Economic Freedom Fighters and Another v Minister of Justice and Constitutional Development and Another

• Jurisdiction: South Africa
• Judge: Ledwaba DJP, Pretorius J and Molefe J
• Judgment Date: 04 July 2019
• Docket Number: 87638/2016 and 45666/2017
• Hearing Date: 04 July 2019
• Counsel: T Ngcukaitobi SC (with J Mitchell, T Ramogale and C Tabata) for the applicants. H Epstein SC (with M Osborne and P Khoza) for the respondents.
• Court: Gauteng Division, Pretoria

The Court:

Introduction E

[l] The triumph of democracy in South Africa brought with it a revolution in our legal system. We now live in a constitutional democracy that is underpinned by values including human dignity, the achievement of equality and the advancement of human rights and freedoms. As the F Constitution is the supreme law of the land, it stands to reason that its foundational values should be reflected in the law. Our courts are constitutionally empowered and mandated to declare all laws or conduct in conflict with the Constitution invalid.

[2] That is not to suggest that laws enacted before the time at which our G hard-fought democracy was won are inherently unconstitutional. Instead, all law, whether enacted prior to 1994 or in the successive democratic years, must yield to the norms, values and letter of the Constitution.

[3] This case revolves around two pre-1994 lynchpin laws, namely the H Riotous Assemblies Act (the RA Act) [1] and the Trespass Act. [2]

[4] The applicants brought two applications against the respondents under case Nos 87638/2016 and 45666/2017. The applicants seek the following relief in case No 87638/2016:

(a)

I Declaring that s 18(2)(b) of the RA Act is in conflict with the Constitution of the Republic of South Africa, 1996, and is therefore invalid;

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(b)

striking down s 18(2)(b) of the RA Act on the basis that it violates A ss 1, 9, 16 and 19 of the Constitution;

(c)

reviewing and setting aside the decision of the National Prosecuting Authority to initiate criminal charges and to charge the second applicant with the offences in terms of s 18(2)(b) of the RA Act; and

(d)

directing any such respondent who opposes this application to pay the costs thereof. B

[5] In case No 45666/2017, the applicants seek declaratory relief that, constitutionally interpreted, s 1(1) of the Trespass Act does not apply to occupiers of land protected by the Extension of Security of Tenure Act (ESTA) [3] and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). [4] C

Parties

[6] The first applicant, the Economic Freedom Fighters (the EFF), is a political party registered in terms of s 15 of the Electoral Commission Act. [5] D

[7] The second applicant is Mr Julius Sello Malema (Mr Malema), an adult male and leader of the first applicant. Mr Malema brings this application in his personal capacity, as well as in his capacity as leader of the first applicant. E

[8] The first respondent is the Minister of Justice and Constitutional Development. He is cited herein in fulfilment of the requirements of rule 10A of the Uniform Rules of Court.

[9] The second respondent is the National Director of Public Prosecutions (the NDPP). F

Factual background

[10] The two applications that were heard together arose out of three related charges laid against the second applicant, Mr Malema, on 16 December 2014, 26 June 2016 and 7 November 2016. All three G charges are materially identical. The most recent charge, dated 7 November 2016, reads:

'In that on or about the 7th November 2016 and at or near Newcastle, in the Regional Division of Kwazulu-Natal, the accused unlawfully and intentionally incited, instigated, commanded or procured his H Economic Freedom Fighters followers and/or others to commit a crime, to wit: trespass in contravention of section 1(1) of the Trespass Act 6 of 1959 by illegally occupying any vacant land wherever they found same and thereby committing the crime of incitement.'

[11] On being notified of the charges, the applicants sought to challenge I the constitutionality of the RA Act, as well as seek, declaratory relief

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relating A to the Trespass Act. The applicants also request this court to review and set aside the charges proffered against Mr Malema.

The constitutional challenge to the RA Act

[12] The applicants argue that s 18(2)(b) of the RA Act should be declared unconstitutional, as it criminalises the exercise of free expression B protected by s 16 of the Constitution. Section 18(2)(b) provides that:

'Any person who —

. . .

(b)

incites, instigates, commands, or procures any other person to C commit,

any offence, whether at common law or against a statute or 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.'

