EFF leader Julius Malema
Image: Itumeleng English / Independent Newspapers
While EFF rank and file wait to hear the fate of their supreme leader when his sentence is handed down in KuGompo City in the Eastern Cape on Wednesday, the state has its sights set on a prison term of up to 15 years.
Julius Malema will appear in the magistrate's court in KuGompo City, formerly East London, for the sentencing proceedings, which are expected to run until Thursday.
He was found guilty in October last year of discharging a firearm at an EFF birthday rally in Mdantsane in 2018.
His former bodyguard Adriaan Snyman, who was charged alongside him, was acquitted.
The charges included unlawful possession of a firearm and ammunition, reckless endangerment, and discharging a firearm in a public place.
The case ended up in court after lobby group AfriForum laid charges against Malema under the Firearms Control Act.
Analysts warned that a sentence of more than a year without the option of a fine could cost Malema his seat in the National Assembly.
"This is a cross road for his political career," Zweli Ndevu, political commentator, said.
"The law says no one can hold public office if sentence to over 12 months without an option of a fine.
"In the event that he is sentence to prison time, he will have no choice but to resign from the parliament position."
According to court documents seen by IOL, the state was pushing for Malema to be put away for a maximum of 15 years, or at the very least 10 years with three years suspended, along with fines on the remaining counts.
But praying it would not come to that, hordes of red-overall-clad faithful packed the Jan Smuts Stadium on Tuesday night.
Mahlatse Dlamini, chairperson of the UCT EFF Youth Command, threatened to render SA ungovernable if Malema was jailed. Read more on this here.
The party, for its part, put on a brave face.
EFF spokesman Sinawo Thambo said the party was ready for whatever the court handed down.
"We have been informed that the state will be pursuing a custodial sentence of 15 years and, should that be the case, we will oppose it and immediately appeal," he told IOL.
"We are confident in our case for appeal and are additionally confident that the president and commander-in-chief will be available to continue with the great work he does for the people of SA."
That confidence was months in the making.
In January, Malema's legal team appeared before magistrate Twanet Olivier to argue mitigation of sentence, calling social worker Jessie Thompson to the stand.
Thompson, who prepared a pre-sentencing report on Malema, testified he intended no harm when he fired shots into the air that day in Mdantsane and recommended he be handed a fine rather than a custodial sentence.
Malema maintained from the outset that he was not guilty, insisting the gun was a toy.
Legal expert Ulrich Roux said the offences that Malema has been charged with and convicted of do not fall under the Minimum Sentences Act.
"So, in other words, there is no minimum sentence prescribed for the offences that he has been convicted of," he said.
"The sentencing is therefore completely at the discretion of the magistrate."
Roux said Olivier must weigh the personal circumstances of Malema, the severity of the offence, and the message the sentence will send to society.
"In other words, whether it will deter would-be offenders from committing similar crimes and prevent such offences in future," he said.
"These factors must be balanced with a measure of mercy by the magistrate, and a just sentence must be handed down."
He said one factor that may count against Malema was that he has shown no remorse.
"Though he has been convicted of the crimes he was charged with, he remained adamant that he was innocent and did nothing wrong," Roux said.
"He does so despite the fact that his version — that it was a toy gun — was completely disregarded and rejected by the court, which in my view was not a strong version to rely on.
"The ballistics expert called by the state clearly proved that live ammunition was fired."
He said it was difficult to predict what sentence would be handed down.
"I do think, given that he has no previous convictions, that he will most likely receive a sentence of imprisonment that is suspended, coupled with a fine.
"In my opinion, a direct custodial sentence is unlikely."
Professor Stephen Tuson, a criminal law expert at the Wits University School of Law and a practising attorney at the Wits Law Clinic, said Olivier would be required to weigh all evidence presented in mitigation, including Thompson’s social worker report.
“Section 120(7) of the Firearms Control Act makes it clear it is an offence to discharge a firearm, an antique firearm or an airgun in a built-up area or any public place without good reason to do so,” Tuson said.
“Section 3, general prohibition in respect of firearms makes it clear no person may possess a firearm unless he or she holds a licence, permit or authorisation issued in terms of this Act for that firearm.
“I do not want to speculate on what the sentence will be, but it could range from a period of imprisonment to an option of a fine.”
In its final heads of argument, the state demanded Olivier send Malema to prison.
Prosecutor Advocate Joel Cesar told the court the case was about equality before the law, proportionality and deterrence.
On deterrence, Cesar said the message had to be clear.
"A clear and unambiguous message must be sent to political leaders, to their followers, and to the public at large, that the courts of this Republic will not tolerate the normalisation of firearms as instruments of political theatre or entertainment," he said in court papers, seen by IOL.
"If persons in positions of leadership are permitted to fire semi-automatic rifles before crowds without custodial consequence, the damage to the constitutional culture of lawfulness will be profound and enduring."
Cesar was equally scathing about how Malema had conducted himself throughout the trial.
"The accused has treated these proceedings with contempt," he said.
"He fabricated a false account of a 'toy gun' that was comprehensively dismantled by the overwhelming evidence at trial.
"He refused to co-operate with investigators.
"He characterised this prosecution as an 'abuse of the NPA'.
"He blamed VIP protectors, the Holy Spirit, and everyone except himself. The show is over."
Cesar called for a maximum sentence of 15 years, alternatively 10 years of which three years would be suspended, coupled with fines on the remaining counts.
He also asked that Malema be declared unfit to possess a firearm.
AfriForum's Jacques Broodryk said: "The court case has shown us so far that equality before the law is still a valid principle when it comes to the SA judiciary.
"That is something every South African should celebrate because no one is above the law.
"Whether you are a politician, a president, or a crony connected to politicians, you do not have more rights or freedoms than any other ordinary citizen in this country, and that is something this court case has demonstrated.
"We hope the sentence delivered will be fair, and we hope that it will reflect the seriousness of these crimes because Malema did endanger people’s lives, and that is something that cannot be overlooked."
IOL