Moyo and Another v Minister of Police and Others

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 373 (CC)

Moyo and Another v Minister of Police and Others
2020 (1) SACR 373 (CC)

2020 (1) SACR p373

Citation	2020 (1) SACR 373 (CC)
Case No	CCT 174/18; CCT 178/18; [2019] ZACC 40
Court	Constitutional Court
Judge	Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Heard	February 19, 2019
Judgment	October 22, 2019
Counsel	S Wilson (with I de Vos and M Stubbs) for the applicants.; PJJ de Jager SC (with HA Mpshe) for the respondents.; M Bishop (with Y Ntloko) for the amicus curiae.

Flynote : Sleutelwoorde

Intimidation — Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982 — Constitutionality of — Definition of intimidation in s 1(1)(b) — Such not including incitement to imminent violence but only covering intentional conduct creating objectively reasonable fear of harm to person, property or security of livelihood — Amounting to criminalisation of protected free speech and peaceful forms of protest — Section 1(1)(b) unconstitutional and invalid.

Intimidation — Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982 — Constitutionality of — Section 1(2) absolving state from proving all elements of crimes created in s 1 of Act — Obvious and impermissible infringement of right to be presumed innocent, to remain silent, and right not to be compelled to give self-incriminating evidence as enshrined in ss 35(3)(h) and (j) of Constitution — Section 1(2) unconstitutional and invalid.

Headnote : Kopnota

In two separate cases that came before magistrates' courts involving prosecutions under s 1(1)(b) and s 1(1)(a)(ii) of the Intimidation Act 72 of 1982 (the Act), respectively, the accused (now the applicants in two matters argued before the court together) attacked the constitutionality of the provisions. The matters had proceeded to the Supreme Court of Appeal (the SCA) in which the majority had held in the first matter (the Moyo case) that s 1(1)(b) passed constitutional muster: it could be construed in a manner that was compatible with the Constitution and would serve the valuable purpose of providing a protection in criminal law against intimidatory conduct that was antithetical to an open democratic society. In the present proceedings the applicant challenged the findings of the SCA. In the second matter (the Sonti matter) the SCA held that s 1(2) of the Act was unconstitutional, and in the present proceedings the applicant sought the confirmation of that decision.

In respect of the confirmation in the Sonti matter,

Held, that it was clear that s 1(2) absolved the state from proving all the elements of the crimes created in s 1 of the Act. This was an obvious and impermissible infringement of the right to be presumed innocent, to remain silent, and the right not to be compelled to give self-incriminating evidence, as enshrined in ss 35(3)(h) and (j) of the Constitution. (See [36].)

Held, further, that s 1(2) did not create a mere evidentiary burden and no justification had been given by the state for the reverse onus created by the section. The confirmation therefore had to succeed and s 1(2) fell to be declared unconstitutional and invalid. The order of invalidity was to operate immediately and retrospectively to the extent that it operated on pending trials and pending appeals. (See [37] – [39].)

In respect of the appeal in the Moyo matter,

Held, that the decision of the majority in the SCA, that the definition of intimidation equated with the 'incitement of imminent violence', unduly strained the text of s 1(1)(b); and if it only covered intentional conduct that

2020 (1) SACR p374

created an objectively reasonable fear of harm to person, property or security of livelihood, then it would criminalise protected free speech and probably also peaceful forms of protest. (See [69].)

Held, further, that s 1(1)(b) of the Act fell to be declared constitutionally invalid and the order of invalidity was to operate immediately and apply retrospectively to any pending matter that had not been finalised on appeal. (See [72] and [79].)

Cases cited

Abahlali BaseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): dictum in para [123] applied

Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA) (2010 (7) BCLR 640; [2010] 3 All SA 261; [2010] ZASCA 9): dictum in para [10] applied

Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) (2018 (7) BCLR 763; [2018] ZACC 8): dictum in paras [10] – [11] applied

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 (10) BCLR 1079; [2000] ZACC 12): applied

Jeebhai and Others v Minister of Home Affairs and Another 2009 (4) SA 662 (SCA) ([2009] ZASCA 35): applied

Moyo and Another v Minister of Justice and Constitutional Development and Others 2018 (2) SACR 313 (SCA) (2018 (8) BCLR 972; [2018] 3 All SA 342; [2018] ZASCA 100): overruled on appeal

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): applied

Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2017 (5) SA 9 (CC) (2017 (7) BCLR 916; [2017] ZACC 15): dictum in para [22] applied

Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) (1998 (4) SA 1224; 1998 (11) BCLR 1362): referred to

R v Camane 1925 AD 570: dictum at 575 applied

R v Sachs 1953 (1) SA 392 (A): dictum at 399 – 400 applied

S v Arenstein 1967 (3) SA 366 (A): dictum at 381D – E applied

S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) (1996 (1) SA 388; 1995 (12) BCLR 1579; [1996] 1 All SA 11; [1995] ZACC 11): dictum in para [32] applied

S v Cele and Others 2009 (1) SACR 59 (N): referred to

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

S v Gabatlhole 2004 (2) SACR 270 (NC): referred to

S v Holbrook [1998] 3 All SA 597 (E): dictum at 600 approved

S v Mamabolo (E TV and Others Intervening) 2001 (1) SACR 686 (CC) (2001 (3) SA 409; 2001 (5) BCLR 449; [2001] ZACC 17): referred to

S v Mlungwana and Others 2019 (1) SACR 429 (CC) (2019 (1) BCLR 88; [2018] ZACC 45): applied

S v Singo 2002 (2) SACR 160 (CC) (2002 (4) SA 858; 2002 (8) BCLR 793; [2002] ZACC 10): referred to

2020 (1) SACR p375

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401; [1995] ZACC 1): referred to

Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) BCLR 1675; [1997] ZACC 18): dictum in paras [38] – [39] compared

Savoi and Others v National Director of Public Prosecutions and Another 2014 (1) SACR 545 (CC) (2014 (5) SA 317; 2014 (5) BCLR 606; [2014] ZACC 5): dictum in para [13] applied

Shaik v Minister of Justice and Constitutional Development and Others 2004 (1) SACR 105 (CC) (2004 (3) SA 599; 2004 (4) BCLR 333; [2003] ZACC 24): dictum in para [18] applied.

Legislation cited

Statutes

The Constitution, ss 35(3)(h) and (j): see Juta's Statutes of South Africa 2018/19 vol 1 at 1-25

The Intimidation Act 72 of 1982, ss 1(1)(a)(ii), 1(1)(b) and 1(2): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-379.

Case Information

S Wilson (with I de Vos and M Stubbs) for the applicants.

PJJ de Jager SC (with HA Mpshe) for the respondents.

M Bishop (with Y Ntloko) for the amicus curiae.

An appeal from a decision in the Supreme Court of Appeal that s 1(1)(b) of the Intimidation Act 72 of 1982 passed constitutional muster, and an application for the confirmation of a decision that s 1(2) of the same Act was constitutionally invalid.

Order

Under CCT 174/18, Moyo and Another v Minister of Police and Others:

1.

Leave to appeal is granted.

2.

The appeal is upheld.

3.

The order of the Supreme Court of Appeal is set aside and replaced with the following:

'It is declared that s 1(1)(b) of the Intimidation Act 72 of 1982 is unconstitutional and invalid.'

4.

The order of invalidity is retrospective to the extent that it operates in trials or pending appeals based on contraventions of s 1(1)(b) of the Intimidation Act 72 of 1982 where the right of appeal has not yet been exhausted.

5.

The first respondent (the Minister of Police) is ordered to pay the first and second applicants' (Moyo and the Centre for Applied Legal Studies') costs, including the costs of two counsel.

Under CCT 178/18, Sonti and Another v Minister of Police and Others:

1.

Condonation is granted.

2.

Leave to appeal is granted.

3.

The appeal is upheld.

4.

It is declared that s 1(2) of the Intimidation Act 72 of 1982 is unconstitutional and invalid.

5.

The order of invalidity is retrospective to the extent that it operates in trials or pending appeals where the onus was based on s 1(2) of the Intimidation Act 72 of 1982.

2020 (1) SACR p376

6.

The first respondent (the Minister of Police) is ordered to pay the first and second applicants' (Sonti and the Socio-Economic Rights Institute of South Africa's) costs, including the costs of two counsel.

Judgment

Ledwaba AJ (Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring):

Introduction

[1] This is a consolidated application concerning the constitutionality of ss 1(1)(b) and 1(2) of the Intimidation Act (the Act). [1] The applicants seek leave to appeal against the judgment of the Supreme Court of Appeal (the SCA).

[2] Cases CCT 174/18 (the Moyo matter) and CCT 178/18 (the Sonti...