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

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
• Judgment Date: 27 November 2020
• Court: Constitutional Court
• Hearing Date: 27 November 2020
• Citation: 2021 (2) SA 1 (CC)
• 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.
• Docket Number: CCT 201/19 [2020] ZACC 25

Mogoeng CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring):

Introduction

[1] It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful. When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on. More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.

[2] Expression of thought or belief and own worldview or ideology was for many years extensively and severely circumscribed in this country. It was visited, institutionally and otherwise, with the worst conceivable punishment or dehumanising consequences. The tragic and untimely death of Steve Biko as a result of his bold decision to talk frankly and write as he liked, about the unjust system and its laws, underscores the point. This right thus has to be treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents in a genuine constitutional democracy, considering our highly intolerant and suppressive past.

Mogoeng CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring)

[3] That said, no constitutional right is absolute or ranks higher than all others in this country. In our enjoyment of these rights, a greater sense of responsibility is demanded particularly of those who are thought leaders whose utterances could be acted upon without much reflection, by reason of the esteem in which they are held and the influence they command. After all, leaders from all walks of life ought to bear heavier responsibilities than all others, to help preserve our ubuntu, justice and equality-based heritage and actualise our shared aspirations.

[4] The historical significance and constitutional fate of the crime of incitement within the context of the Riotous Assemblies Act, [1] require the reflection and guidance of this court. The stated objective of this legislation of apartheid extraction was, and still is, to 'consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Republic and matters incidental thereto, and the laws relating to certain offences'. [2] We have to answer the question whether its dark past and this constitutionally suspect salutation necessarily point to its unconstitutionality in our non-racist, just and ubuntu-inspired order. We have also been called upon to decide whether there exists a real possibility of a harmonious coexistence between the Trespass Act, [3] of the same pedigree as the Riotous Assemblies Act, and the constitutionally birthed Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [4] (PIE).

[5] In sum, these applications are essentially about the possible confirmation of the declaration of the unconstitutionality of a sanction imposable on an inciter, and whether the criminal offence of incitement to commit 'any offence' is constitutionally invalid to the extent of its alleged impermissible limitation of the fundamental right of free expression. The additional enquiry is whether the offence of trespass is reconcilable with the subsequent constitutional dispensation that appears to absolve an unlawful occupier of sanctionability in terms of a criminal law process.

Background

[6] Criminal charges have been preferred by the National Prosecuting Authority against Mr Julius Sello Malema, the president of a political party known as the Economic Freedom Fighters (EFF). They are based on certain statements he allegedly made.

[7] On 16 December 2014 at the elective conference of the EFF he reportedly said:

'I can't occupy all the pieces of land in South Africa alone. I cannot be everywhere. I am not [the] Holy Spirit. So you must be part of the occupation of land everywhere else in South Africa.'

Mogoeng CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring)

[8] On 26 June 2016, in Madadeni, Newcastle, KwaZulu-Natal, he allegedly said:

'If you see a piece of land, don't apologise, and you like it, go and occupy that land. That land belongs to us.'

[9] And on 7 November 2016, after his court appearance in connection with the statement of 26 June 2016, he is quoted as having said:

'Occupy the land, because [the state has] failed to give you the land. If it means going to prison for telling you to take the land, so be it. I am not scared of prison because of the land question. We will take our land, it doesn't matter how. It's becoming unavoidable, it's becoming inevitable — the land will be taken by whatever means necessary.'

[10] The thrust of the charges, based on s 18(2)(b) of the Riotous Assemblies Act, is that Mr Malema incited EFF members and other persons to commit an offence of occupying land registered in the names of others without lawful permission or lawful reason. The offence others have allegedly been incited to commit is said to be trespass in terms of s 1(1) of the Trespass Act.

[11] After being notified of the charges, both Mr Malema and the EFF set out to challenge the constitutionality of the Riotous Assemblies Act and the applicability of the Trespass Act. They also sought to review and have the decision of the National Prosecuting Authority to charge him set aside. To achieve that, they approached the Gauteng Division of the High Court, Pretoria.

[12] The High Court concluded that the Riotous Assemblies Act actively criminalises conduct that is otherwise protected by s 16(1) of the Constitution and thus limits the right to freedom of expression. It, however, held that the limitation is reasonable and justifiable in terms of s 36 of the Constitution. The basis was that the purpose of s 18(2)(b) is crime prevention. [5]

[13] Of its own accord, the High Court turned to one aspect of s 18(2)(b). That part relates to sentence and provides that an inciter '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'. It held that this part is not rationally connected to the purpose of crime prevention. [6]

[14] The court further held that s 18(2)(b) of the Riotous Assemblies Act is unconstitutional and invalid. This, it said was so, because it is unreasonable and unjustifiable to the extent that the inciter is compulsorily liable to the same punishment as a person who actually committed the crime.

[15] With regard to s 1(1) of the Trespass Act, which criminalises entry and occupation of land or any landed property without lawful permission

Mogoeng CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring)

or lawful reason, the applicants sought declaratory relief to the effect that the Trespass Act does not apply where PIE applies. They argued that the Trespass Act is to be read subject to PIE, the Extension of Security of Tenure Act [7] (ESTA) and s 39(2) of the Constitution. And that the meaning that ought to flow from that interpretation is that someone who is an 'unlawful occupier' under PIE may not be prosecuted and found guilty of unlawful occupation under the Trespass Act. [8] For this reason they went so far as to ask the court to quash criminal charges preferred against Mr Malema.

[16] The court held that there is no immediate conflict between the Trespass Act and PIE which could justify the declaratory order prayed for. Citing Zwane, [9] it concluded that the provisions of PIE and the Trespass Act were not really in conflict, but were complementary to each other. [10]

[17] Aggrieved by the outcome, the EFF and Mr Malema approached this court. The first application relates to the confirmation of the order of constitutional invalidity. The second relates to declaring the offence of inciting others to commit 'any offence' unconstitutional and to decide whether, on a proper interpretation of the Trespass Act, an unlawful occupier who is protected by PIE or ESTA may nevertheless be guilty of trespass.

Jurisdiction

[18] Undoubtedly, that part of this matter that relates to confirmation of the order of constitutional invalidity engages the jurisdiction of this court. We have no choice but to entertain it, for we are constitutionally so enjoined. [11]

[19] The balance of the applicants' case relates to the constitutionality of s 18(2)(b) of the Riotous Assemblies Act to the extent that it criminalises the 'incitement' of another person to commit 'any offence'. The contention is that the crime it creates offends against the constitutional right to freedom of expression. And s 1(1) of the Trespass Act is in effect sought to be interpreted with due regard to the provisions of s 26(3) of the Constitution although the applicants only mention s 39(2) of the Constitution and PIE.

Mogoeng CJ (Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring)

[20] It is trite that the interpretation of legislation that seems to limit a fundamental right implicates the Constitution. [12] This is so because there cannot be a proper interpretation of that legislation without the guidance of s 39(2) which insists on the promotion of the Bill of Rights. [13] Both these challenges raise a constitutional issue and thus engage the jurisdiction of this court. Additionally, the matter raises a legal point of general public importance. Landlessness and homelessness are issues of such great moment that the general public would probably want to know what this court has to say about legal questions relating to them. [14]

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