EFF leader Julius Malema’s firearm discharge conviction divides opinions, sparks political firestorm

With the owner of the firearm keeping a close eye on Julius Malema as he fired shots into the air in 2018, should he have been convicted of illegally possessing a firearm?

One of South Africa’s leading authorities on the Firearms Control Act, attorney Martin Hood, believes magistrate Twanet Olivier got it wrong, and the five-year sentence imposed on the leader of the EFF in the KuGompo Magistrates’ Court on Thursday, is disproportionate to the offence.

Meanwhile, civil rights organisation AfriForum expressed delight over Malema’s sentence, saying it serves as a warning in a country where politicians think they can commit offences with impunity.

Malema was sentenced as follows:

• Five years’ imprisonment for the unlawful possession of a firearm without holding a licence, permit or authorisation;
• Two years’ imprisonment for the unlawful possession of ammunition without authorisation to do so;
• Six months’ imprisonment or a R20,000 fine for the unlawful discharge of a firearm in a built-up area or any other place;
• Six months’ imprisonment or a R20,000 fine for the unlawful failure to take reasonable precautions to avoid danger where it created a safety risk to the general public; and
• Six months’ imprisonment or a R20,000 fine for reckless endangerment for unlawfully discharging or otherwise handling a firearm in a manner likely to injure or endanger the safety of the general public.

The sentences will run concurrently for an effective five years’ direct imprisonment.

Malema’s legal team applied for leave to appeal against both the conviction and sentence. Olivier denied them leave to appeal against the conviction, but granted leave to appeal against the sentence.

Malema remains out on warning pending the finalisation of the appeal.

Advocate Laurance Hodes (SC), for Malema, indicated that they would file a petition for leave to appeal against his client's conviction within three weeks.

Can Malema still serve as an MP?

The Constitution states that anyone sentenced to more than 12 months’ imprisonment without the option of a fine is not eligible to serve as a Member of Parliament. But it explicitly states that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined”.

The matter dates back to 2018, when Malema was filmed firing several shots into the air during the EFF’s fifth birthday celebrations at the Sisa Dukashe Stadium in Mdantsane, Eastern Cape.

AfriForum opened the case. But Hood, who testified during the trial, said Section 22 of the Firearms Control Act (FCA) makes provision for the circumstances under which Malema took control of the firearm.

The section reads as follows: “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.”

Hood said that Malema was under the direct supervision of his bodyguard, Adriaan Snyman, when he discharged the firearm.

Snyman, who stood trial with Malema, was later acquitted. “In my opinion, this trial was politically motivated. Mr Malema should not have been convicted on the first count, and the sentence imposed for that count was disproportionate,” Hood said.

He did not want to comment on the other charges. Hood said that while he did not condone Malema’s actions, he believed the Firearms Control Act had not been properly applied.

“Mr Malema is within his rights to appeal the sentence, and I believe he has [a] good prospect of success."

AfriForum, on the other hand, says the conviction and sentence were just, according to the organisation’s chief spokesperson for community safety, Jacques Broodryk.

“This is an amazing win for any law-abiding and self-respecting SA citizen. We’re in a situation where the people of this country have started losing hope.”

Broodryk referred to the Zondo Commission of Inquiry, stating that there had not been one person from those implicated who had been arrested. (Multiple suspects have been arrested as a result of the Zondo Commission, and at least Angelo Agrizzi and Vincent Smith have been convicted.)

“We see witnesses getting murdered, so this is a ray of light behind a dark cloud for everyone to see that equality before the court of law is a real thing; politicians are not above the law. Just because you’re politically connected and corrupt does not mean you can do whatever you want. Today is a win for every normal South African.”

Broodryk said it took a lengthy four years for the National Prosecuting Authority to decide to prosecute, and now everything was in the State’s hands.

“We eventually had to put up a fight to get this case going because, in our opinion, there was interference in the matter right from the start. They (Malema/ EFF) don’t care less about endangering the members of the public, this is the type of attitude that you get from people who surround themselves with this lot.”

After the court adjourned, a group of EFF members, including MPs and supporters, chanted “Voetsek AfriForum, voetsek!” in the faces of two AfriForum members, including Broodryk.

Later, another group, who were part of the crowd that had gathered outside the court, stormed into the court building singing Malema’s praises, banging and disrupting proceedings in other matters.

Malema addressed his supporters, saying that he had told them he would not spend a single night behind bars.

He accused Olivier of racism and possibly being a member of AfriForum.

“She kept us here for so many years and turns around to blame us for disturbing the courts. We did not come to court on our own, she invited us and we responded,” said Malema.

“If you don’t come to court, you get arrested, if you come to court, they say you are disturbing the court, therefore you must go to prison. That is not the law, that was racism speaking. Magistrate Olivier is a racist of note, and she must know that in her sleep, and she’s possibly a member of AfriForum. That’s why when AfriForum was mentioned in court, she couldn’t hide her emotions.”

Malema said his team had been prepared for the worst and that they had placed EFF deputy president Gardee Godrich in Makhanda, and even had a helicopter on standby to take them to the Makhanda high court to lodge an appeal.

NPA spokesperson Luxolo Tyali said they welcomed the sentence secured against Malema.

He said that despite the State calling for the maximum 15-year jail term, the NPA believed that the five-year sentence would have the desired effect of deterrence against would-be offenders in firearms-related offences, which were prevalent in South Africa. DM