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Photo: Felix Dlangamandla
- The Constitutional Court has struck down an order from the Gauteng High Court in Pretoria, declaring a section of the Anti-Riot Act unconstitutional and invalid.
- The Constitutional Court handed down a ruling on Friday morning.
- The EFF challenged the law on the grounds that it was apartheid legislation.
The Constitutional Court issued a ruling in a complex legal matter that will have an important influence on the prosecution by the National Prosecutor’s Office of the EFF leader, Julius Malema, for allegedly inciting the population to occupy land.
On Thursday, the high court struck down an order from the Gauteng High Court in Pretoria, declaring the punishment regime of a section of the Revolutionary Assemblies Act unconstitutional and invalid.
Last year, the Superior Court ruled that the Revolutionary Assemblies Act was constitutionally invalid, to the point that it “requires that someone found guilty of inciting others to commit a crime be punished with the same severity as the person who actually committed the crime. crime”. .
However, in passing judgment on Friday, Chief Justice Mogoeng Mogoeng, who drafted the majority judgment, said that the court held that the meaning of the word “responsible” in section 18 (2) (b) of the Act “does not connote the absence of judicial discretion.”
He said:
Its correct meaning is that the inciter is liable to receive the same punishment as the actual perpetrator. The declaration of unconstitutionality by the high court is, therefore, untenable and the order it issued will not be confirmed.
Mogoeng said: “The order of the Gauteng division of the Pretoria High Court declaring unconstitutional and invalid article 18 (2) (b) of Law 17 of 1966 on Riotous Assemblies is annulled.”
The court, in the majority ruling, also determined that “the penalty for inciting others to commit ‘any crime’ is excessively broad and incompatible with the right to freedom of expression in Article 16 (1) of the Constitution.”
However, the minority ruling “indicated that the criminalization of incitement is vital in the country’s fight against the widespread crime wave.”
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The Chief Justice also said: “Mr. Julius Seal Malema and the prayer of the Economic Freedom Fighters for an order declaring that Law 6 of Transfer of 1959 does not apply to squatters by virtue of preventing evictions illegal by illegal occupation of the land The 1998 is rejected “.
The annulment operation was suspended for a period of 24 months so that Parliament could correct the constitutional defect.
The Chief Justice said that during the suspension period of the annulment order, Article 18 (2) (b) of the Revolutionary Assemblies Law should be read as “… any person who incites, instigates, orders or achieves another person committing a serious crime, whether under common law or against a law or legal regulation, will be guilty of a crime and, at the time of conviction, will be subject to the penalty that would correspond to a person convicted of having actually committed that crime. “
In 2014 and 2016, Malema called on people to occupy vacant lots. The National Prosecutor’s Office (NPA) brought charges against Malema under the same section of the law.
READ ALSO | Malema should escape punishment, hears ConCourt on the riot law request
The EFF and Malema approached the High Court to overturn the NPA’s decision to prosecute the party leader.
They also sought to declare the section of the Law unconstitutional and reinterpret the Intrusions Law to mean that it is no longer a crime.
The EFF also challenged the law on the grounds that it was apartheid legislation, which was enacted in response to the adoption of the Freedom Charter in the People’s Congress in 1955.
Advocate Tembeka Ngcukaitobi, on behalf of the EFF and Malema, argued earlier this year that the Riot Act section was out of place with South Africa’s new Constitution.
