EFF leader Julius Malema. Picture: ALAISTER RUSSELL
EFF leader Julius Malema. Picture: ALAISTER RUSSELL

The EFF wants trespassing to be decriminalised — and the removal of alleged illegal land occupiers to first be sanctioned by the courts — not immediately carried out by the police.

"It is wrong to criminalise land occupation. It is also racist to do so, because the majority of occupiers are black," advocate Tembeka Ngcukaitobi argued on behalf of the EFF on Wednesday in the High Court in Pretoria.

The National Prosecuting Authority (NPA) maintains that trespassing is a crime in every legal system in the world, and argues that expecting people whose properties have been invaded to then seek the eviction of the occupants in court
would lead to chaos, and result in protracted and expensive legal battles.

The NPA further argues that using laws such as the Prevention of Illegal Evictions Act as a basis to govern the evictions of unlawful occupants would provide no legal protection to land owners before their property was invaded.

Three judges, including deputy judge president Aubrey Ledwaba, have reserved judgment on the EFF’s challenges to the 1956 Riotous Assemblies Act and the Trespass Act, which have been used by the NPA to charge EFF leader Julius Malema for inciting land grabs.

The NPA, represented by advocate Hilton Epstein, is opposing these applications, which the state has dismissed  as "incoherent".

The NPA said the EFF’s argument that the existence of the law of trespass violated the constitutional right to freedom of movement and freedom of expression was "absurd".

"In SA, the law of trespass protects everyone from violation of their right to property, as guaranteed by section 25 of the constitution," the NPA said.

Epstein argued that, while Malema did have the right to freedom of expression in criticising the ANC government’s land policy failures, he did not have the right "to incite people to commit crime".

Ngcukaitobi has argued that Malema did not incite violence when he urged EFF supporters to occupy any vacant land that they found in separate incidents in 2014, because (under the constitution) trespassing should not be defined as a criminal offence.

Malema faces charges of incitement in relation to four incidents, including allegedly telling supporters in 2014 in the Free State to "be part of the occupation of land everywhere else in SA", and in 2016 in KwaZulu-Natal, where he allegedly said: "If you see a piece of land, don’t apologise, and you like it, go and occupy that land. That land belongs to us."

Ngcukaitobi argued that Malema was exercising his right to freedom of expression, and criticising the land policy failures of the ANC, when he made the comments he is now charged for. He insisted Malema was not seeking to incite
violence with the remarks.

But the NPA is not convinced, and has pointed to an interview that Malema did with Turkish news station TRT World, in which he stated: "I’m saying to you, we’ve not called for the killing of white people, at least for now. I can’t guarantee the future."

Epstein argued there was nothing in the constitution that stated that property rights were secondary to Malema’s right to freedom of expression. He said should Malema’s call "be taken up by even a fraction of his followers, it would trigger a mass violation of property rights".