The EFF and its leader, Julius Malema, have said that apartheid-era legislation infringes the most important rights enshrined in the Constitution.
Advocate Tembeka Ngcukaitobi, arguing on behalf of Malema and the EFF, told the Constitutional Court that the Riotous Assemblies Act was legalized punishment for speaking.
“One of the elements of this legislation is that there is no connection whatsoever between the speaker and the doer,” Ngcukaitobi said.
“It is a crime of speaking, it is over broad, it is unreasonable, it is unjustifiable, it is a gross invasion of the freedom of speech.”
Malema and the EFF are appealing the Gauteng High Court, Pretoria, ruling that dismissed their application for a declaratory order that constitutionally interpreted another apartheid-era statute, the Trespass Act of 1959, did not apply to occupiers of land protected by the Extension of Security of Tenure Act (ESTA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
According to Ngcukaitobi, the right being invaded is one of the most important of the rights enshrined in the Constitution. He added that people who enjoy PIE protection should not be hit by trespassing charges.
The EFF and its leader applied to the apex court for leave to appeal the high court’s dismissal of their contention that the Trespass Act does not apply to occupiers of land protected by the ESTA and PIE. Ngcukaitobi said the criminalization was not compatible with the Constitution.
Malema has challenged the Riotous Assemblies Act saying he should not be charged in terms of the apartheid law that criminalized political activists.
Justice Chris Jafta asked Ngcukaitobi why the EFF had not used its presence in Parliament to change apartheid legislation.
”Your clients are represented in Parliament and it is the duty of Parliament to see to it that legislation passed by the apartheid Parliament which doesn’t belong on the statute books now is removed. And that has not happened,” he said.
Ngcukaitobi agreed and stated that it was certainly not for a lack of trying on behalf of the EFF.
The Socio-Economic Rights Institute of SA urged the court to look at how incitement was criminalized across the world.
Hilton Epstein, SC, arguing for Justice Minister Ronald Lamola and National Director of Public Prosecutions Shamila Batohi, said it would be irresponsible to strike down the act.
Judgment has been reserved.