Pretoria - EFF leader Julius Malema is challenging the constitutionality of the Riotous Assemblies Act in the Gauteng High Court, Pretoria, where his advocate on Wednesday said it was apartheid legislation which did not belong on the law books.
Malema has been charged with violating the Act on at least two occasions - in Newcastle in KwaZulu Natal and in Bloemfontein - when he urged supporters to invade vacant land.
His criminal trials had been put on hold pending the outcome of his constitutional challenge.
Advocate Thembeka Ngcukaitobi told a full bench - three judges lead by Deputy Judge President Aubrey Ledwaba - that this Act had only been used in about three instances to prosecute people. He said it is clear that Malema was singled out to silence him.
Ngcukaitobi said the law was passed in 1956 by the Apartheid regime to silence those who spoke out against the white minority. “The then government used the Act as a tool to suppress freedom of speech...It was to stop Nelson Mandela from shouting 'Amandla.’”
He told the court that the then government’s biggest fear was that black people would stand on the podium shouting “Amandla.”
According to Ngcukaitobi, the Act had to be viewed against its historical background. He said with our new dispensation it can never be allowed that this Act remained on the law books, as it criminalised freedom of speech.
He said Malema faced a jail sentence under this Act if he continued to make political speeches in which he urged the landless to occupy vacant land. “We are in a political climate with elections around the corner. The EFF must have the right to voice their manifesto without fear.”
He said Malema never incited violence, he simply made a political speech when he urged people to invade the land.
This urged Judge Cynthia Pretorius to question whether this was “all he said.”
Ngcukaitobi said it was, as all Malema said was “if you see vacant land and you are homeless, occupy it.”
He said there were no private property rights at stake, as Malema spoke about vacant land.
He told the court that Malema was targeted for making political speeches, while all he in fact did was to express his sentiments that the EFF could not wait for the ANC to make land available to the landless.
“One can never criminalise speaking the truth,” he said.
“Today I am here representing a powerful politician, Mr Malema. Tomorrow an ordinary citizen will call for the occupation of vacant land. Will we all be arrested for this,” he asked.
Ngcukaitobi argued that law passed under the minority regime for reasons of oppression can never be tolerated under the new regime.
While several EFF bodyguards lined the corridors inside the court and guarded the entrance to the court, Malema was not spotted there this morning. His deputy Floyd Shivambu, was however in court.