By Des Erasmus
East London Magistrate Twanet Olivier on Thursday sentenced EFF leader Julius Malema to five years in prison for firing a semi-automatic rifle into the air at the party’s 2018 anniversary rally in Mdantsane.
Malema was convicted last year of unlawful possession of a firearm and ammunition, unlawful discharge of a firearm in a built-up area, failure to take reasonable precautions and reckless endangerment.
Said Olivier: “In respect of count one, you are sentenced to a period of five years’ imprisonment. In respect of count two, you are sentenced to a period of two years imprisonment.
“In respect of count three, you are sentenced to R20,000 or to undergo six months imprisonment.
“In respect of count four, you are sentenced to R20,000 or to undergo six months imprisonment.
“In respect of count five, you are sentenced to pay a fine of R20,000 or to undergo six months’ imprisonment.”
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She said the sentences on counts 2, 3, 4, and 5 would run concurrently with count one.
Malema – a registered gun owner – was also declared unfit to possess a firearm.
Before handing down the sentence, Olivier said Malema’s clean criminal record and personal circumstances weighed in mitigation of sentence.
She said he was “indeed a first offender before the court, and there’s no outstanding offending criminal matters”.
The sentence should fit the offender as well as the crime … “[and] be … blended with a measure of mercy,” she said.
But she said the convictions also reflected a serious breach of the trust placed in him as a national political figure.
“At the beginning of the sentence, the court mentioned the element of trust,” Olivier said.
“[The crime] of the breach of trust and is of great concern to this court today.”
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“The accused is in a position of trust and elected as such by the members of society,” she added, saying his conduct and the consequences thereof showed “the complete absence of accountability and breach of trust by the accused person before court”.
Responding to defence arguments that a custodial term would “single out” Malema, Olivier said his public role heightened, rather than reduced, his responsibility.
“In the light of the position that he holds as the CIC of a political party with massive support, it’s not the court who had singled out the accused person,” she said. “The first fact remains, there’s a significant amount of accountability on the accused.”
Olivier said the offences were not a momentary lapse and instead stemmed from deliberate planning around the EFF’s fifth birthday celebrations at Sisa Dukashe Stadium.
“It must be noted and the accused confirmed that the event was planned. Emphasis on the word the event was planned, and that it was a unique established tradition, a planned event,” Olivier said.
“As a result, it is a great concern to this court that an event was planned and that what appears to be the unique feature of the event ended up in the commission of an offence, or offences,” she said.
“The planning included that the accused will possess or take possession of a semi automatic rifle, fire a .223 Remington bullet into the air, thereby causing possible harm to person or property in a built up area – that is now called celebratory shots. That is sugar coating, nothing more, nothing less.”
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She said the evidence pointed to a conscious decision to break the law.
“This is a decision that a person made to possess a semi automatic rifle unlawfully, and including the decision then to proceed and fire the said rifle in a built up area in a crowded stadium,” Olivier said.
“Since it’s confirmed that this was the plan for the event, it clearly indicates that the accused had known it was unlawful. He knew that it may cause harm to persons or property… Such acts can never be condoned by this court.”
Malema’s legal team immediately made known it would appeal the decision.