Case Summary and Outcome

The South African Constitutional Court held that a provision criminalizing incitement to “any offence” was overly broad and an infringement of the right to freedom of expression. After a political leader was charged with incitement for encouraging his supporters to occupy land, the political party challenged the constitutionality of the offence. By acknowledging the apartheid context of the offence, the Court noted that it should not be a criminal offence to challenge laws which an individual believes to be unjust. The Court recognized the need for a crime of incitement but found that restricting the offence to incitement to “serious offences” would meet the objectives of crime prevention while not unjustifiably limiting the right to freedom of expression.

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Facts

Between December 2014 and June 2016, Julius Malema, the president of the South African political party, the Economic Freedom Fighters (EFF), made three separate statements calling on his supporters to illegally occupy land. On December 16, 2014 he said “you must be part of the occupation of land everywhere else in South Africa” [para. 7]. On June 26, 2016, he said “[if] you see a piece of land, don’t apologise, and you like it, go and occupy that land. The land belongs to us” [para. 8]. On November 7, 2016, he said “[w]e will take our land, it doesn’t matter how … the land will be taken by whatever means necessary” [para. 9].

Malema was charged under section 18(2)(b) of the Riotous Assemblies Act, 17 of 1956 (the Act), for inciting others to commit the offence, under section 1(1) of the Trespass Act, 6 of 1959,  of “occupying land registered in the names of others without lawful permission or lawful reason” [para. 10].

Section 18(2)(b) states: “Any person who – … incites, instigates, commands, or procures any other person to commit, any offence whether at common law or against a statute or a statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable”.

Malema and the EFF approached the High Court, seeking a declaration that section 18(2)(b) of the Act was unconstitutional as it infringed his right to freedom of expression under section 16 of the Constitution.

Section 16(1) protects the right to freedom of expression, including the “freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. However, section 16(2) sets out the types of expression that the protection does not extend to, and states “[t]he right in subjection (1) does not extend to – (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitute incitement to cause harm”.

The High Court held that the Act did limit the right to freedom of expression but that the limitation was justifiable on the grounds that it sought to prevent crime. However, the High Court found that the aspect of the provision which made an offender liable to the same punishment as the person who actually committed the crime to which he was incited was unconstitutional as it was not rationally connected to the goal of crime prevention.

The EFF then approached the Constitutional Court to appeal the High Court’s finding that the criminalization of incitement to “any offence” in section 16(2)(b) was constitutional. Although this appeal would normally have to go the Supreme Court of Appeal (SCA) before the Constitutional Court, the Constitutional Court accepted the EFF’s application as it would have had to confirm the High Court’s finding of unconstitutionality in the punishment element of the Act’s provision and avoiding an SCA hearing would be in the interests of justice by giving effect to the “critical need for prudence and frugality in the deployment of court time” [para. 23].

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Decision Overview

Chief Justice Mogoeng delivered the majority judgment, joined by Khampepe, Madlanga, Mhlanta, Theron JJ and Mathopo and Victor AJ.

The EFF argued that section 18(2)(b) of the Riotous Assemblies Act was an unconstitutional infringement of the right to freedom of expression as the criminalization of incitement to “any” offence was overbroad.

The Minister of Justice argued that there were significant elements of the crime of incitement under the Act which ameliorated against its impact on freedom of expression. He submitted that intention remains an element of the crime, the prosecutors would have to meet the high burden of proof in the criminal standard of “beyond a reasonable doubt”, the de minimis rule still applies, defences are available against this offence, and that lenient sentences can be imposed [para. 53]. The de minimis rule refers to the Latin maxim, de minimis non curat lex which means “the law does not concern itself with trivialities” [footnote 55].

The Court emphasized the importance of the right to freedom of expression, describing it as the “lifeblood” of constitutional democracy and that “[w]hen citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on” [para. 1]. By referring to the history of South Africa and the way the right was violated during the “highly intolerant and suppressive past”, the Court emphasized that it “thus has to be treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents” [para. 2]. However, the Court did emphasize that the right is not absolute and is not more important than other rights. It stressed that limitations can only occur in specific circumstances, such as when national interest, dignity, physical integrity or democracy is threatened. The Court noted that this complied with the country’s international obligations in respect of limitations to free expression.

