The EFF and its leader Julius Malema’s attempt to overturn apartheid-era legislation under which the firebrand politician is charged failed in the Constitutional Court on Friday.
Malema and the EFF wanted the apex court to overturn a 2019 North Gauteng High Court ruling dismissing their application for a declaratory order that constitutionally interpreted, the Trespass Act of 1959 did not apply to occupiers of land protected by the Extension of Security of Tenure Act (Esta) and the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE).
He is facing three identical charges, which were laid between 2014 and 2016, relating to unlawfully and intentionally inciting, instigating, commanding or procuring EFF followers and/or others to commit a crime by trespassing by illegally occupying any vacant land wherever they found it.
“Malema and the Economic Freedom Fighters’ prayer for an order declaring that the Trespass Act does not apply to unlawful occupiers under the PIE is refused,” the ConCourt found.
According to the majority judgment written by Chief Justice Mogoeng Mogoeng, the high court’s decision declaring section 18(2)(b) of the Riotous Assemblies Act unconstitutional and invalid to the limited extent dealing with sentence is set aside.
The section states that any person who incites, instigates, commands or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
Instead, the apex court ruled that the section is declared inconsistent with section 16(1) of the Constitution and invalid to the extent that it criminalises the incitement of another to commit “any offence”.
Section 16(1) of the Constitution states that everyone has the right to freedom of expression, which includes the freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research.
The ConCourt suspended the declaration of invalidity for a period of 24 months to enable Parliament to rectify the constitutional defect.
”During the period of suspension of the order of invalidity, section 18(2)(b) of the Riotous Assemblies Act should be read as follows: “(2) Any person who— (b) incites, instigates, commands, or procures any other person to commit, any [serious] offence, whether at common law or against a statute or a statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable,” states the ruling.
The ConCourt continued: “Should Parliament fail to cure the defect within 24 months from the date of this judgment or within an extended period of suspension, the reading-in will become final.”
In his dissenting judgment, Justice Steven Majiedt wrote that he would have declined to confirm the invalidity of the sentencing part of the impugned provision of the Riotous Assemblies Act, granted leave to appeal and dismissed the EFF and Malema’s appeal but would make no order on the costs.