Johannesburg - Expelled ANC Youth League president Julius Malema can legally address SA National Defence Force (SANDF) soldiers who are in civilian dress or off-duty, a constitutional expert said on Thursday.
“As far as I know, there is also no law that specifically prohibits a private citizen from addressing troops - even if that private citizen is Julius Malema and even if he criticises the government of the day,” law expert Pierre de Vos said in his blog, Constitutionally Speaking.
On Wednesday, Malema addressed about 60 soldiers in civilian dress at the Lenasia Recreation Centre.
The SANDF said on Thursday that it would seek legal advice on Malema's address to soldiers.
“We want to understand the legality of it and the implication. The meeting between Mr Malema and SANDF members... we need to find the legal basis of that,” said Brig-Gen Xolani Mabanga.
“We cannot think that any member of the public can just go and talk to members of the SANDF.”
Mabanga said it was also unacceptable for SANDF members to invite a person to address them outside defence structures.
“Anybody outside the established military structure and the South African government, that would be out of order. Even if they invited a pastor, or a priest or a bishop or a sangoma, or whatever,” Mabanga said.
He said SANDF members who had grievances should use existing structures to voice them and not air them with private individuals such as Malema.
De Vos said SANDF members were not expected to be apolitical or not to have their own private beliefs.
They could be politically active as long as they obeyed legal orders from their superiors.
He said a “blanket ban” on soldiers attending Malema's speech was probably unjustifiable.
“If this were a blanket ban on the attendance of soldiers (whether on duty and in uniform or not), the instruction almost certainly imposed an unjustifiable limitation on the rights of soldiers to take part in (any) political activity,” De Vos said.
Soldiers who were off-duty and in civilian garb could attend a political gathering, as long as that gathering was not unlawful.
“However, on-duty soldiers or soldiers in uniform who did attend may well face disciplinary charges and, plausibly, even dismissal,” De Vos said.
He said the law did put limits on the rights of soldiers to engage in protests or demonstrations. These rights might be limited if they were needed to maintain military discipline.
“Reports indicate that the defence force had prohibited its members from attending the Malema event (one assumes because it was thought necessary to maintain military discipline),” De Vos said.
Defence Minister Nosiviwe Mapisa-Nqakula told SABC radio on Wednesday that Malema seemed bent on turning soldiers against the state.
“You can't just go on and on and on, and be going around mobilising funeral gatherings and agitating people to become ungovernable,” she said.
“What are the consequences? I wish I knew. What I do know is that any responsible citizen in South Africa cannot associate him or herself with a person who wants to agitate and mobilise members of the SANDF against the state because they have concerns,” said Mapisa-Nqakula.
Malema spoke to a smaller crowd, of about 60, than was anticipated at Lenasia on Wednesday.
He criticised the political leadership of the country and accused it of ignoring the needs of SANDF members, including not re-instating the 1100 soldiers put on special leave for protesting at the Union Buildings in 2009.
Mabanga said some of the 60 soldiers at Malema's speech were among the 1100 members put on special leave and they could face disciplinary action for their attendance.
“They still fall under the military disciplinary code. They're still members of the SANDF,” Mabanga said.
He said they had been ordered to return to their home units and would now be charged with failing to obey that order.
Some of the other SANDF members had already been dismissed and the military therefore had no jurisdiction over them. - Sapa