Malema fails in bid to have gag order rescinded

EFF leader Julius Malema’s application for leave to appeal against last month’s order that he may not insult or threaten the Gupta family and their employees, has been turned down by the North Gauteng High Court in Pretoria.

But he won’t take the decision lying down; his legal team indicated yesterday they would petition the Supreme Court of Appeal (SCA) in Bloemfontein in a bid to have the gagging order overturned.

Judge Johan Louw did not give full reasons for refusing Malema’s bid, but said after hearing arguments from both sides he was not persuaded another court would come to a different finding.

The judge last month said no reasonable and right thinking person would consider the averments made by Malema against the Guptas and their employees not to be a threat of violence, or that it was merely campaign speech for the upcoming elections.

However, advocate Ishmael Semenya SC, for Malema, argued it was all about interpretation. He said while Judge Louw interpreted Malema’s utterances against the Gupta family as being threats of violence, another court may see it in a different light.

Semenya said it must be remembered that “we are in a local government election year”.

He admitted Malema said on national television, “the Gupta brothers should leave the country” and that “South Africa was not for sale over a plate of curry”.

But according to him, these utterances were free speech protected under the constitution. Semenya said the judge erred in his findings they could be construed as a threat of violence.

“There is no evidence implicating Malema or the EFF in any utterances which can be attributed to them which threaten the Gupta family, or that they are threatening violence against them.”

Semenya said it was of public interest regarding the issue of free speech that another court have a fresh look at the facts of this case.

A political party could never be gagged from expressing its opinion.

“Malema and his party elected to use the Gupta family as their political platform for their campaign.”

Advocate Gerhard Cilliers SC, for the Guptas, argued the application was “stillborn”. He referred to the utterances “the Guptas will be removed from the country, by whatever means”, saying this was clearly a direct threat of violence against the family and their businesses.

In terms of the order issued last month after the Guptas urgently turned to the courts, Malema and his party members may not refer to the Gupta family in a threatening or derogatory manner.