Malema’s final challenge of Riotous Assemblies Act before ConCourt

Julius Malema’s legal team is set to argue today before the Constitutional Court that the leader of the Economic Freedom Fighters (EFF) “did not incite anything criminal” when he told his supporters to go out and stake their claim to land.

This in a last-ditch attempt to dodge criminal prosecution – as Malema takes his fight to have a section of the Riotous Assemblies Act declared unconstitutional, to the apex court.

The Constitutional Court represents the last avenue open to Malema to challenge the Act and his charges under it.

Malema was charged with inciting trespassing in 2014, after telling supporters at the EFF’s elective conference in Mangaung: “You must be part of the occupation of land everywhere else in South Africa.”

In 2016, he was charged with the same crime in Newcastle after saying, “If you see a piece of land, don’t apologise, and you like it, go and occupy that land”.

And he was charged again – later that same year, also in Newcastle – when he said, “Occupy the land because, [the state] [has] failed to give you the land”.

His lawyers have been in and out of court for the past four years trying to have the section of the 1949 Riotous Assemblies Act under which Malema’s charges fall, thrown out.

Judge Aubrey Ledwaba last July ruled that only one aspect of the section in question – which provides for a person who is convicted of inciting a crime to be punished as though he or she had committed that crime – was in need of repealing. He also dismissed Malema’s bid to have the court find that the Trespass Act did not apply to protected occupiers.

Malema has now approached the Constitutional Court to confirm Judge Ledwaba’s partial declaration and appeal the remainder of his ruling.

In his heads of argument, advocate Tembeka Ngcukaitobi – for Malema – labelled the comments in question “heartland political speech – robust and unapologetic, as political speech must sometimes be”.

But the state, which is opposing the EFF’s action, said the question at hand was: “May a political leader who urges his followers to engage in unlawful land invasion, and who is charged with incitement, claim the protection of the free expression clause of the constitution?”

In his heads of arguments, advocate Hilton Epstein said the problem with land invasions was multi-fold.

Epstein said Malema and the EFF had every right to mobilise and march for land reform. “What they may not do is consciously and with direct intent rouse followers to take action which Mr Malema has effectively admitted would be unlawful.”

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