The Court then examined the history of the crime of incitement in the Riotous Assemblies Act – which was enacted in the apartheid era – and quoted the purpose of the legislation in the preamble as to “consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Republic” [para. 4]. The Court questioned whether the historical context of the Act could indicate its unconstitutionality in a democratic society. Given this context, and the criminalization of challenging unjust laws under the apartheid order, the Court commented that speaking out against laws which a speaker believes to be unjust should not be criminalized. It added that encouraging, rather than forcing, people to defy laws should also not be prohibited as that allows those who receive the information to make up their own mind.

In dismissing the High Court’s finding that the punishment regime in section 18(2)(b) was unconstitutional, the Court found that the High Court’s interpretation that it compels a court to impose the same punishment on the “inciter” as on the person who committed the offence was incorrect. The Court held that the word liable “does not connote inescapability, compulsion or absence of judicial discretion”, and noted that the jurisprudence of this offence demonstrates that the court retains the discretion to impose different sentences on the “inciter” and the perpetrator [para. 27].

The Court undertook an analysis of the structure of the right in section 16, and referred to Islamic Unity Convention v. Independent Broadcasting Authority 2002 (4) SA 294 (CC) in noting that section 16(2) specifically sets out the bounds to which the protection of the right does not extend. However, the Court confirmed that as section 18(2)(b) criminalizes incitement to any offence it does constitute a limitation of section 16(1), and then conducted a limitations analysis under section 36 of the Constitution. Section 36 of the Constitution is a general limitations clause and allows for the limitation of constitutionally-protected rights only in certain circumstances. Section 36(1) states that “[t]he rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors” including the nature of the right; the importance, purpose, nature and extent of the limitation; the relationship between the limitation and its purpose; and whether there are less restrictive means to achieve the limitation’s purpose.

The purpose of the Act is crime prevention, which the Court described as a “legitimate and important societal and governmental purpose” [para. 41], and so the main question in the limitations analysis was whether section 18(2)(b) was proportionate to this legitimate objective. The Court rejected the argument that section 18(2)(b) is constitutional simply because it served the objective of crime prevention. The Court noted that all criminal legislation must have that legitimate objective, but also be “specific, pressing and substantial” for it to be a reasonable and justifiable limitation of the right to freedom of expression [para. 49].

The Court accepted the need to criminalize “certain categories of incitement”, but observed that section 18(2)(b) made made no distinction between serious and trivial offences (beyond the application of the de minimus rule) [para. 50]. The Court noted that “any offence” is too broad to allow individuals to know what is prohibited by the provision, and “its inhibition of free expression is markedly disproportionate to its conceivable benefit to society” [para. 61]. The Court highlighted that this is unnecessary because it would be both protective of freedom of expression and of benefit to crime prevention to tailor the offence to incitement to “serious offences” [para. 61]. The Court expressed concern that the existing provision exposed people to the risk of arrest and prosecution on the exercise of expression and may serve to deter people from expressing themselves out of fear of “the vast or sweeping net of ‘any offence’” [para. 56]. It added that citizens should not have to rely on a “likelihood of eventually being exonerated on the basis of de minimus or necessity” [para. 56].

The Court recognized that a less restrictive means of achieving the goal of the provision would be to exclude “those offences that are minor but are not necessarily de minimus in character” [para. 63]. Accordingly, it held that section 18(2)(b) was not a reasonable and justifiable limit of freedom of expression.

