Repeal Gun Control - But Equality Demands Malema be Imprisoned
The first and highest value of the rule of law is equality before the law.
The founder and leader of the Economic Freedom Fighters, Julius Malema, has been found guilty of firearm offences and sentenced to five years direct imprisonment.
I support the guilty verdict (which came a few months earlier) and I think the sentence may actually be too lenient based on past precedent. Even though I do not support criminalising mere possession of an unlicensed firearm, I support the outcome because the rule of law demands it.
I do not share Malema’s politics. His socialist ideas amount to nothing more than theft, cloaked behind a legitimate need to restore previously stolen property. Mr Malema perverts a desire for justice by suggesting policies that would in essence effect a transfer of all land and much of the rest of the property within South Africa to the state. Mr Malema should not be imprisoned for his advocacy of theft or for singing “kill the Boer”, which some see as incitement for murder, because it is mere speech.
Nobody should be imprisoned for possession because having a firearm in your possession, without informing the state, does not violate anyone’s rights.
Similarly, the other lesser charges such as discharging a firearm in a built up area, do not in themselves indicate a violation of someone’s rights - actually shooting someone would. But there may be a case to be made for civil charges if someone who attended the event where the firearm was discharged felt their life was needlessly put at risk.
Yet, I support Malema’s conviction and I think his sentence may be too lenient because the rule of law must trump all other considerations, especially when the accused person is a member of Parliament.
The rule of law has various elements associated with it, but in my opinion, the first and highest value is equality before the law. Laws must apply equally to the subjects (citizens) as they do the lawmakers (MPs and all other members of government and their families and friends), otherwise it is too easy to write tyrannical laws because they do not affect the people writing them.
This is particularly true of firearm rights in South Africa.
In recent years we have seen rhetoric and even proposed amendments to the Firearms Control Act, that would in effect, disarm peaceful, law-abiding citizens. This has occurred while the VIP protection component of the police budget has been increased faster than the rest of the budget, in essence a reduction of protection for ordinary citizens while protection for ministers, the President, etc., is increased.
We must also remember that the statute that Julius Malema violated. I focus mostly on the charge of possession since it has the longest sentence, and without which the rest of the sentences would amount to just a fine. Possession of an unlawful firearm carries a 15 year mandatory minimum sentence under the Criminal Law Amendment Act (105 of 1997), if the firearm is of the semi-automatic or automatic variety. This can be reduced only if there are “substantial and compelling circumstances”.
Another important component of the rule of law that applies in this case is precedent or stare decisis (Latin for “to stand by things decided”). This means that we must be guided by past legal decisions when we encounter similar facts. To my mind this is important because it is too easy to be unjust to people in the past or people in the present, through inconsistency in the legal system. I have a right to expect that, given similar facts, a similar outcome in the legal system will result.
Ordinary citizens have been convicted and given worse sentences than what Malema has received for possession under less severe circumstances (no discharge of the firearm in a built up area and these people were not lawmakers).
Let’s examine some of these cases.
The first case I could find was The State v Thembalethu (2008) where the accused used a semi-automatic pistol during a robbery. The firearm was unlawfully possessed and he was given 15 years for this as per the minimum. He appealed all the way to the Supreme Court of Appeal. His appeal was rejected and he was to serve the whole 15 years.
The second case is Madikane v The State (2010) where the accused was found with a semi-automatic firearm and initially sentenced to the prescribed minimum of 15 years. This was despite the fact that the accused did not commit any other crime like discharging the firearm illegally or committing a robbery. The accused also pled guilty and took responsibility for his actions, even though his testimony seems to show that he was hanging out with friends and took the gun from them just before the police raid. It was not even his gun. The sentence was reduced to seven years on appeal.
Compare this to Julius Malema, who pleaded not guilty to all five charges and tried to argue that the gun he was seen firing on video was not a real gun. Instead of taking responsibility he also alleged a political conspiracy in his prosecution. This is despite the fact that the National Prosecuting Authority only made a move to prosecute him after AfriForum laid charges and threatened to prosecute him via their private prosecutions unit.
Given these facts, it can be argued credibly that any prosecutorial bias was on Mr Malema’s side.
The last case is The State vs Mlambo (2025). The accused was a 36 year old single father to three children, a member of the South African National Civics Organisation (SANCO), a former member of his local Community Policing Forum, and a business owner with two fast-food businesses. He was found with a concealed weapon with 15 rounds of ammunition due to an anonymous tip. He was sentenced to six years in prison specifically for the possession. He had pleaded not guilty, claiming he did not know how the weapon had come to be in a bucket behind the door of his shack.
From this it is clear that Malema actually got off lightly. He committed other offences in addition to possession. He pleaded not guilty, lied that the gun was a toy despite clear video evidence and thousands of witnesses. He did not take responsibility and cited a fake conspiracy against him.
Being a lawmaker entrusted with the responsibility of passing laws for the country, he also swore an oath to uphold the Constitution and the laws of the Republic, as an MP.
If you believe the crime of which Malema is convicted is not worth sending people to prison over, I agree with you. So let us repeal the Firearms Control Act or at least make unlawful possession subject only to a fine and not imprisonment. Then, release everyone convicted of unlawful possession from prison and pay restitution for all the time served for unlawful possession.
That is: If your objections are principled and not merely meant to protect one man because deep down you think your favoured politicians are members of an aristocracy that sits above the law.