The EFF is seeking an order that the Riotous Assemblies Act is invalid‚ as a “remnant of the apartheid order” that violates the right to freedom of expression. Secondly‚ they want the court to set aside the decision by the National Prosecuting Authority to prosecute Malema‚ arguing that the state was driven by improper political motives.

Malema faces charges of incitement in relation to two incidents:

On 16 December 2014 in the Free State‚ when he allegedly told the EFF Elective Conference that he was “not the Holy Spirit” and could not occupy land everywhere. He urged supporters to “be part of the occupation of land everywhere else in South Africa”; and On 26 June 2016 in KwaZulu-Natal‚ when he allegedly said “if you see a piece of land‚ don’t apologise‚ and you like it‚ go and occupy that land. That land belongs to us”.

He also reportedly told his supporters that a trust fund had been set up to assist those arrested for occupying land. Those cases have been halted while the EFF challenges the constitutionality of the Riotous Assemblies Act and the Trespass Act. The NPA is opposing these applications.

Ngcukaitobi argued on Wednesday that Malema did not speak to encourage imminent violence with his utterances‚ nor did he encourage the occupation of houses.

He has further told the Pretoria-based court that the Riotous Assemblies Act had only been used to prosecute cases similar to the one against Malema three times in the democratic era‚ and strongly suggested Malema was being “singled out” with the “unique” case against him.

He said the “state has deliberately chosen to charge Mr Malema”.