The Court stated that the Minister of Justice had provided no justification for criminalizing incitement to all offences and for why the objectives of crime prevention could not be met by replacing “any offence” with “serious offence”. The Court rejected the argument that “‘serious’ is too difficult a concept to grapple with” and said that that could not be the reason for limiting rights [para. 57]. It also rejected the Minister’s arguments for why the offence ameliorated against the limitation of the right, and noted that the intention and burden of proof cited by the Minister are factors of all criminal offences and not just the one under the Act. It also said that the de minimus rule only applies to some of the minor offences, and that many South Africans are not in a financial position to mount a challenged to criminal offences. With reference to S v. Manamela 2000 (3) SA 1 (CC), the Court noted that the risks involved in criminal prosecutions are too high to justify the limitation of the right in this way. The Court noted that it could not pass its responsibility to prevent infringements of the right to free expression onto the law enforcement entities, and quoted Teddy Bear Clinic v. Minister of Justice 2014 (2) SA 168 CC, which held that “the existence of prosecutorial discretion cannot save otherwise unconstitutional provisions” [para. 59]. The Court added that “[t]he uncertainty about the extent to which the State may limit free expression in relation to incitement must therefore end now” [para. 59].

In discussing the remedy, the Court stressed the importance of crime prevention and the need for Parliament to be able to draft the most appropriate replacement for section 18(2)(b). The Court stated that to address the lacuna in the law following this judgment it would read-in “serious” into section 18(2)(b). The Court recognized that “serious” may have different meanings to different people, but stressed that there is precedent for the interpretation of “serious” and the Criminal Procedure Act does provide some guidance on what would be considered “serious offences”.

The minority judgment, written by Judge Majiedt (with Jafta and Tshiqi JJ), stated that it would have found that the limitation to the right to freedom of expression in section 18(2)(b) of the Act was reasonable and justifiable.

The minority stressed the role of the crime of incitement in responding to crime in South Africa, and, with reference to the Act’s historical context, noted that it “would be remiss of us to ignore the utility of this section because it was previously used as a means to suppress political speech” [para. 83].

In applying its own limitations analysis, the minority accepted that the Act limited the right to freedom of expression and so focused its discussion on whether that limitation was reasonable and justifiable. It agreed with the majority’s emphasis on the importance of the right to freedom of expression, but highlighted that the right is limited in two ways in South Africa’s constitutional framework: through the internal limitations in section 16(2) and then through the general limitations clause in section 36. The minority noted that the other rights implicated in this case are the rights to freedom and security of the person (section 12 of the Constitution), property (section 25), and access to adequate housing (section 26), and stated that as there is no hierarchy of rights in South Africa’s constitutional framework, any assessment of conflicting rights must be conducted according to section 36’s proportionality test.

The minority made specific reference to the Islamic Unity Convention case and its discussion on how section 16(2) of the Constitution sets the boundaries to which the protection of the right does not extend, and underscored that section 16(2) “merely provides that the right to freedom of expression does not extend to incitement of imminent violence” [para. 102]. The impact of this means that it is only when expression protected under section 16(1) is limited that a section 36 analysis has to be undertaken: expression under section 16(2) is not protected and so cannot be limited, and so, necessarily, there is no need for a limitations analysis.

The minority disagreed with the majority’s interpretation of the Constitution as both prohibiting the limitation of free expression solely for the incitement to commit “any offence”, and the criminalization of incitement to commit offences that do not pose danger or serious harm. The minority noted that section 16(2) does not mention “serious offence” (but does exclude “incitement to imminent violence” from the protection of the right) and that, in any event, “section 16(2) deals with constitutionally unprotected speech and has nothing to do at all with any limitation of the right to free speech” [para. 103].

