What do Julius Malema and the EFF have in mind when they say they intend to challenge the 1956 Riotous Assemblies Act (Riot Act) on constitutional grounds? In light of the recent High Court decision interdicting Malema from encouraging land grabs, does the EFF have a valid public policy point to argue? Or is this simply an attempt to shield the party from the consequences of its tactless calls for lawlessness?

Much of the Riot Act has been replaced by other legislation – notably the Intimidation Act – and the provisions that remain espouse perfectly-acceptable protection for persons and property, in line with international practice. The remaining provisions oblige caution when using explosives, determine what is an incitement to public violence, and regulate how ‘attempt’, ‘conspiracy’, and ‘incitement’ operate in South African law. Malema is charged under the Act for inciting his followers to violate property rights.

The only problem with the Act which has been identified, is when it was passed – 1956, at the height of Apartheid. However, we still live under many laws passed during the previous regime, including statutes as innocent as the Marriages Act (1961), the Wills Act (1953), and the comprehensive Criminal Procedure Act (1977), all of which have been amended by the democratic Parliament to accord with our new constitutional values.

A constitutional challenge against this law will not succeed, because the Riot Act codifies principles evident in every rights-respecting legal system around the world. Any legal team which believes it can remove the crime of incitement from South African law is sorely mistaken, as incitement, in any case, is a crime under the common law. We would need a new law that explicitly makes incitement legal before free-for-all land-grabbing can become sanctioned, as many on the left would want it.

The socialists might argue that incitement to commit a crime, in principle, should be illegal, but that, however, due to South Africa’s history of dispossession, an exception should be made.

The problem with this argument is twofold. Firstly, the radical left’s policy is not to give land to dispossessed people. It seeks the State to acquire ownership of all agricultural land and to license it for use by aspiring farmers. On the other side of the coin, those who gravitate toward free markets seek to give individual South Africans – especially poor, landless individuals – ownership of property.

Secondly, land restitution must take place according to an ordered legal process that will be sustainable in the long term. If every Tom, Dick, or Harry can simply ‘occupy’ a particular plot of land, how will that make the land his? And, more pertinently, what will stop anyone else from occupying that already-occupied land? Free-for-all land-grabbing is a recipe for chaos and violence; not the solution that will deliver a free and prosperous future.

Frédéric Bastiat wrote in 1850, “the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.” Bastiat, a revolutionary opposing aristocrats who sought only to secure their own political futures, lamented the fact that the law was no longer being employed as protection for property, but rather as a tool of plunder (‘redistribution’) in and of itself.

During Apartheid, the Roman-Dutch legal tradition was similarly perverted to enable the State to plunder. Strong protection for property rights and an emphasis on individual freedom were carelessly set aside by our then-sovereign Parliament to implement its programs of social engineering. It seems counter-intuitive that today’s apparent ‘progressives’, who claim to represent the landless masses, would seek to operate within this very same oppressive philosophy. Jimmy Manyi and the Progressive Professionals Forum, too, seem to want to give Parliament back its sovereign power to cast rights and freedoms aside on a whim. What is the ultimate purpose of studying history, if not to avoid making the same mistakes?

The Riot Act is a constitutionally and morally sound piece of legislation. It is one of the few statutes being applied in South Africa, in a time of increasing social engineering through legislation, that does what the law, by its nature, is supposed to do. Ignorance and disregard for the rule of law, today, is endemic among South Africa’s political class. To target a necessary law like the Riot Act serves as a distraction to lure attention away from other, far more disturbing legislation.

Martin is a co-founder and the Editor in Chief of the Rational Standard. He is the Legal Researcher at the Free Market Foundation, the Academic Programs Director for Southern Africa at Students For Liberty and the Editor in Chief of Being Libertarian. Martin holds an LLB from the University of Pretoria. His articles represent his own views and beliefs, and not that of any of the aforementioned organizations.