Utterances comprising intimidation: Constitutional invalidity considered

Constitutional law – constitutionality of s 1(2) of the Intimidation Act 72 of 1982 – s 1(2) presumes that accused’s actions or utterances are without lawful reason if such reason not advanced prior to close of prosecution case – whether presumption reverses the onus of proof or is merely evidential – s 35 of Constitution – right to a fair trial, to be presumed innocent and to remain silent.
Majority – presumption evidential – places pressure on the accused to disclose content of defence prematurely – infringes the right to a fair trial and the right to remain silent – no justification for limitation of rights in terms of s 36 of Constitution – section 1(2) unconstitutional and invalid.
Minority – presumption reverses onus of proof requiring the accused to prove the existence of a lawful reason for their acts or utterances – accused can be convicted even though no proof of guilt beyond reasonable doubt – infringes the right to be presumed innocent and the right to remain silent – no justification for limitation of rights – section 1(2) unconstitutional and invalid.
Constitutionality of s 1(1)(b) of Intimidation Act – whether infringes right of freedom of expression as contained in s 16(1) of Constitution – section capable of being interpreted in conformity with Constitution.
Majority – section to be interpreted in light of s 39(2) of Constitution – criminal provision to be construed in favour of the liberty of the citizen – presumption of mens rea in the absence of express provision negating presumption
Section 1(1)(b) to be construed as relating only to conduct that is intimidatory in character – section requires mens rea – conduct or utterances constituting intimidation must induce actual fear in target or inducing such fear would reasonably be the consequence of such conduct or utterances – mere anxiety, nervousness or apprehension not constituting fear within the meaning of the section – conduct that is lawful in terms of the Constitution or statute not unlawful – lawful expression in terms of s 16(1) of Constitution not falling within the section and not constituting intimidation.
Minority – section impermissibly wide – contravenes s 16(1) of Constitution – no justification for limitation of rights – section 1(1)(b) unconstitutional and invalid.

Note: Footnotes omitted and emphasis added

Mbha JA (dissenting in part) (Van der Merwe JA concurring):

[1] These two appeals, which were heard together in accordance with a practice directive of the President of this court, concern the constitutional validity of ss 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 (the Act). The appeals are against the judgment of Khumalo J, sitting in the Gauteng Division of the High Court, Pretoria (the court a quo) who simultaneously heard, and thereafter dismissed, the appellants’ applications for declaratory orders of invalidity and unconstitutionality of ss 1(1)(b) and 1(2) respectively.

The court a quo found that s 1(1)(b) of the Act does not infringe the right to freedom of expression, and that the provision only criminalises expressive acts which are reasonably construed to be threats of violence. With regard to s 1(2) of the Act, the court a quo accepted that this provision infringed the right to be presumed innocent, the right to remain silent and the right against self incrimination.

However, it found that these infringements were justified on two bases.

First, it was not possible for the State to disprove the existence of a lawful reason as required by s 1(1)(a) of the Act.

Secondly, the reverse onus created by s 1(2) served the purpose of combating intimidation, the incidence of which, the court a quo found, was ‘rife’ in the country. Both appeals are with leave of the court a quo.

[2] The first appellants in each of these appeals are respectively General Alfred Moyo (Mr Moyo) and Nokulunga Primrose Sonti (Ms Sonti). Mr Moyo is currently facing a charge of contravention of s 1(1)(b) in the Germiston Regional Court. Ms Sonti is charged in the Rustenburg Regional Court with contraventions of both s 1(1)(a)(ii) and s 1(1)(b)(i) of the Act. Neither has yet pleaded to the charges and their trials are still pending, having been adjourned pending the outcome of these proceedings.

[3] Section 1(1) of the Act provides as follows:

‘Any person who –
(a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind or persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint –
(i) assaults, injures or causes damage to any person; or
(ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind; or
(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication –
(i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any person; and
(ii) …
shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.
(2) In any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution.’

[4] In the first appeal, Mr Moyo, together with the second appellant (the Centre for Applied Legal Studies, CALS), challenges the constitutionality of s 1(1)(b) of the Act, on the ground that its provisions violate the right to freedom of expression as guaranteed in s 16(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution). They contend that the section criminalises any speech or conduct which creates a subjective state of fear in any person regardless of whether the conduct or speech in question is intended to create fear. An offence is also committed, so they contend, where no fear is in fact created and only speech or conduct which reasonably apprehended might have created fear is established.

[5] The appellants aver that s 1(1)(b) is overbroad as it criminalises many forms of expression which fall within the protection of s 16(1) of the Constitution. The appellants further submit that the breadth of the interference with s 16(1) of the Constitution created by s 1(1)(b) of the Act, cannot be justified in terms of the limitation clause in s 36 of the Constitution and consequently falls to be declared unconstitutional and invalid.

[6] The fourth respondent (the Minister), opposes the appeal on the basis that Mr Moyo’s utterances and conduct, which form the basis of the charge against him, properly construed constitutes incitement of imminent violence which falls within the unprotected categories of expressions provided for in s 16(2) of the Constitution. The Minister also contends that s 1(1)(b) of the Act does not criminalise speech or conduct which creates a subjective state of fear in the addressee, but criminalises speech or conduct which if reasonably construed the natural and probable consequences thereof would be that a person perceiving the conduct fears for his or her own safety or that of another. The Minister further submits that s 1(1)(b) postulates the determination, on objective grounds, whether the utterances could be perceived to constitute a threat to the addressee or any other person affected thereby.

