Mahlobo didn’t actually name Malema during his budget speech. But after setting out the constitutional limitations to freedom of speech – propaganda for war, incitement to imminent violence and advocacy of hatred – the reference was clear:

“Those contravening these rights and freedoms cannot be allowed to act with impunity and it’s the duty of the law enforcement agencies to ensure its realisation”.

At a later media briefing Mahlobo was asked directly about Malema’s comments.

“This is a contravention of the laws of the country,” said Mahlobo, after again highlighting propaganda for war was not permitted in Section 16(2) of the Constitution. “No-one can threaten South African and their rights.”

The state security minister added how in “the contestation in our body politic, we have seen issues being used opportunistically”.

A few hours later Nhleko took the same line:

“The right to freedom of speech is not so absolute,” he said, expressing “serious concern” about the “reckless and inflammatory statements” by some political parties in reference to Malema’s comments, without naming him. “We would like to appeal to all the people to show responsibility and refrain from using the genuine grievances of the various communities to drive narrow political agendas that have the potential to destabilise the country.”

Both Nhleko and Mahlobo were asked by journalists if it was not a case of bias to have Malema investigated, but not ANC Youth League leader Collen Maine, who had promised “civil war” at an earlier league event:

“We have declared war on racists and those, who are attacking the ANC and President (Jacob) Zuma. The message must be clear that Zuma will continue to lead the ANC until 2017, and the country until 2019,” Maine is widely quoted as saying, just days before the 2016 State of the Nation Address. “Those who seek to disrupt the State of the Nation (Address) must prepare themselves for a civil war… The youth league will physically remove woodworkers from Parliament. We cannot allow Julius Malema and his monkeys to run our country amok and turn this country into a banana republic.”

While Mahlobo didn’t answer that question on bias, Nhleko indicated he was unaware of a complaint against the youth league leader and thus there was noting to investigate. The reason Malema is being investigated, the police minister explained, “is precisely because there bas been a complaint registered…”

But Cope piped up. It indeed had laid a complaint against Maine on 10 February at the Brooklyn, Pretoria, police station (CAS269/2/2016) for incitement to imminent violence, also prohibited in Section 16(2) of the Constitution.

“We are waiting for the police to prosecute Collen Maine for declaring his readiness to start a civil war. Nobody is above the law. There is only one law in the country. It applies equally to Malema and to Maine. It will be nonsensical for the ruling party to prosecute the one and exempt the other,” Cope said on Tuesday.

While Nhleko confirmed a complaint against Malema was laid at the Hillbrow, Johannesburg, police station, he sidestepped questions over what the charge was. As on previous occasions, he said “a charge results from the investigation”.

However, ANC national spokesman Zizi Kodwa told News24 the party had laid a charge of high treason. On Monday the ANC called on “state authorities to urgently investigate this matter and act against such conduct”.

In its statement, the ANC said Malema’s remarks were “inflammatory, treasonable and seditious and should be treated with extreme seriousness… The remarks made by Mr Malema are a clear incitement to people to commit acts of violence, which is against the laws of the Republic”.

According to the SAPS website, high treason is a common law offences and “consists of any conduct unlawfully committed by a person owing allegiance to a state with the intention of overthrowing the government of the Republic, coercing the government by violence into any action or inaction, violating, threatening or endangering the existence, independence or security of the Republic, changing the constitutional structure of the Republic”

Since Sunday, when the al-Jazeera interview aired, the EFF has been at pains to point out Malema’s comments were points of political debate.

But the ANC has received backing for its actions from its parliamentary caucus, its youth league and tripartite alliance partner, the South African Communist Party (SACP), which pledged support for the ANC’s steps taken.

ANC chief whip Jackson Mthembu on Tuesday said the party would refer Malema’s comments – described as “irresponsible, dangerous and illustrative of an immature politician with no comprehension of the consequences of his public conduct” – to the parliamentary joint ethics committee for action.

Also on Tuesday the ANC youth league promised it would “never allow hooligans and warlords to bring this country to violence” and “fight tirelessly to block any attempts that seek to brew civil war to this country of peace and democracy.” DM

Photo: Minister of Police Nathi Nhleko and State Security Minister David Mahlobo during a media briefing update on “Rogue Unit” Investigations held at the Imbizo Media Centre in Cape Town, 2 March 2016. (Photo: GCIS)