Riotous Assemblies Act has no place in SA, says counsel for Julius Malema

The Economic Freedom Fighters (EFF) have called on the Constitutional Court to uphold a high court ruling that a section of the Riotous Assemblies Act is unconstitutional.

Thembeka Ngcukaitobi, counsel for EFF leader Julius Malema, on Tuesday submitted that the act was put in place to resolve the conflict between non-European and European nationals, and that it was intended as an instrument of oppression which had no place in a democratic South Africa.

Ngcukaitobi said there were certain features of the act that were non-justifiable.

His client, Malema, had been charged under the act following his calls for South Africans to occupy vacant land.

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Ngcukaitobi told the court it was unconstitutional for Malema, who in this case was regarded as an inciter of land grabs, to be charged in the same scope as those who would potentially carry out the act.

He argued that this amounted to Malema being “punished for speaking”, and this was a gross violation of freedom of speech.

“The purpose of the law was never to catch the doer of the act but it was to catch the speaker,” Ngcukaitobi said.

As the court heard arguments from the department of justice, the National Prosecuting Authority (NPA) and other interested parties, chief justice Mogoeng Mogoeng tried to explore how far an inciter could be found at fault.

He gave the example of a person travelling at the back of an ambulance with a critical patient alongside him who then spurred the driver of the ambulance to drive faster. He questioned whether this person be charged for encouraging the driver to break the speed limit.

Responding to these and other scenarios, advocate Hilton Epstein, for the state, said there was no doubt the act was meant for a different era and different purpose, and was meant to advance the system of apartheid. However, he suggested it would be irresponsible for there not be a law in place that made it illegal to incite the committing of any crime.

“If the court chose to strike down the act, it should be replaced by one with a different name,” Epstein said.

He submitted that while Malema could exercise his freedom of expression by rather mobilising people to protest against slow land reform, what could not be accepted was for him to encourage them to act unlawfully.

Besides deciding on the constitutionality of the act, the court was also hearing a second component about the constitutionality of the remainder of section 18(2)(b) and on the proper interpretation of section 1(1) of the Trespass Act 6 of 1959 (Trespass Act).

On this aspect, the court tried to establish whether occupation of land without permission still constitutes a punishable offence when taking into consideration the Trespass Act and the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act 19 of 1998, known as the PIE Act.

Contradictions exist between the two acts.

While the Trespass Act prohibits the entry or presence upon land and the entry of or presence in buildings in certain circumstances, the PIE Act suggests a land owner may not remove an occupier of his land or property without proper notice or without securing alternative accommodation for the said party. 

The constitutional court has reserved judgment on both aspects.