Malema back in court for pre-sentencing proceedings in firearm case

Sentencing has begun in the East London Magistrates Court in Kugompo, Eastern Cape, on Wednesday.

The leader of the Red Berets was found guilty of unlawfully discharging a firearm during an EFF rally in Mdantsane in 2018.

The case stemmed from a video showing the MP firing a weapon at the rally.

During the pre-sentencing hearing, a social worker recommended a suspended sentence rather than direct imprisonment.

Legal experts weigh appeal prospects and possible outcomes

As the sentencing nears, legal attention has shifted beyond the verdict itself to what may come next, after Malema vowed to appeal his conviction.

Newswatch spoke to defence lawyer Ulrich Roux about Malema's appeal prospects, sentencing discretion, and whether he could remain in Parliament during a potentially lengthy legal process.

Roux confirmed that Malema is fully entitled to challenge both conviction and sentence once judgment is handed down.

“Should he not be satisfied with a conviction and with the sentence, which is going to be handed down, then he has the right to appeal to the High Court."

Roux explained that the appeal would be heard by the Eastern Cape High Court and could be based either on the severity of the sentence or alleged errors in the magistrate’s interpretation of the evidence.

“He could allege that either the sentence is too harsh that has been handed down and a lighter sentence should be handed down, or he can appeal the conviction, saying that the magistrate did not interpret the evidence correctly and that she made an error in law when finding that he is guilty of the charges levelled against him.”

Ballistics evidence and lack of remorse central to sentencing

On the question of evidence, Malema claimed that the object used was not a real firearm; Roux said the matter turned on how the court assessed competing versions.

“They attacked the merits of the case at length, saying that it was, in fact, a toy gun. It wasn't a real gun that was fired off.”

However, he noted that this version was rejected by the state’s expert evidence.

“That was countered by the state through a ballistics expert saying that it was clear that a muzzle exit the front of the firearm. In other words, it was clear that live ammunition was being fired from that firearm.”

Roux concluded that the prosecution’s case was ultimately stronger on the facts presented.

“So, I think that the State presented quite a good case. I don't think that his defence was very good.”

A further concern for the defence, he added, is the issue of remorse at the sentencing stage.

“Another problem that he is faced with is that he has shown no remorse. He still is adamant that he's not guilty of these offences.”

He explained that a lack of remorse can influence sentencing decisions, as courts must consider whether an accused appreciates the seriousness of the offence.

“Upon handing down sentence, the court needs to consider whether the accused person has shown remorse for his actions now that he's been convicted.”

One of the most politically sensitive questions is what would happen to his position in Parliament if Malema loses his appeal or is sentenced to more than 12 months’ imprisonment.

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