[7] In the second appeal, Ms Sonti, together with the second appellant, Socio Economic Rights Institute of South Africa (SERI), challenges the constitutionality of s 1(2) of the Act on the basis that the section creates a reverse onus in all proceedings brought under s 1(1)(a) of the Act. They contend that the effect of the reverse onus is that an accused person must prove on a balance of probabilities, that he or she had a lawful reason to issue the threat criminalised under s 1(1)(a)(ii) of the Act, unless the accused makes a statement ‘clearly indicating the existence’ of a lawful reason before the prosecution closes its case. If no such statement is made, the threat is presumed to have been unlawful. The appellants therefore contend that s 1(2) of the Act breaches the fair trial rights entrenched in s 35(3)(h) and (j) of the Constitution, namely the rights to be presumed innocent, to remain silent and not to be compelled to give self incriminating evidence. The appellants contend further that the effect of s 1(2) is that an accused person must sacrifice the rights to be silent and against self incrimination if he or she is to be given the benefit of the presumption of innocence. If, on the other hand, the accused wishes to exercise his or her right to silence and protection from self incrimination, the accused will attract an onus and will not be presumed to be innocent.

[8] Ms Sonti also avers that s 1(2) constitutes an unjustifiable limitation on the right to freedom of expression, enshrined in s 16 of the Constitution, in that it presumes any threat and therefore any expression which falls within s 1(1)(a)(ii) to be unlawful, unless a statement setting out a lawful reason for it is made in advance. She then contends that s 16 of the Constitution requires all expressions it protects to be presumed to be innocent and lawful unless the state can prove beyond reasonable doubt that they constitute a crime.

[9] The Minister opposes this appeal on the basis that the provisions of s 1(2) of the Act properly construed, do not create a reverse onus requiring the accused person to prove an element of the crime on a balance of probabilities. The presumption created by this section, so the Minister submits, merely imposes an evidentiary burden on the accused. In the alternative, and if it were found that the provisions of s 1(2) violate the right to freedom of expression or the right to a fair trial, both rights are not absolute and may be limited in terms of s 36 of the Constitution, which the Minister submits, is the case in this matter.

[10] I now turn to consider the merits of each appeal separately. Before doing so however, I need to dispose of a point in limine raised by the Minister. The point raised is this: The applications for orders declaring the relevant provisions of the Act unconstitutional arise from the pending criminal trials in the regional court of the first appellant in each appeal. Accordingly, it was submitted that both appellants should first go through their trials and then raise the constitutional validity of ss 1(1)(b) and 1(2) on appeal, if necessary. The Minister submitted that it was undesirable that the appellants should require this court to decide the constitutionality of the provisions of the Act, without the benefit of the criminal trials’ findings on a number of issues which could have a bearing on the question whether the relevant provisions should be declared unconstitutional.

[11] In support of this contention, the Minister sought to rely on the dicta by Kriegler J in S v Bequinot. There the learned judge found, on the facts of that case, that there was no identifiable ratio for the referral of the case to the Constitutional Court, and that there was nothing indicating:

(a) why the court a quo regarded the constitutionality of s 37 of the Act 62 of 1955 to be potentially decisive of the case before it;

(b) why it was considered to be in the interest of justice to order referral of that issue; and in that context,

(c) why the referral was made at that juncture, before considering the appeal on non-constitutional grounds.

The Minister submits that this court is placed at a disadvantage for it is required to deal with difficult questions of law, constitutional or otherwise, and has to perform the balancing exercise demanded by s 36(1) of the Constitution virtually as a court of first instance, in circumstances where the constitutional issues raised might not be decisive of the cases.

The Minister concludes that the regional courts, before which Mr Moyo and Ms Sonti are to stand trial, are better placed than this court to evaluate the effect of the alleged overbreadth of s 1(1)(b), and of the so-called reverse onus of s 1(2) of the Act on the essential fairness of a criminal trial.

[12] Although it must be accepted that the ordinary procedure would be to challenge the constitutionality of ss 1(1)(b) and 1(2) of the Act at the trial or in post conviction proceedings, it must be noted that both Mr Moyo and Ms Sonti have been charged in the regional courts. Regional courts lack jurisdiction to strike down unconstitutional statutes. Indeed, the regional courts would be bound to decide the matter on the basis that ss 1(1)(b) and 1(2) of the Act are constitutionally valid in terms of s 110(2) of the Magistrates Courts Act 32 of 1944. This would mean that both Mr Moyo and Ms Sonti would have to run the risk of conviction and imprisonment under the Act, before having an opportunity to raise the constitutional validity of the provisions they claim are unconstitutional.

[13] In my view the Minister’s aforesaid approach would be unjust to the appellants. The Constitutional Court has held that it is permissible to challenge the constitutional validity of a statutory offence before trial, even if legislation is being challenged ‘in the abstract’. In this matter, the referral for constitutional validity of the provisions concerned, even before the trials of Mr Moyo and Ms Sonti get underway, cannot by any stretch of imagination be an abstract challenge. They challenge the constitutionality of the very provision that they are charged with. The mere laying of the charge under the Act is enough to create a threat to rights under s 38 of the Constitution. I am also satisfied that the particulars of the charges, taken together with the facts alleged in the appellants’ affidavits, do create a body of facts in relation to which the constitutional validity of ss 1(1)(b) and 1(2) of the Act may be tested. In any event, there would be no need to determine the truth of any of the factual allegations against the appellants, because, as the Constitutional Court has held:

‘[T]he enquiry is an objective one … The subjective positions in which parties to a dispute may find themselves cannot have a bearing on the status of the provisions of a statute under attack. The Constitutional Court, or any other competent Court for that matter, ought not to restrict its enquiry to the position of one of the parties to a dispute in order to determine the validity of a law.’

