Malema’s Marikana massacre statement not unparliamentary - SCA

20 May 2016

Bloemfontein – The Supreme Court of Appeal said on Friday that Economic Freedom Fighters leader Julius Malema’s statement that the ANC government had massacred Marikana miners was not unparliamentarily.

The court dismissed an appeal by National Council of Provinces (NCOP) chairperson Thandi Modise, after a ruling that she acted incorrectly in asking Malema to leave the National Assembly for saying the government massacred Marikana mineworkers.

"Malema spoke in Parliament about what has been described as 'a burning issue of immense public interest'. The Constitution guards Parliament’s role as an incubator of political speech. There is nothing unparliamentary about robust, emotive language," it said.

The court also said the standing order does not – and constitutionally cannot – go as far as impeding political speech.

"It does not censor criticism of the government or its ruling party. Importantly, Mr Malema initially referred only to the ANC... The police fall under the authority of the ANC-led government.

"The Chairperson’s case rests on a false equivalence between 'government' and members of Parliament. However, they are not the same – criticism of government is not criticism of members of Parliament."

The court also said Modise had misconstrued her powers under the standing order.

It said the purpose of her powers was to ensure that parliamentary debates were not marred by personal insults directed at members.

"It follows that, even if Mr Malema had directed criticism at members of parliament, the standing order still did not find application because his words were constitutionally protected political speech."

In August last year, the Western Cape High Court set aside Modise's decisicion that Malema had to withdraw his statement that the "ANC government massacred" the mineworkers at Marikana and that the police officers who killed them had represented the ANC government.

It set aside her decision to ask Malema to leave the National Assembly, after he refused to withdraw the remarks he made during a sitting in June 2014.

The court said Modise's ruling that Malema’s statement was unparliamentary was unlawful and that his refusal to withdraw it was legitimate.

On August 16, 2012, police shot dead 34 striking workers at Lonmin's mine in Marikana, North West. Ten people, including three miners, two police officers, and two Lonmin security guards, were killed during the strike the previous week.

This article first appeared on News 24, see here.