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.”