[14] I am also of the view that it is in the public interest to finally determine the constitutional validity of ss 1(1)(b) and 1(2) of the Act. An important consideration in this regard is that the high court judgment created a precedent that is binding on lower courts. If the judgment is wrong, it is in the public interest that it should not stand.

[15] In light of what I have stated above, I find that the point in limine raised by the Minister, must fail.

[16] I need to point out that although the aforesaid point in limine was squarely an issue before the court a quo, there is no mention thereof whatsoever in the judgment under appeal. The omission of so important an issue in the judgment, which had the potential to be decisive of the matter, is particularly concerning.

The first appeal: The constitutional validity of section 1(1)(b) of the Act.

[17] The criminal charge of intimidation in terms of s 1(1)(b) of the Act, which has been preferred against Mr Moyo (there is an alternative charge of assault which has no bearing in this matter), arose under the following circumstances. Mr Moyo is the chairperson of a community based organisation known as the Makause Community Development Forum (MCDF) in the Makause informal settlement. According to him, the MCDF has had a difficult relationship with the local branch of the African National Congress (ANC), which always challenged the right of the MCDF to conduct any organising or other work of a social or political nature in the settlement. He states that as a result of tensions between the two organisations, the ANC laid various spurious allegations and complaints against MCDF members, which resulted in their arrest and detention. However, no convictions have resulted from any of these arrests.

[18] The charge against Mr Moyo concerns a speech and conduct attributed to him during a meeting at the Primrose Police Station, Germiston, on 18 October 2012. He had allegedly had gone to organise a peaceful and lawful march to demonstrate against what he saw as ineffective and biased policing practices in the Makause informal settlement, arising from the unfair treatment of MCDF members at the hands of the police. The complainants are Lieutenant Colonel Nkwashu, the station commander of Primrose Police Station, and Lieutenant Colonel Shiburi, a senior police officer at that station. The complainants allege that Mr Moyo uttered the following words and conducted himself in a manner described in the charge sheet as follows:

‘(a) he will make sure that they are removed;
(b) threatened to repeat what happened at Marikana and/or;
(c) that there will be bloodshed; and/or
(d) by pointing fingers at the complainants; and/or
(e) charging towards the complainants; and/or
(f) said that the complainants will not last at Primrose.’

Mr Moyo denies that he did or said anything with the intention of intimidating the complainants. In his view, the charges that have been preferred against him are simply a ploy to frustrate the MCDF’s legitimate rights to protest and criticise what they see as biased policing practices sanctioned by the complainants.

[19] I need to point out at this stage that whether or not Mr Moyo uttered the words or conducted himself in the manner alleged or with the intention of intimidating the complainants, is an issue that must be determined by the trial court. Furthermore, such issue will not form the basis upon which the constitutionality of the provisions of s 1(1)(b) of the Act should be decided.

[20] I deem it prudent at this point to consider the context in which the Act was adopted, together with its legislative history, as this will be helpful in determining the purpose and meaning of the provision.

[21] Section 1(1)(b) was imported into the Act by the Internal Security and Intimidation Amendment Act 138 of 1991 (the Internal Security Amendment Act). Although the one purpose of the Internal Security Amendment Act was to reduce the length of time a person could be detained without trial by the apartheid state, and to ease some of the more draconian aspects of the internal security legislation in force at the time, that Act also significantly broadened the statutory offence of intimidation. The reason for doing so was to reverse a series of prior decisions of the high court that had narrowed the range of conduct and speech that could count as intimidation. These decisions included S v Mohapi en Andere 1984 (1) SA 270 (O), in which it was held that a general threat directed at the inhabitants of an area as a whole, cannot constitute intimidation; S v Kekana (an unreported decision of the Witwatersrand Local Division under case number A444/88), in which it was held that a mere threat that is not intended to induce particular conduct in another person is not intimidation; and S v Malevu (an unreported decision of the Witwatersrand Local Division under case number A635/87), in which it was held that a striker did not intimidate three non-strikers who he had told would encounter problems and would be hurt if they continued to work. This was because it was not established beyond a reasonable doubt that these utterances conveyed anything more than a warning.

[22] Clearly, the purpose of the Internal Security Amendment Act was to widen the statutory offence of intimidation to include speech and conduct which, under apartheid, was considered harmful, but would certainly be considered innocuous today. This is confirmed by the explanatory memorandum to the Internal Security and Intimidation Amendment Bill which sets out the objects of the bill as to render certain intimidatory conduct which does not fall within the scope of the Act, punishable.

[23] Even at the time it was passed, the breadth of s 1(1)(b) was controversial in that it was not limited to serious threats of unlawful conduct. Members of the House of Assembly, at the second reading of the Intimidation Bill, raised consumer boycotts as legitimate forms of political action criminalised by s 1(1)(b). Mr A S K Pitman MP highlighted during the debate that it should not be a criminal offence to embark on a consumer boycott.

