Should EFF leader Julius Malema – who has been found guilty of discharging a rifle during a rally in Eastern Cape – be sentenced to more than a year's imprisonment without an option of a fine, he will be removed as an MP.
Section 47 of the constitution bars individuals sentenced to prison for longer than 12 months without the option of a fine from being MPs.
Malema was found guilty in the East London magistrate's court on Wednesday and is expected to be sentenced in January. However, he said he will go all the way to the highest court in the land to appeal the decision.
Legal expert Shadi Maganoe, a lecturer at Wits school of law, said Malema's conviction for discharging a firearm carries serious legal implications. “Under section 13 of the Firearms Control Act, it is an offence to discharge a firearm in a public place or built-up area, or in a manner likely to endanger people or property. This offence carries the possibility of a jail sentence of up to 15 years, though there’s no mandatory minimum.
She said the court had the discretion to consider factors such as first-time offending, risk to the public, and evidence of remorse, and may impose a suspended jail sentence under section 297 of the Criminal Procedure Act. “Importantly, section 47(1)(e) of the constitution provides that an MP is disqualified if convicted of an offence and sentenced to more than 12 months in jail without the option of a fine.”
Maganoe said this meant if Malema receives such a sentence, and all appeals are exhausted, he could lose his parliamentary seat for five years after completing the sentence. “The sentencing will determine whether the court imposes a jail term or suspends it. Until then, he remains an MP, but the legal and political consequences are significant.”
Malema told a crowd outside court he was determined to fight the verdict, even at the Constitutional Court. This after magistrate Twanet Olivier’s ruling that the defence failed to disprove the state’s case beyond a reasonable doubt.
Malema was convicted after video evidence showed him discharging a rifle during an EFF rally. However, his security guard Adriaan Snyman was not found guilty on all charges.
The sentencing will determine whether the court imposes a jail term or suspends it. Until then, he remains an MP, but the legal and political consequences are significant.
— Legal expert Shadi Maganoe
The pair faced allegations of contravening the Firearms Control Act, including the unlawful possession of a firearm and ammunition.
Malema said he was singled out in the case, and was not afraid to go to prison. “She [Olivier] released accused number two, which is highly appreciated. Because we know that, from the beginning, they’ve been looking for me. They were not looking for accused number two. They were just playing games, and today they came out openly,” he said.
“As a revolutionary, going to prison or death is a badge of honour. We cannot be scared of prison. We cannot be scared to die for the revolution. So, whatever they want to do, they must know we will never retreat from our ideas.”
Malema said EFF members should not be discouraged by the guilty verdict. “We are coming on January 23 for sentencing. And after sentencing, we will immediately put an appeal so that we can go to the higher court because we think the judgment is faulty.”
In her judgment, Olivier said the viral video was not needed to enable the court to arrive at its finding. The defence also used the footage to indicate certain factors they wanted to be placed on record. This was accepted by the court as real evidence.
Two videos recorded by Gear House were also part of the evidence. Olivier said the Gear House footage was not as clear as the viral video but ruled it relevant and admissible.
She described the state witnesses as reliable and truthful. Ballistics expert Col Mandisi Mgwadleka was “a brilliant witness” who had left no stone unturned. “He dotted every I and crossed every T,“ Olivier said. Compared with this, the defence’s expert ballistic evidence was “mediocre”, she said.
“Mr Malema evaded many questions that warranted a reply. It became evident that the replies were entertaining, but the pertinent questions asked remained unanswered ... Further, as to how the cartridge... was linked to him, his reply was it must’ve been the Holy Spirit. These types of answers didn’t do [Malema] any favours.
Malema said the strategy has always been “you must try to charge Malema with everything.
The judgment, he said, was racist, “to appease the AfriForum, to appease the Oval Office of Donald Trump, to appease all the white supremacists of SA who want to undermine the dignity and the strength of black people”.
Malema also questioned why Snyman was acquitted, though the courts had stated that he was the one who gave him the firearm.
“Now they are releasing him, which means he didn't give me the firearm. Why are you not releasing me when you released a person who allegedly gave me the firearm? By releasing accused number two, the whole case should have collapsed. But the racist was looking for me. That's why they could not collapse the case,” he said.
Malema also referenced the Madlanga commission of inquiry and how SA needs rescuing by the EFF based on what has been revealed there. “You can see what is happening in the commission there; SA has been sold to criminals and criminal cartels, and this country must be rescued."
Additional reporting Ziyanda Zweni Mandilakhe Kwababana
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