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

• Jurisdiction: South Africa

Moyo and Another v Minister of Justice and Constitutional Development and Others
2018 (2) SACR 313 (SCA)

2018 (2) SACR p313

Citation	2018 (2) SACR 313 (SCA)
Case No	386/2017; 387/2017; [2018] ZASCA 100
Court	Supreme Court of Appeal
Judge	Maya P, Wallis JA, Mbha JA, Van Der Merwe JA and Makgoka AJA
Heard	March 2, 2018
Judgment	June 20, 2018
Counsel	S Wilson (with I de Vos and M Stubbs) for the appellants.; PJJ de Jager SC (with HA Mpshe) for the respondents.

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 — Provision in s 1(2) not creating reverse-onus provision, C but contravening provisions of s 35(3)(h) of Constitution, in that it placed improper pressure on accused to forgo constitutional right to silence.

Intimidation — Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982 — Constitutionality of — Nothing in s 1(1)(b) to suggest that mens rea not required for offence — Did not encompass cases of D conventional and protected freedom of expression — Provision passed constitutional muster.

Headnote : Kopnota

In two cases consolidated by virtue of the similarity of the contentions advanced E on behalf of the appellants, the issue was whether the provisions of s 1(1)(b) and s 1(2) of the Intimidation Act 72 of 1982 (the Act) were constitutionally valid. Both appellants were facing trials in separate magistrates' courts on charges under the Act and the proceedings in those courts were stayed, pending the decisions on the constitutionality of the impugned provisions. In the first case, the appellant contended that the provisions of s 1(1)(b) violated the right to freedom of expression guaranteed in s 16(1) of the F Constitution and criminalised any speech or conduct which created a subjective state of fear in any person, regardless of the intention to create fear. It was contended that the provision was overbroad, as it criminalised many forms of expression that fell within the protection of s 16(1) of the Constitution. In the second appeal, the appellant contended that s 1(2) of the Act created a reverse onus in all prosecutions under s 1(1)(a) of the Act, the effect of which was that an accused person had to prove on a balance of G probabilities that he or she had a lawful reason to issue the threat unless they made a statement 'clearly indicating the existence' of a lawful reason before the prosecution closed its case. It was therefore contended that the provision breached the fair-trial rights entrenched in ss 35(3)(h) and (j) of the Constitution.

Held, per Wallis JA (Maya P and Makgoka AJA concurring) for the majority, that H there was nothing in s 1(1)(b) to suggest that mens rea was not required for the offence. Intention, either in the form of dolus or culpa, was a requirement for conviction. (See [117] and [119].)

Held, further, that the submission that s 1(1)(b) encompassed cases of conventional and protected freedom of expression could not be accepted. That would only be the case if the section were interpreted to cover such cases, I an interpretation that was inconsistent with the applicable principles of statutory and constitutional interpretation. The provision accordingly passed constitutional muster. (See [143] and [147].)

Held, further, that s 1(2) of the Act did not create a reverse-onus provision of the type that had been condemned in a number of cases by the Constitutional Court. (See [148].) J

2018 (2) SACR p314

Held, A further, that the provision was one addressing an evidential issue, but an evidential burden did not impose a reverse onus, nor was it per se a case of constitutional infringement. However, there was a constitutional problem with the section, in that it contravened the provisions of s 35(3)(h) of the Constitution, placing improper pressure on an accused to forgo the constitutional right to silence and not to give self-incriminating evidence. B That was inconsistent with the broader right to a fair trial because it relieved the prosecution of the need to lead evidence to show that the actions of the accused were without lawful reason, and, after the close of the prosecution case, it constrained the accused to give evidence themselves or to lead evidence from others. (See [154].)

Held, further, that there was no basis upon which this constitutional infringement C could be justified as a permissible limitation of rights under s 36 of the Constitution, and it fell to be declared invalid retrospectively. (See [155].)

Held, per Mbha JA (Van der Merwe JA concurring) for the minority, that both impugned sections were unconstitutional and invalid and ought to be referred to the Constitutional Court in terms of s 172(2)(a) of the Constitution. (See [83].)

