While the emotionally charged EFF leader Julius Malema has promised to teach Hillary Gardee's killers a lesson if his ground soldiers catch them first, criminal experts said he could be criminally charged.
Malema said he had deployed a team within his party whose sole responsibility is to gather intelligence that would aid the capture of Gardee's murderers. Gardee is the daughter of former EFF secretary-general Godrich Gardee.
The EFF has also cast doubt on police investigation, claiming that an autopsy on Gardee showed that she had a bullet lodged in her head, contradicting the police's earlier assertions that she had been hit with a blunt object.
Malema visited the family on Wednesday, where he pledged that the killers will be found. He also warned that the police better find them first.
“We have committed to the family to find these killers and we have committed to Bheki Cele [police minister] as well that he must find them before we find them because if we find them before him, we will not give him any guarantee on what is going to happen. We have deployed any manner of resources on the ground to look for these criminals,” Malema said.
However, experts have cautioned him, especially in view of the recent acts of vigilantism that led to the death of Zimbabwean national Elvis Nyathi who was killed for not producing his passport in Diepsloot, Johannesburg, last month.
Malema's party has spoken out about the acts of vigilantism perpetrated by Operation Dudula members, especially in the case of Victor Ramerafe whose house was allegedly vandalised last month. The EFF encouraged him to open criminal charges against Dudula's leader Nhlanhla “Lux” Dlamini.
Criminal lawyer Nthabiseng Dubazana said while Malema’s utterances were irresponsible it will be difficult for the state to prove a case of incitement.
“Them [the EFF] saying they cannot guarantee what will happen to the killers if they find them first, they will be seen to be defeating the ends of justice. It is still a crime.
“Once you find the accused you're supposed to hand them over to the police in order for them to ensure that they carry out justice. If they decide to kill or assault this person they could face charges of murder or assault and defeating the ends of justice,” said Dubazana.
Crime law expert William Booth said: “If what Malema is saying is encouraging people to go and commit a crime he could be charged. It was going to be fine if he was calling for a citizen's arrest, but citizen's arrest is done when a member of the public sees someone committing a crime. If a crime had already been committed when he made that call, it means he is calling for people to take the law into their hands, or calling for vigilantism.”
Amnesty International SA executive director Shenilla Mohamed said political leaders should be responsible. “While we totally understand the anger and emotions caused by the death of Hillary Gardee, vigilantism is not the answer. Political leaders should be responsible and not make any calls that contribute to the incitement of violence.
“We have seen how irresponsible statements made by leaders and politicians have contributed to xenophobic violence in SA. The law must be allowed to take its course. The high levels of violence against women in SA is certainly worrying but politicians should rather use their positions to hold law enforcement agencies to account rather than encouraging vigilantism,” said Mohamed.
Gardee went missing last Friday while shopping with her three-year-old daughter at a plaza in Mbombela, Mpumalanga. Her body was discovered in the bushes on Tuesday. Her abductors had dropped her child near her home in KaMagugu on the day of the abduction.
Malema said he has already received some information about the murder. “And the report we have is that this is not a mission [murder motive] that comes from outside SA, it's a mission that is internal. So we have no reasons to be looking over borders. The intelligence we have deployed on the ground has assured us that we are coming closer to the solution,” he said.
“We want to teach them a lesson they will never forget for the rest of their lives because they have taken the wrong one this time. Anyone who touches our children, touches us.”
EFF spokesperson Sinawo Tambo said the autopsy performed on Gardee has laid bare police incompetence. He said Cele's deadline of finding the killers before 72 hours lapses was questionable.
“The current developments are casting a huge shadow of doubt on police on how they are handling this matter, and [how could] they have set themselves a deadline when they could not see a bullet wound on the back of her head?”
He said police failed to do basic crime scene investigation before moving the body from the scene.
“With the revelation that there was a bullet found in her head, we also suspect that this might be a deviation to try and characterise this as a common criminal act. We are looking at everything with suspicion as this case develops,” said Tambo.
Gardee's killers also stole R1,300 from her bank account after abducting her.
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