JUDITH FEBRUARY & CHRIS OXTOBY | Malema conviction must prompt JSC rethink  

On 1 October 2025, Economic Freedom Fighters (EFF) leader Julius Malema was convicted in the East London Magistrate's Court on charges relating to the unlawful possession and discharging of a firearm in public.

Malema had been accused of firing shots from an assault rifle at an event to celebrate the EFF's fifth anniversary at Mdantsane in the Eastern Cape in 2018. The case was postponed until January 2026 for sentencing.

This is not Malema's first brush with the law. Earlier this year, the Western Cape High Court, sitting as an Equality Court, found that remarks made by Malema relating to a violent altercation at Brackenfell High School amounted to hate speech and demonstrated a clear intention to incite harm and to promote or propagate hatred.

The conviction of Malema has several possible implications. The political repercussions will remain to be seen – South Africa has, after all, seen several examples where politicians have been able to turn legal difficulties to their political advantage.

Malema and the EFF have indicated that appeals will be brought against both the firearms conviction and the hate speech ruling, so there is the possibility that the direct legal jeopardy of these decisions might be removed by a successful appeal.

If an appeal against the firearms conviction fails, Malema's position as a Member of Parliament could be in jeopardy, depending on the sentence the court imposes.

The Constitution provides that anyone convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine is not eligible to be a member of the National Assembly, for five years after the completion of the sentence. The prohibition applies once the appeal process has been concluded.

Even if Malema is not caught by this provision, serious questions must be asked about his membership of the Judicial Service Commission (JSC). Malema has been a member of the JSC since 2014, having been designated by the National Assembly. But the fact of designation alone does not mean that an individual is suitable to decide on who should be appointed as a judge.

The High Court recently confirmed this when it set aside the designation of impeached former judge John Hlophe, now a member of parliament, as a member of the JSC.

The court held that the requirement that members of the JSC be fit and proper is implicit in the Constitution. (The judgment is currently subject to an application for leave to appeal.)

It is important that members of the JSC be fit and proper because of the importance of the JSC in the process of appointing judges, and by extension to the very fabric of our constitutional system.

The core function of judges is to uphold the Constitution and the rule of law, and it would undermine public confidence in the JSC, the process of selecting judges, and the entire judiciary for someone who is subject to ongoing legal proceedings to be involved in the process of selecting judges.

This is especially so in light of remarks made by Malema immediately after the firearms conviction, levelling unfounded allegations of racism against the magistrate who convicted him.

A statement by the EFF also associated “elements of the judiciary” with a “broader alliance of racist organisations”. These remarks undermine the judiciary and make it inappropriate for the leader of a political party which has expressed these views to be involved in the selection of judges.

Incidentally, it is disappointing to note that neither the Chief Justice nor the Minister of Justice appears to have made any public statement condemning the remarks. It is surely time to speak up to protect the judiciary and individual judicial officers against these comments.

It is also disappointing that the organised legal profession has thus far been silent.

Whilst it is true that it has been reported that Malema is planning to appeal against both the firearms conviction and the hate speech ruling, these are nonetheless serious findings made by the courts that he has acted not only unlawfully, but criminally. This impacts his suitability to sit as a member of the JSC.

In summary, Malema's conduct, as demonstrated by the firearms conviction and the remarks made afterwards, the hate speech finding, and the parliamentary ethics finding, strongly suggests that he is not a fit and proper person to serve on the JSC.

If his conviction is confirmed in the firearms case and a sentence is imposed that makes him ineligible to serve as a member of parliament, his membership of the JSC would lapse immediately. But it would be an inadequate response to wait for that legal process to be finalised.

The legal process, with multiple potential appeals, could drag on for several years. The JSC sits approximately every six months, with its latest sitting set to begin next week.

The ideal outcome would be for Malema to step down as a member of the JSC. But failing this, Parliament has the power to replace him – the Constitution provides that commissioners “serve until they are replaced by those who designated or nominated them.” Particularly in light of the Hlophe judgment’s finding that members of the JSC must be fit and proper to hold this position, Parliament ought to give serious consideration to whether it is lawful, never mind appropriate, for Malema to serve as one of its designees on the JSC.