In a sentence that ‘induces a sense of shock,’ on Thursday, 16 April, Julius Malema was sentenced to 5 years direct imprisonment. This follows a criminal case brought by Afriforum against Malema based on a video that emerged of the EFF Chief-in-Command (CIC) discharging a firearm during his party’s fifth birthday celebrations back in Mdantsane, 2018, and for which he was found guilty last year.
Despite Malema’s legal team – which included the illustrious Advocate Tembeka Ngcukaitobi SC – putting up a formidable defence, magistrate Twanet Olivier was unmoved to impose any punishment short of a custodial sentence. She ultimately found Malema guilty on five counts which included the unlawful possession of a firearm without holding a licence, permit or authorisation; unlawful possession of ammunition; unlawful discharge of a firearm in a built-up area or any other place; unlawful failure to take reasonable precautions to avoid danger where it created a safety risk to the general public and reckless endangerment for unlawfully discharging or otherwise handling a firearm in a manner likely to injure or endanger the safety of the general public. He has been granted leave to appeal the sentence.
With scores of EFF faithful watching proceedings on a big screen under the watchful eye of a strong police contingent outside the KuGompo City (formerly East London) Magistrate’s Court, the threat of violence loomed large. But perhaps it was the heated standoff outside court where EFF supporters, in particular deputy secretary-general Leigh-Ann Mathys, hurled insults at Afriforum’s Jacques Broodryk that would serve as a prelude of things to come. Shortly afterwards, Mathys is reported to have said her party’s first act if it ever came to power would be to ban Afriforum, and although Malema’s sentence was welcomed by the NPA, the Eastern Cape Director of Public Prosecutions, Barry Madolo and DA leader Geordin Hill-Lewis, things were far from over. Addressing his supporters, Malema lambasted the magistrate, calling her ‘ugly,’ ‘incompetent,’ and ‘racist’ before breaking into what has become a very controversial struggle song – Dubul’ iBhunu (Shoot the Boer).
It is exactly this song that has been at the heart of Afriforum’s legal showdowns with Malema. In a judgement from 2022 the Equality Court found that the singing of the song did not amount to hate speech or unfair discrimination. The finding was upheld by the Supreme Court of Appeal in 2024, and last year the Constitutional Court dismissed Afriforum’s application for leave to appeal these previous findings. Another reason that Malema’s backers felt hard-done was the magistrate herself. This is not the first time that Olivier has presided over a much-publicised and controversial case. In 2022, she sentenced Walter Sisulu University student Sibongile Mani to five years for having blown around R800 000 of National Student Financial Aid Scheme (NSFAS) money that had been erroneously deposited into her account. That sentence immediately caused a furore amongst various student bodies with legal experts, including Advocate Thuli Madonsela, questioning the fairness of the sentence. Two years ago, on appeal, Mani’s sentence was wholly suspended.
It would appear that Malema’s fate has been met with similar reaction. It left SA Federation of Trade Unions (SAFTU) General Secretary Zwelinzima Vavi ‘utterly shocked.’ Vavi continued: ‘As someone who has reflected deeply on past mistakes, I remain firmly committed to the principle that all must be equal before the law. But that principle must be applied consistently, and without exception, otherwise it loses its meaning. Having listened carefully to the proceedings over the past two days, I am concerned that this standard has not been upheld.’
According to attorney, Martin Hood, Olivier’s sentence on the EFF leader is disproportionate to the offence. In Daily Maverick, Hood, who also testified in the trial is quoted as saying, ‘Section 22 of the Firearms Control Act (FCA) makes provision for the circumstances under which Malema took control of the firearm.’ The section in question reads: ‘Any person who is at least 21 years of age and the holder of a licence to possess a firearm issued in terms of this Act may allow any other person to use that firearm while under his or her immediate supervision where it is safe to use the firearm and for a lawful purpose.’ Because Malema was under the supervision of the gun owner, his bodyguard, Hood feels that his appeal may yield prospects of success.
In this regard, Malema’s lawyers have indicated that they will be appealing both the conviction and sentence. Legal experts say that the former will have to be done through first seeking permission from the Eastern Cape High Court and is very much likely to be opposed by the state.
Although Malema gets to keep his parliamentary seat, what had been the source of much speculation during the trial was the question around what an effective jail sentence might mean for the party? With Floyd Shivambu and Dr Mbuyiseni Ndlozi – both of whom seemed to have the CIC’s ear – no longer in the party as well as Malema’s dictatorial leadership style, who would be bold enough to step up to the plate? Moreover, could the EFF survive if the face of rebellion against a supposedly kid-gloved ANC, the voice of radical economic transformation and land restitution was suddenly locked up behind bars? At least one political analyst believes that this whole ordeal might be exactly the trump card Malema needs to pull off an effective election campaign. Khanyi Magubane told the BBC that, ‘this will position the EFF and Malema well. It’s actually going to have unintended consequences… because he will play on the public sympathy [and] use this opportunity to continue standing his ground.’
She’s probably not too far off. Malema has been using his court appearances as political theatre, casting himself as the revolutionary who will not be silenced by ‘white supremacists’ and ‘racists’ who have it in for him. In his framing, the firearm charges were merely a red herring used to deflect attention from the real reasons why Afriforum wants him in prison, namely that he makes white monopoly capital uncomfortable. Booted out of the ANC in 2012, Malema was a write-off. Two years later he was in Parliament heading the third biggest party in the country. Could this be another moment where Malema pulls off yet another unbelievable stunt?
Featured Image: Julius Malema addresses supporters outside the KuGompo Magistrate’s Court. Source: EFF Facebook page.
At the time of writing