<\/p>\n
You can also listen to this podcast on iono.fm\u00a0here.<\/p>\n
JEREMY MAGGS: Now, as you well know, Julius Malema, the leader of the EFF (Economic Freedom Fighters), keeps his seat in parliament for now, even after being sentenced to five years in prison on his firearm discharge case because the appeal process now becomes central to what happens next.<\/p>\n
But beyond the politics, I think the case raises bigger questions about fairness, due process and equal treatment before the law, and also the precedent possibly set when a sitting MP (member of parliament) is convicted yet remains in office pending an appeal.<\/p>\n
Joining us now is senior criminal defence lawyer William Booth. William, welcome, thank you very much for talking to us. Do you think the magistrate (Twanet Olivier) might have overdone the sentence for conduct that, while reckless, was not aimed at harming anyone? That\u2019s certainly what emerged in court.<\/p>\n
WILLIAM BOOTH: Well, one must just look at the charges on which Mr Malema has been convicted, and the most serious is the unlawful possession of a firearm. In other words, possession of a firearm without the necessary licence. So that actually potentially holds a sentence of up to 15 years imprisonment, it falls within the minimum sentence laws. It\u2019s quite interesting when one says minimum, but it\u2019s probably maximum, anyway. We don\u2019t need to debate the technicalities of how it\u2019s defined. So that is the most serious.<\/p>\n
Unless an accused person establishes substantial and compelling circumstances, 15 years can be imposed. The other offences are less serious in terms of the Firearms Control Act. That\u2019s why she let them run concurrently and imposed fines. One must look at that aspect and start from there.<\/p>\n
She could have imposed a heavier period of direct imprisonment if she wanted to, but she\u2019s got to balance all the relevant factors, that is Mr Malema\u2019s personal circumstances, the seriousness of the crime and the interests of the community or interests of society.<\/p>\n
So balancing all of that and then establishing what one would term as a fair and suitable sentence for the type of offence.<\/p>\n
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JEREMY MAGGS: Some questions, William, have been asked about whether she gave enough weight to consistency, or does the sentence look out of line with similar firearm convictions that we might have seen in the past?<\/p>\n
WILLIAM BOOTH: As I say, one must look at the potential of a person convicted of being in possession of an unlicensed firearm of up to 15 years, or potentially even in excess of that. One has to look at it from that kind of perspective, because there are so many unlicensed firearms in this country and then they are used to commit serious crimes, including murder.<\/p>\n
Gangs are running around with unlicensed firearms.<\/p>\n
But obviously, one must distinguish a situation where you\u2019ve got a bunch of gangsters as against Mr Malema\u2019s scenario and look at the circumstances under which the offence was committed. It was at a political rally, there were lots of people around, so potentially somebody could have been seriously injured.<\/p>\n
Read\/listen:
Julius Malema sentenced to 5 years
Malema sentenced to 5 years for gun-law violation
Court rebukes police over conduct in firearms licensing dispute<\/p>\n
JEREMY MAGGS: What message then, do you think this sends out to the public, given the problem that we have with both legal and illegal firearms in South Africa?<\/p>\n
WILLIAM BOOTH: I think it sends out the message that don\u2019t be in possession of an illegal firearm. You have to apply but there are so many issues with regard to applying for firearm licences, doing competency certificates. It has become a little bit messy. So people who apply to get a firearm for self-defence purposes battle, and also to get their permits renewed, they have all kinds of issues.<\/p>\n
Say somebody who actually defends himself in respect of an unlawful attack, the police come and take his lawful firearm away and he battles for a long time to try and get it back.<\/p>\n
Then in terms of the Firearms Act they have an inquiry, whether or not he should be declared unfit to possess a firearm.<\/p>\n
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There is this whole debate about being in possession of firearms. There are groups that say you shouldn\u2019t possess a firearm, but there are others who say, obviously, if you don\u2019t, and you\u2019re in some circumstance where you\u2019re being attacked and you need to defend yourself.<\/p>\n
Read:
Criminal courts in Cape Town are near to collapse
The untouchable politician: Tracking Malema\u2019s money, power and protection
Malema found guilty of breaking gun laws<\/p>\n
JEREMY MAGGS: Let me ask you this. If leave to appeal was granted on sentence, could that itself suggest the magistrate might have known that the punishment handed down would be questioned and even vulnerable?<\/p>\n
WILLIAM BOOTH: Yes, because the test is actually whether or not another court may come to another decision. In other words, impose a lesser sentence. Technically, a totally suspended sentence, correctional supervision, all of the other types of sentence options are there.<\/p>\n
She didn\u2019t grant leave to appeal on the conviction. I understand they\u2019re going to petition that to the High Court. The High Court might then say give leave to appeal.<\/p>\n
So she must have had some doubt about the sentence, otherwise she would have really refused leave to appeal on the severity of the sentence aspect.<\/p>\n
JEREMY MAGGS: Through a political lens, it\u2019s controversial. Many people think this is all wrong, but is it fair to say that this is a good example of due process actually working as it should?<\/p>\n
WILLIAM BOOTH: Yes, I believe so. I think everybody must realise, you and I and others who are in higher positions must realise one has to follow the law and not break the law. You can get circumstances where because of issues beyond your control, technically you might break the law. But bearing in mind that you have these laws, we all have to comply with them.<\/p>\n
So even if you are the prime minister of a country, a president of a country, all the way down, and we know some of those have been charged, that you\u2019ve got to comply with the law.<\/p>\n
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But the fact is, even if the sentence is changed and the convictions remain, that is in itself quite detrimental to any person because if you\u2019re applying for certain positions and you\u2019ve got a criminal record, that can have a seriously negative effect on you and your future.<\/p>\n
JEREMY MAGGS: There\u2019s also a political dynamic here simply in terms of his job. If the sentence were to be reduced on appeal, might it save his position or his seat as an MP?<\/p>\n
WILLIAM BOOTH: It could, yes. But the fact is even if it\u2019s completely changed to a wholly suspended sentence and fines, and not imprisonment, one must have a look at whether that could still affect his position as a parliamentarian and his position as leader of his political party, because then he would still, if the convictions aren\u2019t overturned, then he would still have all those convictions for fairly serious offences.<\/p>\n
JEREMY MAGGS: Just finally, how long do you think all of this is going to take before we reach some kind of equitable conclusion?<\/p>\n
WILLIAM BOOTH: Well, it could be a year. It could be longer because they\u2019re going to be petitioning on the conviction. If that\u2019s not decided on, it could go to the Supreme Court of Appeal. If the sentence is not overturned, that could go to the Supreme Court of Appeal, it could go to the Constitutional Court.<\/p>\n
You might be looking at a year, maybe two years, possibly even longer than that, because the appeal process takes a long time and the courts are pretty clogged up.<\/p>\n
There are so many other cases that have got to be looked at and determined as to what\u2019s happening with those. I would say potentially up to two years, if not longer than that.<\/p>\n
JEREMY MAGGS: I have a funny feeling, William Booth, we\u2019ll be talking about this particular issue again in months to come. Thank you very much for joining us today.<\/p>\n
#Malema #conviction #raises #questions #law #fairness #political #office<\/p>\n","protected":false},"excerpt":{"rendered":"
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