Court grants EFF two ‘friends’ for battle over apartheid-era legislation

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Johannesburg - Two organisations have been accepted as friends of the court in the legal battle brought by the EFF and its leader, Julius Malema, to challenge apartheid-era legislation under which the firebrand politician faces criminal charges. The Socio-Economic Rights Institute of SA (Seri) and Afrikaner non-profit company, Sakeliga, have been granted permission by the Constitutional Court to join the EFF and Malema’s challenge against Justice Minister Ronald Lamola and National Director of Public Prosecutions, Shamila Batohi. The apex court has ordered that the two organisations be admitted as amici curiae (friends of the court). Chief Justice Mogoeng Mogoeng has given both Seri and Sakeliga until Monday to file their written submissions, and other parties in the matter will be given an additional week to respond. Seri and Sakeliga have been granted leave to make oral submissions when the matter is heard on February 18.

Malema and the EFF are challenging two pieces of apartheid-era legislation under which the leader of the country’s third-largest political party is charged with inciting his party’s followers to occupy land.

In her founding affidavit filed at the Constitutional Court last month, Seri executive Nomzamo Zondo told the apex court that a strong and healthy constitutional democracy ought to be robust enough to cope with civil disobedience.

“It ought not to criminalise those who advocate for it. In this regard, Seri will submit that, insofar as the (North Gauteng) High Court dealt with activism and civil disobedience in its judgment, it fell into error, both in its failure to properly identify and give weight to an activist’s legitimate interest in advocating for civil disobedience,” reads Zondo’s affidavit.

She said the high court also failed in its evaluation of the impact of parts of the Riotous Assemblies Act of 1956 on the right to advocate for political action involving civil disobedience.

According to Seri, section 18 (2) (b) of the Riotous Assemblies Act encourages insubstantial and foolish prosecutions of expression, whether or not that expression really amounted to incitement.

Zondo said the fact that the accused in such prosecutions would probably be acquitted did not address the problem and the mere institution of a prosecution for what turned out to be protected speech could destroy a person’s reputation and create a general reluctance to speak out for fear of prosecution for incitement.

Seri believes this unjustifiably limits the right to free expression and that the range of incitement criminalised is too broad.

Malema is facing three identical charges, which were laid between 2014 and 2016, relating to unlawfully and intentionally inciting, instigating, commanding or procuring EFF followers and/or others to commit a crime by trespassing, by illegally occupying any vacant land and committing the crime of incitement. His trial has been postponed pending the finalisation of the matter in the apex court.

The EFF and Malema have also applied for leave to appeal against the high court’s rejection of their contention that the Trespass Act of 1959 does not apply to occupiers of land protected in terms of the Extension of Security of Tenure Act and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

Political Bureau