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.

Essence

Constitutional Court examined free expression and confirmed “serious” is a familiar concept that courts deal with on a case by case basis aided by jurisprudence.

Decision

(CCT201/19) [2020] ZACC 25 (27 November 2020)

Order:

See quotations below.

Judges

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): [1] to [78] – see below

                                    Majiedt J (dissenting): [79] to [157] – to follow

Heard on:         18 February 2020

Decided on:     27 November 2020

Related books

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

Reasons

“[68] 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.

[69] “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

MOGOENG CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, and Victor AJ concurring):

Introduction

[1] It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful. When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on. More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.

[2] Expression of thought or belief and own worldview or ideology was for many years extensively and severely circumscribed in this country. It was visited, institutionally and otherwise, with the worst conceivable punishment or dehumanising consequences. The tragic and untimely death of Steve Biko as a result of his bold decision to talk frankly and write as he liked, about the unjust system and its laws, underscores the point. This right thus has to be treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents in a genuine constitutional democracy, considering our highly intolerant and suppressive past.

[3] That said, no constitutional right is absolute or ranks higher than all others in this country. In our enjoyment of these rights, a greater sense of responsibility is demanded particularly of those who are thought-leaders whose utterances could be acted upon without much reflection, by reason of the esteem in which they are held and the influence they command. After all, leaders from all walks of life ought to bear heavier responsibilities than all others, to help preserve our ubuntu, justice and equality-based heritage and actualise our shared aspirations.

[4] The historical significance and constitutional fate of the crime of incitement within the context of the Riotous Assemblies Act, require the reflection and guidance of this Court. The stated objective of this legislation of apartheid extraction was, and still is, to “consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Republic and matters incidental thereto, and the laws relating to certain offences”. We have to answer the question whether its dark past and this constitutionally-suspect salutation necessarily point to its unconstitutionality in our non-racist, just and ubuntu-inspired order. We have also been called upon to decide whether there exists a real possibility of a harmonious coexistence between the Trespass Act, of the same pedigree as the Riotous Assemblies Act, and the constitutionally-birthed Prevention of Illegal Evictions from and Unlawful Occupation of Land Act (PIE).

[5] In sum, these applications are essentially about the possible confirmation of the declaration of the unconstitutionality of a sanction imposable on an inciter, and whether the criminal offence of incitement to commit “any offence” is constitutionally invalid to the extent of its alleged impermissible limitation of the fundamental right of free expression. The additional enquiry is whether the offence of trespass is reconcilable with the subsequent constitutional dispensation that appears to absolve an unlawful occupier of sanctionability in terms of a criminal law process.

Background

[6] Criminal charges have been preferred by the National Prosecuting Authority against Mr Julius Sello Malema, the President of a political party known as the Economic Freedom Fighters (EFF). They are based on certain statements he allegedly made.

[7] On 16 December 2014 at the elective conference of the EFF he reportedly said:

“I can’t occupy all the pieces of land in South Africa alone. I cannot be everywhere. I am not [the] Holy Spirit. So you must be part of the occupation of land everywhere else in South Africa.”

[8] On 26 June 2016, in Madadeni, Newcastle, Kwa-Zulu Natal, he allegedly said:

“If you see a piece of land, don’t apologise, and you like it, go and occupy that land. That land belongs to us.”

[9] And on 7 November 2016, after his court appearance in connection with the statement of 26 June 2016, he is quoted as having said:

“Occupy the land, because [the State has] failed to give you the land. If it means going to prison for telling you to take the land, so be it. I am not scared of prison because of the land question. We will take our land, it doesn’t matter how. It’s becoming unavoidable, it’s becoming inevitable – the land will be taken by whatever means necessary.”

[10] The thrust of the charges, based on section 18(2)(b) of the Riotous Assemblies Act, is that Mr Malema incited EFF members and other persons to commit an offence of occupying land registered in the names of others without lawful permission or lawful reason. The offence others have allegedly been incited to commit is said to be trespass in terms of section 1(1) of the Trespass Act.

[11] After being notified of the charges, both Mr Malema and the EFF set out to challenge the constitutionality of the Riotous Assemblies Act and the applicability of the Trespass Act. They also sought to review and have the decision of the National Prosecuting Authority to charge him, set aside. To achieve that, they approached the Gauteng Division of the High Court, Pretoria.

[12] The High Court concluded that the Riotous Assemblies Act actively criminalises conduct that is otherwise protected by section 16(1) of the Constitution and thus limits the right to freedom of expression. It however held that the limitation is reasonable and justifiable in terms of section 36 of the Constitution. The basis was that the purpose of section 18(2)(b) is crime prevention.

