Case Summary and Outcome

The South African Constitutional Court ruled that provisions in the Intimidation Act 1982 were an unconstitutional limit to the right to freedom of expression because they criminalized speech that did not constitute an “incitement of imminent violence”. Two individuals had been charged under the legislation in separate cases and challenged the constitutionality of the provisions. Although the High Court and the Supreme Court of Appeal had ruled that the provisions were constitutional and that it was necessary to criminalize intimidatory conduct, the Constitutional Court relied on the textual interpretation of the provisions and the right to freedom of expression in the Constitution.  The Court acknowledged that the constitutional protection does not extend to expression that incites imminent violence but held that the provisions’ criminalization was broader than this and so criminalized protected expression. The Court declared the provisions invalid and ordered that the declaration of invalidity apply to all pending cases brought under the legislation.

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Facts

On October 18, 2012, General Alfred Moyo, a community leader of an informal settlement near Germiston, South Africa, applied for permission under the Regulation of Gatherings Act to march to the Ekurhuleni Metropolitan Police Department. The request was denied and after Moyo made statements which were described by police officials as “threatening and violent” [para. 8], he was arrested and charged with contravening section 1(1)(b) of the Intimidation Act, 72 of 1982 (the Act). Moyo denied that he had sought to intimidate the police officers and stated that the charge was “intended to frustrate [his] organisation’s legitimate right to protest and criticise what he considered to be biased policing policies” [para. 9].

On December 17 and 18, 2012, an individual alleged that Nokulunga Primrose Sonti, a South African Member of Parliament, had sent threatening text messages and made threatening phone calls. The individual stated that these threats were an attempt to get her to withdraw criminal charges she had laid against another individual. Sonti denied that the calls and text messages related to any form of threat and stated that she had merely sought additional information about the criminal charges. Sonti was arrested and charged under sections 1(1)(a)(ii) and (1)(1)(b)(i) of the Act.

Section 1(1) of the Act states: “Any person who (a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind of persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint – (i) assaults, injures or causes damage to any person; or (ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind; or (b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication – (i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person (ii) … shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 [approximately US$2 700 in 2019] or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment”.

Section 1(2) states: “In any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution.”

Moyo and Sonti individually approached the High Court seeking a declaration that sections 1(1)(b) and 1(2) of the Act were unconstitutional. Two civil society organizations, the Centre for Applied Legal Studies (CALS) and the Socio-Economic Rights Institute (SERI), were applicants in both cases and joined in the public interest. Another civil society organisation, the Right2Know Campaign (R2K) joined the case as an amicus curiae.

The cases were brought against the Minister of Police, the National Director of Public Prosecutions, the Director of Public Prosecutions of South Gauteng (for the Moyo case) and the Director of Public Prosecutions for North West (for the Sonti case), and the Minister of Justice and Correctional Services. Only the Minister of Police opposed the applications.

The High Court dismissed both applications, holding that although the legislation infringed the right to freedom of expression the infringement was reasonable and justifiable. The Court held that the infringement in section 1(1) was justifiable because of the “necessity of criminal sanction for intimidatory conduct” and that section 1(2) was necessary in order for the State “to secure a competent conviction” [para. 13].

Moyo and Sonti appealed the High Court’s decision to the Supreme Court of Appeal (SCA). In respect of section 1(1)(b) the majority in the SCA held that the provision was constitutionally justifiable. The matter turned on the interpretation of section 1(1) and the majority read in the elements of mens rea and unlawfulness into the provision. This meant, in respect of the mens rea element, that conduct contravening section 1(1)(b) would be determined objectively and only found to be “intimidatory” if it induced a “reasonable fear in another” [para. 16]. In respect of the element of unlawfulness, the Court held that a “lawfulness” defence existed in respect of the criminal offence, and so an individual arrested and charged under section 1(1)(b) could argue that their conduct was not unlawful because it constituted the execution of constitutionally-protected rights and so would avoid conviction. The minority in the SCA disagreed, stating that section 1(1)(b) “blurred the line between true threats and what can be considered ‘political hyperbole’,” and so infringed the right to freedom of expression [para. 20].

In respect of section 1(2) the SCA concluded that the provision was unconstitutional and “no basis existed upon which the constitutional infringement could be justified under section 36 of the Constitution [the general limitations clause]” because it infringed the presumption of innocence [para. 21].

The Constitutional Court was therefore required to confirm or reject the SCA’s declaration of constitutional validity in respect of section 1(2). In addition, Moyo and Sonti appealed the SCA’s finding that section (1)(1)(b) was constitutionally justifiable.

