EFF leader Julius Malema has effectively been accused of using the same stalling tactics as former president Jacob Zuma in his bid to evade criminal charges for encouraging his party’s followers to occupy vacant land.
Justice and Correctional Services Minister Ronald Lamola and National Director of Public Prosecutions Shamila Batohi have told the Constitutional Court that Malema and the EFF were pre-empting the determinations of the trial court.
“This court, noting the lengthy delays in the commencement of especially high-profile criminal trials, has held that dilatory constitutional applications in criminal matters are to be discouraged.
“Deploring the ‘Stalingrad defence’, as deployed by a prominent accused, this court observed that trials should start ‘sooner rather than later’,” read heads of argument by Lamola and Batohi’s counsel, Hilton Epstein, SC, Michael Osborne and Palesa Khoza, filed in the Constitutional Court last month.
Lamola and Batohi were referring to the fraud and corruption charges Zuma faces and his bid to delay having his day in court, as well as controversial businessman Dave King’s attempts to evade 322 counts of fraud, tax and exchange control regulations, money- laundering and racketeering.
King eventually agreed to pay the taxman and the prosecution almost R720million in 2013.
“A related problem is that collateral civil applications tend to pre-empt the criminal trial to come,” Lamola and Batohi stated in their court papers.
They also warned that Malema could be more socially dangerous and infinitely destructive due to the nationwide audiences he reaches.
Describing Malema as a “rabble-rouser”, Lamola and Batohi argued that he reached a large audience – numbering in the hundreds of thousands (if both broadcast and social media were considered) – and that there would be chaos if a small fraction of those addressed acted on his words.
“For a public figure to incite a crowd – and a nationwide audience to boot – could be more socially dangerous than any individual act. History shows that the harm triggered by the words of a single leader may be infinitely more destructive than any individual conduct,” they added.
According to Lamola and Batohi, while a single invasion could cause local civil disorder, mass invasions stoked by populist demagogues could threaten the social fabric itself.
Malema has told the court his calls contribute to a vital national discussion, but Lamola and Batohi dismissed this, saying encouraging lawlessness contributed nothing to public deliberation.
The EFF and Malema want the apex court to confirm the North Gauteng High Court’s ruling that declares parts of the apartheid era’s Riotous Assemblies Act of 1956 unconstitutional and invalid for punishing the inciter of a crime with the same sanction as the perpetrator of the incited crime.
They have also applied for leave to appeal the High Court’s refusal to declare the same section of the act unjustifiably infringed on their freedom of expression.
In July, a Full Bench of the North Gauteng High Court – Deputy Judge President Aubrey Ledwaba, judges Cynthia Pretorius and Daisy Molefe – declared the section of the act unconstitutional and invalid to the limited extent of dealing with sentencing.