[13] Of its own accord, the High Court turned to one aspect of section 18(2)(b). That part relates to sentence and provides that an inciter “shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable”. It held that this part is not rationally connected to the purpose of crime prevention.

[14] The Court further held that section 18(2)(b) of the Riotous Assemblies Act is unconstitutional and invalid. This, it said was so, because it is unreasonable and unjustifiable to the extent that the inciter is compulsorily liable to the same punishment as a person who actually committed the crime.

[15] With regard to section 1(1) of the Trespass Act, which criminalises entry and occupation of land or any landed property without lawful permission or lawful reason, the applicants sought declaratory relief to the effect that the Trespass Act does not apply where PIE applies.

They argued that the Trespass Act is to be read subject to PIE, the Extension of Security of Tenure Act (ESTA) and section 39(2) of the Constitution. And that the meaning that ought to flow from that interpretation is that someone who is an “unlawful occupier” under PIE may not be prosecuted and found guilty of unlawful occupation under the Trespass Act. For this reason, they went so far as to ask the Court to quash criminal charges preferred against Mr Malema.

[16] The Court held that there is no immediate conflict between the Trespass Act and PIE which could justify the declaratory order prayed for. Citing Zwane, it concluded that the provisions of PIE and the Trespass Act were not really in conflict, but were complementary to each other.

[17] Aggrieved by the outcome, the EFF and Mr Malema approached this Court. The first application relates to the confirmation of the order of constitutional invalidity. The second relates to declaring the offence of inciting others to commit “any offence” unconstitutional and to decide whether, on a proper interpretation of the Trespass Act, an unlawful occupier who is protected by PIE or ESTA may nevertheless be guilty of trespass.

Jurisdiction

[18] Undoubtedly, that part of this matter that relates to confirmation of the order of constitutional invalidity engages the jurisdiction of this Court. We have no choice but to entertain it, for we are constitutionally so enjoined.

[19] The balance of the applicants’ case relates to the constitutionality of section 18(2)(b) of the Riotous Assemblies Act to the extent that it criminalises the “incitement” of another person to commit “any offence”. The contention is that the crime it creates, offends against the constitutional right to freedom of expression. And section 1(1) of the Trespass Act is in effect sought to be interpreted with due regard to the provisions of section 26(3) of the Constitution although the applicants only mention section 39(2) of the Constitution and PIE.

[20] It is trite that the interpretation of legislation that seems to limit a fundamental right implicates the Constitution. This is so because there cannot be a proper interpretation of that legislation without the guidance of section 39(2) which insists on the promotion of the Bill of Rights. Both these challenges raise a constitutional issue and thus engage the jurisdiction of this Court. Additionally, the matter raises a legal point of general public importance. Landlessness and homelessness are issues of such great moment that the general public would probably want to know what this Court has to say about legal questions relating to them.

Leave

[21] No leave is required for the confirmation application. It is however, necessary for the other aspects of this matter.

[22] The Supreme Court of Appeal has jurisdiction to entertain an appeal from the High Court on the constitutionality of incitement to commit any offence and the interpretation of the Trespass Act. It would thus have to be shown that it is in the interests of justice to bypass the Supreme Court of Appeal and approach this Court on direct appeal. To do so requires that compelling reasons be advanced for us to exercise our discretion in favour of direct appeal. It would thus take “sufficient urgency or public importance, and proof of prejudice to the public interests or the ends of justice and good government, to justify such a procedure”.

[23] Delays in the finalisation of cases in virtually all our courts bear testimony to the scarcity of judicial resources. The aspects of this matter that should ordinarily be appealed to the Supreme Court of Appeal are intertwined with the confirmation application that must of necessity come directly to this Court. Allowing them to take their ordinary course would mean that the same parties would have to argue the confirmation application here, and also approach the Supreme Court of Appeal for the possible invalidation of the “any offence” part of section 18(2)(b) of the Riotous Assemblies Act and for a consideration of the applicants’ preferred interpretation of section 1(1) of the Trespass Act.

Not only would that constitute insensitivity to the critical need for prudence and frugality in the deployment of court time and its other resources, but it would also result in huge expenses to the applicants and a dent to the already overstretched public purse that could have been sensibly avoided by entertaining all these interrelated applications in one forum. Sight should never be lost of the ever-rising cost of litigation in this country, and that many people are acutely under-resourced. Where all relevant circumstances are dead against avoidable wastage, that should be embraced and acted upon.

