Moyo and Another v Minister of Justice and Constitutional Development and Others

• Jurisdiction: South Africa
• Citation: 2017 (1) SACR 659 (GP)

Moyo and Another v Minister of Justice and Constitutional Development and Others
2017 (1) SACR 659 (GP)

2017 (1) SACR p659

Citation	2017 (1) SACR 659 (GP)
Case No	28532/14
Court	Gauteng Division, Pretoria
Judge	Khumalo J
Heard	December 20, 2016
Judgment	December 20, 2016
Counsel	S Wilson SC (with M Stubbs) for the applicants.; PJJ de Jager SC (with HA Mpshe) for the fourth respondent (Minister of Police).

Flynote : Sleutelwoorde

Intimidation — Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982 — Constitutionality of — Expressions or threats of instigation of violence excluded from protection of freedom of expression by s 16(2) of Constitution — Reverse onus provision in s 1(2) justified by nature of C penalty sanctioned and ease with which accused could discharge onus — Provisions not unconstitutional.

Headnote : Kopnota

The first applicants in two matters were facing trial separately in regional magistrates' courts on charges under the Intimidation Act 72 of 1982 (the D Act). As the issues were the same in both cases, namely their seeking an order declaring s 1(1)(b) and s 1(2) unconstitutional and invalid, they were dealt with together.

In the first case, the relevant facts were that the first applicant, the chairperson of a community organisation, had sought permission to march to the local metropolitan police department and requested a meeting with the department to arrange authorisation for the gathering. The meeting was instead E arranged at the local police station (he preferred the department office) and permission to march denied, which infuriated him. He was also upset at the presence of members of a particular political party. All this resulted in him allegedly making certain utterances to the station commander of the police station and one of her senior officers, to the effect that: he would make sure that they were removed; they would not last long at the police station; he F would repeat what had happened at Marikana; and that there would be bloodshed.

The allegations against the first applicant in the second case arose from telephone calls and text messages, allegedly sent to a complainant, threatening to kill her or burn her house down in order to compel her to withdraw a criminal complaint. G

Both applicants contended that the provisions of the Act in effect criminalised what was a right under the Constitution, namely that to free speech. They contended that the provision was too wide as it covered utterances or conduct that did not offend or intend to offend — they denied their speech or conduct offended. It was inconsistent with their right to freedom of expression protected under s 16 of the Constitution and was therefore H invalid. They also contended that the presumption of guilt, contained in s 1(2), amounted to a reverse onus provision which was inconsistent with the right, in s 35(3)(h) of the Constitution, to a fair trial.

Held, that expressions or acts of threats or of instigation of violence were excluded from protection as a fundamental right of freedom of expression by s 16(2) of the Constitution (see [43]). I

Held, further, that in deciding if the conduct complained of constituted intimidation, as defined in the Act, the court was not confined to determining whether the person perceiving the act or utterances actually feared for his safety or the safety of his property. The test was whether, objectively viewed, the words or conduct had the effect as envisaged in s 1(1) and/or might reasonably be expected to have that effect (see [49]). J

2017 (1) SACR p660

Held, A further, that the choice of words used in the first case, and the context within which the threat was made, could not be regarded as harmless. The threat relayed incitement to imminent violence, the extent and kind of harm that resembled large-scale violence that fell squarely within the s 16(2) exclusion (see [37]).

Held, further, as to whether the requirement that the applicants had to prove the B existence of a lawful reason amounted to a reverse-onus provision, the legal burden imposed clearly encroached on an accused's rights against self-incrimination and the presumption of innocence. It was, however, doubtful whether the number of innocent accused persons, who might be open to the risk of conviction at the close of the prosecution's case, were of such a proportion that might justify a call for the revocation of the section when all the other elements of the crime would have been prima facie proven (see C [75]).

Held, further, that the imposition of a burden to prove facts which could only be within the accused's knowledge did not amount to an unfair limitation of the presumption of innocence or an unjustifiable reverse onus since it arose at the close of the state's case and the prosecution would not have access to D such information (see [77]).

