Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa

Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another
2021 (2) SA 1 (CC)

2021 (2) SA p1

Citation	2021 (2) SA 1 (CC)
Case No	CCT 201/19; [2020] ZACC 25
Court	Constitutional Court
Judge	Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Heard	November 27, 2020
Judgment	November 27, 2020
Counsel	T Ngcukaitobi (with J Mitchell, C Tabata and T Ramogale) for the applicants.; H Epstein SC (with M Osborne and P Khoza) for the respondents.; S Wilson for the first amicus curiae.; T Strydom SC (with JJ Botha) for the second amicus curiae.

Flynote : Sleutelwoorde

Constitutional law — Human rights — Freedom of expression — Whether crime of incitement to 'any offence' constitutional — Constitution, s 16; Riotous Assemblies Act 17 of 1956, s 18(2)(b).

Headnote : Kopnota

Second applicant, Mr Malema, had made certain statements directed to third parties encouraging them to occupy land (see [7] – [8]). This had caused the National Prosecuting Authority (NPA), represented by second respondent, to charge Malema with incitement under s 18(2)(b) of the Riotous Assemblies Act 17 of 1956: inciting others to commit the offence of trespass (see [10]). Section 18(2)(b) provides, inter alia, that '(a)ny person who . . . incites . . . any other person to commit . . . any offence . . . 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' (see [26]).

First applicant, the Economic Freedom Fighters (EFF), and Malema had then challenged the constitutionality of s 18(2)(b) and the applicability of the Trespass Act 6 of 1959, and sought the review and setting-aside of the NPA's decision to charge Malema (see [11]).

The High Court found s 18(2)(b) unconstitutional and invalid insofar as it made an inciter liable to the punishment of the party committing the offence but dismissed the challenge to the applicability of the Trespass Act (see [14] and [16]).

Here the EFF and Malema sought the Constitutional Court's confirmation of the order of invalidity and also applied directly for leave to appeal (see [21] and [78]). This on an apparently unsuccessful challenge to the breadth of the Riotous Assemblies Act (its application to 'any offence') and for an

2021 (2) SA p2

interpretation of the Trespass Act such that it did not apply to unlawful occupiers under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) or the Extension of Security of Tenure Act 62 of 1997 (ESTA) (see [15] and [17]).

The court ruled that it had jurisdiction: it was required to confirm or disconfirm the order of invalidity, and the other issues (overbreadth, applicability to unlawful occupiers) involved interpreting legislation so as to be constitutionally compliant (see [18] and [20]). A point of general importance was also involved: landlessness and homelessness (see [20]).

Leave to appeal directly had also to be granted: the point for confirmation and the further points were entwined, and it would be the most economical course to adjudicate them together (see [23] – [24]). There were moreover prospects of success on the overbreadth challenge (see [24]).

As for confirmation, this would be declined: a court was not, as the High Court considered, compelled to impose the same punishment on the inciter as the actual perpetrator (see [25] and [29]). The court retained discretion as to sentence (see [27]).

But s 18(2)(b) by its breadth (incitement to 'any offence') limited the right to freedom of expression, and this limitation was unjustifiable (see [34] and [65]). This on weighing the right's importance ('critical to our democracy and healing the divisions of our past') (see [42]); the limit's important but ordinary, rather than 'pressing', purpose ('crime prevention') and its broad extent ('minor' and major offences) (see [49], [63]); the inadequacy of proposed systemic protections (sentencing and prosecutorial discretion, the burden of proof, accused's defences, the intention element) (see [53]); and less restrictive means (narrowing the provision to serious offences) (see [63] – [64]).

Remedially, the provision could be narrowed to serious offences (see [70]).

As for s 1(1) of the Trespass Act, its interpretation would require deciding its constitutionality, which was refused (see [73] – [74]).

Ordered: confirmation of the High Court's invalidation declined and its order set aside; leave to directly appeal granted; s 18(2)(b) declared inconsistent with s 16(1) of the Constitution and invalid; the declarator suspended for 24 months; and in that time the provision to read 'any serious offence'. A declarator that the Trespass Act did not apply to unlawful occupiers under PIE declined. (See [78].)

The dissenting judgment would also have declined to confirm the High Court's order of invalidity and to have interpreted the Trespass Act (see [79] and [157]). But, unlike the majority, it would not have found s 18(2)(b) unconstitutional (see [79]). It agreed that the section limited the right but found this justified (see [90] and [154]).

It considered that the right was of high importance ('at the heart of our constitutional democracy'), but not unqualified, nor superordinate to other rights (see [95], [118]); and equally, the limit's purpose — 'crime prevention' — was of high importance (see [119] and [123]). As to extent, the limit was 'relatively minor' ('a prohibition against exhorting others to commit a crime') (see [125]); and it was causally connected to its purpose (see [131]). Insofar as an alternative, less restrictive means, that proposed (reading in 'serious' before 'offence') was vague and possibly overconfining of Parliament (see [151] – [152]); where seen in context (the burden of proof, requirement of mens rea, prosecutorial and sentencing discretion, the provision's sentence limit) the section was less invasive of the right than proposed (see [138] – [139] and [142] – [144]).

2021 (2) SA p3

Cases cited

Southern Africa

Abahlali BaseMjondolo Movement SA v Premier of the Province of KwaZulu-Natal 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): referred to

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): referred to

Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others 2015 (6) SA 32 (CC) (2015 (10) BCLR 1139; [2015] ZACC 25): referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): dictum in para [67] applied

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

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

Competition Commission of South Africa v Standard Bank of South Africa Ltd 2020 (4) BCLR 429 (CC) ([2020] ZACC 2): dictum in para [39] applied

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): referred to

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

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

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

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663; [2002] ZACC 6): referred to

Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman's Pantry (Pty) Ltd 2018 (39) ILJ 1213 (CC) (2018 (5) BCLR 527; [2018] ZACC 7): referred to

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): referred to

Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) (2018 (7) BCLR 763; [2018] ZACC 8): referred to

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [44] applied

Johncom Media Investments Ltd v M and Others 2009 (4) SA 7 (CC) (2009 (8) BCLR 751; [2009] ZACC 5): referred to

2021 (2) SA p4

Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) (2017 (11) BCLR 1370; [2017] ZACC 31): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; [2005] 8 BLLR 749; [2005] ZACC 8): referred to

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

Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another 1998 (1) SA 745 (CC) (1997 (12) BCLR 1655): referred to

Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark International (Freedom of Expression...