Julius Malema and the EFF have suffered a significant legal blow in the Constitutional Court which this week dismissed their leave to appeal against an interdict barring them from inciting people to trespass private property and invade unoccupied land.

News24 reports that after a six-year battle, the apex court, in the written judgment, said after considering the application for leave to appeal directly to it, it had ‘concluded that the application should be dismissed as it bears no reasonable prospects of success'.

Malema and the EFF in January applied to the Gauteng High Court (Pretoria) for leave to appeal against the interdict which AfriForum acquired in 2017.

The High Court dismissed its application which prompted the EFF to approach the Constitutional Court seeking direct access to appeal the matter. The interdict obtained by AfriForum prohibited Malema and his party from inciting people to trespass on private property and to occupy it illegally.

The court also ordered Malema and the EFF to pay AfriForum's costs.

Between 2014 and 2016, Malema made several public statements encouraging South Africans to unlawfully occupy private land due to the increasing housing backlog.

As a result, he and his party were charged with incitement under the Riotous Assemblies Act on the basis that he allegedly incited people to commit a crime by encouraging them to unlawfully enter private property. 

Malema and the EFF challenged the constitutionality of his utterances being labelled as incitement in the High Court, with his constitutional challenge resting on two points.

The EFF's first argument was that the crime of incitement unjustifiably limited the constitutional right to freedom of expression. Malema also argued that he never encouraged anyone to act violently, and incitement should be limited only to expressions that ‘promote criminality or encourage violent acts and not peaceful acts of civil disobedience’.

Secondly, the EFF leader and his party argued that there had not been any encouragement of anyone to commit a crime.

News24 reports that the party's legal representatives argued that ‘the Prevention of Illegal Eviction (PIE) Act and Extension of Security of Tenure Act (Esta) provided constitutional protection to people who occupy private property without permission’.

‘Because PIE and Esta were enacted to give effect to people's constitutional right to not be evicted without a court order, the apartheid-era Trespass Act should not apply when someone occupies private property without permission.’

However, the High Court found that while incitement limited one's right to freedom of expression, the limitation was reasonable and justifiable.

The court did, however, declare the Riotous Assemblies Act unconstitutional to the extent it allowed someone who incites a crime to be sentenced to the same punishment someone convicted of committing the crime could be sentenced to.

AfriForum's attorney Willie Spies said: 'The important thing about today's judgment is that the Constitutional Court (ironed) out all the uncertainties regarding this issue of incitement to trespass and whether Malema's utterances amounted to this or not.’

Spies said it was now clear that a political leader cannot encourage people to take property or to squat illegally on any property; the Constitutional Court has confirmed this twice now. 

‘The judgment is very important, especially these days when there is such a contestation between chaos and order. The rule of law needs to be clear in the contest of the kind of mob justice that Julius Malema likes to promote,’ said Spies. 

Full News24 report