Firearm controversy deepens as State, defence face off in Malema sentencing

Malema returned to court for final arguments in aggravation and mitigation of sentence following his 2025 conviction for contravening firearm laws. 

The charges stem from the Economic Freedom Fighters' (EFF) 2018 anniversary rally in Mdantsane, where he was filmed firing a rifle in front of a crowd of thousands.

FIREARM RETURN SPARKS LEGAL DISPUTE

A key issue raised in court relates to the firearm used in the incident, which was returned to its owner before the conclusion of the trial.

State prosecutor Joel Cesar defended the decision, maintaining that it was lawful and procedurally sound.

"The issue of the firearm being returned is, in our submission, a storm in a teacup. The relevant provisions of the Criminal Procedure Act clearly allow for the return of an article where it is no longer required for evidentiary purposes. In this case, the evidence had already been secured."

However, Malema’s counsel, Advocate Tembeka Ngcukaitobi, argued that the move raises serious legal and procedural concerns.

READ: Malema vows immediate appeal if sentenced in firearm case

"The firearm issue is not trivial — it is regulated by statute. What occurred here raises profound questions about the propriety of the prosecution’s conduct, particularly because the firearm was returned before the court had concluded the proceedings and made any determination regarding its disposal."

Ngcukaitobi pointed to specific provisions of the Criminal Procedure Act, arguing that the State relied on incorrect sections.

"Sections 30 and 31, which the State relies on, deal with situations where no criminal proceedings are instituted or where items are not required for trial. That is not the case here. The applicable provision is section 34, which clearly states that it is the court — not the prosecution — that must decide, at the conclusion of proceedings, whether an article is returned."

He further argued that the law also allows for forfeiture of such items to the State.

"Section 35 explicitly provides that a court may declare an article used in the commission of an offence forfeited to the State. That decision lies squarely with the presiding officer. The premature return of the firearm effectively bypasses that judicial function."

‘PROFOUND QUESTIONS’ OVER PROSECUTION CONDUCT

Ngcukaitobi said the handling of the firearm raised broader concerns about how seriously the State treated the matter.

"Why was the instrument used in the commission of the offence returned before judgment was delivered? Why were arrangements being made in advance for its return? These are not minor procedural issues — they go to the heart of the integrity of the prosecution process."

READ: State pushes for 15-year sentence as Malema’s gunfire case reaches final arguments

He added that the absence of documentary evidence supporting the State’s version further complicates the issue.

"We are told emails exist regarding the return of the firearm, yet none have been produced in evidence. Instead, the State attempts to introduce this version during argument, which the court is entitled to reject outright."

Ngcukaitobi argued that the issue was relevant to sentencing.

"It demonstrates, even on the State’s own version, that the offence may not have been treated with the level of seriousness now being suggested in argument."

DISPUTE OVER FACTS AND SEVERITY

The defence also challenged the State’s characterisation of the offence, particularly claims that multiple firearms and rounds of ammunition were involved.

"The court’s findings are clear — this is a case involving one firearm and one bullet. The State’s repeated references to two firearms and 22 rounds are not supported by the convictions. One cannot sentence an accused person based on facts that were not proven."

Ngcukaitobi dismissed the State’s argument of premeditation.

"The alleged ‘planning’ referred to by the State relates to the organisation of the celebratory event, not the commission of any offence. There is no evidence of premeditated criminal intent — what occurred was spontaneous."

EQUALITY BEFORE THE LAW

The defence further accused the State of inconsistency in how it treated Malema’s status as a political leader.

"At one stage, the State argues he must be treated like any other citizen. At another, it seeks a harsher sentence precisely because he is a public figure. Section 9 of the Constitution is clear — everyone is equal before the law. The court cannot adopt a shifting standard."

Ngcukaitobi argued that Malema’s conduct during the trial demonstrated respect for the judicial process.

"He has attended court diligently, complied with all proceedings, and participated fully in his defence. There is simply no evidence that he has undermined the administration of justice."

REMORSE AND RIGHT TO APPEAL

On the issue of remorse, the defence rejected the State’s argument that Malema’s continued assertion of innocence should count against him.

"An accused person has a constitutional right to appeal. To suggest that maintaining one’s innocence amounts to a lack of remorse — and should aggravate sentence — is fundamentally flawed and contrary to section 35 of the Constitution."

Ngcukaitobi also criticised attempts to use Malema’s political statements against him in sentencing.

"Criticism of the prosecution or claims of political motivation cannot be used as a basis for harsher punishment. Prosecutors are constitutionally required to act without fear, favour or prejudice — they cannot take offence to criticism and convert it into an aggravating factor."

STATE MAINTAINS CALL FOR IMPRISONMENT

Despite the defence’s arguments, the State continued to press for a custodial sentence, arguing that Malema’s conduct endangered thousands and warrants a strong deterrent.

"A clear message must be sent that such behaviour will not be tolerated, regardless of who the accused is. The law must apply equally, and the seriousness of this offence demands direct imprisonment," said State Prosecutor Joel Cesar.

SENTENCING IMMINENT

The court is expected to deliver its sentencing decision on Thursday, bringing to a close a case that has raised complex legal questions around firearm laws, prosecutorial conduct, and equality before the law.

The outcome was likely to set an important precedent for how South African courts deal with firearm-related offences involving public figures.