Examining the fairness of Malema's firearm sentencing

ON April 16, Magistrate Twanet Olivier, sitting in the East London Regional Court in KuGompo City, handed down a five-year direct prison sentence to Julius Malema, the leader of the Economic Freedom Fighters (EFF).

- VINCENT SELOANE

This was for illegally possessing a firearm and firing it at a party rally back in 2018. The court also fined him R20000 for each of three other charges: firing a gun in public, not taking proper precautions, and recklessly endangering others.

If he couldn't pay these fines, hed face an extra six months in prison for each. The sentence for unlawfully possessing ammunition, along with the fines, would run at the same time as the five-year term. While the state wanted him to get up to 15 years, the court gave less, but it’s still a sentence we should look at very closely.

There’s no argument about what happened. During the EFF’s fifth-anniversary celebration at the Sisa Dukashe Stadium in Mdantsane, Malema was filmed shooting a semiautomatic rifle into the air. Nobody got hurt.

Nothing was damaged. There's no proof anyone actually feared for their safety. That day, the only danger was a potential risk, which thankfully didn’t turn into real harm. Malemas legal team, led by Advocate Tembeka Ngcukaitobi SC and Laurence Hodes SC, rightly highlighted these points for the court: it was one continuous event, lasting no more than two minutes, with no injuries, no property damage, and the state didn’t present any evidence to make the crime seem worse.

Given these facts, we need to judge the sentence. Firing a gun unlawfully is definitely a serious crime, and the court was right to treat it that way. But the real question is whether sending him to prison for five years is fair and balanced. I don’t think so. The sentence is too harsh. A suspended prison term, combined with a significant fine, would have served justice just as well, maybe even better.

South African sentencing laws follow what's called the “Zinn Triad? a principle from the 1969 case of S v Zinn. It means the court has to consider three things: the crime itself, the person who committed it, and what's best for society.