[24] At a textual level, s 1(1)(b) of the Act creates an offence in two sets of circumstances. A person will be guilty of an offence where he or she –

(a) acts or conducts himself or herself in such a manner or utters or publishes such words that it has or they have the effect that a person perceiving the act, conduct, utterance or publication fears for his or her own safety, the safety of his or her property or the security of his or her livelihood, or the safety, property or livelihoods of others (whether reasonable or not); or
(b) acts or conducts himself or herself in such a manner or utters or publishes such words that it might reasonably be expected that the natural and probable consequences thereof would be that a person perceiving the act, conduct, utterance or publication fears for his or her own safety or the safety of his or her property or the security of his or her livelihood, or the safety, property or livelihoods of others (even if no fear is actually created).

[25] Clearly, the text of s 1(1)(b) does not require that fear be caused intentionally or negligently. Although our courts read a penal statute, where possible, as requiring some sort of fault on the part of the person to be charged, the text of s 1(1)(b) leaves no room for such an exercise. If an expressive act results in someone feeling fearful or might reasonably have that result, then there is an offence under the section.

[26] The court a quo interpreted the section as only criminalising the creation of reasonable fear. In this regard, the court sought to rely, inexplicably, in my view, on the decision in Setlogelo v Setlogelo, which with respect is inapplicable to the circumstances or situation dealt with herein. The court a quo held that the court must decide, on the facts presented to it, whether there is any basis for the entertainment of a reasonable apprehension by the person threatened.

[27] In my view this is erroneous as the text of the section precludes such an interpretation. The section clearly creates an offence where a person ‘acts or conducts himself or herself in such a manner or utters or publishes such words that it has or they have the effect, or that it might be reasonably expected that the natural and probable consequences thereof would be that a person perceiving the act, conduct, utterance or publication’ would be placed in fear. Furthermore, the use of the word ‘or’ is clearly intended to distinguish between two situations: one in which fear is created, whether reasonably or not, and another in which reasonable fear might be created, regardless of whether it was in fact created. An offence is committed in both situations.

[28] The second interpretative error adopted by the court a quo was to characterise s 1(1)(b) as being directed only at threats of violence. In this regard the learned judge observed that the Act is one of the pre-democracy pieces of legislation remaining in our statute books with the aim of fighting violence in all its forms. But this is wholly untenable because s 1(1)(b) of the Act criminalises a much wider range of expressive acts than mere threats of violence. One need only consider the provision in its immediate statutory context to see this. Threats of violence are explicitly criminalised in s 1(1)(a) of the Act and, if s 1(1)(b) were meant only to criminalise threats of violence, then clearly it would be superfluous. On the plain meaning of s 1(1)(b) it includes acts or conduct not relating to violence.

[29] The plain text of the section places emphasis on how the person being threatened feels or might reasonably feel, not on what the expressive act actually means or was intended to achieve. To illustrate the scope of s 1(1)(b) of the Act, it bears emphasising what Mr Moyo is not charged with. It is not alleged that any harm of a specific nature actually resulted from anything which Mr Moyo said or did; that the fear said to have been induced by his utterances or conduct had any specific focus; or importantly, that he intended at any stage to induce fear in the police officers and to intimidate them.

[30] The fundamental problem with s 1(1)(b) of the Act is that it obliterates the distinction between ‘true threats’ and ‘political hyperbole’ as it covers both categories of expression, and a lot more. A true threat is a threat of unlawful violence made by a person who intends to carry that threat out and has the means to do so. On the other hand, political hyperbole is (often emotionally charged) rhetoric with no serious intent to harm, or capacity to cause harm and can include anything from popular struggle songs to trite political slogans. Thus even advocating a consumer boycott, as I have mentioned earlier, or campaigning to remove a politician from office would constitute criminal acts if they are demonstrated to have actually or reasonably placed someone in fear for the security of the livelihood of any person.

[31] For all these reasons, the interpretation the court a quo placed on s 1(1)(b) of the Act is untenable. Textually the section creates significant inroads into the right of freedom of expression. I say so because s 1(1)(b) debars people from speaking their minds lest they place another in a subjective state of fear or might reasonably do so. However, unless hate speech, incitement of imminent violence or propaganda for war as proscribed in s 16(2) of the Constitution are involved, no one is entitled to be insulated from opinions and ideas that they do not like, even if those ideas are expressed in ways that place them in fear.

Indeed, in present day South Africa many will be afraid of the political and social possibilities that are advocated for daily in high stakes debates that characterise a transforming society with a violent, racist past. Obviously this may place many South Africans in a condition of subjective or ‘reasonable’ fear. But that does not entitle them to expect the State to lock up those whose chosen forms of expression placed them in a subjective state of fear or might reasonably (but not in fact) have placed them in fear.

[32] Even expressive acts that create reasonable fear are deserving of constitutional protection. Unless they are accompanied by threats of violence on which the person making the threat is capable of acting, or they constitute unprotected expression defined in s 16(2) of the Constitution, fear-creating expressive acts are lawful, even if they are aggressive and hostile. This court, in Hotz v UCT expressed itself on this subject as follows:

‘A court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to be characterised as hate speech, even if it has overtones of race or ethnicity’.

The court recognised however, that in guaranteeing freedom of speech, the Constitution also places limits upon its exercise. Thus where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constitutes incitement to cause harm, it oversteps those limits and loses its constitutional protection.

