Just outside the doors of the Constitutional Court, there is a loudspeaker from which the sounds of freedom songs can be heard. The songs play all day long; and at a volume that makes it sound like they are being carried on the wind from far away. From the past even.
On Tuesday afternoon, after court adjourned, the song was Senzenina — the lament sung in the aftermath of the Sharpeville Massacre in 1960, where 69 protesters were gunned down for objecting to the forced carrying of passbooks.
It was an appropriate song because the case before the court dealt with one of the last vestiges of apartheid legislation — the Riotous Assemblies Act. It is a law drafted specifically in response to another momentous historical moment of struggle, the adoption of the Freedom Charter in 1955. The preamble of the Act says its purpose is “the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Union”.
Though large chunks of the Riotous Assemblies Act have been repealed since 1994, some sections remain in force, including the odious preamble. Even counsel for the minister of justice, who was defending the legislation, said it was “inexplicable” that the preamble remained on our statute books.
After a torrid week for the ANC in Parliament, when it found itself defending the presence of FW de Klerk at the State of the Nation address, the government was in a similar position — in court this time — defending a piece of legislation that was specifically designed for the suppression of the ANC and other liberation movements.
The Riotous Assemblies Act was not just law passed in the era of apartheid, said counsel for the Economic Freedom Fighters, Tembeka Ngcukaitobi. This was not the Banks Act, he said. It was a law that was specifically passed to enforce apartheid — “to deal with Mandela” and the other political leaders agitating to fight the system. The Act makes it a crime to “incite, instigate, command or procure” another person to commit “any offence”.
After lying unused on our statute books for years, it was “dusted off” and used to charge EFF leader Julius Malema, after he called on his supporters to occupy vacant land. The crime he was inciting his followers to commit was trespass under the Trespass Act, said the National Prosecuting Authority (NPA) when he was charged in 2017.
The incitement provision is “hopelessly overbroad” in our constitutional scheme and unjustifiably infringes the right to freedom of expression, argued Ngcukaitobi. Although the Constitution does exclude the “incitement of imminent violence” from the mantle of its free speech protection, the Riotous Assemblies Act goes further. It makes it a crime to incite any crime, no matter how unserious, no matter if it is not violent and no matter if it is not imminent. And even if the incitement leads nowhere and no one does anything as a result of the incitement, it is still a criminal offence, he said. “So it is truly, Chief Justice, a punishment for speaking.”
But, asked Justice Zukisa Tshiqi, if the section were to be struck down, what about other crimes? Ngcukaitobi responded that he was not saying there should be no crime of incitement at all, only that the one currently on our statute books was unconstitutional.
Friend of the court, the Socio-economic Rights Institute (Seri), showed how, internationally, the crime of incitement was drafted in different ways — but ways that were narrower than what we have in South Africa. “It is really the ‘any offence’ that’s the problem,” said Seri’s counsel Stuart Wilson.
Wilson said that the court had to balance the right to freedom of expression with protecting against the “solicitation of crime”. This was not easy, he said. And because there were many different options available about how to do it, this was a job best left to Parliament.
Counsel for the justice minister, Hilton Epstein SC, argued that despite its “abhorrent preamble”, the fact that the section was enacted during the apartheid era did not per se render it unconstitutional.
“We hold a firm view that regardless of the era in which the provisions were passed, they remain necessary. Putting them aside without anything in their place would result in the state being unable to effectively respond to anarchic behaviour of the sort to be propagated by the EFF,” he said.
“Mr Malema is of course free to exercise his freedom of expression rights. He can denounce the slow progress of land reform. He can passionately agitate for land reform. He can march, he can mobilise people to march with him. There is nothing to stop him from doing that. But what he may not do is, with direct intent, rouse his followers to action which would be unlawful.”
Epstein said that the rule of law was the “cornerstone of land reform. This Constitution does not sanction the arbitrary seizure of land, the duty of the state is to ensure the protection of property owners, while acknowledging there is a need, an urgent need, for land reform.”
He said it would be wrong to draw a line between serious and non-serious offences — “as everyone is equal before the law. You can’t have some laws for some people and other laws for other people.”
But to this he faced intense questioning from some of the justices, with Chief Justice Mogoeng Mogoeng positing certain examples — a car rushing someone to hospital, with someone encouraging the driver to “step on it”, thereby breaking speeding laws; a person encouraging another to smoke “a particular herb, before it was decriminalised by this court”.
“It’s a small thing from the look of things,” suggested Mogoeng.
Epstein said there was a defence of necessity in the case of the speeding example. Also, we should trust the NPA’s discretion not to prosecute trivial matters, he said.
But Mogoeng questioned why people should have to pay “very expensive” lawyers to bring a defence of necessity. He said when judges of the Constitutional Court went to visit prisons, they were shocked to find people behind bars awaiting trial for the theft of a loaf of bread or a two-litre container of milk. Why should the court not be realistic about the state of the criminal justice system, he asked. Epstein replied that the Constitutional Court should not “nanny institutions”.
Ngcukaitobi, however, also addressed this argument saying that the Constitutional Court had, in earlier judgments, been very clear that prosecutorial discretion would never save a law that was otherwise unconstitutional.
There was another leg to the argument made by the EFF — that trespass should not be a crime when it came to unlawful occupiers of land. The Prevention of Illegal Evictions Act (Pie) — constitutional era legislation — was specifically enacted to protect unlawful occupiers of land who had built homes there. There was a direct contradiction between the Trespass Act and the Pie Act, he said, with the Trespass Act creating a crime where the Pie Act gave protection. But this could be solved by the court saying that where Pie is applicable, the Trespass Act is not.
Wilson went further, saying that the Pie Act had impliedly repealed the Trespass Act in so far as unlawful occupiers were concerned.
If trespass in this context were no longer a crime, the state would not be able to prosecute Malema because he would not have been inciting anyone to commit any crime.
But counsel for the government said this would be an unviable reading of the Trespass Act and what the EFF was actually doing was attacking the constitutionality of the Trespass Act.
The crime of trespass remained important in other contexts, argued Michael Osborne for the government. “If property means anything, indeed trespass remains a crime,” he said.
Judgment was reserved.