The minority conducted a thorough analysis of comparative foreign jurisprudence and mentioned the Court’s request to the World Conference on Constitutional Justice on “other jurisdictions’ position on the crime of incitement and its requirements” which had then concluded that “many jurisdictions criminalise the exercise of freedom of expression when used to incite others to commit criminal conduct” and that “seriousness is not a requirement for the crime of incitement or similar offences” [para. 115]. The minority noted, with reference to S v. Mamabolo (E TV intervening) 2001 (30) SA 409 (CC), that U.S. jurisprudence is not directly applicable to South African law because of its elevation of the First Amendment right to free speech “above all other rights” [para. 106], and criticized the EFF’s reliance on American jurisprudence in its arguments. However, the minority noted that many other jurisdictions do criminalize incitement to criminal conduct- even where the incitement is not to violent or serious offences. The Court specifically mentioned the European Court of Human Rights case of Palusinski v. Poland No. 62414/00 ECHR 2006 which found a conviction for incitement to drug use a justifiable limitation to freedom of expression, and the European Commission of Human Rights case of Arrowsmith v. United Kingdom No 7050/75 ECHR 1978 which upheld the conviction of an individual distributing leaflets urging soldiers not to serve in Northern Ireland. The minority also mentioned the U.K. case of Invicta Plastics Ltd. v. Clare [1976] RTR 251 and the Canadian case of R v. Hamilton 2005 SCC 47, and Germany, Australia, Canada, Botswana, Kenya, Cameroon, Mexico, Croatia, the Czech Republic, the Slovak Republic, Bulgaria, Azerbaikan, Kosovo, Sweden, Bosnia and Herzegovina and the Netherlands as jurisdictions with incitement offences. The minority stressed that the foreign jurisdictions to which it referred “mention the need to protect human dignity, liberty, freedom and equality” and are therefore “apposite comparisons” [para.116]. It also emphasized that it appears only in the U.S. that incitement is punishable only if it is “directed to inciting or producing imminent lawless action”, but reiterated that the U.S. premium on the right of free speech is not analogous in South Africa [para. 117-118].

In discussing the importance of the limitation and stressing the importance of crime prevention, the minority recognized that the history of the Act is “abhorrent” but that the “fact that the Riotous Assemblies Act is a relic of apartheid and presently has a preamble that is vile does not in itself subvert its function and utility as a legislative tool to combat crimes under our democratic dispensation” [para. 120]. The minority said that it could not consider the “original intention” of the apartheid legislature as its only focus must be on the “constitutionality of the impugned provision” [para. 120].

The minority undertook an analysis of the type of enquiry that needs to be conducted when examining the nature and extent of the limitation. It referred to De Rueck v. Director of Public Prosecutions, Witwatersrand Local Division 2004 (1) SA 406 (CC) which had noted the need to “distinguish between limitations concerning the core and those concerning the periphery of the right to freedom of expression” [para. 124]. The minority noted that the element of the right that is affected by section 18(2)(b) is the right to receive or impart information, and that the provision only limits the ability to encourage others to commit a crime. The minority concluded that this is a “relatively minor curtailment of free speech” [para. 125]. However, the minority emphasized that this does not mean that “robust political debate must be stifled” [para. 126] and commented on the importance of the debate on land reform. Nevertheless, the minority cautioned that the strong emotions in the debate cannot justify incitement to crime and noted that the “volatility of the current debate” justified the “limitation of what is at the periphery of the right” [para. 130]. The minority concluded by noting the importance of land reform, but that “[o]rderly land reform must occur within the bounds of our Constitution” [para. 156].

In looking at the relation between the limitation and its purpose, the minority stated that there was a “causal connection” and that section 18(2)(b) was proportionate [para. 131]. The minority commented that “there is to my knowledge, not a single instance in our democratic era where the impugned provision in the context of incitement has been abused in practice, applied inconsistently or resulted in harsh or unfair consequences” [para. 132].

The minority examined the question of whether there were less restrictive means to achieve the objective of the limitation, and applied a “cost-benefit analysis” [para. 134]. The minority accepted the Minister’s arguments that there were sufficient safeguards – namely the requirement of intention, the onus of beyond a reasonable doubt, prosecutorial discretion to not prosecute trivial matters – to safeguard against an interpretation that “any offence” was overbroad. The minority commented that a proportionate punishment – which it identified as a punishment that was no more than the maximum sentence available for the primary offence – is reasonable and justifiable.

The minority disgreed with the majority’s proposed remedy, on the grounds that it “would lead to considerable uncertainty and may well cause some injustice” [para. 149] as that even though “any serious offence” may be less broad than “any offence” it is more vague.

The minority concluded that, given that the limitation was to the periphery of the right, and that there was an importance purpose of criminalizing incitement and a rational connection between the limitation and the purpose, the overbreadth of “any offence” can be cured by the existing criminal law restraints.

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