Cases cited

Southern Africa D

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

Amalgamated Packaging Industries Ltd v Hutt and Others 1975 (4) SA 943 (A): E referred to

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): referred to

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) ([2013] ZASCA 176): dictum in paras [10] – [12] applied

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

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) (2016 (2) SA 317; [2015] ZASCA 204): referred to

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) (2009 (4) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): referred to

Ferreira G v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [199] applied

Food and Allied Workers' Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd 2018 (5) BCLR 527 (CC) ([2018] 6 BLLR 531; (2018) 39 ILJ 1213; [2018] ZACC 7): dictum in para [186] applied

Geldenhuys H & Neethling v Beuthin 1918 AD 426: dictum at 441 applied

Herschel v Mrupe 1954 (3) SA 464 (A): distinguished

S v Holbrook [1998] 3 All SA 597 (E): compared

Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) ([2016] 4 All SA 723; [2016] ZASCA 159): compared

Investigating I 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 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079; [2000] ZACC 12): applied

Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) ([2017] ZACC 31): distinguished

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

2018 (2) SACR p315

Malachi v Cape Dance Academy International (Pty) Ltd and Others 2010 (6) SA 1 (CC) A (2010 (11) BCLR 1116; [2010] ZACC 13): referred to

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to

Mbambo v Minister of Defence 2005 (2) SA 226 (T): compared

Minister of the Interior v Estate Roos 1956 (2) SA 266 (A): referred to

Moyo and Another v Minister of Justice and Constitutional Development and Others 2017 (1) SACR 659 (GP): confirmed in part on appeal B

Municipal Employees Pension Fund v Natal Joint Municipal Pension Fund (Superannuation) and Others 2018 (2) BCLR 157 (CC) ((2018) 39 ILJ 311; [2017] ZACC 43): dictum in para [28] applied

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

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others C 1998 (2) SACR 556 (CC) (1999 (1) SA 6; 1998 (12) BCLR 1517; [1998] ZACC 15): applied

National Director of Public Prosecutions v Moodley and Others 2009 (2) SA 588 (SCA): referred to

Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) (2013 (1) BCLR 14; [2012] ZACC 27): referred to D

Panamo Properties (Pty) Ltd and Another v Nel and Others NNO 2015 (5) SA 63 (SCA) ([2015] ZASCA 76): referred to

Prince v President Cape Law Society, and Others 2002 (1) SACR 431 (CC) (2002 (1) SA 794; 2002 (3) BCLR 231; [2002] ZACC 1): compared

R v Camane and Others 1925 AD 570: considered E

R v Ferreira 1943 NPD 19: distinguished

R v H 1944 AD 121: referred to

R v Matsapula 1952 (4) SA 39 (T): dictum at 40H applied

R v Milne and Erleigh (7) 1951 (1) SA 791 (A): applied

R v Sachs 1953 (1) SA 392 (A): applied

R v Sackstein 1939 TPD 40: referred to F

R v Tsotsi 1956 (2) SA 782 (A): referred to

R v Van Meer 1923 OPD 77: distinguished

R v Wallendorf and Others 1920 AD 383: referred to

S v Arenstein 1967 (3) SA 366 (A): referred to

S v Baleka and Others 1986 (1) SA 361 (T): referred to

S v Bequinot 1997 (1) SACR 369 (CC) (1997 (2) SA 887; 1996 (12) BCLR 1588): G distinguished

S v Bernardus 1965 (3) SA 287 (A): referred to

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

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 Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat H 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): considered

S v Gabatlhole 2004 (2) SACR 270 (NC): discussed

S v Humphreys 2013 (2) SACR 1 (SCA) (2015 (1) SA 491; [2013] ZASCA 20): referred to

S v Ipeleng 1993 (2) SACR 185 (T): discussed I

S v Kekana WLD A 444/88: referred to

S v Lubaxa 2001 (2) SACR 703 (SCA) (2001 (4) SA 1251; [2002] 2 All SA...