“The purpose of the law was never to catch the doer of the act but it was to catch the speaker,” Ngcukaitobi said.
As the court heard arguments from the department of justice, the National Prosecuting Authority (NPA) and other interested parties, chief justice Mogoeng Mogoeng tried to explore how far an inciter could be found at fault.
He gave the example of a person travelling at the back of an ambulance with a critical patient alongside him who then spurred the driver of the ambulance to drive faster. He questioned whether this person be charged for encouraging the driver to break the speed limit.
Responding to these and other scenarios, advocate Hilton Epstein, for the state, said there was no doubt the act was meant for a different era and different purpose, and was meant to advance the system of apartheid. However, he suggested it would be irresponsible for there not be a law in place that made it illegal to incite the committing of any crime.
“If the court chose to strike down the act, it should be replaced by one with a different name,” Epstein said.
He submitted that while Malema could exercise his freedom of expression by rather mobilising people to protest against slow land reform, what could not be accepted was for him to encourage them to act unlawfully.