The case of Julius Malema and AfriForum is an interesting one, as it exposes the complexity of running a democratic country with laws that once were used as instruments of oppression.
Malema is by no means an unfortunate target in this instance. His rise to power with the Economic Freedom Fighters (EFF) was founded on tapping into the core of the frustrations of the poor.
Land, employment, nationalisation and ‘white monopoly capital’ are just some of the instruments the EFF uses, to this day, to rally up the support of the majority in this country.
In 2014 he engaged crowds in Bloemfontein and Newcastle (Kwa-Zulu Natal) respectively, he got himself in trouble.
AfriForum, responding to Malema’s calls for people to occupy vacant, filed charges against the EFF leader, citing the Rioutous Assemblies Act, as well as the Trespass Act, as reasons why he should be prosecuted.
This is an interesting case because it involves two laws that were enacted during apartheid. How, then, in the modern context of where South Africa is and what Malema did, do these two laws come into play?
Let’s take a deep dive and understand how to interpret these two laws.
The Riotous Assemblies Act of 1956
The Congress of the People was a historic gathering before the name became adopted as a political party.
According to the O’Malley archives, the events that took place in Kliptown, June 1955, inspired the enactment of the Riotous Assemblies Act.
Every single liberation movement, the African National Congress (ANC), the South African Indian Congress (SAIC), the South African Coloured People’s Congress (SACPC), the South African Congress of Democrats (SACD) and the South African Congress of Trade Unions (COSATU) gathered in that space to draw up the historic Freedom Charter.
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The result of this led to the arrest of 156 activists and the commencement of the infamous treason trial. This is how the Riotous Assemblies Act was established. Its sole purpose was to prohibit gatherings in public places where it was deemed that they would endanger the public’s peace.
Malema’s case holds less weight than that of the birth of the Freedom Charter, that’s a no-brainer. He called on people to occupy vacant land and broke several interdicts that ban him from endorsing land occupation.
Did he then break the Riotous Assemblies Act in doing this? This is the argument.
His defence, led by Advocate Thembeka Ngcukaitobi, have rubbished this, stating that, in the first place, Malema should not be in court arguing over a law that was birthed to oppress black people during apartheid.
The Trespass Act 6 of 1959
The Trespass Act is of a different nature to the one we have just discussed. This Act is very specific and straight to the point.
It states the following:
“Any person who, without the permission of the lawful occupier of any land or any building or part of a building; or of the owner or person in charge of any land or any building or part of a building that is not lawfully occupied by any person, enters or is upon such land or enters or is in such building or part of a building, shall be guilty of an offence unless he has lawful reason to enter or be upon such land or enter or be in such building or part of a building.”
This is a criminal offence that is punishable by a fine (not more than R2 000) or a prison sentence not exceeding two years.
To prosecute Malema for inciting a wide range of trespassing in Bloemfontein and Newcastle would set a lengthy, time-consuming and expensive precedent.
The law was created in the apartheid era but serves a purpose in modern times for the protection of our property. However, if Malema is found guilty of inciting trespassing, does it mean that the lobby group will press charges against every group of people that have gone and built homes on vacant land?
The outcome of this case will, undoubtedly, set a bar for the impending land reform process that has been adopted into Parliament already.
This news release does not necessarily reflect the opinion of SA-news.
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