The Gauteng High Court (Pretoria) has dealt another legal setback to EFF leader Julius Malema, dismissing his application to have the Riotous Assemblies Act declared unconstitutional. The charges of inciting trespassing, against Malema, remain in place, notes a TimesLIVE report.

However, Malema hasn't given up on the matter, saying the party planned to challenge the judgment in the Constitutional Court. Malema argued that the charge of incitement criminalises free expression. But Deputy Judge President Aubrey Ledwaba, leading a full Bench, ruled: ‘We find that the crime of incitement is neither overboard nor of limitless scope. Properly understood, the crime of incitement is intention by word or conduct to influence the mind of another in furthering of committing a crime.’

Ledwaba said the Act was in line with the Constitution, which does not allow for the incitement of violence.

‘To this extent, any limitation is reasonable and justified in an open and democratic society, as it serves the rationale of criminalising conduct which evidences the intention to incite others to commit criminal acts.’

But the judges ruled that the section stating that someone convicted of incitement should be sentenced ‘as if they had actually committed the crime (which they incited)’ is unconstitutional.

‘There is no rational connection between the sentencing provision of the crime prevention of the section. The mere possibility of criminal sanction is enough to successfully dissuade one from inciting another,’ Ledwaba said.

Malema filed his challenge to the Act after he appeared in the Bloemfontein Magistrate's Court for allegedly inciting his supporters to invade land in 2014 during a speech. He is also standing trial in a Newcastle court as a result of remarks he made to supporters in the northern KZN town in 2016.

Full TimesLIVE report

Malema also asked the court for declaratory relief to the charge of incitement, citing the Trespass Act, says a News24 report.

We find that there is no reason to order the declaratory relief requested by the applicant. The applicant's argument regarding the Trespass Act is in fact nothing more than a defence to a charge against Mr Malema. This is that he did not possess the required intention to commit the crime of incitement. It is not for this court to decide this issue as it should rather be dealt with by the criminal trial court.

Reacting to the judgment, Malema said he was relieved the court partially agreed with the EFF that a part of the Riotous Assemblies Act was unconstitutional.

He said the EFF would challenge the full Act in the Constitutional Court, because the party believed it was unlawful.

Full News24 report