NEWS ANALYSIS: EFF will have to eat its words to avoid incitement charge

The EFF has repeatedly used the right to freedom of expression — as well as the need for “robust political debate” — to justify its caustic attacks on political adversaries and the calls of its leader, Julius Malema, for his supporters to illegally occupy land. 

But in a ruling on Malema and the EFF’s challenge to the constitutionality of the Riotous Assemblies Act, under which the commander-in-chief has been charged with inciting trespassing, the Pretoria high court has strongly rejected that argument. 

“In our view, robust political debate is not necessarily furthered by allowing a person to intentionally incite others to commit criminal acts,” a full bench ruled last week. 

“We fail to see how this preserves freedom of expression and does not in fact prevent it.”

Deputy judge president Aubrey Ledwaba made it clear that the use of incitement, in the context of political debate, may serve as an effective mechanism to silence and intimidate its targets.

“If political opponents are faced with the incitement of harm against them, it is unlikely that such a threat will lead them to express their opinions more freely. In all likelihood it will have the opposite and undesirable effect of causing them to change their opinions out of fear. It may even cause them to not express their opinions at all,” the judge said.

“The right to freedom of expression is guaranteed so that we have a culture of robust political debate, not a culture of fear marked by the incitement of criminality.”

The Pretoria high court’s dismissal of Malema and the EFF’s free speech argument came weeks after the Johannesburg high court rejected the party’s bid to appeal a R500,000 defamation ruling against it.

EFF leaders Malema and Mbuyiseni Ndlozi accused former finance minister Trevor Manuel, in a statement, of nepotism and corruption linked to his leadership of a selection panel to appoint a new SA Revenue Service (Sars) boss.

The Johannesburg high court found there was no substance to the party’s claim that Manuel was related to and had business ties with Edward Kieswetter, who was eventually appointed as Sars commissioner, and ordered the EFF, Malema and Ndlozi to remove the statement from all media platforms, issue a retraction and apology and pay Manuel R500,000.

In their appeal bid, the EFF argued that the allegations against Manuel were political and should be exempt from defamation claims. But judge Elias Matojane was not convinced.

“The absolute defence of political speech alleged by the respondents has no basis in law, and the respondents have made these bald averments without referring to any authority,” he said.

In both cases, the EFF appears to rely on an argument that political rhetoric is exempt from the consequences of criminal sanction, or potential defamation damages.

They are seeking to challenge both the rulings made against them.

Malema faces three separate criminal charges, under the provisions of the act, of inciting “his Economic Freedom Fighters followers and/or others … to trespass”.  He sought to challenge the constitutionality of the act, on the basis that it criminalised the “exercise of free expression” protected by the constitution. 

In its examination of the crime of incitement, the court found that it must be understood as “the intention, by words or conduct, to influence the mind of another in the furtherance of committing a crime”.

“It is apparent from this definition that the mere voicing of one’s opinion will not be enough for incitement … The statement ‘take back the land’ would likely not constitute incitement as it specifies neither a crime nor an object of which the crime is to be committed against.” 

What was pivotal to proving that someone was guilty of incitement, the court said, was for the state to show that “shorn of any heated political rhetoric, the clear intention to influence the mind of another to commit a crime must be present”. 

If and when Malema goes on trial, the National Prosecuting Authority will need to prove that he intentionally went beyond the bounds of political rhetoric to incite his supporters.

But, until these cases are finalised, it remains to be seen if Malema and his party will hold back on their incendiary or potentially defamatory statements.

Probably not.