[24] The applicants have reasonable prospects of success in respect of the constitutionality challenge. And it is in the interests of justice that the applications for confirmation of the declaration of constitutional invalidity of the penal aspect of section 18(2)(b) and for direct appeal relating to incitement and trespass be heard and disposed of together. They are essentially one application. All of the above, put together, constitute compelling reasons or exceptional circumstances that justify the grant of leave for direct appeal. Leave to appeal from the High Court directly to this Court will thus be granted, for it is in the interests of justice to do so.

Confirmation

[25] The High Court declared that part of section 18(2)(b) of the Riotous Assemblies Act that deals with sanction constitutionally invalid. This was on the basis that it compels a court to impose the same sentence on the person inciting others to commit a crime, as on the person who actually committed the crime.

[26] Section 172(2)(a) of the Constitution provides that “an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court”. We thus have to reflect on the constitutional correctness of the High Court order sought to be confirmed. The impugned section provides:

“(2) Any person who—
. . .
(b) incites, instigates, commands, or procures any other person to commit,
any offence whether at common law or against a statute or a statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”

[27] The word “liable” does not connote inescapability, compulsion or absence of judicial discretion. Its ordinary meaning is that the inciter is susceptible to the same punishment or might have the same punishment visited upon him or her as the actual perpetrator. This in effect is the meaning given to it in Toms:

“[T]he words ‘liable to’ in a provision . . . would normally denote a susceptibility to a burden of punishment and not that the burden in question is mandatory or compulsory; the actual incidence and extent must still be determined.”

[28] It is with this understanding that Snyman observed:

“Normally the inciter gets a lighter punishment than the actual perpetrator, just as someone who only attempts to commit the crime or only conspires to do so, gets a lighter punishment than the actual perpetrator. . . . However there may be cases in which a court may decide that the inciter deserves a heavy punishment, such as where the evidence reveals that she was the [mastermind] behind a whole criminal scheme.”

[29] And it follows that the declaration of unconstitutionality was premised on an incorrect interpretation of section 18(2)(b). The High Court order will thus not be confirmed.

Is section 18(2)(b) invalid on another ground?

[30] The applicants contend that section 18(2)(b) is unconstitutional by reason of its overbreadth. This is grounded on its criminalisation of incitement of others to commit “any offence”. They assail the constitutionality of this section on the basis that it infringes Mr Malema’s right to freedom of expression. This right is provided for in section 16 of the Constitution, which lists incidents of expression that fall within and outside protected bounds. It does so as follows:

“Freedom of Expression
(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitute incitement to cause harm.”

[31] This Court explained the purpose of section 16(2) in these terms:

“[S]ection 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. . . . Implicit in its provisions is an acknowledgement that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity, equal worth and freedom, and these objectives should be given effect to.
There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right to section 16.
Where the State extends the scope of regulation beyond expression envisaged in section 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution.”

[32] What the Constitution gives an unrestrained leeway to proscribe, is expression or words meant to cause “war”, “imminent violence” and specified forms of “harm”. Incitement to cause war or commit imminent violence would, if criminalised, thus not constitute a limitation of the right to freedom of expression. The thrust of section 16(2)(c) is to disallow practices, tendencies and laws of our ugly and unjust past any space to find expression or application. When one incites others, under the guise of freedom of expression, to cause race- or gender-based harm, the inciter may not look to section 16(1) for exoneration.

[33] Section 16(2) does not therefore constitute a limitation of free expression and it cannot have any role to play in determining what constitutes a reasonable and justifiable limitation of free expression. That said, although legislation would clearly be on safer territory if it conforms to the dictates of section 16(2), it may also be permissible to venture across the boundary lines of protected expression. But, that would be conditional upon the existence of reasonable grounds to justify that encroachment. Like all other open and democratic societies based on constitutional values of universal application, we ought to “permit reasonable proscription of activities and expressions”, if they “pose a real and substantial threat to such values and to the constitutional order itself”.

[34] Section 18(2)(b) of the Riotous Assemblies Act criminalises incitement to commit “any offence”. And that kind of incitement is undoubtedly a form of expression that is ordinarily protected by section 16(1) of the Constitution. It therefore constitutes a limitation of protected expression. Whether that limitation is reasonable and justifiable in an open and democratic society based on the values of human dignity, equality and freedom, is the question we must now wrestle with.

Justification analysis

The approach to limitation

[35] It is necessary to give proper context to a section 36 proportionality-based justification analysis. Whenever a fundamental right has been limited by a law of general application, it is required of the State or any party seeking to uphold the limitation to give good reason for a court to excuse that interference with a right so important. It is indeed correct that “although section 36(1) does not expressly mention the importance of the right, this is a factor which must of necessity be taken into account in any proportionality evaluation”.

