The EFF's Julius Malema and Floyd Shivambu. Photo: Bongiwe Mchunu/African News Agency (ANA) Archives

Johannesburg - The charges of incitement under the notorious Riotous Assemblies Act in post-apartheid South Africa against EFF leader Julius Malema will soon be dropped.

This is according to EFF deputy leader Floyd Shivambu after the conclusion of Malema’s application in the High Court in Pretoria on Wednesday to declare Section 18 (2) (b) of the Riotous Assemblies Act unconstitutional and unlawful.

Shivambu said his party’s legal representative “has put up a superior legal argument” to justify the withdrawal of charges against Malema.

He made the comments, after Malema’s legal counsel, advocate Tembeka Ngcukaitobi, had argued in court that the State had used cases of people who were convicted for sleeping with prostitutes and killing rhinos, to justify the continuation of criminal charges against Malema.

Ngcukaitobi lodged the dramatic attack after counsel for the State argued on Wednesday that the EFF leader was not the first person to be charged under Riotous Assemblies Act in post-apartheid South Africa on similar facts.

State counsel advocate Hilton Epstein is opposing Malema’s application in the High Court in Pretoria to declare Section 18 (2) (b) to be unconstitutional and unlawful. Malema made the application in the High Court after civil society organisation AfriForum lodged incitement charges against him for comments he made on December 16, 2014 in Bloemfontein, June 26, 2016, and November 7, 2016 in Newcastle.

In all these instances, Malema is accused of having encouraged his EFF supporters to occupy vacant land.

In court on Wednesday, Malema argued that he was charged under a law which was promulgated during apartheid to suppress black political parties.

Malema argued that the specific section of the law was promulgated in 1956 following the adoption of the Freedom Charter by the ANC in Kliptown, Soweto, in June 1955.

Asking the State to declare the Act unlawful and unconstitutional, Malema argued that he was charged under the same Act, for merely expressing the view that the ANC had failed to restore land to black people.

Ngcukaitobi argued that Malema was the first person to be charged under the same Act in post-apartheid South Africa, but the State disagreed.

Epstein gave the court a list of cases in which the State prosecuted under the Riotous Assemblies Act. He admitted that the State used the Act to convict people who were charged under the Contravention of the Sexual Offences Act.

Ngcukaitobi said the State used cases of people who were convicted for conspiracy under Section 18 (2) (a).

“Mr Malema is challenging the constitutionality of Section 18(2)(b) which relates to freedom of speech. The State has failed to produce a single case to justify why charges should continue against Mr Malema,” Ngcukaitobi said.

Judgment was reserved.

The Star