Held, further, that the removal of the section from the statutes might have far-reaching consequences in that ordinary members of the community would continue to withhold information because they were too terrified and intimidated to come forward. The preservation of the section was justified E by the nature of the penalty sanctioned and the ease with which the defendant could discharge the legal burden. There was accordingly insufficient cause for its invalidation as unconstitutional. The application was dismissed (see [94]–[95]).

Cases cited

Southern Africa

African National Congress (Border Branch)and Another v Chairman, Council of State of the Republic of Ciskei, and Another 1992 (4) SA 434 (Ck) (1994 (1) BCLR 145): referred to

Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA 221 (T) (1995 (2) BCLR 182): referred to

Kauesa v Minister of Home Affairs and Others G 1995 (1) SA 51 (Nm) (1994 (3) BCLR 1): referred to

Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A): dictum at 896F – H applied

R v Cohen 1933 TPD 128: referred to

R v Ndhlovu 1945 AD 369: considered

S H 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 [16] 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): considered

S v I Holbrook [1998] 3 All SA 597 (E): referred to

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Manamela (Director General of Justice Intervening) 2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491; [2000] ZACC 5): applied

S v J Motshari 2001 (1) SACR 550 (NC): referred to

2017 (1) SACR p661

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

Setlogelo v Setlogelo 1914 AD 221: applied.

Canada

R v Chaulk (1991) 1 CRR (2d) 1 ([1990] 3 SCR 1303; 2 CR (4th) 1; [1990] 62 CCC (3d) 193 SCC): considered B

R v Oakes 1986 CanLII 46 (SCC) ((1986) 26 DLR (4th) 200; (1986) 19 CRR 308; (1986) 50 CR (3d) 1; 24 CCC (3d) 321; [1986] 1 SCR 103; 65 NR 87; 53 OR 2d 719): referred to.

England

HM Advocate and Another v McIntosh [2001] UKPCD 1: followed

R v Lambert [2001] UKHL 37: referred to C

Woolmington v DPP [1935] AC 462 (HL) ([1935] All ER Rep 1): referred to.

European Court of Human Rights

Salabiaku v France (1988) 13 EHRR 379: followed.

United States D

Speiser v Randall 357 US 513 (1958): dicta at 525 – 526 applied.

Legislation cited

The Intimidation Act 72 of 1982, s 1(1) and s 1(2): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-433 to 2-434. E

Case Information

S Wilson SC (with M Stubbs) for the applicants.

PJJ de Jager SC (with HA Mpshe) for the fourth respondent (Minister of Police).

An application for an order declaring certain provisions of the Intimidation Act 72 of 1982 unconstitutional. F

Order

The application for a declaratory order of invalidity and unconstitutionality of s 1(1) and s 1(2) of the Intimidation Act 72 of 1982 is dismissed with no order as to costs. G

Judgment

Khumalo J:

Introduction

[1] The two matters came by way of special motion. The first applicant H in each of the applications has a pending criminal trial in the regional court and is seeking an order declaring unconstitutional and invalid s 1(1)(b) and s 1(2) of the Intimidation Act 72 of 1982 (the Act) of which they have been indicted.

Parties I

[2] In the first application the first applicant, General Alfred Moyo (Mr Moyo), a resident in the Makause settlement and chairperson of a community based organization known as Makause Community Development Forum (MCDF), is cited together with the Centre for Applied J

2017 (1) SACR p662

Khumalo J

Legal A Studies, (the CALS) as his co-applicant (the second applicant) which is a centre for human rights law, registered as a law clinic with the Law Society of the Northern Provinces, its object said to be, inter alia, to contribute towards developing a politically and economically just and sustainable society; challenging the systems of power through a combination B of litigation, advocacy and research; and to act on behalf of the vulnerable.

[3] Nokulunga Primrose Sonti, (Sonti), the first applicant in the second application is a member of parliament. She is supported by the Socio- Economic Rights Institute (SERI), the second applicant, which is said to C be a provider of professional services to individuals, communities and socio-economic movements in South Africa who seek to enforce their socio-economic rights that, inter alia, litigates in the public interest.

[4] In both matters the Minister of Justice, Constitutional Development and Correctional Services (Minister of Justice), the National Director of D Public Prosecutions...