[13] D The applicants argue that the definition of the crime of incitement is overbroad and that the limitless scope of s 18(2)(b) is an unjustifiable limitation on the right to freedom of expression.

[14] In order to address these arguments, we will deal with the following four issues:

(1)

E The proper understanding of the crime of incitement;

(2)

the scope of the right to freedom of expression;

(3)

whether s 18(2) of the RA Act infringes this right; and

(4)

if such an infringement is reasonable and justifiable.

[15] However, a preliminary point must be dispensed with before F addressing each of these issues. It would have been ideal for this matter to have gone to trial before the constitutional challenge was raised. In doing so, the trial court might have found that Mr Malema was not guilty of incitement for the very reason that no crime had been incited. In fact, this is exactly what the applicants argue for in this matter.

[16] G The applicants have instead decided to challenge the constitutionality of the section in the abstract. This approach comes with its own limitations, as has been discussed elsewhere. [6] A problem in the present case is that much of the applicants' argument focused on the assertion that the charge against Mr Malema should be dismissed. It is not for this court to make such an order. The fact that the applicants are confident that the charge is defective raises the question of whether there is in fact H a constitutional issue at play.

[17] A second problem is that, in part, the crime of incitement has been largely mischaracterised by the applicants. A trial court would have I appropriately dealt with the application of the RA Act, in light of our

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jurisprudence on the crime of incitement. We have been denied the A benefit of the trial court's approach. The applicants argue that Mr Malema's supporters should be taken to be capable of making up their own minds — and so may or may not have followed his words. Any right-infringing action on their part therefore rests solely at their own feet and not at Mr Malema's. The applicants argue that the RA Act does not require any likelihood that the inciting conduct will actually have an B effect on the listener.

[18] As the next section shows, these arguments misunderstand the crime of incitement, specifically the fault element of the crime. A proper understanding of the crime is needed for a competent inquiry into whether or not it infringes the right to freedom of expression. C

The crime of incitement

[19] The definition of incitement can be found in S v Nkosiyana and Another. An inciter is 'one who reaches and seeks to influence the mind of another to the commission of a crime'. [7] The court in Nkosiyana further clarified that — D

'it is the conduct and intention of the inciter which is vitally in issue . . . the purpose of making incitement a punishable offence is to discourage persons from seeking to influence the minds of others towards the commission of crimes'. [8]

[20] The crime of incitement is the intention, by words or conduct, to E influence the mind of another in the furtherance of committing a crime. [9] The question then is, what kind of unlawful acts form part of this definition?

[21] It is apparent from this definition that the mere voicing of one's F opinion will not be enough for incitement. Snyman provides the example of a person expressing the desire that 'it would be a good thing if x should die' as not falling under the crime of incitement. [10] Following the position in German law, incitement requires that the inciting words are not too vague or indeterminate. The statement 'take back the land' would likely not constitute incitement, as it specifies neither a crime nor an object of G which the crime is to be committed against. [11] Support for this can be seen in the case of Nathie, whereby the Appellate Division, in deciding that the conduct was not incitement, remarked that '(t)he passage in question does not contain any unequivocal direction to the listeners'. [12]

[22] The inciter's conduct need not have an element of persuasion or H coercion. It is now settled that the decisive question is not how, but if,

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the A accused intended to influence the mind of the other person towards the commission of a crime. [13] It is irrelevant whether or not the incitee was indeed influenced by the inciter to commit the crime, or acted upon the conduct or communication of the inciter. [14] In fact, incitement is limited to those situations in which the crime is not committed. If it B were, liability would result from being an accomplice to the crime.

[23] The types of conduct which constitute incitement are fairly narrow. It also is clear that the intention behind the conduct or communication is vital in deciding whether or not incitement took place. Liability for incitement is further restricted by the manner in which our courts have C handled the intention requirement.

[24] Before dealing with our jurisprudence on the intention requirement, the following must be noted. There is no merit to the argument that intention is not a requirement for the crime of incitement, either at common law or under the RA Act. The dictum in Nkosiyana above D illustrates that the very definition of incitement requires intention. [15] Section 18(2) also does not expressly exclude...