2020 volume 2 p 377

• Published date: 14 April 2020
• Date: 14 April 2020

FREEDOM OF EX PRESSION AND INT IMIDATION 377

[ISSN 0257 – 7747] TSAR 2020 . 2

FREEDOM OF EXPRESSION AND INTIMIDATION: UNEASY

RELATIONSHIP OR MATTER OF INTERPRETATION?

Moyo v Minister of Justice and Con stitutional Development 2018 2 SACR 313 (SCA)

Moyo v Minister of Police; Sonti v Minister of Police 2019 JDR 2034 (CC)

1 Introduction

The high incidence of the ser ious crime of intimidation in South Afr ica is generally

acknowledged in case law as well as academ ia (Snyman Criminal Law (2014) 455;

Hoctor “The intimidatingly broad crime of intimidation” 2008 Obiter 283 286; S v

Tsotsi 2004 2 SACR 273 (E) par 14). The Intimidation Act 72 of 1982 (the act) fulls

an important role in addressing this cr ime phenomenon and helping to protect the

right to freedom and se curity of the person (Hoctor 286). The act has, however, also

been the subject of severe criticism, not only be cause of its original aim to mainly

address (and suppress) uncomfortable challenges experienced by the previous

political dispensation, but als o as a result of its apparent infringement of the r ight to

freedom of expression as protecte d in section 16(1) of the constitution.

In view of this apparent dichotomy a welcome opportunity arose i n Moyo v

Minister of Justice and Cons titutional Development (2017 1 SACR 659 (GP)) for the

high court and su bsequently the supreme court of appeal (2018 2 SACR 313 (SCA))

as well as the constitutional court (Moyo v Minister of Police 2019 JDR 2034 (CC))

to pronounce upon the inter pretation and constitutionality of two provisions of the

act. The constitutional court eventually declared sections 1(1)(b) and 1(2) of the act

unconstitutional a nd invalid. It is submitted that t he invalidation of section 1(1)(b)

in particula r has left the South Afr ican criminal law much poorer in addressing

the crime of intimidation (which often encompasses incidents of stal king and

harassment).

In this contribution a closer look will be taken at the provisions of the act, in

particular t he decisions of the supreme court of appeal and the constitut ional court as

well as the position in comparable jurisdictions. For ease of reference the cases will

be distinguishe d as the Moyo case HC, the Moyo case SCA and the Moyo case CC.

2 The Intimidation Act

Hoctor indicates that cr iminalisation of intimidatory conduct has been part of the

South African cr iminal law landscape since the n ineteenth century, initia lly enacted

by the pre-Union legislatures and aimed at addressing labour-related issues but

slowly developing to include a wider range of conduct (Hoctor 283). Sections 10

and 11 of the subsequent Riotous Assemblies Act 17 of 1956 criminalised various

intimidator y actions but were repealed as a result of the recommendation by the

Rabie Commission of Inquir y into Security Legislation (1979) that an all-embracing

and wider offence of intimidation should be created (Dugard et al Report on the

Rabie Repor t (1982) 87-88 (http://wiredspace.wits.ac.za/handle/10539/1180 (10-

01-2020)); Dugard “A triumph for executive power – an exami nation of the Rabie

Report and the Internal Securit y Act 74 of 1982” 1982 SALJ 589 603; Plasket

“Industrial d isputes and the offence of intimidation” 1990 ILJ 669-670; Plasket and

Spoor “The new offence of intimidation” 1991 ILJ 747). Following on the Rabie

recommendations the Intimidation Act was passed into law by parliament on 2

June 1982. Two subsequent amendments by the Internal Security and Intim idation

2020 TSAR 377

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TSAR 2020 . 2 [ISSN 0257 – 7747]

378 WAT NE Y

Amendment Act 138 of 1991 and the Criminal Law Second Amendme nt Act 126 of

1992 produced the nal version of the act of which the relevant section for purposes

of this discussion provides as follows (only the relevant part of the act is quoted):

“1 Prohibition of and penalties for certain forms of intimidation

(1) 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 of 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 other person;…

…

shall be guilty of an offence and liable on conviction to a ne not exceeding R40 000 or to imprisonment

for a period not exceeding ten years or to both such ne 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.

1A Intimidation of general public, particular section of population or inhabitants of particular area

(1)…”

Section 1(1)(a) of the act punishes the commission of a specic act (and is therefore

a formal ly dene d crime), whilst section 1(1)(b) punishes the causing of a certain

condition (and is thus a result crime) (Snyman 456).

3 Facts and decisions

3.1 The high court decision

The Gauteng division of the high cour t was approached by means of special motion

for declaratory orders of unconstitutionality and i nvalidity of sections 1(1)(b) and

1(2) of the act, by the two applicants (Moyo and Sonti) who were accu sed in separate

cases in the regional court. The court heard both applications simultaneously.

The factual mat rix of the two crim inal matters is kept brief for purposes of the

discussion, as the high cou rt was approached for relief prior to the com mencement

of either of the trials in the lower cour t.

In the Moyo case the accused was charged with intimidation in terms of section

1(1)( b) of the act (and alternatively assault). It was alleged that in his capacity as the

chairperson of a com munity-based orga nisation he gave a speech during a meeting

at the Primrose police station in the course of which he uttered words addressed to

the station commander and a sen ior police ofcer at the police station inte r alia to

the effect that: he will ensure that they are removed, he th reatened to repeat what

happened at Marikana, that there will be bloodshed and that he charged towards

them and pointed ngers at them (the Moyo case HC par 12). In his application

Moyo averred that section 1(1)(b) infringed his constitutional right to freedom of

expression.

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