Malema may yet get off the hook

The Constitutional Court yesterday scrapped the piece of apartheid-era legislation under which Economic Freedom Fighters (EFF) leader Julius Malema has been charged for inciting land grabs, potentially paving the way for him to avoid prosecution.

But he isn’t off the hook yet.

The court found the Riotous Assemblies Act limited the right to freedom of expression by criminalising the incitement of “any offence” and declared part of it unconstitutional and invalid.

Parliament has been given two years to bring it up to par. And in the interim, the court has ordered the words “any offence” be replaced with “any serious offence”.

ALSO READ: Malema land grab comments: ConCourt rules on incitement laws

But what will be made of the offences Malema is said to have incited remains to be seen.

Malema, whose public calls for his supporters to occupy land have seen him charged with inciting trespassing three times over the past six years, first launched a constitutional challenge to the Act in 2016.

Last July, the High Court in Pretoria dismissed Malema’s case, finding the section of the Act was only invalid insofar as it provided for a person convicted of inciting a crime to be “liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable”.

But the Constitutional Court found the order of invalidity the high court had handed down had been based on an incorrect interpretation of the Act. In the main, it upheld the arguments Malema’s legal team had put forward.

“Speaking out or advocacy against laws or offences believed to be unjust ought not to be easily proscribed by statute,” Chief Justice Mogoeng Mogoeng, who wrote the judgment, said.

“Free expression is thus a right or freedom so dear to us and critical to our democracy and healing the divisions of our past that it ought not to be interfered with lightly, especially where no risk of serious harm or danger exists”.

He did say, however, certain types of offences needed to remain criminalised.

“The prohibition of incitement is thus to be countenanced in circumstances where it seeks to prevent the commission of a serious offence.”

The determination of what was “serious” would for now, at least, be decided on a case-by-case basis.

– bernadettew@citizen.co.za

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