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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2019-07-19

The EFF and Malema's Claim To Have Sections Of The Riotous Assemblies Act Declared Unconstitutional

Judgement was handed down on 4 July 2019 in the court applications brought by the EFF and Julius Malema's in which they asked the court to declare Section 18(2) of the Riotous Assemblies Act to be invalid.

They dis do on the basis that this section is in conflict with Section 16 the Constitution, as it criminalises a person's right of freedom of expression which is protected by the Constitution. They also wanted Malema's criminal charges under the Trespass Act, to be reviewed and set aside.

They asked the court to issue a declaratory order that Section 1(1) of the Trespass Act did not apply to occupiers of land who are protected by the Extension of Security of Tenure Act as well as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act).

For a background into this, in 2016 Malema was criminally charged for incitement to commit a crime, when he asked his followers to illegally occupy any vacant land wherever they found it.

The criminal trial was not finalised when the EFF prematurely approached the high court. The high court said that the absence of the criminal trial court making its ruling meant that the high court could not be expected to make any such order against Malema.

The high court found EFF failed to show that there was any conflict in the Trespass Act with that of the PIE Act. Because the criminal trial proceedings had not been finalised, the high court could not make any pronouncements on the validity of the criminal charges of incitement to commit a crime, which were brought against Mr Malema.

However, the court did say that "heated political rhetoric" does not necessarily constitute a crime of incitement. The court said our right to freedom of expression extends to all conduct, which is not excluded in section 16(2) of the Constitution.

The court however found that Section 18(2)(b) of the Riotous Assemblies Act to be declared invalid only insofar as sentence of an offender is concerned. It said that to the extent that it allows for those that incite crimes to be liable to the same punishment as if they had in fact committed such a crime, that this was unreasonable against the constitution and therefore invalid.

The court ordered that its declaration be referred to the Constitutional Court for the Concourt to confirm its ruling.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.