For, the rights in the Bill of Rights are an embodiment of the very character or cornerstone of our constitutional democracy. Both the nature and importance of the right must necessarily be taken into account. And the State has no inherent “right” to limit these rights. But it is constitutionally obliged to respect, protect, promote and fulfil them. It may only be permitted to limit them if the limitation is reasonable and justifiable in a value-based constitutional democracy.

[36] The values and principles that are essential to a free and democratic society must guide our courts. They are, after all, foundational to our democracy and the high and ultimate standard by which a limitation of guaranteed rights may be reasonably justified. Only where the exercise of these rights “would be inimical to the realisation of collective goals of fundamental importance” would their limitation be reasonable and justifiable in a free and democratic society. The explicit but inexhaustive justificatory criteria set out in section 36(1) also have a crucial role to play in the weighing up of competing values “to reach an assessment founded on proportionality”.

[37] In this regard O’Regan J and Cameron AJ said:

“The approach to limitation is, therefore, to determine the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on the one hand, and the purpose, importance and effect of the infringement provision, taking into account the availability of less restrictive means available to achieve that purpose. The limitation analysis that follows will therefore first consider the extent of the limitation of the right caused by section [18(2)(b)], and will then turn to the purpose, importance and effect of section [18(2)(b)]. These are the two issues whose relative weight determines the outcome of the limitation analysis. That analysis therefore concludes by comparing the relative weight.”

[38] Responding to these reflections Madala J, Sachs J and Yacoob J said:

“We agree . . . that there is a pressing social need for legislation to address the evil [O’Regan J and Cameron AJ] identify. Section 36, however does not permit a sledgehammer to be used to crack a nut.. . . The duty of a court is to decide whether or not the legislature has overreached itself in responding, as it must, to matters of great social concern.”

[39] That exercise entails a reflection on the historical origins of the concept or right entrenched and the cardinal values it embodies. The analysis must thus be premised on the ever-abiding consciousness that the impugned limitation violates rights and freedoms which are guaranteed by the supreme law of the Republic. And courts must approach this exercise alive to the constitutional obligation to uphold the rights in the Bill of Rights. The contextualisation of the interpretive exercise with reference to a free and democratic society as part of the standard for justifying the limitation of rights speaks to “the very purpose for which the [Bill of Rights] was originally entrenched in the Constitution”.

[40] An approach to the justification analysis that seems to move from the premise that a legitimate governmental objective for the limitation automatically renders the limitation reasonable and justifiable or somehow shifts the burden to citizens to explain what is wrong with the limitation or why their constitutional rights deserve protection, would be misplaced. The purpose for the limitation, however legitimate and laudable, must still earn its juxtaposition to the right it inhibits. The burden to prove that it passes constitutional muster rests primarily on the State. And that is so because the obligation to give these rights the space to flourish rests on the same State that may limit them, in a constitutionally permissible manner.

[41] Despite its unjust foundations, section 18(2)(b) of the Riotous Assemblies Act is, broadly speaking, one of many instruments suited to the achievement of the goal of crime prevention. The question to be addressed is whether its limitation of free expression, admittedly meant to serve and advance a legitimate and important societal and governmental purpose, is proportionate to this obviously noble objective.

In other words, does it restrict free expression as little as possible or minimally? Or did Parliament “overreach itself in responding to [this] matter of great social concern” – crime prevention. If the answer is no and yes respectively, then “any offence” would be way out of proportion with the objective of crime prevention which could still be majorly realised without an overly invasive provision that gives no recognition to free expression. The availability of less restrictive means would have to be explored. If it is available, then that would necessitate the invalidation of “any offence”.

The nature and importance of free expression

[42] A reminder of where we were just over 26 years ago is necessary for context. Then, expression was so extensively and severely circumscribed that a person could be arrested, banned, banished or even killed by the apartheid regime for labelling as unjust, what everyone now accepts is unjust. Inciting people to protest against apartheid – a crime against humanity – or to break its unjust laws, was not only criminalised but could also attract untold consequences. Thought control or enforced conformity was virtually institutionalised. Free expression is thus a right or freedom so dear to us and critical to our democracy and healing the divisions of our past, that it ought not to be interfered with lightly – especially where no risk of serious harm or danger exists.

[43] This important observation finds reinforcement in Kriegler J’s instructive historical and comparative context in Mamabolo where he said:

“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way.”

