Economic Freedom Fighters v Minister of Justice and Correctional Services
Constitutional Court examined free expression and emphasised that a less restrictive means of proscribing constitutionally objectionable incitement is the exclusion of “minor offences” and criminalising the incitement of only “serious offences” and perpetrators of “any offence” would still be prosecuted and punished but accomplices would still face the wrath of the common law and the value of circumscribing this limitation protects, respects, promotes and fulfills the right to free expression and serious crime would still be combatted.
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Mogoeng CJ (majority):  to  – see below
Majiedt J (dissenting):  to  – to follow
Heard on: 18 February 2020
Decided on: 27 November 2020
Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at
Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2020)
Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at
Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at
“ The criminalisation of incitement to commit “any offence” overshoots the mark of crime prevention that is free expression sensitive. To ensure that section 18(2)(b) shoots within the confines of a constitutionally-permissible range, and thus constitutes a less restrictive means of limiting free expression, “serious” is the word that must be inserted between “any” and “offence”. And the insertion of “serious” would serve the purpose of constraining the overbreadth in the interim.
 “Any serious offence” is admittedly not without practical challenges. For, what is serious to some may not necessarily be serious to others. There is, therefore, an element of fluidity in relation to which offences are then to be understood as envisaged by “any serious offence”. This raises the question: what is the meaning of “serious” and how is “serious” to be measured or determined? Murder, rape, armed robbery, fraud, human trafficking and corruption are examples of offences that self evidently fall within the realm or meaning of serious offences. Many more fit the description. These crimes are deemed mala in se, that is, evil by their very nature. We are unable, though pressed, to define or develop a somewhat clearer standard by which “seriousness” may be assessed, owing to time and resource constraints. We say this without playing down the need for clarity and for the resultant predictability of the operation of the law which are central facets of the rule of law.”
Quotations from judgment
Note: Footnotes omitted and emphasis added
“Riotous Assemblies Act 17 of 1956 — incitement — sentencing — liable — freedom of expression — justification analysis — overbreadth — less restrictive means
Trespass Act 6 of 1959 — interpretation of trespass — Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 — constitutional challenge’
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
“On Friday, 27 November 2020 at 10h00, the Constitutional Court handed down judgment concerning issues decided by the High Court of South Africa, Gauteng Division, Pretoria. These were whether:
- (i) the High Court’s order declaring section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 constitutionally invalid, should be confirmed;
- (ii) section 18(2)(b) of the Riotous Assemblies Act is inconsistent with the right to free expression, as enshrined in section 16(1) of the Constitution, by reason of its overbreadth; and
- (iii) section 1(1) of the Trespass Act 6 of 1959, properly interpreted, is inapplicable where the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) applies.
The genesis of this matter is statements attributed to Mr Julius Sello Malema, the President of the Economic Freedom Fighters, allegedly encouraging people at several gatherings to occupy any land they like, presumably without lawful permission or reason. The National Prosecuting Authority preferred criminal charges against him. They were essentially about inciting other people to commit trespass in contravention of section 18(2)(b) of the Riotous Assemblies Act read with section 1(1) of the Trespass Act. Mr Malema and the EFF challenged the constitutional validity of section 18(2)(b) in the High Court. The Court concluded that section 18(2)(b) was unconstitutional because it compelled a court to impose the same punishment on the inciter as on the actual perpetrator of the offence. It however dismissed the contention that section 18(2)(b) was overbroad and that the Trespass Act was not applicable. Aggrieved by this outcome, Mr Malema and the EFF approached the Constitutional Court.
In the majority judgment written by Mogoeng CJ, in which Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, and Victor AJ concurred, the Constitutional Court dismissed the application to confirm the High Court’s order declaring the punishment regime of section 18(2)(b) unconstitutional. It held that the fact of the inciter being “liable” to punishment in this section means that the imposition of the same punishment on the inciter as on the actual perpetrator is not mandatory but discretionary. It also held that the criminalisation of inciting others to commit “any offence” is overbroad and inconsistent with the right to freedom of expression in section 16(1) of the Constitution.
In order to provide effective interim relief it was considered necessary that the word “serious” be inserted between the words “any” and “offence” in section 18(2)(b), pending Parliament’s more enduring intervention. Additionally, the order of constitutional invalidity was suspended for a period of two years to allow Parliament to correct the defect.
The Court dismissed the application to interpret section 1(1) of the Trespass Act in a manner that effectively renders it impermissible for one to face criminal charges where PIE applies. It did so on the basis that the issue was not properly pleaded.
The minority judgment penned by Majiedt J (Jafta J and Tshiqi J concurring) agreed with the majority judgment on section 1(1) of the Trespass Act. With regard to section 18(2)(b) of the Riotous Assemblies Act, the minority agreed that by criminalising the incitement of others to commit “any offence”, the impugned section limits freedom of expression. However, the minority judgment disagreed with the majority judgment in two fundamental ways.
- First, the majority judgment’s outlook on the crime of incitement and how it should be treated in a robust, democratic Republic like ours and,
- second, its approach to the justification analysis.
Ultimately, the minority judgment held that based on a global proportional assessment (as envisaged by section 36(1) of the Constitution), the legitimate and important purpose of crime prevention underscoring the impugned provision, coupled with the existence of a rational connection between the means and ends, the limitation strikes at the penumbra of a constitutionally cherished right, and the overbreadth of the impugned provision can be cured by existing countervailing factors to guard against its misuse (these include, amongst others, the stringent requirements for a crime to constitute incitement and the principle that the law does not concern itself with trivialities).
A further consideration is that the curtailment of free speech by the impugned provision is minimal. All of these coalesced considerations evince a proportionate effect on the right and thus tip the scales towards a reasonable and justifiable limitation of the right in section 16(1) of the Constitution.
The minority judgment noted that the criminalisation of incitement is vital in the country’s fight against the pervasive crime wave and serves to protect the rule of law and the rights of others in our constitutional democracy. The minority judgment observed that robust public debate and heated political discourse about the land question must be afforded its deserved space in our vibrant, nascent democracy. It emphasised that the extensive political process currently underway in respect of land reform, must be allowed to take its course and orderly land reform must occur within the bounds of the Constitution. In terms of the majority judgment’s interim reading-in, the minority judgment held that while it may cure the overbreadth of section 18(2)(b), it ushers in problems such as the real risk of vagueness.”
Comment by thought leaders
This judgment demonstrates the importance of using appropriate language. When dealing with crimes obviously it is necessary to speak of offences and punishment. But in the ‘world of work’ it is completely unacceptable to use language that suggests that crimes are involved. So words like offences, guilty and sanctions should be avoided.
With regard to the use of “serious offences” it is interesting that it is only “gross misconduct” that deprives employees of their rights to notice and even severance benefits.
The LRA only requires a valid and fair reason to terminate services related to conduct and does not require misconduct! The reason is simple; only gross or serious misconduct means forfeiture of common law and statutory rights to notice and severance benefits.