Malema lodged the dramatic attack on the State through his legal counsel advocate Tembeka Ngcukaitobi after counsel for the State argued yesterday the EFF leader was not the first person to be charged under the Riotous Assemblies Act in post-apartheid South Africa.
State counsel 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 launched 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.
Malema is accused of having encouraged his EFF supporters to occupy vacant land. In one of the incidents, he is charged for allegedly telling his supporters to occupy vacant land which was taken away from black people through genocide by white people.
He argued that he was charged under a law - the Riotous Assemblies Act - which was promulgated during apartheid to suppress black political parties and leaders such as Nelson Mandela.
Malema said 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. He said that as a result of the promulgation, Mandela and more than 140 others were charged with treason under the same act in 1956, in what famously became known as the Treason Trial.
Asking the State to declare the act 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 after more than 20 years in power.
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 had prosecuted under the act. He admitted that in at least three cases, the State had used the act to convict people who were charged under the Contravention of the Sexual Offences Act. His explanation included that at least two people who slept with prostitutes had resulted in the conviction of all of them. The other case involved three people who were convicted for conspiring to kill rhinos.
“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 one charges should continue against Mr Malema,” Ngcukaitobi said.
He reiterated to the full bench of the High Court to uphold Malema’s application to declare the Riotous Assemblies Act unconstitutional and illegal.
Judgment was reserved.