[33] The aforesaid position holds true in the United States. In Watts v United States the Supreme Court held that only ‘true threats’ fall outside a person’s first amendment protection against interference with free speech. The defendant, at a public rally at which he was expressing his opposition to the military draft, said, ‘if they ever make me carry a rifle the first man I want to get in my sights is L.B.J’. He was convicted of violating a federal statute that prohibited ‘any threat to take the life of or to inflict bodily harm upon the President of the United of States’. The Supreme Court reversed that finding. Interpreting the statute ‘with the commands of the First Amendment clearly in mind’ it found that the defendant had not made a ‘true threat’, but had indulged in mere ‘political hyperbole’. Clearly, although the utterances in Watts may have placed reasonable people in fear, they were still protected under the first amendment of the US Constitution. The point is that the conduct of Mr Watts could have constituted a crime under s 1(1)(b) of the Act.

[34] What matters for present purposes is whether an expressive act amounts to an intentional, serious and violent threat, not whether it places or might reasonably place anyone in fear of their safety, property or livelihood, or those of another. Clearly, s 1(1)(b) of the Act sets the bar for unlawful expression far too low. The court a quo’s interpretation of s 1(1)(b) as only criminalising the creation of reasonable fears, is incompatible with the text of the section. It is in fact precisely the kind of ‘unduly strained’ reading down of a statute that the Constitutional Court warned against in Hyundai where the court said:

‘There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution”. Such an interpretation should not, however, be unduly strained.’

[35] The real problem with s 1(1)(b) is, in any event, its overbreadth, which could not be cured by the court a quo’s attempt to read it down. As I have demonstrated above, it in fact matters little whether s 1(1)(b) of the Act only applies to the creation of reasonable fears. Even if it could be read that way, which in my view it definitely cannot, its prohibitions would still not confine it to violent threats. This section plainly limits the right to freedom of expression guaranteed in s 16 of the Constitution.

Can the limitation of the right of freedom of expression be justified?

[36] As it has been shown that s 1(1)(b) of the Act limits s 16(1) of the Constitution, the next enquiry is to determine whether the limitation can be justified under s 36 of the Constitution. If the limitation cannot be justified, then s 1(1)(b) of the Act will be rendered unconstitutional.

[37] Section 36 of the Constitution provides as follows:

‘(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.’

[38] It is trite that once a constitutional infringement is established, as has happened in this matter, then it is for the party relying on the legislation to establish the justification, and not for the party challenging it to show that it was not justified. The evaluation of the justification of a limitation under s 36 of the Constitution involves a process described in S v Makwanyane & another as the ‘weighing up of competing values, and ultimately an assessment based on proportionality … which calls for the balancing of different interests’. The relevant considerations in the balancing process include those that are listed in s 36(1) of the Constitution. Although s 36(1) does not expressly mention the importance of the right infringed in an open and democratic society based on human dignity, it is a factor that must of necessity be taken into account in any proportionality evaluation.

[39] The process of balancing different interests takes place in the following manner:

‘On the one hand there is the right infringed; its nature; its importance in an open democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation. On the other hand there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between limitation and its purpose as well as the existence of less restrictive means to achieve this purpose.’

[40] I did not understand counsel for the Minister to argue that s 1(1)(b) as interpreted in this judgment, is justifiable under s 36. I nevertheless consider this question below. The importance of the right of freedom of expression has received considerable attention by the Constitutional Court on numerous occasions. I cite a few. In Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly the Constitutional Court described the relevance and necessity of this right as follows:
‘Ours is a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minority, listen.’ (Footnote omitted).

[41] In Khumalo & others v Holomisa the Constitutional Court explained that the right to freedom of expression is ‘integral to a democratic society for many reasons’, including the reason that the right is constitutive of the dignity and autonomy of human beings and because, without it, the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled.

[42] One of the purposes of the right to freedom of expression is to foster tolerance of competing political views and the manner in which they are expressed. In a democracy such as ours, we have to tolerate people who have different views, and we have to accept that those views might be expressed in ways we do not like. Significantly, in his answering affidavit, the Minister correctly accepted that it is ‘undeniable’ that freedom of expression is ‘indispensable . . . [to] a State such as South Africa’ and that it is a right of ‘core importance for the democratic dispensation’.

[43] With regard to the question of the importance of the purpose of the limitation, I have taken into consideration the legislative history of s 1(1)(b) of the Act. What clearly emerges from such history is that the offence of intimidation is a product of apartheid era legislation that was designed to control dissent against an unjust system. It then becomes clear that its purpose has been rendered constitutionally offensive in modern day South Africa.

[44] The contention that s 1(1)(b) of the Act promotes ‘inter-communal peace and harmony’ is, in my view, a classic analogue of the justifications given in non democratic regimes for stifling political dissent. There can be no debate over the fact that democracy thrives on the expression of disagreement. Of course, some limitations on the right to freedom of expression are necessary. But there can be no justification for the imposition of limitations on the right to freedom of expression simply to pacify the expression of disagreement, or to create a comfortable, placid political atmosphere.

[45] I accordingly find that s 1(1)(b) of the Act constitutes one of the last and most insidious of the apartheid regime’s efforts to curtail freedom of expression and political action that was aimed at bringing that abominable regime to an end. It has no place in a free, open and democratic South Africa which respects, protects, promotes and fulfils the right to freedom of expression and falls to be struck from our statute books.

[46] The nature and extent of the limitation contained in s 1(1)(b) of the Act can be devastating on any person caught on its wrong side. It carries a maximum sentence of ten years imprisonment and the option of a fine of R40 000 which is prohibitively expensive for an indigent person charged with the manner of expression that the Act criminalises. For these reasons, I find that s 1(1)(b) of the Act is clearly egregious, both in its nature and its extent.

