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The Constitutional Court yesterday ruled out apartheid-era legislation according to which the leader of the Economic Freedom Fighters (EFF), Julius Malema, has been accused of inciting land grabbing, which could pave the way for him to avoid the prosecution.
But he has not yet escaped the trouble.
The court determined that the Revolutionary Assemblies Law limited the right to freedom of expression by criminalizing incitement to “any crime” and declared part of it unconstitutional and invalid.
Parliament has been given two years to bring it up to par. And in the meantime, the court has ordered that the words “any crime” be replaced by “any serious crime.”
ALSO READ: Comments on Malema Land Grab: ConCourt Rules on Incitement Laws
But it remains to be seen what will be done with the crimes Malema is said to have incited.
Malema, whose public appeals to his supporters to occupy land have accused him of inciting illegal entry three times in the past six years, first launched a constitutional challenge to the law in 2016.
Last July, the Pretoria High Court dismissed Malema’s case and found that the section of the law was only invalid to the extent that it stated that a person convicted of inciting a crime would be “liable, at the time of his conviction , of the punishment that corresponded to a person convicted of committing a crime. that crime would be responsible ”.
But the Constitutional Court determined that the annulment order issued by the higher court had been based on an incorrect interpretation of the law. In general, he upheld the arguments presented by Malema’s legal team.
“Speaking or defending laws or crimes that are considered unjust should not be easily outlawed by law,” said Chief Justice Mogoeng Mogoeng, who drafted the sentence.
“Freedom of expression is, therefore, a right or freedom so dear to us and fundamental to our democracy and to heal the divisions of our past that it should not be interfered lightly, especially when there is no risk of harm or serious danger” .
However, he said that certain types of crimes should continue to be classified as crimes.
“The prohibition of incitement, therefore, must be tolerated in circumstances where it seeks to prevent the commission of a serious crime.”
The determination of what was “serious” would be decided for now, at least on a case-by-case basis.
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