In a development that has ‘induced a sense of shock’, political firebrand Julius Malema has been sentenced to an effective five years in prison for firing a semi-automatic rifle during a 2018 EFF rally in Mdantsane. This follows a criminal case brought by Afriforum against Malema based on a video of the incident, which has been widely publicised.
In October last year, Malema was found guilty on five charges, notably the unlawful possession of a firearm and ammunition and its unlawful discharge in a public place in way that could have endangered members of the public. As is often the case, sentending was postponed until last week.
On Thursday (16 April), despite a huge effort by Malema’s legal team – which included the illustrious Advocate Tembeka Ngcukaitobi, SC – to avoid this, magistrate Twanet Olivier sentenced Malema to an effective five years’ imprisonment.
As expected, his legal team immediately applied for leave to appeal, which was granted. So Julius stays in a red overall and out of an orange one – for now. This also means he retains his seat in parliament until his appeal is heard (see box).
Malema's parliamentary seat
Section 47(1)(e) of the South African Constitution disqualifies anyone from membership in the National Assembly if they are convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine. This remains valid for five years after the sentence is completed. As a result, Malema remains in parliament until the appeal against his sentence is heard. To remain there, his sentence would either need to be suspended, or reduced to less than 12 months. His legal team has also applied for leave to appeal against the conviction, but this was refused. To take this forward, they need to apply for permission to the Eastern Cape High Court.
With scores of EFF faithful watching the 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 in which EFF supporters, particularly deputy secretary-general Leigh-Ann Mathys, hurled insults at Afriforum’s Jacques Broodryk that served 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. Clearly, 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 the controversial struggle song Dubul’ iBhunu (Shoot the Boer).
This song has been at the heart of Afriforum’s legal showdowns with Malema. In 2022, the Equality Court found that singing 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 against these previous findings.
Another point of contention was the magistrate herself. This is not the first time that Olivier has presided over a highly publicised and controversial case. In 2022, she sentenced the Walter Sisulu University student Sibongile Mani to five years in jail for spending about R800 000 of National Student Financial Aid Scheme (NSFAS) money that had been erroneously deposited into her account. This caused a furore among various student bodies, and various legal experts, including Advocate Thuli Madonsela, questioned the fairness of the sentence. Two years ago, on appeal, Mani’s sentence was wholly suspended.
In some quarters, Malema’s sentence has been met with shock and dismay. SA Federation of Trade Unions (SAFTU) General Secretary Zwelinzima Vavi said he was ‘utterly shocked’, and 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.’
And in a Facebook post that raised eyebrows, ANC secretary-general Fikile Mbalula wrote: ‘The main message we are being told here by the racist Afriforum is that if we dare stand up for black people, dare stand up for the marginalised and dare stand up for our generational mission, we will be targeted. …
“When I fought for Julius to succeed me as ANCYL President we knew that the road ahead was treacherous and that the grandchildren of apartheid would never rest in their targeting of the Freedom in our lifetime Generation. This sentence is too harsh and my thoughts are with my brother Julius. Silamulele Peter Mokaba Silamulele,” continues the message.
According to Malema’s attorney, Martin Hood, the sentence is disproportionate to the offence. His argument reportedly goes as follows: Section 22 of the Firearms Control Act (FCA) provides for the circumstances under which Malema took control of the firearm. It reads that any person who is at least 21 years of age and the holder of a licence to possess a firearm 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 his appeal may succeed.
Other legal experts say his sentence might be reduced, but will probably not be suspended altogether. If this happens, whether of not he will be barred form parliament will hinge on the extent to which the sentence is reduced.
EFF supporters in the KuGompo Magistrates Court. Image: EFF Facebook page.
Given all this, speculation has mounted about the consequences of these various scenarios for Malema’s political career, as well as the EFF. Ffoyd Shivambu and Mbuyiseni Ndlozi – both former Malema confidantes – are no longer in the party. Should Malema be absent for some time, and from parliament for longer, who would be bold enough to step up to the plate?
At least one political analyst believes this whole ordeal might be exactly the trump card Malema needs to pull off an effective election campaign. Khanyi Magubane told the BBC: ‘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 might not be too far off the mark. Malema has been using his court appearances as political theatre, casting himself as a revolutionary who will not be silenced by ‘white supremacists’ and ‘racists’ who have it in for him.
In his framing, the firearm charges are a red herring used to deflect attention from the real reasons why Afriforum wants him in prison, namely his campaign against white monopoly capital.
Somehow, few people will bet on Malema going to prison soon. Among other things, hearing the appeal, will take anything from three months to several years. Moreover, he and his legal team may well adopt a ‘Stalingrad defence’, the approach made famous (or infamous) by Zuma in which legal teams use every possible trick in the book to delay legal processes.
What is undeniable is that Malema is South Africa’s ultimate politicial survivor. In 2013, he faced more than 50 charges of fraud, corruption and money laundering emanating from the On Point scandal. But due to growing weaknesses in the NPA, the case against him disintegrated.
In 2012, he was written off politically after being booted out of the ANC – essentially for sustained insolence against its then leader, Jacob Zuma. Two years later, he was in parliament, heading the third biggest party in the country.
Shortly afterwards, he was one day away from being sequestrated by SARS, which would have resulted in him permanently losing his parliamentary seat. He staved this off by amassing several millions of rands in arrears taxes at the last minute, from unknown sources, but undoubtedly from his extended patronage network. So maybe South Africa’s political Houdini will escape once again …
Featured Image: Julius Malema in the KuGompo Magistrate’s Court. Source: EFF Facebook page.