‘This isn’t America, Juju’

Lawyers acting for the state in its Constitutional Court bid to hang on to the contentious Riotous Assemblies Act has argued that South Africa was not the United States of America, and that freedom of speech should sometimes be limited, as in the case of Julius Malema’s call for the invasion of land.

“The free expression right in this country is not a right of pre-eminence, unlike in the United States,” advocate Hilton Epstein, who is representing the Minister of Justice and Constitutional Development, said, “In the US, we know it’s a right above all other rights … We don’t have that. We don’t have rights which are treated in isolation. All the rights interact with each other, there are countervailing rights”.

EFF leader Julius Malema went to court to challenge the constitutionality of the act after he was in 2014 accused of contravening it and charged with incitement to commit trespassing.

This in the wake of Malema having told supporters at his party’s elective conference in Mangaung: “You must be part of the occupation of land everywhere else in South Africa”.

He has also been charged twice more since then with the same crime, for having made similar comments in KwaZulu Natal.

Last year, the North Gauteng High Court, in Pretoria, dismissed Malema’s application for an order declaring certain sections of the act unconstitutional and invalid.

He has now approached the Constitutional Court, in the hopes of having the lower court’s ruling overturned.

Advocate Tembeka Ngcukaitobi – who represents Malema in these proceedings – has argued that the act infringes on the right to freedom of expression and said in court papers that “the act’s broad sweep is constitutionally problematic because in the end, incitement is about punishing speech”.

“Free speech is especially important – and suppressing it especially dangerous – when it is on political issues,” Ngcukaitobi said.

He accused the state of having “tried the old trick of using the criminal law to silence the speaker” and said, “The trick worked in the past; it was the whole point of the Riotous Assemblies Act. But it now runs headlong into one of our most basic constitutional protections”.

Said Epstein yesterday, though, “In exercising the right to freedom of expression, one has got to look at rights like the right to security, property rights and housing rights. Those must all be taken into account in balancing the right to freedom of expression”.

He said there were circumstances where the right to freedom of expression could be limited.

“When you take into account countervailing rights and other considerations – such as the potential harm which it may cause, the deleterious consequences of making statements and rousing a crowd in the way in which Mr Malema has been alleged to have done it”.

Judgment has been reserved.

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