Apartheid-era acts scrutinised
EFF argues in Constitutional Court legislation too broad, unreasonable and unjustifiable
THE EFF and its leader Julius Malema have described two apartheid-era pieces of legislation as criminalising speaking, being too broad, unreasonable, unjustifiable and a gross invasion of the freedom of speech.
Advocate Tembeka Ngcukaitobi, arguing on behalf of Malema and the EFF, told the Constitutional Court that the Riotous Assemblies Act of 1956 legalised punishment for speaking.
Malema had been charged under the act following his calls for South Africans to occupy vacant land.
Malema and the EFF are appealing the North Gauteng High Court ruling that dismissed their application for a declaratory order that constitutionally interpreted another apartheid-era statute, the Trespass Act of 1959, as not applying to occupiers of land protected by the Extension of Security of Tenure
Act (Esta) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (Pie).
“One of the elements of this legislation is that there is no connection whatsoever between the speaker and the doer,” Ngcukaitobi said.
“It is over broad, it is unreasonable, it is unjustifiable, it is a gross invasion of the freedom of speech”.
According to Ngcukaitobi, the right that he said was compromised was one of the most important rights enshrined in the Constitution.
He added that people who enjoyed protection through the Pie should not be “hit by” trespassing charges.
The EFF and its leader applied to the apex court for leave to appeal the high court’s dismissal of their contention that the Trespass Act did not apply to occupiers of land protected by the Esta and the Pie.
Ngcukaitobi said such criminalisation was not compatible with the Constitution.
Malema has challenged the Riotous Assemblies Act, stating that he should not be charged through the apartheid law that criminalised political activists.
Justice Chris Jafta asked Ngcukaitobi why the EFF had not used its presence in Parliament to change apartheid legislation.
“Your clients are represented in Parliament and it is the duty of Parliament to see to it that legislation passed by the apartheid Parliament which doesn’t belong to the statute books now is removed.
“And that has not happened,” Justice Jafta said.
Ngcukaitobi said: “The EFF began a campaign three years ago for all apartheid statutes to be removed but it has not gained traction.”
Justice Jafta asked whether the EFF and Malema were arguing that the state should ignore minor crimes, saying this was not in accordance with the rule of law, according to which no crime should be ignored.
Ngcukaitobi said there was no argument that less serious crimes should be ignored.
The Socio-Economic Rights Institute of SA (Seri), which joined the case as a friend of the court, urged the court to look at how incitement was criminalised across the world.
Seri’s advocate Stuart Wilson said internationally the incitement offence was not as broad as in South Africa and that section 18 (2) (b) of the Riotous Assemblies Act was too broad.
Hilton Epstein SC, arguing for Justice and Correctional Services Minister Ronald Lamola and National Director of Public Prosecutions Shamila Batohi, said it would be irresponsible to strike down the act.
Judgment was reserved.