EFF president Julius Malema. Picture: Siphiwe Sibeko/Reuters/African News Agency (ANA)

Johannesburg - The EFF and its leader Julius Malema have accused the government of using apartheid-era legislation to silence the firebrand politician and stop him from fighting for the landless.

The former ANC Youth League (ANCYL) president is challenging the State’s decision to charge him in terms of the Riotous Assemblies Act for inciting trespass under the Trespass Act for calling for the landless to occupy vacant land.

Malema and the EFF want the Concourt to confirm the North Gauteng High Court’s decision declaring that parts of the Riotous Assemblies Act were unconstitutional and invalid for punishing the inciter of a crime with the same sanction as the perpetrator of the incited crime.

They have also applied for direct leave to appeal the high court’s refusal to declare other provisions of the act unconstitutional as they unjustifiably infringe on the Constitution’s right to freedom of expression.

“Malema has consistently taken the position that a call for the occupation of vacant land is, necessarily, a demand for the ANC-led government to comply with the Constitution’s clear command for government to ‘foster conditions which enable citizens to gain access to land on an equitable basis,’” read the EFF and Malema’s written submissions filed last month at the Constitutional Court.

“This application specifically deals with the crime of incitement and the crime of trespass. In the past, the apartheid government used the Riotous Assemblies Act to silence political speech. Now, apparently for the first time in democratic South Africa, the State has dusted off the act to silence speech about one of the most political issues facing our country: landlessness,” the submissions says.

They further argued that Malema’s utterances were all political speech - robust and unapologetic, as political speeches in the country were known to solicit a thriving political discourse.

“In response to Malema’s speech, the state resorted to the heavy hand of the criminal law - plainly to silence him Now, if he continues to advocate for the occupation of vacant land, he does so under the chilling threat of criminal prosecution,” the papers said.

Malema and the EFF deny that the high court finding that the infringement to the right to freedom of expression was a reasonable and justifiable limitation of the right to freedom of expression.

Justice and Correctional Services Minister Ronald Lamola, who was Malema’s deputy in the ANCYL, and National Director of Public Prosecutions Shamila Batohi are cited as respondents in the matter.

Lamola has also had to address the pardoning of #FeesMustFall movement activist Khanya Cekeshe, which the EFF has also been vocal on.

Lamola in a recent written reply to a parliamentary question from EFF MP Naledi Chirwa said he had not engaged President Cyril Ramaphosa on the presidential pardon.

Lamola said in order to properly advise Ramaphosa regarding a possible pardon in Cekeshe’s case, a thorough and comprehensive evaluation was necessary to ensure that he made a rational decision with all relevant facts considered.

“Cekeshe, like any other #FeesMustFall activist, was informed of the process he is required to follow to apply and submit a request for a pardon,” he said.

He added that Cekeshe had chosen to exercise his legal right to appeal his conviction.

“This effectively means, he and his legal team believe that a different court could arrive at a different conclusion...

“As such it is impermissible for one to engage in the process which speaks to pardons.

“In order for one to invoke a pardon, one must have completed the court process, a judicial process cannot run along aside the pardon process,” he said.

Political Bureau