On a few occasions, Julius Malema, the leader of the Economic Freedom Fighters, has addressed the crisis of landlessness in ways that some argue encourages land grabs. For others, it speaks to the urgent need for land reform.
This week, these utterances formed the background of a hearing in the Constitutional Court between the EFF and Malema on one side, and the minister of justice and constitutional development and the national director of public prosecutions on the other.
Before the court was an application for leave to appeal against a decision of the high court on the constitutionality of section 18 (2)(b) of the Riotous Assemblies Act 17 of 1956 and section 1 Thin space of the Trespass Act 6 of 1959.
The two pieces of apartheid legislation were enacted when the majority of the country were defined, by law, as subjects and not citizens. Black people could not own property and their agitation for rights and recognition was criminalised. By design, apartheid systematically disenfranchised black people, relegating generations to come into poverty.
The negative effects of these laws are clearly illustrated in the case of the State v Zwane. The matter involved Rachel Zwane, who has lived with her daughters and grandchildren in a small house in Ennerdale, Johannesburg, which she bought with the assistance of a mortgage bond in 2001.
In 2008, when Zwane lost her job because her employer of 20 years ceased trading, she struggled to keep up with her mortgage bond payments and fell into arrears. With no proper notice, the bank sold her home in execution and the new owner of the property obtained a default eviction order against her.
Zwane only learned of the eviction in May 2012 when she and her family were forcibly removed from their home and left on the street with nowhere to go. The family re-entered the property after one of Zwane’s grandchildren climbed back into the house though a broken window to open the front door from inside.
It was only in May 2015 that Zwane had to make her first appearance for the criminal charges of housebreaking and trespass for which she was found guilty.
Zwane sought leave to appeal her conviction on the grounds that the Trespass Act did not apply to those who unlawfully occupy their homes because the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) protects unlawful occupiers from being evicted from their homes if the eviction will render them homeless. But the high court found that the Trespass Act criminalises the occupation of a home once an eviction order has been obtained. Yet section 1(1) of the Trespass Act does not refer to a court order.
South Africa acknowledges the disparities of the past and, through the PIE Act, seeks to address the reality that many people have been forced to unlawfully occupy land and property out of desperation driven by poverty rather than malice. This is the reality for Zwane, who once owned her home. It is also the reality for at least 1.25-million households who live in informal settlements. The incorrect response to this reality would be criminalisation.
The co-existence of the Trespass Act and the PIE Act presents a clear example of how historical disparities cut through legislation in conflict with efforts to address these very disparities.
Section 18(2)(b) of the Riotous Assemblies Act makes criminalisation possible for incitement to commit any offence. Anyone who is considered to incite an offence can be punished as if they committed the offence themselves, whether or not the offence occurred.
The danger of this clause is its infringement on the right to freedom of expression, which is a critical part of political expression. This right includes the “freedom to receive and impart information or ideas”, freedom of the press, as well as academic and creative freedoms. The Constitution is clear about the kinds of expressions that are not protected, such as incitement of violence, advocacy of hate on the basis of race, religion and gender, among others.
The fact that political action through civil disobedience is sometimes in breach of the law means that organisers, whether participants or not, can be criminalised for incitement. Advocating for people to not pay e-tolls or even providing advice to sex workers (a profession that is still criminalised in South Africa) could be characterised as incitement.
To criminalise the incitement of violent crimes or crimes that harm others is both reasonable and necessary, but the Riotous Assemblies Act contains no such limitation. Should people who encourages a demonstration that temporarily involves trespassing for the purposes of symbolically illustrating the crisis of inequality be culpable of incitement on the grounds that the protest would violate laws against trespassing? Should the gender activist who calls for a naked protest against rape
culture be punished for incitement on the grounds that the protest would violate laws against public indecency? Are there other, more appropriate and better targeted ways of responding to such actions or is criminalisation the only response?
The health and robustness of a democracy is related to its ability to engender and tolerate the contestation of ideas. Criminalisation is, at best, a blunt tool and, at worst, a dangerous one. Section 18(2)(b) of the Riotous Assemblies Act and its broadness can be misused to unjustifiably limit free speech and serve as a deterrent for political action.
Under apartheid, this law was introduced to give the state broad and sweeping powers to target those it deemed to pose a threat to public peace and, by extension, the status quo. It was used to imprison and, in some cases, sentence political leaders to death. Although this history does not in and of itself invalidate the Riotous Assemblies or the Trespass acts, their purposes under apartheid and their purposes today must be interrogated.
The effects and purposes of the two Acts under apartheid does not miraculously transform because it is applied by a new regime. Zwane’s story shows how a person entitled to both constitutional and legislative protections can still be criminalised under the Trespass Act and have the high court confirm their criminalisation. Similarly, we see how the Riotous Assemblies Act has, contained in it, an excessive broadness that, when weighed in the balancing of rights, could lead to an infringement on the constitutional freedoms of assembly and expression. Both are examples of areas in which our legislation must be brought in line with our current dispensation and to keep pace with current realities.
Thato Masiangoako is a researcher with the Socio-Economic Rights Institute of South Africa