The Pretoria High Court on Thursday struck down Economic Freedom Fighters’ leader Julius Malema’s application to have the Riotous Assemblies Act declared unconstitutional.
The charges of inciting trespassing, against Malema, remain in place.
Malema argued the charge of incitement criminalises free expression.
But deputy judge president Aubrey Ledwaba, leading a full bench of the high court, ruled: “We find that the crime of incitement is neither overboard nor of limitless scope. Properly understood, the crime of incitement is intention by word or conduct to influence the mind of another in furthering of committing a crime.”
Ledwaba said the Act was in line with the constitution which does not allow for the incitement of violence.
“To this extent any limitation is reasonable and justified in an open and democratic society as it serves the rationale of criminalising conduct which evidences the intention to incite others to commit criminal acts.”
But the judges ruled that the section stating that someone convicted of incitement should be sentenced “as if they had actually committed the crime [which they incited]” is unconstitutional.
“There is no rational connection between the sentencing provision of the crime prevention of the section. The mere possibility of criminal sanction is enough to successfully dissuade one from inciting another,” Ledwaba said.
Malema filed an application in December to challenge the constitutionality of the Riotous Assemblies Act. This was after he appeared in the Bloemfontein magistrate’s court after being charged under the Act for allegedly inciting his supporters to invade land in 2014‚ during a speech at the EFF’s elective conference. He is also standing trial in a Newcastle court, as a result of remarks he made to supporters in the northern KwaZulu-Natal town in 2016.