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Decision Overview

Acting Judge Ledwaba delivered the unanimous judgement of the Constitutional Court. The Court described the central issue as “whether section 1(1)(b) is constitutionally invalid for unjustifiably criminalising expressive conduct that is protected by section 16(1) of the Constitution” [para. 41].

Moyo, Sonti, CALS and SERI argued that the SCA’s interpretation that section 1(1)(b) requires that the fear caused by the conduct be objectively reasonable “strains the text of section 1(1)(b)” and so is not a permissible interpretation of the text [para. 46]. R2K added that, even if that interpretation was permissible, it would render the provision overly broad and impermissibly vague.

The Court recognized that the matter required it to balance the rights to dignity, personal freedom and security that the Intimidation Act sought to protect with the right to freedom of expression. It added that “[r]obust debate has rightly been called the ‘lifeblood of democracy’” and that the Constitution “empowers everyone to speak their mind without fear of undue recrimination” [para. 26].

Although it based its reasoning on a different ground, the Court confirmed the SCA’s finding that section 1(2) was unconstitutional as it “allows for an accused to be convicted in circumstances where there exists a reasonable doubt as to the unlawfulness of their conduct” [para. 37].

In respect of section 1(1)(b) the Court noted that a literal reading of the provision criminalized “any expressive act which induces any fear, of any kind, for one’s own safety, or the safety of one’s property, the security of one’s livelihood, or the safety of another” [para. 42]. The Court gave the example of the act of handing out fliers for the expropriation of land in a libertarian suburb as conduct which would be criminalized under this provision, and stated that this demonstrated that it “casts the net of liability too wide as it depends simply on the experience of fear by another” [para. 44]. It added that it was “inconceivable that an infringement of this kind could ever be justifiable in an open and democratic society based on human dignity, equality and freedom” [para. 42].

The Court characterized the SCA majority judgment’s interpretation of the provision as requiring that “the fear relied upon must be objectively genuine, reasonable and one based on a fear of imminent harm” [para. 49]. In discussing the nature of legislative interpretation, the Court confirmed that when faced with a constitutional challenge and when a provision is open to multiple interpretations the interpretation that best conforms with the Constitution should be preferred. It added that a criminal offence established in legislation must be sufficiently clear to enable individuals to understand the details of a charge flowing from that provision. The Court stated that there are two canons of construction in criminal statutes: that there can be no criminal liability without fault; and that any conduct subject to criminal sanction must necessarily be unlawful. These canons are particularly important because the Court stressed that the SCA’s interpretation read in the requirements that the accused have the requisite mens rea and that the conduct be unlawful.

The Court reiterated that freedom of expression is protected in the Constitution, but that it is limited. Section 16(1) states that “Everyone has the right to freedom of expression, which includes (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research”. However, subsection 2 explicitly excludes from the provision’s protection “(a) propaganda for war; (b) incitement of imminent violence; and (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

Characterizing the SCA’s interpretation of “intimidation” as being the “incitement to imminent harm or an inculcation of a reasonable fear for imminent harm” [para. 64], the Court noted that the question before it was whether section 1(1)(b) was constitutionally invalid because it criminalized expressive conduct that did not incite imminent violence. If the provision criminalizes “conduct that creates objectively reasonable fear of harm to person, property or security of livelihood” then it would be constitutionally invalid because it would then be criminalizing protected speech [para. 65].

The Court held that the imminent harm qualification introduced by the SCA “appears neither in the text nor context of the Act” [para. 67]. It added that the Intimidation Act sought to prevent intimidatory conduct which included conduct that leads to fear for one’s own safety or for the safety of property. This, the Court noted, is not the same as fear of actual harm or that the threat of the harm is imminent.

Accordingly, the Court held that the SCA judgment had unjustifiably “read-in” the qualification of “imminent harm” and that its interpretation was therefore one which unduly strained the text of the provision. Instead, the Court held that the provision did only criminalize “intentional conduct that creates an objectively reasonable fear of harm to person, property or security of livelihood” and that it therefore criminalizes protected speech and “probably also peaceful forms of protest” [para. 69]. The provision therefore limited the right to freedom of expression. The Court noted that as no justification was provided by the Minister of Police, the Court was not required to determine the justifiability of the limitation.

Accordingly the Court held that sections 1(1)(b) and 1(2) were unconstitutional and invalid, and ordered that the invalidity operate immediately and apply retrospectively to any pending matter under section 1(1)(b) of the Act.

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