The EFF has conceded that the ongoing firearm case against its leader Julius Malema could disrupt the party’s preparations for this year’s local government elections, regardless of the outcome of the court process.
Party secretary-general Marshall Dlamini said the demands of the case, including repeated court appearances, were affecting the party’s ability to focus on its campaign.
“Other parties are on the ground, but we knew that this is a fight against the EFF, so obviously they will target the head of the organisation,” Dlamini said.
“They will never defeat us. We’re a big organisation, we’re going to be able to do the work of the organisation and still come to court in defence of our president — that is the intention, to keep the EFF busy at court so it doesn’t have time to focus on the service of its people.”
He was speaking outside the East London regional court, where Malema appeared on Wednesday for pre-sentencing proceedings following his conviction on firearm-related charges.
Malema was found guilty in January by magistrate Twanet Olivier on five counts, including unlawful possession of a firearm and ammunition, discharge of a firearm in a built-up area and reckless endangerment.
The charges stem from a July 2018 EFF rally at the Sisa Dukashe Stadium in Mdantsane, during which Malema fired a semi-automatic rifle into the air.
As sentencing arguments unfolded, the case again drew large numbers of EFF supporters to the city, although in smaller numbers than Malema’s previous appearance in January.
Groups of supporters had gathered at the Jan Smuts Stadium in the morning, where a night vigil had been held, before marching under police escort towards the court precinct.
Police maintained a visible presence across key parts of the city, including Oxford Street and the Buffalo Street and Commissioner Street intersection near the court.
Additional deployments were also reported in the California area, which has experienced recent unrest.
Provincial police spokesperson Brigadier Nobuntu Gantana declined to confirm the number of officers deployed, although sources indicated reinforcements had been brought in from the Free State.
Inside court, Malema’s legal team argued strongly against a custodial sentence, urging the court to consider the circumstances of the incident and the nature of the offences.
Adv Laurance Hodes SC, for the defence, submitted that the charges arose from a single, brief incident.
Hodes argued that there had been no warning to Malema that minimum sentencing provisions could apply, and that the matter should be approached on the basis that such provisions did not apply.
He submitted that cases involving the discharge of a firearm did not automatically warrant imprisonment, and that courts were required to consider the specific facts of each case.
“To send any person to prison for this single event would be shockingly inappropriate — the lawful and appropriate sentence to be imposed cannot include a custodial sentence,“ Hodes said.
“Only a non-custodial sentence would be compatible with the principles of sentencing in South Africa.
“A deviation from that approach would simply show that the accused is being singled out.”
He told the court there had been no injuries or damage to property as a result of the incident.
“Nobody testified that they were in fear of the accused by virtue of the offences committed by him.
“Additionally, no evidence was led in aggravation of sentence,” he said.
Hodes also relied on a pre-sentencing report by social worker Jessie Thompson, which recorded that Malema had discharged the firearm as a celebratory gesture and recommended the offences be treated collectively for sentencing purposes, given that they arose from a single incident.
It proposed a non-custodial sentence, including a fine, restrictions on firearm ownership and a monetary contribution to Gun Free South Africa.
The state, however, rejected this and argued for a custodial sentence, stressing the seriousness of the offences and potential danger posed.
Advocate Joel Cesar, for the state, told the court it was not bound by the recommendations of the social worker and criticised aspects of her evidence.
“It became apparent during her cross-examination that her evidence was biased and favoured the accused,” Cesar said.
“She didn’t take all the facts into consideration such as the seriousness of the charges, the degree of danger present and that he fired 22 shots with two different calibre firearms in a very densely populated area.
“The accused also testified that he planned to possess the firearms in question.”
He further argued that the absence of evidence from witnesses who feared for their safety did not diminish the seriousness of the conduct.
“His intention was clear,” Cesar argued. “He was going to do what he wanted to do irrespective of the danger that posed.”
Cesar also criticised Malema’s conduct during the proceedings.
“He blames everybody for his actions,” he said.
“The accused has treated these proceedings with contempt. He fabricated a false account of a ‘toy gun’ that was comprehensively dismantled by the overwhelming evidence at trial.
“He refused to cooperate with investigators. He characterised this prosecution as an ‘abuse of the NPA’.
“He blamed VIP protectors, the Holy Spirit and everyone except himself. The show is over.
“This court must now ensure that justice is done — not because the accused is prominent, but because the rule of law requires that every person who commits a serious offence faces a serious consequence.
“It’s time for the court to say the show is over.
“The court must send a message to would-be offenders that if you do a crime you will do the time.”
The state asked the court to impose the prescribed minimum sentence of 15 years’ imprisonment for unlawful possession of a firearm, alternatively 10 years, along with additional penalties for the remaining counts.
Outside court, political analyst Dr Ongama Mtimka said the case highlighted the importance of public confidence in the justice system.
“That becomes even more when it’s politicians who are on trial, because these people influence the behaviour of the wider public and the attitudes that are there when it comes to how to treat this important institution of the three arms of the state,” Mtimka said.
“What is interesting for me here is that a proper reading of sentiment when it comes to what should happen in a case of possession, as well as discharging of a firearm outside of case law, many people were convinced that this only means that Julius Malema is likely to be given a sentence which is more or less to the prescribed minimum sentence without even an option of a fine.
“What’s been interesting today is to listen to how the defence has poked holes in the arguments of the state when it comes to what are the possibilities for giving that sentence, and I think that they’ve done so, so much that it makes it possible that the judge still has a lot of leeway in terms of discretion.”
Dlamini confirmed that the party would appeal against any adverse ruling.
“We’ve already got our local teams ready,” he said.
“This is just a regional court; we’re still going to take it to the higher courts, where we know that supreme judges will come to a different determination.
“Already this one [the magistrate] has been exposed several times, and we’ve asked her to recuse herself, because we could see that she’s not focusing on justice; she’s focusing on serving a specific mandate led by AfriForum.”
Addressing supporters, Malema thanked those in attendance and urged discipline.
Judgment is expected on Thursday, when the court will deliver its sentence.
Daily Dispatch
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