[44] The right to freedom of expression is thus so precious and utmostly essential to our democratic well-being that this Court correctly observed that it “is no less important than it is in the United States of America” and that there ought to be more sympathy for the view that it is even more important here to help break the severe constraints of our past. This approach is meant to ensure that free expression is never again to be treated lightly and limited at the slightest irritation or provocation.

For, as O’Regan J said, freedom of expression—

“lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.”

[45] All people ought to enjoy the freedom to express themselves robustly and fully on issues they consider important for the advancement of the project of rebuilding our nation or the broader cause of justice. This absolute necessity for fearlessness and unquestionable freedom to express oneself is what the European Court of Human Rights (ECtHR) had in mind in Handyside. There it underscored the character of this right as one of the essential foundations of democracy and a basic condition for the progress and development of each member of a democratic society.

It said that that approach is—

“applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . . Such are the demands of such pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

The nature, extent and purpose of the limitation

[46] Utmostly essential as the right to free expression is, it bears emphasis that like all other constitutional rights, it is neither absolute nor does it rank higher than others. It is thus susceptible to an appropriate limitation by a law of general application. That said, our Constitution would not easily countenance “incitement” or “advocacy” to commit “any offence” as a limitation of the right to freedom of expression.

It cannot therefore be correct to criminalise the incitement of any offence that does not even pose danger or serious harm to anything or anybody. Broadly speaking, it is when, for example, national interests, our democracy, the dignity or physical integrity of people or property could be imperilled, that free speech may ordinarily be limited.

[47] This is buttressed by these apt observations by Langa DCJ in Islamic Unity:

“The pluralism and broadmindedness that is central to an open and democratic society can . . . be undermined by speech which seriously threatens democratic pluralism itself. . . . [O]pen and democratic societies permit reasonable proscription of activities and expressions that pose a real and substantial threat to such values and to the constitutional order itself.”

It follows that for a limitation of free expression to be permissible, it must be reasonable. And legislation that seeks to limit free speech must thus be demonstrably meant to curb incitement of offences that seriously threaten the public interest, national security, the dignity or physical integrity of individuals – our democratic values. This accords with our international obligations in relation to the extent to which we may limit free expression.

[48] Even the common law criminalises incitement that could lead to the “high risk of a dangerous situation developing”. Punishing that kind of incitement is meant to achieve “the deterrence of future crime [and] restraint of the dangerous offender”. The risk must be fairly high and the situation sought to be created, dangerous. The offence thus exists to deter not just any offender, but a dangerous one, who poses a serious threat.

[49] Section 18(2)(b) is sought to be saved from invalidation merely because, like all other criminal legislation, it serves the common or ordinary purpose of crime prevention. What is however required is that the purpose of criminal legislation, like the Riotous Assemblies Act, be much more than the ordinary need to protect society from potential “harm”, to pass constitutional muster. Additional to being legitimate, the purpose must still be specific, pressing and substantial for that legislation to be regarded as reasonable and justifiable in its limitation of free expression.

[50] There can be no doubt that we need the criminalisation of certain categories of incitement. What also matters is that the nature, extent or effect of what others are being incited to do must be serious to save legislation from invalidation. The prohibition of incitement is thus to be countenanced in circumstances where it seeks to prevent the commission of a serious offence. The limitation must demonstrably be in the interests of the public and appropriately tailored so as not to deny citizens their fundamental rights where this could have been avoided.

[51] And it bears repetition that there should be no debate about the need for or benefits of the inchoate crime of incitement. Its usefulness is mundane. But, what is inescapable is that legislation that limits free expression may not do so by proscribing the incitement of just “any offence”.

The limitation must not extend to minor offences or offences that threaten no serious harm or danger either to individuals, society or public order, property or the economy. And by minor, as opposed to serious, offences I have in mind those that may not necessarily fall in the category of the de minimis rule or be covered by the defence of necessity, but all offences that cannot correctly be described as “serious” offences.

Overbreadth and less restrictive means

[52] Citizens ought to enjoy the liberty to express themselves in support of or opposition to anything or any law, obviously within the confines of the overall thrust of section 16(1) of the Constitution. Speaking out or advocacy against laws or offences believed to be unjust ought not to be easily proscribed by statute. And so is encouraging, not forcing, others to defy them. Allowing that expression would then leave it open to individuals to make up their own minds – to follow or reject the incitement – in line with their constitutional right to freedom of “thought” and “opinion”. The exercise of that freedom would then inform their own response to what they are being incited to say or do.

