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The National Assembly voted against an EFF draft resolution for the House to establish a special committee to review and repeal apartheid laws.
The draft resolution was brought by EFF MP Floyd Shivambu who accused the governing ANC of neglecting legislative reform and a failure to repeal legislation that was there pre-1994.
Shivambu said South Africa had “an incomplete transition”, as there is still lots of legislation that exists from “the colonial-cum-apartheid” past. This was part of the transition agreement whereby all laws that existed under apartheid were going to be enforced unless repealed.
In the first democratic Parliament, there was a process or rationalisation of laws to try to bring into commonality some of the legislation that existed in different territories such as in the bantustans.
“It repealed certain legislation and brought into some sense the kind of laws that we have to govern our society.
“But there is still a lot of legislation that defines the nonsensical racist apartheid past even on petty issues that speak to how public holidays must be handled,” said Shivambu.
He cited the Prohibition of the Exhibition of Films on Sundays and Public Holidays Act – passed under apartheid in 1977 – which barred people from watching movies on Sundays and on public holidays, among the nonsensical apartheid laws still in effect.
Shivambu tackled the Riotous Assembles Act whose stated aim is to protect “Europeans against non-Europeans”, noting that this law was being used to used to prosecute EFF leader Julius Malema.
“We stand here to constitute an ad hoc committee in Parliament to identify all the laws that were passed under the colonial-cum-apartheid regime and refer them to a proper process working with the relevant organs of the state,” he said.
Shivambu said the process would call for submissions from people who are dealing with issues in their lives arising from these laws. Parliament would then repeal those laws, he proposed.
Justice and Correctional Services Minister Michael Masutha noted that Schedule 6 section 1 of the Constitution states that all law that was in force when the new Constitution took effect, continues in force unless amended or repealed and if it is consistent with the new Constitution.
“This rule equally applies to the Act [Riotous Assembles Act] which is the subject of this debate,” said Masutha.
“Imagine a country where peace and stability is compromised by public violence instigated by many through what they say and encourage in various fora, and law enforcement is left powerless because the only effective tool available to the state to meaningfully counter such undesirable action is an old law passed under apartheid,” he said.
“This, even if it has since been amended by a democratic Parliament, at least in so far as its provisions that are relevant in this instance, despite it commencing with a preamble that is no longer appropriate under a constitutional democracy.
“This is more so in light of the fact that the EFF bases its constitutional challenge on the preamble of the law in question without necessarily confronting the specific sections that are used to charge many whose actions cause irreparable harm due to their committing crimes that have serious bearing on peace and stability in our country,” he added.
Masutha said it would be a failure by the government to ensure people’s safety if it allowed the EFF or Malema’s call to go unchallenged.
He said the Riotous Assemblies Act of 1956 remained in the statute books but with three sections only (sections 16, 17 and 18) still in force.
Those are the sections intended to deal with public safety and the handling of explosives; acts or conduct which constitute incitement to violence, conspiracy and inducing another person to commit an offence.
“We hold the firm view that regardless of the era in which the provisions were passed, they remain necessary as putting them aside without anything in their place in the immediate, would result in the state being unable to effectively respond to anarchic behaviour sought to be propagated by the EFF through a number of its campaigns aimed at promoting lawlessness,” said Masutha.
He said focusing on the preamble without the relevant sections is to adopt a narrow approach to a matter that requires a holistic interrogation of the issue at hand.
Masutha said the General Law Amendment Act of 1996, into the Riotous Assemblies Act of 1956 – in particular sections 17 and 18 – addresses the acts or conduct which constitute an incitement to public violence, hence the view that the same remains relevant and are of necessity.
Masutha said the amendment of the criminal law on section 18 addresses the issue of attempt, conspiracy and inducing another person to commit offence.
The Democratic Alliance’s Michael Cardo said 22 years after the inauguration of the first democratic Parliament, South Africa should have eradicated from its statute books all those apartheid-era laws that were used to crush opposition and stifle dissent.
“Yet, just the other day an opposition leader was charged under the Riotous Assemblies Act of 1956,” he said in reference to Malema’s case.
Cardo proceeded: “Jimmy Kruger, one of the most vicious apparatchiks of the apartheid state, used this Act to ban all public meetings in the wake of the 1976 Soweto Uprising.
“Forty years on, the ANC is now using the tools of the former oppressor to harass and persecute its democratically elected opponents,” said Cardo.
Cardo described the scenario as “so absurd, so ironic and so farcical” that were it not true “it could be the subject of a darkly comic novel”.
Cardo said the apartheid-era legislation was becoming a weapon in the arsenal of the security cluster ministers.
“They use laws that violate the constitutional values of freedom, transparency and accountability,” he said, citing how the National Key Points Act of 1980 was used to shield President Jacob Zuma from scrutiny over Nkandla.
Cardo said research by the Freedom of Expression Institute and the Wits Centre for Applied Legal Studies has shown that apartheid laws restricting access to information and media freedom continue to languish on the statute books.
When the matter was put to a debate 179 MPs voted against it, 86 voted in support of the EFF proposal, and eight abstained from the vote.
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