Violence instigators could still face terrorism and treason charges

Those who instigated and encouraged the deadly violence which gripped Gauteng and KwaZulu-Natal and left hundreds dead could face murder or treason charges, according to a criminal law expert.

With the National Prosecuting Authority (NPA) contemplating how to prosecute at least four people arrested for instigating last week’s violence, criminal law expert Prof James Grant says that incitement to commit violence is a serious crime, and carries serious penalties.

He said where people were killed and property damaged and this could be linked to a specific person who called for the violence, then those who made the calls could also be changed with murder or malicious damage to property.

“It is definitely not a trivial crime. The courts will view this crime in a very serious light, especially as lives have been lost,” said Grant.

President Cyril Ramaphosa on Sunday said an “insurrection” was behind the violence which left nearly 300 people dead and which saw billions of rand worth of infrastructure damaged.

Grant said with government having labelled the violence as a type of insurrection certain other charges such as sedition, terrorism and treason could potentially be pursued against the instigators or masterminds of the violence.

He said depending on the evidence, those behind the violence could be charged for violating the Protection of the Constitutional Democracy and Against Terrorist and Related Activities Act.

“It all depends on the evidence that can be gathered. There is no such crime as insurrection though those behind insurrection can be charged with terrorism, treason or sedition.

“Sedition is the defiance of the authority of the state, but without actually trying to overthrow the government, while treason involves trying to overthrow the government or change the constitutional democracy.”

He said terrorism and treason carried a sentence of up to life imprisonment while inciting violence carried a sentence of between five and 10 years.

Grant said to prove crimes like terrorism, sedition and treason prosecutors would need to show a degree of organisation and communication between individuals, because these are typically not offences which you can commit by yourself.

“To prove treason you would have to be able to show that there was a hostile intention towards the existing constitutional order and state of the country.

“To prove sedition prosecutors would have to show that there was the hostile intention to challenge the constitutional authority without meaning to overthrow the state.”

Grant’s comments follow an apparent growing difference in opinion between justice minister Ronald Lamola and the NPA over what charges those who were arrested for instigating the violence could face.

On Wednesday Lamola briefed parliament’s portfolio committee on justice and correctional services about processes to be followed regarding the arrest and prosecution of people involved in the violence and looting.

He said the burning of national key installations, disruptions of economic activities, blockading of national roads — leading to disruptions of key supplies such as food and medicine with dire consequences for thousands of people — could fall within the parameters of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act.

Lamola said: “This act is one of the critical pieces of legislation designed for the protection of our constitutional democracy.

“Law-enforcement agencies have to investigate all those who violated the spirit and letter of the act, and the other laws of the republic.”

But, on Thursday, the NPA said it did not have evidence that proved that the arrested alleged instigators committed crimes against the state, treason or sedition.

“At this stage there is no evidence to that effect, hence no-one has been charged with those serious offences,” said NPA spokesperson Mthunzi Mhaga in an interview with eNCA’s Thulasizwe Simelane.

Mhaga was being quizzed on the arrest of former Ukhozi FM DJ and staunch Jacob Zuma supporter Ngizwe Mchunu; Patriotic Alliance member Bruce Nimmerhoudt; ANC ward councillor Clarence Tabane; and Sbusiso Mavuso.

The four are alleged to be among 12 instigators responsible for the looting spree.

Mchunu made a brief appearance at the Randburg magistrate’s court on Wednesday on charges of incitement to commit public violence. He was remanded in custody until next Wednesday for a formal bail application.

Mhaga told the media that Mchunu allegedly made utterances during a press conference in Johannesburg and these amounted to incitement to commit public violence.

Nimmerhoudt appeared briefly at the Roodepoort magistrate’s court on Monday, where he was charged with inciting violence in Gauteng.

A mayoral candidate for the PA in the West Rand municipality, Nimmerhoudt is allegedly behind a voice note which was circulating on WhatsApp inciting people on the West Rand to join in the violence.

His case has been postponed to July 26 for verification of information.

NPA spokesperson Phindi Mjonondwane said Mavuso, who has also been charged with incitement to commit public violence, appeared in a Westonaria courtroom on July 19. His case was postponed to Friday July 23 for a bail application.

She said Tabane, who also faces charges of incitement to commit public violence, appeared in the Roodepoort court on Tuesday, with the case postponed to July 27 for his bail application.

Mhaga told  Simelane that Mchunu and the other accused had been charged with the commission of the offence of incitement to commit public violence because that is the evidence at the NPA’s disposal.

“Investigations may reveal otherwise, but for now, we are sticking with this charge of incitement to commit violence.”

On whether Mchunu would be facing more serious charges, Mhaga said:, “We look at the seriousness of the offence, we look at the categorisation of these offences in terms of looters, organised looters and the instigators.

“The NDPP has expressed clearly that when there is evidence that points to the commission of more serious offences like treason and terrorism, we will not hesitate to charge those people. But we will be guided by the evidence.”

He said though it has not been proven that Mchunu is indeed one of the instigators, the NPA views incitement to commit public violence in a serious light.

“That is why we classify him as an instigator because of the ripple effects of the statements that he allegedly made.”

Rodney de Kock, the deputy national director of public prosecutions responsible for national prosecution services, who briefed parliament on Wednesday alongside Lamola, said the NPA, working with the police, had divided cases into four categories.

This started from low-level perpetrators, who included individual looters and people who participated in stealing from shops, to people found in possession of stolen property.

De Kock says justifiable cases from the two categories may result in restorative justice or alternative measures such as admission of guilt fines, diversions or plea agreements as a means of finalising them.

Of groups and individuals who stole property in big quantities, or who organised or planned action, De Kock said these were likely to be crime syndicates who seized an opportunity to commit crime for profits.

“If found to be syndicates, they will be charged with racketeering and may face life in prison. Their cases would be overseen by senior prosecutors and this work fell within the organised-crime component.

“These colleagues are particularly trained and skilled to deal with organised crime, and this category of the work is clearly organised crime,” said De Kock.

“So we must not be afraid to call it out for what it is. It is crime, it is organised, and if we find that syndicates have been in operation here, we will charge people with racketeering. As we know, people can get life imprisonment for this kind of offence.”

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