[53] In an attempt to ameliorate the highly negative effect of the impugned free expression-limiting provision, several factors were raised. They are: the significance of intention as an element of the crime of incitement; the State’s burden to prove the guilt of a person accused of incitement beyond a reasonable doubt; the relevance of the de minimis rule; defences open to an accused person; and the possibility of lenient or appropriate sentences being imposed.

  • First, almost all crimes have intention, as opposed to negligence, as one of the elements. That this is also a requirement for establishing guilt in respect of incitement to commit “any offence” cannot help save this overly intrusive legislative provision.
  • Second, guilt in virtually all crimes must be established by the State beyond a reasonable doubt. And that is in line with an accused person’s presumption of innocence and right to remain silent – an integral part of the constitutional right to a fair trial. This is not a requirement that is unique to incitement or a few other offences.
  • Third, the de minimis rule does not apply to all, but only some, of the minor offences. It therefore does not help the retentionist approach much, if at all.
  • Fourth, most of the citizens of South Africa are not only laypersons, but they are also woefully under-resourced. They often have no money for basic necessities, talk less of fees for a legal representative to raise defences known to lawyers, when charged for only trying to exercise their fundamental rights. And even if represented, grave injustices do happen and justice is sometimes only done after a long and economically, reputationally and emotionally taxing or ruinous judicial process.

Why not avoid this? As for the appropriateness of sentence, that is an elementary feature of our criminal justice system.

[54] Properly contextualised, the following remarks are as relevant to section 18(2)(b) as they were to the impugned provision in Manamela, of which the Court said:

“[I]ts sweep is too great. The risk of people being erroneously convicted and unjustly sent to jail is too high. We acknowledge that ours is an open and democratic society facing many challenges with limited means, and that it is in this setting that the question of proportionality must be determined. Yet, the very circumstances that have made the challenge so great and left us with means so stretched, place those least capable of defending their rights in the greatest jeopardy of being victims of miscarriages of justice. We, therefore, cannot agree with the view expressed in the minority judgment that the limitation on the presumption of innocence is sufficiently focused to be justifiable.”

[55] Inevitably, the failure by the State to provide reasonable grounds to justify the sweeping nature of this provision, that takes away free expression in relation to incitement to commit any offence, must result in a failure by section 18(2)(b) of the Riotous Assemblies Act to meet the section 36(1) test.

[56] On the basis of section 18(2)(b), inciting another to commit any offence must, barring de minimis and necessity, inexorably result in a prosecution or conviction in the name of crime prevention. No legislative differentiation between serious and lesser, yet not trivial, offences is thus thought to be necessary. Although the inciter might well escape the legally-ordained consequences of “any offence”, it could be after some unpleasant exposure or process.

Citizens must not have their fundamental right to free expression unnecessarily and severely limited and thus exposed to the risk of arrest or even prosecution. They ought not to be left to take solace in the likelihood of eventually being exonerated on the basis of de minimis or necessity. The risk of being left vulnerable to arrest for exercising free expression or to an injustice and the impecuniosity that could imperil many’s prospects of appeal to remedy any possible injustice, ought to be enough to trigger the need for certainty and protection, considering the importance and nature of this right.

Section 18(2)(b) not only exposes citizens to the risk of arrest and prosecution for minor offences committed in the course of free expression, but it also has the potential to inhibit many from freely expressing themselves to avoid falling prey to the vast or sweeping net of “any offence”. This provision does not promote but prevents all free expression in the form of “incitement” or “advocacy”.

[57] We are yet to be told why, apart from the generalities proffered by the State, it is necessary or constitutionally defensible to limit free expression on the basis of “any offence”. No sound reason or justification was given for having to criminalise incitement of “any offence” and why it is necessary to do so at the expense of free expression.

Nor has it been explained what prejudice the invalidation of “any offence” and its replacement with “any serious offence” would occasion to crime prevention in general and the incitement regime in particular. All we are told is that it is an inchoate crime necessary for crime prevention and that “serious” is too difficult a concept to grapple with. That cannot be a good enough reason for taking away citizens’ fundamental rights. We should always lean in favour of respecting, protecting and promoting these rights rather than settle for the easy and more deleterious option of taking them away.

[58] Why not recalibrate the limitation in a way that still respects free expression? Why wait for a possible characterisation of an offence as one that falls within the necessity or de minimis rule protective cover? Additionally, the retention of “any offence” does not leave citizens with any degree of clarity. They are left uncertain as to how far they may go in the enjoyment of this right without exposing themselves to the risk of criminal prosecution.

[59] And courts cannot abdicate their responsibility to curb unnecessary yet vast invasions of the free expression space to the police and prosecuting authority, by reason only of the competence and professionalism expected of them. And this accords with our jurisprudence.