[47] The aspect of the relation between the limitation and its purpose raises two questions. The first is whether there is a rational connection between the limitation and its purpose. The second is whether the limitation is proportional to the purpose it serves.

[48] Although the court a quo found that the purpose of s 1(1)(b) of the Act was to combat violence and threats of violence, this was erroneous. In truth, its scope extends beyond threats of violence. As I have demonstrated, expressive acts that merely ‘have the effect’ of creating fear or might reasonably have that effect, are criminalised. There is accordingly no rational connection between the text of s 1(1)(b) and the protection of the individual from violent threats.

[49] To the extent that it is contended that s 1(1)(b) of the Act is necessary to protect the individual against threats, violent or otherwise, various narrowly tailored offences that meet these objectives already exist. These are, apart from s 1(1)(a) and s 1A of the Act (which prohibits the intimidation of the general public, a particular section of the population or the inhabitants of a particular area):

(a) Crimen injuria, which is the unlawful and intentional impairment of the dignity of another person and can include abusing, insulting or degrading conduct of a sufficiently serious nature which can also include incidents similar to stalking another person;
(b) Assault, which includes intentionally inducing the fear of imminent violence in another person; and
(c) Public violence, which is the unlawful and intentional commission, by a number of people acting in concert, of acts of sufficiently serious dimensions which are intended to violently disturb the peace or security or invade the rights of others.

[50] In light of what I have stated above, s 1(1)(b) of the Act is not a justifiable limitation on the right to freedom of expression. It is inconsistent with the Constitution and must be declared unconstitutional.

Just and equitable relief

[51] I have found that s 1(1)(b) is inconsistent with the Constitution and that it must accordingly be declared invalid in accordance with s 172(1)(a) of the Constitution. In terms of the doctrine of objective constitutional invalidity, s 1(1)(b) will become invalid from the date upon which the Constitution came into operation.

[52] In light of the fact that the purpose of s 1(1)(b) of the Act has been unlawful since at least the commencement of the Constitution, and that there are several criminal offences that can effectively curb criminal conduct involving threats, I come to the conclusion that there is no reason to suspend the declaration of invalidity.

[53] I am also of the view that the order of invalidity should apply retrospectively. The effect thereof will be adequately managed by the fact that any person previously convicted of contravening s 1(1)(b) of the Act may have his or her conviction set aside on appeal or review application.

Second appeal: constitutional validity of section 1(2) of the Act.

[54] The challenge by Ms Sonti against the constitutionality of s 1(2) of the Act arose in the following instances. Ms Sonti is a Member of Parliament. At the time she was charged, she was the leader of a community based organisation known as ‘Sikhala Sonke’, which provides support for the victims of the Marikana massacre.

[55] The charge laid against Ms Sonti concerns telephone calls and text messages she is alleged to have directed to Ms Nobuhle Zimela (the complainant) on 17 and 18 December 2012 near Marikana. The complainant alleges that these telephone calls and text messages contained threats to kill the complainant and burn her house down with the intention of compelling her to withdraw criminal complaints she had made against a certain Mr Anele Zonke. Ms Sonti denies all the allegations made against her.

[56] Ms Sonti applied for an order declaring s 1(2) of the Act unconstitutional because it unjustifiably infringes her right to freedom of expression and her fair trial rights namely, to remain silent, to be presumed innocent and not to be compelled to make self-incriminating admissions, which are entrenched in ss 35(3)(h) and (j) of the Constitution.

[57] In light of my finding in Mr Moyo’s appeal that s 1(1)(b) of the Act violates the right to freedom of expression, I do not deem it necessary to deal with that aspect in this appeal. I will accordingly confine myself to the issue of the alleged infringement of Ms Sonti’s fair trial rights.

[58] Ms Sonti’s attack on s 1(2) of the Act is that the section creates a reverse onus in proceedings brought under s 1(1)(a) of the Act. She avers that the effect of the reverse onus created by this section is that an accused person must prove on a balance of probabilities, that he or she had a lawful reason to issue the threat criminalised under s 1(1)(a)(ii), unless he or she makes a statement ‘clearly indicating the existence’ of a lawful reason before the prosecution closes its case. If no such statement is made, the threat is presumed to have been unlawful.

[59] Ms Sonti therefore submits that s 1(2) of the Act is unconstitutional as it breaches the right to silence, the right not to be compelled to make self-incriminating admissions, and the right to be presumed innocent. Furthermore, under its terms, an accused person must sacrifice the right to silence and against self-incrimination if he or she is to be given the benefit of the presumption of innocence. If on the other hand, the accused wishes to exercise his or her rights to silence and protection from self incrimination, the accused will attract a true onus and will not be presumed innocent.

[60] The court a quo accepted that s 1(2) of the Act infringes the right to be presumed innocent, to remain silent and not to incriminate oneself. However, it held that these infringements were justified on two bases. Firstly, that it is not possible for the State to disprove the existence of a lawful reason for making a threat as defined in s 1(1)(a) of the Act; and secondly, that the reverse onus serves the purpose of combating intimidation the incidence of which, the court a quo found, is ‘rife’ in South Africa.

