NPA free and required by law to resume prosecution of Julius Malema – Sakeliga

After last week’s Constitutional Court judgment on incitement and trespassing, the National Prosecuting Authority (NPA) is now not only authorised to proceed with the hitherto suspended prosecution of Mr Julius Malema, but indeed required to do so by law.  

This is the view of business group Sakeliga, who acted as amicus curiae in the matter of the Economic Freedom Fighters and Julius Malema v The Minister of Justice and Constitutional Development and The National Director of Public Prosecutions.  

In his founding affidavit, Mr Malema stated that the NPA “postponed [the criminal case on the crime of incitement to trespassing against me] pending the outcome of this [Constitutional Court] process.” However, since the crime of trespassing still clearly fits the Court’s amended definition of a serious offence, and since the Court dismissed the EFF’s prayer to circumscribe the Trespass Act, further suspension of prosecution by the NPA would not be justified. The NPA is therefore now authorised and required by law to proceed with prosecution. 

See letter to the NPA HERE.  

Mr Malema and the EFF apparently seek to celebrate the judgment as a victory, but the scoreboard says otherwise. It should be recalled that their first prayer was to have section 18(2)b of the Riotous Assemblies Act declared “unconstitutional and invalid in its entirety”. Their second was to have the application of the Trespass Act severely circumscribed. Neither prayers were granted.  

With regard to the first prayer, the Constitutional Court simply inserted as an interim measure the word “serious” into section 18(2)b, meaning that incitement to an offense is a crime for “any serious offense,” and not “any offense”. Meanwhile, the court gave parliament two years to rectify the shortcoming in another way, failing which the insertion of “serious” would become permanent.  

Importantly, the Court did not make any finding regarding the seriousness of Mr Malema’s specific incitement(s) to unlawfully occupy property. Paragraph 51 of the order makes it clear that offences should only be considered not serious when they threaten no serious harm or danger to “individuals, society or public order, property or the economy,” as follows:  

“[51] And it bears repetition that there should be no debate about the need for or benefits of the inchoate crime of incitement. Its usefulness is mundane. But what is inescapable is that legislation that limits free expression may not do so by proscribing the incitement of just “any offence”. The limitation must not extend to minor offences or offences that threaten no serious harm or danger either to individuals, society or public order, property or the economy.” 

Incitement to infringe upon a constitutional right to property no doubt constitutes a serious offence as per the Court’s amended definition of the offence of incitement. A call to mass landgrabs clearly constitutes a danger to personal rights, society at large, public order, property, and the economy. In fact, such incitement is not only an assault on public order and basic constitutional rights, but on the rule of law in general.  

With regard to the second prayer, of circumscribing the application of the Trespass Act, the Constitutional Court refused it completely. Trespassing remains in the view of the court the same crime it was, and Mr Malema and the EFF’s pleas in this regard had no effect. 

In summary: contrary to the EFF and Mr Malema’s prayers to the Constitutional Court, the Court maintained the criminality of incitement, albeit limiting it to incitement to serious offences, which is of the kind Mr Malema incited people to. Moreover, the judgment also declined the applicants’ prayers to water down the Trespass Act. The EFF is therefore mistaken in the favourable interpretation of the judgment in its media statement on Friday, since Mr Malema now faces resumption of prosecution by the NPA.  

Sakeliga is pleased to note in the judgment that many of its arguments had found favour with the Court.  

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