Malema's comments 'reckless', fall outside constitutionally protected freedom of expression - experts

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EFF leader Julius Malema.
EFF leader Julius Malema.
Alet Pretorius, Gallo Images
  • EFF leader Julius Malema's threats against police members were "extremely reckless", according to legal expert. 
  • Another legal expert said his comments could be seen as endangering the police on- and off-duty. 
  • Malema made threats against police officers while addressing his supporters on Sunday.  

Statements made by EFF leader Julius Malema over the weekend against police members were extremely reckless and unfortunate and could be read as endangering the police on- and off-duty, legal experts told News24. 

On Sunday while addressing his supporters in the Mohokare Municipality in the Free State, Malema said they were not scared of the police, calling them "cowards", News24 previously reported.

He said:

If [the] South African police want a fight, they must declare it. We will treat them the same way we treated them in the 80s [1980s]. We will not only fight them at the picket line, we will go to their homes and fight them in their houses, with their families. We are not scared of police.

Malema said the party would continue going after racists everywhere.

But legal expert advocate Deon Pool told News24: "It is extremely reckless to make comments like that."

Pool said Malema was a prominent figure and his supporters tended to take what he said as "gospel".

He added Malema's comments constituted hate speech and incited violence.

READ | 'Reckless, irresponsible, dangerous': Cele slams Malema's 'threats' against SAPS

"To my mind, it is inciting hate speech and inciting violence. It creates danger, especially to those police officers who work in rural [areas] and at night, particularly our female police officers.

"We have issues with gender-based-violence and here we have a leader saying this is how we should act."

Pool said Police Minister Bheki Cele should apply for an order interdicting Malema from "making such comments, especially incitement of violence".

Another legal expert, Professor Moses Retselisitsoe Phooko from the University of Johannesburg, said political leaders held an influential role in society and therefore should conduct themselves responsibly.

He described Malema's comments as unfortunate. 

Phooko said:

Whilst Mr Malema enjoys freedom of speech, he must exercise [the] same within the confines of the law. There are limitations to freedom of speech.

"Section 16 of the Constitution provides that everyone has the right to freedom of expression but sub section 16(2) excludes freedom of expression that it is used as propaganda for war such as to incite imminent violence," he added.

"In my view, given the rate at which police officers are dying due to violent acts, Mr Malema's remarks were unfortunate and could be read as endangering the police on- and off-duty. 

"His speech falls outside the constitutionally protected freedom of expression."

Meanwhile, lobby group AfriForum, trade union Solidarity and a senior magistrate, acting in his private capacity, have opened cases of defamation, incitement and assault against Malema.

ALSO READ | Police minister and Popcru warn Malema against threatening officers of the law

KwaZulu-Natal magistrate Ashin Singh registered a complaint on behalf of concerned police officers.

Singh, a senior magistrate at the Pietermaritzburg Magistrate's Court, submitted an affidavit to the police in his personal capacity.

He claimed he was approached by some police officers who were worried about their safety after Malema's televised address.  

Singh said he was also approached by a group called the SA Minority Rights Equality Movement (Samrem) over Malema's comments. 

Samrem has taken the EFF to task previously over comments claiming racism among people of Indian ancestry.  

An extract of the complaint laid at the Mountain Rise police station read: "It is common knowledge that, in the 1980s, a number of policemen were killed due to political unrest.  

"As a member of Parliament, Malema should not be making threats, which constitute criminal conduct against the South African police and their families."  

Singh alleged Malema's comments amounted to incitement and intimidation. In a joint statement, AfriForum and Solidarity said more than 1 000 police officers had approached Solidarity to "express their concern about threatening statements Malema recently made against members of the South African Police Service [SAPS]".   

EFF spokesperson Vuyani Pambo told News24 the party noted "with the biggest yawn, the racist AfriForum's old and tired stance of opening baseless cases against the commander-in-chief".   

Pambo added: 

AfriForum has made the EFF its programme of action because the EFF is the only organisation that is fighting for expropriation of land without compensation and, for that very reason, AfriForum is hell-bent on litigating the EFF into oblivion.

"These cases opened against the commander-in-chief are meant to gag, silence the EFF. It won't work [and] they can open a million cases against the commander-in-chief in every police station in South Africa, they know very well they won't win, and we won't be distracted by them."

Police Minister Bheki Cele said on Monday the statements were "reckless, irresponsible and dangerous". 

He called on the police to protect themselves.  

In another statement issued on Wednesday, Cele said the EFF and its leader had every right to express their views on the government of the day.  

But he said the threat to the lives of the police as well as their loved ones and homes would not be tolerated or allowed to happen.

Cele added there would be consequences for anyone who acted on the threats against police officers.  

The minister's spokesperson, Lirandzu Themba, told News24 the police were investigating the number of cases opened against Malema. 

Meanwhile, in a statement issued on Thursday, the DA said Cele should lay a charge against Malema. 

"We cannot stand by and allow the hardworking members of the SAPS and their families to be threatened in this manner. Our policemen and policewoman deserve better. The DA will stand up for their rights," it added.  

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