[61] The Minister contended that the provisions of s 1(2) of the Act do not require an accused person to prove or disprove on a balance of probabilities, any element of the crime as contended for by the appellants. The Minister contended further that the provisions mainly require the accused to make a statement indicating the lawful reason for his or her conduct and that he or she does not have to convince the court as to the lawfulness of such statement. This means that no proof on a balance of probabilities of the lawfulness of the statement is required, except in the event that the accused elects not to put lawfulness in dispute by not making a statement indicating the existence of a lawful reason – for example, self-defence or necessity or whatever such reason may be – and doing so before the close of the prosecution’s case. The Minister states that once the statement is placed before the court, the prosecution will still bear the onus of proof beyond a reasonable doubt that all the elements of a crime exist and have been proven before any conviction could follow. In other words, no possibility exists, so the Minister contended, for the conviction of the accused despite a reasonable doubt.

[62] In my view, the Minister’s understanding of the provisions of s 1(2) is untenable. Textually, s 1(2) casts on the accused person the legal burden of proving a ‘lawful reason’ for conduct criminalised by s 1(1)(a), unless he or she makes a statement disclosing the ‘lawful reason’ upon which they intend to rely, before the closing of the State’s case. Therefore, an accused person that invokes the right to remain silent and the right not to be compelled to self-incriminate, will bear the onus of proving a lawful reason for the conduct in question. In such a case it may very well happen that at the conclusion of the trial the court is unable to find that the accused had shown lawful reason on a balance of probabilities, but may entertain a reasonable doubt as to whether the conduct was justified by lawful reason.

This will result in a conviction despite the existence of a reasonable doubt as to the guilt of the accused. Also, an accused person cannot offer a lawful reason for the conduct in question, without admitting that conduct. It follows that in order to avoid the reverse onus the accused will have to abandon the right to remain silent and the right not to be compelled to self incriminate himself or herself by admitting the conduct that the prosecution has to prove, thus relieving the prosecution of the duty to prove the guilt of the accused beyond a reasonable doubt. In both respects there is a clear breach of the fundamental right to be presumed innocent.

[63] The court a quo correctly accepted this and correctly rejected the Minister’s contention that s 1(2) of the Act places a mere ‘evidentiary burden’ on an accused to indicate that he or she has some lawful basis for conduct proved against him or her. It correctly found that this is at odds with the plain text of the section, which states that ‘the onus of proving the existence of a lawful reason’ is placed on the accused.

[64] Section 1(2) clearly creates a full onus on the accused, in the event that he or she chooses to remain silent before the State’s case is closed. However, it bears mentioning that even the creation of an ‘evidentiary burden’ that allows for conviction despite reasonable doubt is nonetheless unconstitutional. It thus matters not whether s 1(2) creates what is classified as a ‘full onus’ or ‘an evidentiary burden’. What is important, rather, is whether the final effect of s 1(2) of the Act is to displace the presumption of innocence. Therefore, whatever label one chooses to apply to s 1(2) of the Act that is indeed its final effect.

[65] As I have said, the court a quo accepted, correctly, that there was an infringement of fair trial rights. However, it characterised the infringement of rights as slight, because threats criminalised under s 1(1)(a)(ii) of the Act, in respect of which the reverse onus operates, will always be inherently unlawful. The court a quo erred in this respect.

[66] Section 35(3) of the Constitution guarantees all accused persons the right to a fair trial. It reads as follows:
‘Every accused person has a right to a fair trial, which includes the right—
…
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
…
(j) not to be compelled to give self-incriminating evidence.’

[67] In addition, in a trial, if at the close of the case for the prosecution the court is of the view that there is no possibility of a conviction unless an accused incriminates himself or herself in a witness box, then, pursuant to s 174 of the Criminal Procedure Act 51 of 1977, the accused is constitutionally entitled to be discharged. This is because the accused is presumed innocent, and the requirement that the State prove its allegations beyond reasonable doubt means that he or she is entitled to be acquitted and discharged. The presumption of innocence is, accordingly sacrosanct and underpins the fairness of a trial.

[68] As I have said, s 1(2) of the Act creates the real risk of a conviction despite the presence of a reasonable doubt. At a trial the evidence for the prosecution may tell one tale and evidence for the defence may tell another. If the State succeeds in proving two elements of the offence namely, conduct that constitutes a threat intended to compel an act or an omission from another, and a court finds it impossible to determine the existence or otherwise of a lawful reason, then the court will necessarily have a reasonable doubt as to the proof of the said element. Yet s 1(2) of the Act will demand a conviction, unless the accused admits the conduct upfront, and relies on a ‘lawful reason to justify it’.

[69] The above is anathema to the long accepted rule in criminal law that an accused person is not required to assist the State to prove its case by explaining incriminating facts as and when they are presented. This principle was affirmed in Dubois v The Queen where the Supreme Court of Canada held that–

‘[t]he accused need only respond once. The Crown must present its evidence at an open trial. The accused is entitled to test and to attack it. If it does not reach a certain standard, the accused is entitled to an acquittal. If it does reach that standard, then and only then is the accused required to respond to or stand convicted.’ (My emphasis).

In S v Zuma and Others 1995 (2) SA 642 (CC), Kentridge AJ, in the context of the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself, stated that–

‘These rights, in turn, are the necessary reinforcement of Viscount Sankey’s “golden thread” – that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington’s case, supra). Reverse the burden of proof and all these rights are seriously compromised and undermined.”

[70] Where, as in this case, an accused person denies the charge in its entirety, remaining silent while the State lays out its evidence will normally be an important way of protecting him or her against unfair self-incrimination. It will also enable the accused to provide a full, consistent explanation for all the facts proved against him or her, to the extent that he or she is able to do so.

