Some parts of the Riotous Assemblies Act of 1956 under which EFF leader Julius Malema has been charged could be unconstitutional, two legal experts said yesterday.
This was the view of constitutional law expert Pierre de Vos and former justice of the constitutional court Zak Yacoob after Malema argued yesterday he was charged under an "apartheid-era" law.
Malema appeared in the Newcastle Magistrate's Court yesterday charged with incitement after calling for land invasion when he was in Newcastle in June. The case was postponed to December 7 after his defence argued that they wanted the matter to be heard in high court or the Constitutional Court.
At the time, AfriForum laid criminal charges against Malema.
The charge falls under the Riotous Assemblies Act.
In 2008, the South African Law Reform Commission launched a project to remove and review about 2800 remnants of apartheid laws from statute books.
But it is not clear whether the Riotous Assemblies Act was part of those laws.
De Vos, although he could not immediately recall it, said he suspected that some parts of the act could be unconstitutional.
"The law itself is much broad and I don't know which part of it Mr Malema's lawyer is arguing about," De Vos said.
"The law is quite broad and is one of those repressive laws which were enacted and aimed at crushing freedom fighters at the time," he said.
De Vos said in terms of the constitution the act limits some rights only to the government. Yacoob agreed.
He said the Riotous Assemblies Act has some parts that are inconsistent with the constitution.
He, however, said that not all apartheid laws were bad and not all were good either.
"Take for example the Internal Security Act which provided for detention for longer periods; this was a bad law," said Yacoob.
During a pre-election rally in Newcastle, Malema said white people can't claim ownership of land because it belongs to the country's black African majority.
Malema told the EFF's elective conference in Bloemfontein in 2014 that: "We are going to occupy the unoccupied land because we need the land."
Part of the Riotous Assemblies Act contains so-called "hate speech" provisions.
Hate speech may be of such a serious nature that it could encourage persons to act in a violent manner, the act states.
The act provides that any person who (a) conspires with any other person to aid or procure the commission of or to commit; or (b) incites, instigates, commands, or procures, any other person to commit is guilty of breaching the law.
Malema charges 'unlawful' under act remnant of apartheid
Some parts of the Riotous Assemblies Act of 1956 under which EFF leader Julius Malema has been charged could be unconstitutional, two legal experts said yesterday.
This was the view of constitutional law expert Pierre de Vos and former justice of the constitutional court Zak Yacoob after Malema argued yesterday he was charged under an "apartheid-era" law.
Malema appeared in the Newcastle Magistrate's Court yesterday charged with incitement after calling for land invasion when he was in Newcastle in June. The case was postponed to December 7 after his defence argued that they wanted the matter to be heard in high court or the Constitutional Court.
At the time, AfriForum laid criminal charges against Malema.
The charge falls under the Riotous Assemblies Act.
In 2008, the South African Law Reform Commission launched a project to remove and review about 2800 remnants of apartheid laws from statute books.
But it is not clear whether the Riotous Assemblies Act was part of those laws.
De Vos, although he could not immediately recall it, said he suspected that some parts of the act could be unconstitutional.
"The law itself is much broad and I don't know which part of it Mr Malema's lawyer is arguing about," De Vos said.
"The law is quite broad and is one of those repressive laws which were enacted and aimed at crushing freedom fighters at the time," he said.
De Vos said in terms of the constitution the act limits some rights only to the government. Yacoob agreed.
He said the Riotous Assemblies Act has some parts that are inconsistent with the constitution.
He, however, said that not all apartheid laws were bad and not all were good either.
"Take for example the Internal Security Act which provided for detention for longer periods; this was a bad law," said Yacoob.
During a pre-election rally in Newcastle, Malema said white people can't claim ownership of land because it belongs to the country's black African majority.
Malema told the EFF's elective conference in Bloemfontein in 2014 that: "We are going to occupy the unoccupied land because we need the land."
Part of the Riotous Assemblies Act contains so-called "hate speech" provisions.
Hate speech may be of such a serious nature that it could encourage persons to act in a violent manner, the act states.
The act provides that any person who (a) conspires with any other person to aid or procure the commission of or to commit; or (b) incites, instigates, commands, or procures, any other person to commit is guilty of breaching the law.
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