For, we have previously said that “the existence of prosecutorial discretion cannot save otherwise unconstitutional provisions”. When presented with opportunities to define the bounds of permissible legislative encroachment, courts must be keen to do so as a way of promoting the spirit, purport and objects of the Bill of Rights. The uncertainty about the extent to which the State may limit free expression in relation to incitement must therefore end now.

[60] A right in the Bill of Rights must be promoted, protected, respected and fulfilled. It may only be limited when doing so is in line with our foundational values. Where there is a less restrictive means to avoid the gross invasion of a guaranteed right, then a limitation that needlessly strays beyond protected bounds must be arrested.

It would be remiss of any court to shirk that responsibility, counting on the police and prosecutors to do what Parliament should have done but failed to, and what a court should be doing but chooses to pass the buck to the police and the prosecuting authority. For, it is crucial even as we interpret section 18(2)(b) never to lose sight of the all-important obligation imposed on us by section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights – in this instance, free expression.

[61] Again I say, the criminalisation of “incitement” of “any offence” by section 18(2)(b) is a limitation so “widely-phrased and so far-reaching that it would be difficult to know beforehand what is really prohibited or permitted”. “Any offence” is therefore unquestionably overbroad and its inhibition of free expression is markedly disproportionate to its conceivable benefit to society.

And there is no need for this. Not only would confining the proscription of incitement to serious offences promote or be respectful of free expression, but it would also enhance crime prevention in a more meaningful way. That would constitute a less restrictive means. It would also avert the dangers of a prohibition which makes very substantial inroads into the free expression domain and carries a criminal sanction with all its chilling consequences.

[62] The offensification of incitement of any offence is such an egregious encroachment into the free expression terrain that good reason or stronger justification would be required to save it from invalidation. And that justification would have to go way beyond citing the common or incontestable necessity for the existence of the inchoate offence of incitement – “nipping crime in the bud”.

I again draw from our jurisprudence which obviously applies subject to appropriate modulation:

“In assessing whether the section 37(1) limitation of the right to be presumed innocent is reasonable and justifiable, the State in this case has established the importance of the objectives sought to be attained by the impugned provision. Nonetheless, considering that the grounds of justification must be more persuasive where the infringement of the rights in question is extensive, the State has failed, in our view, to discharge the onus of establishing that the extent of the limitation is reasonable and justifiable and that the relation between the limitation and its purpose is proportional. It equally failed to establish that no less restrictive means were available to Parliament in order to achieve the purpose.”

[63] It must be emphasised that a less restrictive means for proscribing constitutionally objectionable incitement is the exclusion from its range, of those offences that are minor but not necessarily de minimis in character. As stated, that could be achieved by criminalising the incitement of only those offences that are potentially serious.

Perpetrators of “any offence” would still be prosecuted and punished. Accomplices would still face the wrath of the common law. The exclusion of inciters of minor or lesser offences and targeting inciters of serious offences cannot undermine the important objective of crime prevention as feared by the State. The value of circumscribing this limitation is that the right to free expression would be protected, respected, promoted and fulfilled as the Constitution demands of the State, and serious crime would still be effectively combatted.

[64] We see the limitation of the scope of the crime of incitement as a less restrictive means of achieving the overarching purpose of crime prevention. This is so because incitement of non-serious crimes does not cause as much public harm as incitement of serious crimes. The all-encompassing purpose of the crime of incitement can thus be met even with this more limited scope of section 18(2)(b).

In sum, if the offensification of incitement of crime goes too far out in seeking to achieve its purpose, it becomes acceptable to limit its scope to give recognition to the undeniably important right of freedom of expression.

[65] All of the above leave us with no choice but to invalidate section 18(2)(b) to the extent of the disproportionality of its societal benefit to its vast invasion of free expression and consequential inconsistency with section 16(1) of the Constitution. It is not reasonable and justifiable to limit free expression on the basis of crime prevention in circumstances where the criminalisation of incitement of only serious offences would constitute a less restrictive means and help achieve the same objective.

Remedy

[66] Crime prevention is an absolute necessity. Legislation that seeks to achieve that objective must ordinarily be preserved and enabled to avoid the guillotine of unconstitutionality. Section 18(2)(b) is part of that kind of legislation.