[71] It is plain from above that s 1(2) of the Act infringes the right to be presumed innocent, to remain silent and not to be compelled to give self-incriminating evidence.

Justification of section 1(2) of the Act in terms of section 36 of the Constitution

[72] I have found that s 1(2) of the Act limits the fair trial rights in s 35(3)(h) and (j) of the Constitution. The next stage of the enquiry is whether or not s 1(2) of the Act can be justified under s 36 of the Constitution.

[73] In paras 37 to 39 I dealt in a fair amount of detail with the applicable principles in the evaluation of the limitation of rights in terms of s 36 of the Constitution. Those principles are also applicable to Ms Sonti’s appeal. I do not deem it necessary to repeat them.

[74] The Minister submitted that intimidation by its nature is a threat of unlawful action, implying physical harm on others. He then averred that the Act acknowledges and gives recognition to an enshrined right in s 12(1) of the Constitution, which gives to everyone the right to freedom and security of the person. Accordingly s 1(2) of the Act viewed in the context of the protection of the rights enshrined in s 12(1) of the Constitution, acknowledges that the existence of the lawfulness of the reasons of the utterance would ordinarily be within the exclusive knowledge of the utterers of the words, and that it would be unreasonable to expect the State to lead in anticipation evidence on the existence of lawful reasons to utter such intimidatory words or threats.

[75] The nature and importance of the rights to be presumed innocent, to remain silent and not to be compelled to make self-incriminating admissions, cannot be over emphasised. They lie at the core of our constitutional order and protect the individual against the State’s over-reach and constitute essential preconditions for the development of individual freedom and the realisation of the self. Accordingly, any limitation of these rights must require compelling justification which in this matter is, in my view, lacking.

[76] The Minister’s reliance on the decision of the majority in Prince v President, Cape Law Society is misplaced. In that case the Constitutional Court was faced with the question of the constitutional validity of the prohibition on the use or possession of cannabis when its use or possession is inspired by religion. The crux of the majority judgment was that the legitimate government’s purpose of the legislation in preventing harmful drug use outweighed the impact on Mr Prince’s right to freedom of religion. In my view, the nature of the right in that case, can hardly be compared to the type of rights we are dealing with here, which lie at the very core of our constitutional order.

[77] The Minister’s contention that s 1(2) of the Act is justified by the difficulty of the prosecution proving the absence of lawful reason, is untenable. In truth, this burden is slight. Proof of conduct that falls within the provisions of s 1(1)(a) – ie assault, causing injury or damage, a threat to kill, assault, injure or cause damage with intent to compel or induce action or inaction – will almost always constitute prima facie proof of unlawfulness. The prima facie case will become conclusive in the absence of evidence by the accused that raises a reasonable doubt as to the lawfulness of the conduct. It follows that there is no real need for a reverse onus.

[78] Both the court a quo and the Minister failed in this respect to heed the warning by the Constitutional Court in S v Coetzer and Others where Langa J held that it is not enough –

‘[T]hat an obligation to prove an element of an offence which falls peculiarly within the knowledge of the accused makes it more difficult for the prosecution to secure a conviction. The question is whether it makes it so difficult as to justify the infringement of the accused’s right to be presumed innocent on the grounds of necessity … Discharging the burden of proof is a function which the criminal justice system requires the prosecution to perform in the normal course with regard to many common law and statutory offences. It was not claimed that if all the circumstances surrounding the false representation are fully and properly investigated and presented in evidence the prosecution cannot obtain the conviction to which it might be entitled.’ (Footnote omitted).

[79] The court a quo’s finding that s 1(2) was justified because intimidation was ‘rife’ in South Africa falls to be rejected. The court a quo heard no evidence in that regard and it was not entitled to draw that inference. In any event, the court a quo’s approach flies in the face of the warning by the Constitutional Court that ‘(o)ne must be careful to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights’. The mere assertion, without more, that ‘intimidation is rife’ was accordingly not enough to justify the invasion of the rights embodied in s 1(2) of the Act.

[80] The nature and extent of the limitation embodied in s 1(2) in the form of a reverse onus, is undoubtedly egregious. It has the potential, where an accused person exercises his or her rights under s 35(h) of the Constitution, to create the possibility of his or her conviction where his or her guilt is reasonably in doubt.

[81] It has not been demonstrated that there is a rational connection between s 1(2) of the Act, and the purpose proffered for it, namely relieving the prosecution of an impossible burden. I have already found that the burden is not impossible and can be discharged by leading evidence of the context in which the alleged threat was made. Furthermore, this will, in my view, be a less restrictive means to achieve the section’s aforesaid purpose.

Just and equitable relief

[82] It is plain from what I have stated above, that s 1(2) of the Act is incompatible with the provisions of s 35(3)(h) and (j) of the Constitution and must be declared invalid and unconstitutional. There is, in my view, no need to suspend the declaration of invalidity because:

(a) The effect of invalidating s 1(2) of the Act will be that the State will henceforth be required to prove all the elements of the offences created by s 1(1)(a) of the Act;
(b) The situation of people convicted of contravening s 1(1)(a) of the Act and who would not have been convicted but for the reverse onus in s 1(2), can be dealt with in terms of the ordinary appeals processes.

[83] In the light of the reasons set out above I would have upheld both appeals and made an order declaring both impugned sections unconstitutional and invalid and referring them to the Constitutional Court in terms of s 172(2)(a) of the Constitution.