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[2019] ZAGPPHC 253
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Economic Freedom Fighters and Another v Minister of Justice and Constitutional Development and Another; Economic Freedom Fighters and Another v Minister of Justice and Constitutional Development and Another (87638/2016) [2019] ZAGPPHC 253; [2019] 3 All SA 723 (GP); 2019 (2) SACR 297 (GP) (4 July 2019)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 87638/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
4
JULY 2019
In
the matter between:
ECONOMIC
FREEDOM
FIGHTERS
1
ST
Applicant
JULIUS
SELLO
MALEMA
2
ND
Applicant
And
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
1
st
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
Respondent
CASE
NO: 45666/2017
In the
matter between:
ECONOMIC
FREEDOM
FIGHTERS
1
ST
Applicant
JULIUS
SELLO
MALEMA
2
ND
Applicant
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
1
ST
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
Respondent
JUDGMENT
LEDWABA
DJP, PRETORIUS J et MOLEFE J
Introduction
[l]
The triumph of democracy in South Africa brought with it a revolution
in our legal system. We now live in a constitutional democracy
that
is underpinned by values including human dignity, the achievement of
equality and the advancement of human rights and freedoms.
As the
Constitution is the supreme law of the land, it stands to reason that
its foundational values should be reflected in the
law. Our courts
are constitutionally empowered and mandated to declare all laws or
conduct in conflict with the Constitution invalid.
[2] That is not to
suggest that laws enacted before the time at which our hard
fought democracy was won are inherently unconstitutional.
Instead,
all law, whether enacted prior to 1994 or in the successive
democratic years, must yield to the norms, values and letter
of the
Constitution.
[3] This case
revolves around two pre-1994 lynchpin laws, namely the Riotous
Assemblies Act
[1]
(the ' RA Act') and the Trespass Act.
[2]
[4] The applicants
brought two applications against the respondents under case numbers
87638/2016 and 45666/2017.The applicants
seek the following relief in
case number 87638/2016:
a) Declaring that section 18(2)(b) of the RA Act is in conflict with
the Constitution of the Republic of South Africa, 1996 and
is
therefore invalid;
b) Striking down section 18(2)(b) of the RA Act on the basis that it
violates sections 1, 9, 16 and 19 of the Constitution;
c) Reviewing and setting aside the decision of the National
Prosecuting Authority to initiate criminal charges and to charge the
second applicant with the offences in terms of section 18(2)(b) of
the RA Act;
d) Directing any such respondent who opposes this application to pay
the costs thereof.
[5] In case number
45666/207, the applicants seek declaratory relief that,
constitutionally interpreted, section 1(1) of the Trespass
Act does
not apply to occupiers of land protected by the Extension of Security
of Tenure Act
[3]
(' ESTA' ) and the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
[4]
(' PIE').
Parties
[6] The first
applicant, the Economic Freedom Fighters ('EFF'), is a political
party registered in terms of section 15 of the Electoral
Commission
Act
[5]
.
[7] The second
applicant is Mr Julius Sello Malema ('Mr Malema'), an adult male and
leader of the first applicant. Mr Malema brings
this application in
his personal capacity, as well as in his capacity as leader of the
first applicant.
[8] The first
respondent is the Minister of Justice and Constitutional Development.
He is cited herein in fulfilment of the requirements
of rule 10A of
the Uniform Rules of Court.
[9] The Second
Respondent is the National Director of Public Prosecutions ('the
NDPP').
Factual background
[10]
The two applications that were heard together arose out of three
related charges laid against the second applicant, Mr Malema,
on 16
December 2014, 26 June 2016 and 7 November 2016. All three charges
are materially identical. The most recent charge, dated
7 November
2016, reads:
' [in] that on or about the 7th Novemeber 2016 and at or
near Newcastle , in the Regional Division of Kwazulu-Natal, the
accused
unlawfully and intentionally incited, instigated, commanded
or procured his Economic Freedom Fighters followers and/or others to
commit a crime, to wit: trespass in contravention of section I (I) of
the Trespass Act 6 of 1959 by illegally occupying any vacant
land
wherever they found same and thereby committing the crime of
incitement'
[11] On being
notified of the charges, the applicants sought to challenge the
constitutionality of the RA Act as well as seeking
declaratory relief
relating to the Trespass Act. The applicants also request this Court
to review and set aside the charges proffered
against Mr Malema.
The constitutional challenge to the RA Act
[12] The applicants
argue that section 18(2)(b) of the RA Act should be declared
unconstitutional as it criminalises the exercise
of free expression
protected by section 16 of the Constitution. Section l 8(2)(b)
provides that:
' (2) Any person who -
(a) ...
(b)
Incites, instigates, commands, or procures any other person to
commit, any offence, whether in common law or against a statute
or
statutory regulation, 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.'
[13] The applicants
argue that the definition of the crime of incitement is overbroad and
that the limitless scope of section l
8(2)(b) is an unjustifiable
limitation on the right to freedom of expression.
