Constitutional Court strikes down part of the Intimidation Act

 

 

Someone is standing on a street corner in Blairgowrie, Johannesburg. She hands out flyers advocating for land expropriation without compensation. It scares people; they worry that their property will be seized. If this had happened last week, she could have been arrested and charged with intimidation. Now, she cannot — thanks to a judgment from the Constitutional Court, handed down on Tuesday.

The judgment, striking down parts of the Intimidation Act — a piece of apartheid-era legislation — is a victory for freedom of expression and against potential abuse of power by police.

The example of the activist with the expropriation flyers in “a known libertarian suburb” was the example given in the Constitutional Court’s unanimous judgment.

Acting Justice Aubrey Ledwaba said that a “plain reading” of section 1(1)(b) of the Intimidation Act criminalised conduct that caused someone to fear for their own safety or the safety of their property or livelihood.

“This, in my view, casts the net of liability too widely,” he said.


The real-life story that gave rise to the case was that of General Moyo, a community activist who in 2012 sought permission to hold a march to the Primrose Police Station in solidarity with those that had been gunned down by the police in Marikana the same year. Permission was refused. Moyo got angry. According to the charge sheet he threatened that he would make sure the police officers were removed, he said there would be bloodshed, a repeat of Marikana.

The charge sheet says: “He pointed fingers at the complainants, he charged towards the complainants.”

Moyo has denied that he intended to intimidate the police officers, saying instead that his arrest was intended to frustrate his organisation’s right to protest and criticise the police.

The Supreme Court of Appeal had sought to save the legislation in line with a long-established principle: that if there is a way to read a law that will make it constitutionally compliant, that is the route that courts should take, rather than striking it down.

The Supreme Court of Appeal said the law could be read in a constitutional way, or “read-down”, if, in order to convict, the state would have to show that there was an intention to intimidate, that the fear it caused was objectively reasonable and based on a fear that was imminent and that there was no lawful reason for the intimidating behaviour.

But Ledwaba said this reading of the Act was unduly strained. “When attempting to interpret legislation by ‘reading-down’ a section to bring it into conformity with the Constitution, care should be taken to stay within the boundaries of a reasonable and plausible construction that does not rewrite the text.”

He added that there was a danger that, when there were too many “canons of statutory interpretation” in use, people would find it impossible to regulate their conduct – thereby implicating the rule of law. The rule of law requires that laws are sufficiently clear to allow people to know what’s allowed and what’s not allowed.

“This concern is all the more pressing in cases, such as this, where the provision can result in the denial of that person’s liberty or freedom of expression,” said Ledwaba.

The Intimidation Act criminalised speech that is protected by the right to freedom of expression, said Ledwaba. While the constitution does not protect expression that amounts to the incitement of imminent violence and hate speech that constitutes incitement to cause harm, the Intimidation Act criminalised the actions of a single person, even where there was no incitement. Nor do the words “imminent violence” appear in the text of the context of the Act, he said.

The section on its plain reading criminalised protected free speech “and probably also peaceful forms of protest,” he said.

The judgment also struck down section 1(2) of the Act, which had put the onus on the person accused of intimidating to show that there was a lawful reason for their conduct. “It is clear that section 1(2) absolves the state from proving all the elements of the crime created in section 1 of the Act. This is an obvious and impermissible infringement of the right to be presumed innocent, to remain silent and the right not to be compelled to give self-incriminating evidence.”

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

Related stories

Does the Expropriation Bill muddy the land question even further?

Land ownership and its equitable distribution has floundered. Changes to a section of the constitution and the expropriation act are now before parliament, but do they offer any solution?

‘We’re satisfied with SA’s land reform policy’— US Ambassador

Top US official is lobbying multinational firms to invest in South Africa

ANC execs want land power

Experts say, however, that the executive already has authority and this latest move is politicking

Courts to guide land expropriation

Two bits of law need to be approved before a court can decide if land owners will be compensated

​Eskom will be fixed, service delivery improved, Ramaphosa promises at ANC 108

ANC president says only his party can improve lives, as Northern Cape residents lament their struggles in South Africa’s sparsest province

Our artistic herri-tage online

The viewer is in total control when navigating a website named after Herri the Strandloper, a soundmine of narratives and ideas
Advertising

Subscribers only

Dozens of birds and bats perish in extreme heat in...

In a single day, temperatures in northern KwaZulu-Natal climbed to a lethal 45°C, causing a mass die-off of birds and bats

Q&A Sessions: Frank Chikane on the rainbow where colours never...

Reverend Frank Chikane has just completed six years as the chairperson of the Kagiso Trust. He speaks about corruption, his children’s views and how churches can be mobilised

More top stories

Eusebius McKaiser: Mpofu, Gordhan caught in the crosshairs

The lawyer failed to make his Indian racist argument and the politician refused to admit he had no direct evidence

Corruption forces health shake-up in Gauteng

Dr Thembi Mokgethi appointed as new health MEC as premier seeks to stop Covid-19 malfeasance

Public-private partnerships are key for Africa’s cocoa farmers

Value chain efficiency and partnerships can sustain the livelihoods of farmers of this historically underpriced crop

Battery acid, cassava sticks and clothes hangers: We must end...

COMMENT: The US’s global gag rule blocks funding to any foreign NGOS that perform abortions, except in very limited cases. The Biden-Harris administration must rescind it
Advertising

press releases

Loading latest Press Releases…