ultimately found this was “markedly disproportionate to its benefit to society”.

“The proscription of incitement to serious offences will promote free expression and enhance crime prevention in a more meaningful way,” Mogoeng said. “It avers the dangers of making very substantial inroads in the terrain of free expression.”

The High Court last July declared the Act invalid insofar as it provided for a person convicted of inciting a crime “liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable”. However, that too has now been overruled.

“We hold that the meaning of the word ‘liable’ does not connote absence of judicial discretion. Its correct meaning is that the incitor is susceptible to the same punishment as the perpetrator,” Mogoeng said on Friday.

Parliament has been given 24 months to remedy the defects in the Act. In the meantime, the Constitutional Court has ordered that the words “any offence” as they appear in the relevant section be replaced with the words “any serious offence”.

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