Malema has to wait three months to hear if he’s going to jail as court dissects pre-sentencing report

Julius Malema, and the rest of South Africa, will have to wait three more months to hear whether the Economic Freedom Front (EFF) leader will face jail time for firing an assault rifle into the air more than six years ago.

Malema spent most of Friday, 23 January, in the dock at the East London Magistrates’ Court for the continuation of his case, while his legal counsel, the prosecution and Magistrate Twanet Olivier dissected a pre-sentencing report presented before court.

Meanwhile, a throng of EFF members gathered outside the court building, eagerly waiting for their leader to address them from the temporary stage erected on the corner of Buffalo Street.

“F*ck off AfriForum! F*ck off Donald Trump!” some of the crowd chanted while court proceedings were drawing to a close.

Malema faces a potential 15 years behind bars after he was convicted last year of unlawful possession of a firearm‚ unlawful possession of ammunition‚ discharging a firearm in a built-up area or public place and reckless endangerment of people or property.

The charges relate to his firing several shots into the air during the EFF’s fifth birthday celebrations at the Sisa Dukashe Stadium in Mdantsane, Eastern Cape, in 2018.

Read more: Malema faces a prescribed sentence of 15 years, but he’ll probably receive less

Friday’s proceedings started with a series of disruptions as the regional courtroom set aside for the matter was too small to accommodate various media outlets and a select group of Malema supporters in the public gallery.

The case was moved to a significantly larger high court courtroom in the same building, but it was still bursting at the seams.

As the crowd waited to enter the new venue, arguments started over allowing members from AfriForum, including chief spokesperson Jacques Broodryk, into the courtroom, with several EFF members threatening to throw them out to make space for more Malema supporters.

However, senior party members addressed the issue with their members and the AfriForum members were allowed entry without further debate.

Malema’s ‘challenging childhood’

When proceedings got under way, Malema’s counsel called private social worker, Jessie Thompson, to read the pre-sentencing report she compiled into the record.

She detailed Malema’s “challenging” childhood in Seshego, on the outskirts of Polokwane, Limpopo. His family was not wealthy, and he was raised by his mother and grandmother, having never known his father.

Further details were provided about his current family dynamic and his “fierce devotion” to his wife, three children and the elderly members of his family and community.

Thompson’s report said Malema had had a hand in establishing several charitable organisations, and that his involvement in politics came from a deep-seated need to serve his community and to be “a voice for the voiceless”.

Thompson further described Malema as a perfectionist who despised laziness and dishonesty.

With reference to the specifics of the case, Thompson recommended that Malema be considered for a non-custodial sentence.

She said his brief possession of a firearm was never for the purpose of perpetrating any violent crimes, and despite the court’s findings that he had been reckless and negligent, he had never intended to injure anyone or damage any property.

Compared to other cases with similar charges, she said he might be the first person to ever be convicted for discharging a firearm “for celebratory purposes”, and that similar charges in other cases were mostly related to violent crimes or the intention to commit more serious offences.

Prosecutor challenges social worker’s report

During cross examination, State advocate Joel Cesar referred Thompson to several cases in her report where she recommended non-custodial sentences, or shortened terms of imprisonment, for serious crimes, including murder and domestic violence.

He intimated that she had a tendency to be lenient in her recommendations, and cited other cases where perpetrators faced similar charges to Malema and were sentenced to eight years behind bars.

Along with no jail time, Thompson’s report also recommended a possible fine and an amount payable to organisations fighting the illegal use of firearms.

Thompson rejected Cesar’s submission that her recommendations were that Malema “buy his way out of prison”.

Cesar also challenged Thompson’s views that Malema’s actions did not directly endanger anyone because the firearm was pointed into the air and not directly at the crowd.

“As evidence before court suggested – what goes up must come down,” Cesar said.

The report also stated that Malema maintained his innocence, claiming the firearm was a toy and fired blanks. It said he showed no remorse for his actions, but regretted what he did, as it created the wrong impression in the eyes of the public, and therefore he had suffered some psychological trauma and humiliation over the past seven years.

“He was the author of his own misfortune,” Cesar replied, saying that the evidence before court is that the shooting was pre-planned, and Malema should have taken the public’s perception into account beforehand.

Later, Olivier shared a similar sentiment, saying that she had difficulty reconciling Malema’s regret about public perception while he had planned on shooting a firearm into the air before the event.

She also questioned Thompson’s submissions that Malema’s circumstances were unique, saying the courts were filled with people faced with the same challenges and circumstances on a daily basis.

With regards to community projects and charities in which Malema is involved, Olivier singled out a soup kitchen mentioned in the report, and said that while he had established the project it now ran on donations and would be capable of operating even if he were incarcerated.

The matter was postponed until 15 April, and counsel for the defence and State are expected to file their final heads of argument for sentencing no later than two weeks before the next court appearance.

Speaking to the media after proceedings, Broodryk said there was nothing surprising in Thompson’s report as the social worker had been brought in to testify on behalf of Malema.

“It is part of the legal process and Malema and his defence are within their rights to bring a social worker to testify on his behalf.”

AfriForum vs Malema

Asked about AfriForum’s next step should Malema not be given a prison sentence, Broodryk said the consequences would be negative for the entire South Africa, not just AfriForum.

“If Mr Malema does not get a prison sentence for these very serious charges he was found guilty of, it reaffirms the perception that many South Africans unfortunately already have – that there are rules for those with political connections, and different rules for average people.”

Addressing the crowds after court proceedings concluded, and adding to the ongoing chants of “Voetsek AfriForum”, Malema repeated his stance that the charges that AfriForum brought against him were racially motivated and that there was no room for that kind of racism in South Africa.

“We must never be shaken by a court that is informed by hatred and the politics of AfriForum,” Malema said.

He said the day EFF became the ruling party in South Africa, it intended to lock up all AfriForum members as terrorists for being “anti-South African”.

Malema concluded his address by leading the crowd in a rendition of the controversial song Kill the Boer. DM