Dear Mr Editor

Julius Malema, commander in chief of the EFF, has been charged with inciting violence through his anti-white rhetoric and encouragement of land invasions.

Those who characterise the Riotous Assemblies Act of 1956 as a piece of apartheid era legislation and seek to impugn its constitutionality do not seem to appreciate that it has roots in the common law and in (now repealed) 1914 legislation aimed at the same mischief. The wording of section 17 of the Act is revealing:

“17  Acts or conduct which constitute an incitement to public violence.

A person shall be deemed to have committed the common law offence of incitement to public violence if, in any place whatever, he has acted or conducted himself in such a manner, or has spoken or published such words, that it might reasonably be expected that the natural and probable consequences of his act, conduct, speech or publication would, under the circumstances, be the commission of public violence by members of the public generally or by persons in whose presence the act or conduct took place or to whom the speech or publication was addressed”

 The 1914 legislation was used by the police and army during the Rand Revolt by white miners to quell their revolutionary ardour.

As for the excitement on his road trip to Bloemfontein during which Malema’s driver was found speeding through Parys at 185 km/p/h in a 120 km/p/h zone and of failing to stop at a road block, the prosecution service would do well to consider charging Malema for allowing his driver to commit crimes using Malema’s car while he was a passenger in it. There is good authority for the proposition in an old English case called Du Cros v Lambourne in which the owner of the car caught speeding denied he was driving. He was nevertheless held to be liable because it was his car that was speeding with him in it.

As a champion of the rule of law, the commander in chief would do well to take advice on these points. While they are about it, the legal advisers should explain that presidents in SA do not have the power to jail ex-presidents, however much they may like to do so. That is the preserve of the judiciary. Mercifully so.

Yours in accountability,

Paul Hoffman SC

Director

Institute for Accountability in Southern Africa

Campaigning as Accountability Now