Julius Malema's legal representative, Advocate Tembeka Ngcukaitobi, told a full bench of the North Gauteng High Court on Wednesday that the Riotous Assemblies Act - which the Economic Freedom Fighters' (EFF) commander-in-chief has been charged with contravening - was apartheid legislation that did not belong under the new constitution.

In 2014, at the EFF elective conference in Bloemfontein, Malema told members they should occupy land, which led to him being charged for the first time under the Act. When appearing in court in Bloemfontein on those charges in 2016, he again told supporters who had gathered outside the court to take any “beautiful piece of land” they saw because it was taken from blacks “by genocide”. 

Malema made similar statements in Newcastle in 2016, when he told supporters to "go and occupy" the land. 

Ngcukaitobi argued that Malema did not urge people to occupy privately-owned property, and there was no proof that his remarks incited violence.

He said that the Riotous Assemblies Act needed to be understood in its historical context, where it was used to mute political opposition during apartheid.

"It was the apartheid government's tool to shut down a black man shouting 'amandla' on a podium, it was used to stop Nelson Mandela shouting 'amandla'", said Ngcukaitobi.

 The Act had been identified by the Constitutional Court as part of a collection of laws used to suppress anti-apartheid resistance, said Ngcukaitobi. 

He told the court that Malema was "targeted" for making political speeches, while all he in fact did was to express his sentiments that the EFF could not wait for the ruling African National Congress (ANC) to make land available to the landless. “One can never criminalise speaking the truth,” said Ngcukaitobi, calling landlessness "one of the injustices of the past".  

Malema needed to be protected, he said, so that he could continue to call for the occupation of vacant land. 

Arguing for the department of justice, Hilton Epstein SC, said: "What Mr Malema cannot do is to incite people to occupy land, even vacant land. We cannot do self help...it’ll provoke anarchy." 

The matter continues.