Case against Malema ‘absolutely impossible’, defence argues

The state’s case against EFF leader Julius Malema is “absolutely impossible”, his defence team argued during an application to have the charges against Malema and his co-accused, Adriaan Snyman, discharged.

The application was made in the East London Regional Court on Wednesday where advocates Laurance Hodes SC and Shane Matthews SC made lengthy arguments to magistrate Twanet Olivier.

Malema and Snyman have pleaded not guilty to various firearms charges.

Hodes, for Malema, argued that the authenticity of the viral footage which landed the pair in the dock had not been established.

The court had heard a spent cartridge was found at the Sisa Dukashe Stadium in Mdantsane by a cleaner two days after Malema allegedly fired shots from a firearm during the party’s fifth birthday celebrations in 2018.

“It would be impossible, or at the very least highly improbable, for the spent cartridge to have been found where it was found if it was fired at the celebration in the circumstances depicted in the video footage that the court has seen,” Hodes said.

“Notably ... no eyewitness was called. No person who attended the celebration who feared for their life ... was called.”

He said five VIP protection police officers protecting Malema on the day did not mention the discharge of a firearm in any of their statements.

Hodes said it was impossible to say when the “cartridge would have been placed there”.

“It was not possible for the spent cartridge to have been ejected from the firearm on the stage and land where it was found.

“At this stage it would appear the state’s case is not improbable, but absolutely impossible ...”

Matthews, for Snyman, said no statement or evidence indicated Snyman had given Malema a firearm at any stage on the day.

“Mr Snyman is charged with handing a firearm to Mr Malema under circumstances where Mr Malema wasn’t legally entitled to possess that firearm.

“While I’m busy with that, what evidence is there before this court that he was not entitled ...? Nothing.”

Prosecutor advocate Joel Cesar said the evidence before the court was overwhelming and was “corroborated and substantiated by real evidence in the form of the video which depicts [Malema] firing several shots in the air”.

Cesar said Snyman was also visible in the video footage.

“Accused one and two are seen walking towards each other and move away, and subsequently accused one is no longer in possession of the said firearm.”

Cesar said where the spent cartridge was found was irrelevant.

“What is relevant is that it was found in the area where the shots were fired.

“Footage from Gear House [which took official videos on the day] confirms the incident did transpire as in the viral footage ... even the song is the same.”

Cesar said the court could exclude any suspicion there had been any tampering with or amendment of the video, adding the only issue the court had to decide on was the relevance of the footage.

“Accused one confirms this happened. He just says it was a toy gun and we say it was a real firearm.”

Olivier will make a ruling on October 19.

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