EFF to head to ConCourt after Riotous Assemblies Act challenge fails

Fighters' leader relieved the Gauteng High Court partially agreed with the party

EFF to head to ConCourt after Riotous Assemblies Act challenge fails

4 July 2019

The Economic Freedom Fighters (EFF) party is heading to the Constitutional Court to challenge the constitutionality of the Riotous Assemblies Act in its entirety, after a full Bench of the Gauteng High Court in Pretoria found that only part of the act was unconstitutional.

The court challenge was instituted after EFF leader Julius Malema was charged for allegedly violating that act twice, when he ordered his supporters to occupy land in KwaZulu-Natal and Bloemfontein.

Malema argued that it criminalised his Constitutional right to freedom of expression.

But the Department of Justice and the National Prosecuting Authority (NPA) argued that it did not limit the right of freedom of expression.

Gauteng High Court Judge Aubrey Ledwaba explained that the EFF applied to have the act struck down in its entirety. He dismissed this and found that the crime of incitement was not overboard and not of limitless scope.

"Properly understood, the crime of incitement is the intention by word or conduct to influence the mind of another by furtherance of commitment of a crime. The section criminalises conduct that forms part of the exclusion to the right of freedom of expression, listed in Section 62 of the Constitution, such as the incitement of violence."

The full Bench dismissed Malema's review.

"Any objection to be charged should be made at the criminal court pursuant to Section 85 of the Criminal Procedure Act," Ledwaba said.

Malema also asked the court for declaratory relief to the charge of incitement, citing the Trespass Act. He argued that the law no longer criminalised unlawful land occupation.

"We find that there is no reason to order the declaratory relief requested by the applicant. The applicant's argument regarding the Trespass Act is in fact nothing more than a defence to a charge against Mr Malema. This is that he did not possess the required intention to commit the crime of incitement. It is not for this court to decide this issue as it should rather be dealt with by the criminal trial court."

Reacting to the judgment, Malema said he was relieved the court partially agreed with the EFF that a part of the Riotous Assemblies Act was unconstitutional.

He said the EFF would challenge the full act in the Constitutional Court, because the party believed it was unlawful.