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

• Jurisdiction: South Africa

Economic Freedom Fighters and Another v Minister of Justice and Constitutional Development and Another
2019 (2) SACR 297 (GP)

2019 (2) SACR p297

Citation	2019 (2) SACR 297 (GP)
Case No	87638/2016 and 45666/2017
Court	Gauteng Division, Pretoria
Judge	Ledwaba DJP, Pretorius J and Molefe J
Heard	July 4, 2019
Judgment	July 4, 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.

Flynote : Sleutelwoorde

General principles of liability — Incitement — What constitutes — Mere voicing of one's opinion not sufficient and clear intention to influence mind of another to commit crime had to be present — Riotous Assemblies Act C 17 of 1956, s 18(2)(b).

Incitement — See General principles of liability — Incitement.

General principles of liability — Incitement — What constitutes — Interrelationship with s 16 of Constitution — Limitation of right to freedom of D expression — Limitation bore rational connection to purpose of timely law enforcement and prevention of commission of crimes en masse — Riotous Assemblies Act 17 of 1956, s 18(2)(b).

General principles of liability — Incitement — Sentence — Provision in s 18(2)(b) of Riotous Assemblies Act 17 of 1956, that inciter punishable as if had committed crime in question, not rationally connected to E purpose of crime prevention, and to this limited extent unconstitutional.

Headnote : Kopnota

The applicants sought orders declaring s 18(2)(b) of the Riotous Assemblies Act 17 of 1956 unconstitutional on the basis that it violated, inter alia, s 16 of the Constitution, and declaring that s 1(1) of the Trespass Act 6 of 1959 did F not apply to occupiers of land protected by the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). They contended that s 18(2)(b) criminalised the exercise of free expression protected by s 16 of the Constitution and that the definition of the crime of incitement was overbroad and an unjustifiable limitation on said right. The applications G arose from three charges laid against the second applicant, the leader of the first applicant, that he had unlawfully and intentionally incited, instigated, commanded or procured his followers to commit a crime, namely trespassing in contravention of s 1(1) of the Trespass Act.

Held, that the applicants' arguments misunderstood the crime of incitement: the H mere voicing of one's opinion would not be enough for incitement, and the clear intention to influence the mind of another to commit a crime had to be present, which evidently was a high bar for the state to prove beyond a reasonable doubt. (See [19] – [34].)

Held, further, that the argument by the Minister, that s 16 only offered protection to expressive acts within a certain scope, was incorrect: the right to freedom I of expression was not limited to the values of a functioning of democracy, self-fulfilment and the search for truth, as was proposed, but extended to any and all conduct that was not excluded in s 16(2) of the Constitution. (See [37].)

Held, further, that the limitation in s 18(2) did not attack the core of the right to freedom of expression. It most apparently limited the listed ground in J

2019 (2) SACR p298

s 16(1)(b) A of the Constitution, which enshrined the 'freedom to receive or impart information or ideas'. Section 18(2) only limited that to the extent that one was prohibited from imparting the idea to commit a crime that would not otherwise be excluded in s 16(2). It was not a wholesale restriction on speech, but merely a prohibition on influencing the minds of others to commit acts already considered to be unlawful. (See [55].)

Held, B further, that, quite clearly, the limitation bore a rational relation to the purpose of timely law enforcement and the prevention of the commission of crimes en masse. (See [59].)

Held, however, that the provision in s 18(2), that a person who incited a crime was liable to punishment as if they had actually committed that crime, could not be said to be rationally connected to the purpose of crime C prevention. The mere possibility of criminal sanction was enough to successfully dissuade one from inciting another to commit a crime. It was therefore not reasonable and justifiable that the inciter should be held liable as if they had actually committed the crime, and to this limited extent s 18(2) was unconstitutional. (See [61] – [62] and [94].)

Held, further, that there was no immediate conflict between the Trespass Act and D PIE, which required the court to grant any declaratory or other relevant relief, and, accordingly, the applicants' challenge to the Trespass Act, without a direct constitutional attack, had to fail. (See [81].) The applications were accordingly dismissed, except for the declaration of constitutional invalidity of the penalty provision in s 18(2)(b) of the Riotous Assemblies Act, which was referred to the Constitutional Court for E confirmation.

Cases cited

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others F 1996 (1) SACR 587 (CC) (1996 (3) SA 617; 1996 (5) BCLR 609; [1996] ZACC 7): referred to

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): dictum in para [16] applied G

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (2) SACR 445 (CC) (2004 (1) SA 406; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) (2015 (3) BCLR 298; [2015] ZACC 1): referred to

S v Du Plessis H [2016] ZAWCHC 68: dictum in para [18] applied

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621 (CC) (1996 (4) BCLR 441; [1996] ZACC 27): dictum in para [3] applied

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): I referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): J referred to

2019 (2) SACR p299

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) A 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): referred to

Moyo and Another v Minister of Justice and Constitutional Development and Others; Sonti v Minister of Justice and Corrections Services and Others 2018 (2) SACR 313 (SCA): compared

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) B (2004 (11) BCLR 1182; [2004] 3 All SA 511; [2004] ZASCA 67): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC) ([2016] 4 All 793; [2016] ZASCA 142; [2012] ZACC 22): C dictum in para [48] applied

R v Milne and Erleigh (7) 1951 (1) SA 791 (A) ([1951] 2 All SA 113): applied

R v O 1952 (3) SA 185 (T): referred to

R v Segale and Others 1960 (1) SA 721 (A) ([1960] 1 All SA 456): dictum at 732 applied D

S v Coetzee and Others 1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): referred to

S v Du Plessis [2016] ZAWCHC 68: dictum in para [18] applied

S v Koko 2006 (1) SACR 15 (C): dictum in para [24] applied

S v Nathie 1964 (3) SA 588 (A) ([1964] 3 All SA 581): considered E

S v Nkosiyana and Another 1966 (4) SA 655 (A) ([1966] 4 All SA 456): dicta at 658 – 659 applied

S v Samuels 2016 (2) SACR 298 (WCC): referred to

Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) (2014 (5) SACR 317; 2014 (5) BCLR 606; [2014] ZACC 5): compared F

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) (2011 (8) BCLR 816; [2011] ZACC 11): referred to

Zwane v S and Another 2016 GP A 635/2016: referred to.

Legislation cited

Statutes

The Constitution, s 16: see Juta's Statutes of South Africa 2018/19 vol 5 G at 1-22 – 1-23.

The Extension of Security of Tenure Act 62 of 1997: see Juta's Statutes of South Africa 2018/19 vol 6 at 4-344

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: H see Juta's Statutes of South Africa 2018/19 vol 6 at 4-356

The Riotous Assemblies Act 17 of 1956, s 18(2)(b): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-252

The Trespass Act 6 of 1959, s 1(1): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-257.

Case Information

T Ngcukaitobi SC (with J Mitchell, T Ramogale and C Tabata) for the I applicants.

H Epstein SC (with M Osborne and P Khoza) for the respondents.

Applications to declare s 18(2)(b) of the Riotous Assemblies Act 17 of 1956 in conflict with the Constitution. J

2019 (2) SACR p300

Order A

Under case No 87638/2016:

(1)

Prayer 1 in the notice of motion, requesting that s 18(2)(b) of the Riotous Assemblies Act 17 of 1956 be declared unconstitutional in its entirety, is dismissed.

(2)

B In terms of s 172(1)(a) of the Constitution, s 18(2)(b) of the Riotous Assemblies Act 17 of 1956 is declared unconstitutional and invalid to the limited extent of dealing with sentence, in that a person convicted under the section is —

'liable on...