[67] In crafting a remedy, we must therefore remind ourselves that ours is an interim relief – a short term solution – whose lifespan is at the mercy of Parliament’s prompt and more enduring intervention. The long term solution is best left to Parliament whose primary responsibility it is to grapple with and settle conceivable definitional challenges. While waiting for it to exercise its legislative authority in relation to the content of the provision, we have to ensure that the lacuna created by our invalidation of section 18(2)(b) is filled. And that would be achieved by reading-in a word into this provision. Like every reading-in exercise, this too must be done in a manner that is sensitive to separation of powers.

[68] 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.

[69] “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.

[70] That said, “serious” is an expression or concept that courts are all too familiar with. Not infrequently, especially in the context of considering an appropriate sentence, courts refer to the seriousness of the offence concerned. They should thus find it relatively easy to deal with on a case by case basis, duly aided by existing jurisprudence.

[71] Existing legislation provides some fairly useful guidelines in this regard. For example, Schedules 1, 2 (Parts II and III) and 5–8 to the Criminal Procedure Act list offences that seem to qualify as “serious offences”. Arguably, this appears to find some support from, inter alia, the fact that these Schedules already render incitement for any of the offences listed within them subject to sanction. It must be said, that although the Schedules to the Criminal Procedure Act include a number of statutory offences, they do not contain all statutory offences that could reasonably be said to constitute “serious offences”.

[72] In conclusion, it is necessary to afford Parliament the opportunity to remedy this constitutional defect. To avoid applications for extension that are now becoming a fairly regular feature of litigation before this Court, we will give Parliament 24 months within which to do the needful.

The interpretation of the Trespass Act

[73] The applicants contend that a proper interpretation of the Trespass Act in conjunction with PIE ought to yield a meaning that effectively renders it impermissible for one to face criminal charges and a possible conviction flowing from an alleged violation of section 1(1) of the Trespass Act where PIE applies or offers protection. It is also argued that PIE has implicitly repealed the Trespass Act.

[74] Since PIE owes its breath to section 26(3) of the Constitution, it is not unreasonable or inappropriate to read a reference to PIE as a pointer to the inescapability of the role of section 26(3) as the cardinal reference point in addressing this issue. The way the issue was raised renders it unavoidable that the constitutionality of section 1(1) of the Trespass Act be effectively pronounced upon, even if it might not be expressly referred to as such. Truth be told, this is another way of seeking to have us declare this section unconstitutional. This we will not do.

[75] This approach, foisted upon us by the applicants, is very difficult if not impossible to manage to its intended end. They ought to have launched a frontal challenge to the constitutionality of section 1(1). Nothing stopped them from doing so. But, they chose not to. Instead, they opted for this intractable interpretive route. They would therefore have to fall by their free choice.

[76] The applicants could, if so advised, still go back to the High Court to launch a fresh challenge to section 1(1) of the Trespass Act. This leg of their application will thus be dismissed.

Costs

[77] Each party has recorded a measure of success. During the hearing, the applicants renounced a somewhat favourable High Court order. But they have successfully caused a portion of section 18(2)(b) of the Riotous Assemblies Act to be declared unconstitutional to the extent of its inconsistency with section 16(1) of the Constitution. The respondents, namely the Minister of Justice and Correctional Services and the National Prosecuting Authority, have also been able to ward off the current attack against the applicability of the Trespass Act. Each party is therefore to pay its own costs.

Order

[78] In the result the following order is made:

1. The order of the Gauteng Division of the High Court, Pretoria declaring section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 unconstitutional and invalid to the limited extent dealing with sentence, is set aside.
2. Leave to appeal directly to this Court is granted.
3. Section 18(2)(b) of the Riotous Assemblies Act is declared to be inconsistent with section 16(1) of the Constitution and invalid to the extent that it criminalises the incitement of another to commit “any offence”.
4. The operation of paragraph 3 is hereby suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament to rectify the constitutional defect.
5. During the period of suspension of the order of invalidity, section 18(2)(b) of the Riotous Assemblies Act should be read as follows:

“(2) Any person who—
. . .
(b) incites, instigates, commands, or procures any other person to commit,
any [serious] offence, whether at common law or against a statute or a statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”

6. The reading-in will fall away when the correction of the specified constitutional defect by Parliament comes into operation.
7. Should Parliament fail to cure the defect within 24 months from the date of this judgment or within an extended period of suspension, the reading-in will become final.
8. Mr Julius Sello Malema and the Economic Freedom Fighters’ prayer for an order declaring that the Trespass Act 6 of 1959 does not apply to unlawful occupiers under the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998, is refused.
9. There will be no order for costs.”

Court summary

“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’

MEDIA SUMMARY
________________________________________________________________________

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.

Majority judgment

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.

Minority judgment

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. 

Comment by others