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The Economic Freedom Fighters will head to the Constitutional Court to challenge the constitutionality of The Riotous Assemblies Act after party leader Julius Malema failed in his bid to challenge the act at the North Gauteng High Court.
According to a seething Malema, who addressed journalists after the high court’s judgment, the act needed to be declared unconstitutional.
His argument was that the act was passed under the apartheid government and had since been used as a tool “to oppress black people and has no place in the new democracy”.
Malema said: “The court ... partially agrees with us, that section 18 2B, which was used to charge us, is unconstitutional and referred the matter to the Constitutional Court. Therefore we will also appeal directly to the Constitutional Court because we still believe that the Riotous Assemblies Act is unconstitutional in its entirety.”
The EFF leader expressed these sentiments after the judgment passed by Judge Aubrey Ledwaba.
He said: “We find that there is no reason to order the declaratory relief requested by the applicant. The applicant’s argument regarding the Trespass Act is in fact nothing more than a defence to a charge against Mr Malema. This is that he did not possess the required intention to commit the crime of incitement. It is not for this court to decide this issue as it should rather be dealt with by the criminal trial court.”
In his ruling, Ledwaba dismissed Malema’s application for declaratory relief to the charge of incitement. In his own defence, the EFF leader citied the Trespass Act, arguing that the law no longer criminalised unlawful land occupation.
The charges date back to 2014, when at the EFF’s elective conference in Bloemfontein, Malema told party members that they should occupy land.
During his initial court appearance in Bloemfontein in 2016, he again told supporters who had gathered outside the court to take any “beautiful piece of land” they saw because “it was taken from blacks”.
Malema was charged for allegedly violating the act twice after he also told his supporters from Kwazulu-Natal to forcefully occupy land.
Malema argued that the charges criminalised his Constitutional right to freedom of expression.
But the department of justice and the national prosecuting authority argued that it did not limit the right of freedom of expression.
The court’s partial agreement with the EFF gave Malema relief and he saw this as a victory because he was not charged with the entire act.
“We have gained access to the Constitutional Court and that is ultimately where we wanted to go,” he said
