Apartheid law is 'good enough to charge Malema'
Shaun Abrahams forced to defend his use of 1956 Riotous Assemblies Act to prosecute EFF head for his land grab remarks
The National Prosecuting Authority and Justice Minister Michael Masutha will go to court next month to defend the state’s decision to charge Economic Freedom Fighters leader Julius Malema for inciting land grabs – under apartheid-era laws.
In scathing affidavits filed at the Pretoria High Court, National Director of Public Prosecutions Shaun Abrahams has slammed the EFF’s argument that Malema’s prosecution was politically motivated as based on nothing more than “conspiracy theories”. The heads of argument in this matter were filed in June.
In addition to denying suggestions by the EFF that he met then president Jacob Zuma and his cabinet to discuss the case against Malema, Abrahams has also dismissed the EFF’s claims that incitement charges against Malema violated his right to free speech.
“Mr Malema’s position is a frontal assault on rule of law. He contends that what his party sees as inadequacies in the land redistribution policies of the duly elected government, justifies him in urging his supporters to grab land by (to use his words) any means necessary. This is profoundly at odds with the democratic ethos of the Constitution,” Abrahams states.“Free expression is cherished in our democratic constitutional order because it protects the rights of people to hold government accountable and to change the government if they are unhappy with how it is running the country.
“It is an abuse of free speech to use it to ram through an ideologically driven agenda that would upend the constitutional settlement that bought an end to apartheid.”
Abrahams argues that “incitement has never been thought to be a form of free speech”.
He says the EFF’s attacks on the 1956 Riotous Assemblies Act is “baseless” since the law has “long since been stripped of its apartheid-era baggage”.
He has further strongly suggested that Malema’s comments, urging EFF supporters to occupy land, could lead to social unrest.
“On at least four different occasions he has urged illegal land invasions, his rhetoric tinged in some instances with a threat of violence. It can hardly be doubted that this would spark chaos and anarchy,” Abrahams said in response to the EFF’s bid to challenge the Trespass Act.Malema faces charges of incitement in relation to the following incidents:
On December 16 2014, in the Free State, he allegedly told the EFF elective conference that he was “not the Holy Spirit” and could not occupy land everywhere. He urged supporters to “be part of the occupation of land everywhere else in South Africa”; and
On June 26 2016, in Kwazulu-Natal, he allegedly said: “If you see a piece of land, don’t apologise, and if you like it, go and occupy that land. That land belongs to us.” He also reportedly told his supporters that a trust fund had been set up to assist those arrested for occupying land.
Those cases have been halted while the EFF challenges the constitutionality of the Riotous Assemblies Act and the Trespass Act. That case will be heard on September 20 and 21 in the Pretoria High Court.
The case will be heard less than two months after President Cyril Ramaphosa announced that the ANC had decided to change the Constitution to allow for the expropriation of land without compensation.The EFF is seeking an order that the Riotous Assemblies Act is invalid, as a “remnant of the apartheid order” that violates the right to freedom of expression. Second, it wants the court to set aside the NPA’s decision to prosecute Malema, on the basis that the state was driven by improper political motives.
But Abrahams argues that this allegation of an improper political motive was based “on nothing more than the timing of a meeting I attended with the president (Zuma) and ministers of cabinet”. That meeting, he says, was concerned with Fees Must Fall protests and had nothing to do with Malema.
Abrahams says the EFF application to have Malema’s prosecution quashed must fail because Malema has failed to first make representations to the NPA that the case against him should be dropped. He had therefore failed to “exhaust internal remedies”...