Julius Malema in the crosshairs of the law once again – the constitutionality of the Riotous Assemblies Act
17 November 2016
The leader of South Africa’s third largest political party, Mr Julius Malema, finds himself in the crosshairs of the law once again. This time, for allegedly contravening the Riotous Assemblies Act in purportedly urging his supporters to invade land. He is reported to have said this to a large group of supporters in 2014, and mostly recently, in June 2016. News reports further mention his intention to approach the Constitutional Court to challenge the constitutionality of the Riotous Assemblies Act. Various political commentators appear to be in agreement with this assertion, premised on the fact that the Riotous Assemblies Act (the Act) pre-dates the Constitution as it was promulgated in 1956.
However, a closer reading of the Riotous Assemblies Act suggests that there may be nothing untoward regarding its provisions. In fact, if anything, the current provisions of the Act may withstand constitutional muster.
At issue is the fact that section 18(2)(b) amongst other things makes it an offence to incite another person to commit an offence. The section reads as follows “Any person who… incites, instigates, commands or procedures any other person to commit any offence whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable”.
All modern systems of criminal law penalise the trio of inchoate or incomplete offences: attempts, conspiracies and incitements - South Africa is not unique in this aspect. Such offences, while being preliminary, are far from being unconstitutional. Perhaps the only defence Mr Malema might have to this charge, is that he lacked the intention to incite - but that would not be enough for a direct constitutional challenge.