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Johannesburg - EFF Leader Julius Malema's comments that the party would, if incited, remove government at "the barrel of a gun", were unlikely to lead to a successful treason prosecution, criminal law attorney William Booth said on Monday.
"I don't believe that these mere comments should lead to a prosecution," Booth told News24.
Late last month, Police Minister Nathi Nhleko announced that the Hawks would be investigating Malema's statement.
This followed an interview Malema gave to Al Jazeera in which he said that if the ruling ANC continued to respond violently to peaceful protests, "we will run out of patience very soon and we will remove this government through the barrel of a gun".
The ANC subsequently announced that it had opened a high treason case against Malema.
On Monday, Booth said that while the Hawks would have to investigate the complaint, the onus would then rest on the prosecuting authority to establish if there would be a reasonable prospect of success in prosecuting the EFF leader.
Booth said that the legal definition of treason was based on actions and conduct to overthrow the existing government.
He said it was not cut and dry as to whether Malema's words could be seen as sufficient proof of conduct.
Not treason
"What if Malema says, 'I just meant it as a joke… That I am so the hell in and I am so annoyed that I said it in jest because of what the government is doing, but I will not put those words into action'?"
It was unlikely that Malema's one comment could be seen to legally constitute treason.
"You have to have continuous conduct… more than one set of comments."
Furthermore, suggested Booth, the State would have to look at the context in which Malema was making his statement.
If, for example, Malema believed that the elections were rigged, then in that case "the government would have acted illegally" and the legal question would become whether "a citizen can then be entitled to take necessary action against a government that is not lawful".
The equivalent, suggested Booth, would be a self-defence case in which someone under an illegal attack would have a right to protect themselves.
"I am entitled to react to prevent the illegal reaction."
Nevertheless, the full context would need to be assessed. "The point is how far can you go [in defending against an illegal act]?"
For example, "by gun, does he [Malema] mean you are shooting people or that they are going out with a firearm to stop illegal action [but not firing]?"
"If he starts actually shooting people, that might be illegal."
Booth also said that the societal framework in which actions took place could shape what was defined as illegal or not.
For example, said Booth, in apartheid times, the actions of what Mandela and other stalwarts of the ANC did were regarded as treason but in the present dispensation this was seen as justified.
"Circumstances change. It's a case by case [investigation], based on facts."
Far right guilty
Between 1956 to 1961, 156 anti-apartheid activists, including Nelson Mandela were put on trial for treason for their various acts of resistance against the oppressive government at the time.
The successfully prosecuted treason cases in post-apartheid South Africa were those dealing with the far right in which the evidence was substantial.
In 2014, 20 members of the Boeremag – an Afrikaner right wing group that attempted to overthrow the ANC-led government and chase all non-whites out of the country – were convicted of high treason.
In 2002, the group detonated eight bombs in Soweto, killing a woman and injuring a man. The group also conspired to murder former president Nelson Mandela.
"There were weapons, uniforms. They attacked people. They were storing arms and getting ready to blow up the government," said Booth.
During his local election manifesto launch, last Saturday, Malema offered the following advice to President Jacob Zuma: "I am whispering to you, Zuma, wherever you are, those soldiers are going to turn their guns against you… leave office before the soldiers turn against you. The army is EFF."
Not helpful
Booth said this had no base in treason and instead could be seen as a helpful "caution" if the opposition leader was privy to information that the army was unhappy.
Malema could be positioned as "warning Zuma to behave because look what the army is saying".
Nevertheless, said Booth, comments like Malema's were not helpful, bordering as they did on inciting violence.
"One must stop this kind of rhetoric. You must be critical. The country needs to change, but do it properly, legally."
He said the judiciary had proven its might.
"Maybe it is time those in charge listen and not become angry because there are legitimate complaints."
