Act used to prosecute Malema 'part and parcel of the architecture of apartheid' - advocate
12 December 2018
Criticising legislation used to prosecute EFF leader Julius Malema, advocate Tembeka Ngcukaitobi told the North Gauteng High Court in Pretoria on Wednesday that the Riotous Assemblies Act was "part and parcel of the architecture of apartheid".
The party's commander-in-chief is accused of contravening Section 18 (2) (b) of the Riotous Assemblies Act.
It is alleged that he incited party members at the party's elective conference on December 16, 2014 to occupy any vacant land they came across.
It is also alleged that it is the second time that Malema has been charged with such an offence. He was accused of making a similar call in Newcastle on June 26, 2016.
On Wednesday, Ngcukaitobi argued before a full Bench of the High Court that the State had "deliberately chosen" to charge Malema for asking for the occupation of vacant land wherever it was found, even though there were no property rights at stake.
Ngcukaitobi argued that the Riotous Assemblies Act was passed during the apartheid era and it was therefore it was inconsistent with the Constitution.
"Each and every piece of legislation that comes under apartheid is bad for that reason alone," he said.
"We do not challenge the act purely because it was passed under apartheid, but what we argue is that the fact that the law was passed under apartheid is itself a strong indicator of its inconsistency with constitutional laws.
"We also argue that the Riotous Assemblies Act has a peculiar history. We are not dealing here with a law that is otherwise neutral but simply was passed under apartheid," Ngcukaitobi said.
He argued that the apartheid government used the act to suppress freedom of speech, adding that it was a "piece of offensive legislation".
He submitted that they were dealing with a law that was "part and parcel of the architecture of apartheid. In other words, a law that was central to the enforcement of apartheid".
Ngcukaitobi also told the court that his client faced going to prison – "not because he beat anybody up, but because he spoke".
"Mr Malema was simply no more than articulating a position of the EFF, which is that vacant land in a country that is as landless as we are, should be occupied by the landless."
He also added: "The court will note that they (the State) did not invoke the provisions of the Riotous Assemblies Act, they charged him (Malema) with presumably the common law crime of incitement in relation to the Trespassing Act."
Ngcukaitobi argued that Malema's comments did not incite any violence or target any specific people.
"There is no incitement, encouragement, procurement of violence at all. And there is no encouragement of occupation of houses," he said.
He added that although there were no private property rights at stake, Malema "stands....for speaking and we say our Constitution places a high premium on the freedom of individuals to speak".
"The State had deliberately chosen to charge Mr Malema for asking for the occupation of vacant land wherever it is found."
It was widely reported in 2014 that AfriForum laid charges against Malema for a land invasion speech at University of the Free State, News24 previously reported.
EFF deputy president Floyd Shivambu, who was in court during proceedings, previously reacted to the summons and called the move an "apartheid-era tactic".
"The State takes the act of charging him for a political speech - exactly what the apartheid murderous regime used to do," Shivambu said at the time.
"We have degenerated back to what the apartheid regime used to do. The ANC is behaving exactly the same way as the apartheid regime used to do. They absolved themselves from killing workers in Marikana. Now it's employing racist apartheid-era tactics."
In September, a procedural mishap, involving a notice the EFF filed at the North Gauteng High Court in Pretoria, led to a delay in the party's challenge to the constitutionality of the Riotous Assemblies Act.
Advocate Hilton Epstein, SC, who represented the National Prosecuting Authority (NPA), said Malema could not incite people to occupy land even if it was vacant.
He also argued that there had not been any submissions from Malema's legal representative on what type of land qualified as vacant land and who it belonged to.
The hearing continues.