The Constitutional Court has declared the Riotous Assemblies Act, a hangover from the apartheid era, unconstitutional and invalid insofar as it makes incitement to commit even ‘minor’ crimes an offence, potentially opening the door for EFF leader Julius Malema to get off the hook for inciting land invasions.

The ruling, says a report in The Citizen, is the result of Malema’s challenge to the Act.

He has been charged with inciting trespassing under the Act for encouraging land grabs several times in recent years. He and his lawyers have been in and out of court for four years trying to have the relevant section of Act thrown out.

News24 notes that Chief Justice Mogoeng Mogoeng on Friday ruled – on a behalf of the court's majority – that the section of the Act, which the NPA had used to pursue its cases against Malema, was overboard and unconstitutional.

This, Mogoeng said, was because the relevant section of the Act, section 18(2)(b), made it a crime to incite anyone to commit ‘any offence’.

‘Section 18(2)(b) not only exposes citizens to the risk of arrest and prosecution for minor offences committed in the course of free expression, but it also has the potential to inhibit many from freely expressing themselves to avoid falling prey to the vast or sweeping net of "any offence",’ he said.

‘This provision does not promote, but prevents all free expression in the form of 'incitement' or 'advocacy'. Parliament has been given 24 months to remedy the defects in the Act, notes The Citizen report. In the meantime, the Constitutional Court has ordered that the words ‘any offence’ as they appear in the relevant section be replaced with the words ‘any serious offence’.

The application for an order declaring the Trespass Act does not apply to unlawful occupiers under the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act, was refused.

Full report in The Citizen

Full News24 report

Judgment