[14] In order to
address these arguments we will deal with the following four issues:
1) the proper understanding of the crime of incitement;
2) the scope of the right to freedom of expression;
3) whether section 18(2) of the RA Act infringes this right; and
4) if such an infringement is reasonable and justifiable.
[15] However, a
preliminary point must be dispensed with before addressing each of
these issues. It would have been ideal for this
matter to have gone
to trial before the constitutional challenge was raised. In doing so,
the trial court might have found that
Mr Malema was not guilty of
incitement for the very reason that no crime had been incited. In
fact, this is exactly what the applicants
argue for in this matter.
[16] The applicants
have instead decided to challenge the constitutionality of the
section in the abstract. This approach comes
with its own
limitations, as has been discussed elsewhere.
[6]
A problem in the present case is that much of the applicants'
argument focussed on the assertion that the charge against Mr Malema
should be dismissed. It is not for this Court to make such an order.
The fact that the applicants are confident that the charge
is
defective raises the question of whether there is in fact a
constitutional issue at play.
[17] A second
problem is that, in part, the crime of incitement has been largely
mischaracterised by the applicants. A trial court
would have
appropriately dealt with the application of the RA Act, in light of
our jurisprudence on the crime of incitement. We
have been denied the
benefit of the trial court's approach. The applicants argue that Mr
Malema's supporters should be taken to
be capable of making up their
own minds - and so may or may not have followed his words. Any
right-infringing action on their part
therefore rests solely at their
own feet and not at Mr Malema's. The applicants argue that the RA Act
does not require any likelihood
that the inciting conduct will
actually have an effect on the listener.
[18] As the next
section shows, these arguments misunderstand the crime of incitement,
specifically the fault element of the crime.
A proper understanding
of the crime is needed for a competent inquiry into whether or not it
infringes the right to freedom of
expression.
The
crime of incitement
[19] The definition
of incitement can be found in S v
Nkosiyana.
An inciter is
'one who reaches and seeks to influence the mind of another to the
commission of a crime'.
[7]
The court in
Nkosiyana
further clarified that ' it is the
conduct and intention of the inciter which is vitally in issue . . .
the purpose of making incitement
a punishable offence is to
discourage persons from seeking to influence the minds of others
towards the commission of crimes'.
[8]
[20] The crime of
incitement is the intention, by words or conduct, to influence the
mind of another in the furtherance of committing
a crime.
[9]
The question then is what kind of unlawful acts form part of this
definition?
[21] It is apparent
from this definition that the mere voicing of one' s opinion will not
be enough for incitement. Snyman provides
the example of a person
expressing the desire that ' it would be a good thing if x should
die' as not falling under the crime of
incitement.
[10]
Following the position in German law, incitement requires that the
inciting words are not too vague or indeterminate. The statement
'take back the land' would likely not constitute incitement as it
specifies neither a crime nor an object of which the crime is
to be
committed against.
[11]
Support for this can be seen in the case of
Nathie
whereby the
Appellate Division, in deciding that the conduct was not incitement,
remarked that '[t]he passage in question does not
contain any
unequivocal direction to the listeners.'
[12]
[22] The inciter's
conduct need not have an element of persuasion or coercion. It is now
settled that the decisive question is not
how but if the accused
intended to influence the mind of the other person towards the
commission of a crime.
[13]
It is irrelevant whether or not the incitee was indeed influenced by
the inciter to commit the crime, or acted upon the conduct
or
communication of the inciter.
[14]
In fact incitement is limited to those situations in which the crime
is not committed. If it were, liability would result from
being an
accomplice to the crime.
[23] The types of
conduct which constitute incitement are fairly narrow. It also is
clear that the intention behind the conduct
or communication is vital
in deciding whether or not incitement took place. Liability for
incitement is further restricted by the
manner in which our courts
have handled the intention requirement.
[24] Before dealing
with our jurisprudence on the intention requirement, the following
must be noted. There is no merit to the argument
that intention is
not a requirement for the crime of incitement, either at common law
or under the RA Act. The dictum in
Nkosiyana
above illustrates
that the very definition of incitement requires intention.
[15]
Section 18(2) also does not expressly exclude intention and so no
argument can be made that the purpose of the RA Act was to create
strict liability.
[16]
[25] Our courts, in
applying section 18(2), have required that the State prove that the
accused possessed the requisite intention,
with the aim of
influencing the mind of another to commit a crime, beyond a
reasonable doubt.
[17]
The case of
Nathie
is particularly germane to the allegations
against Mr Malema in the present case.
[26] In that case,
the appellant sought leave to appeal against his conviction of
incitement to contravene the Group Areas Act 8
of 1953. The sordid
history of the Group Areas Act is well known and its repeal
celebrated. The inciting conduct in that case came
from a report
authored by the appellant that called on the Indian community to defy
the Group Areas Act. The report was to be tabled
at a general meeting
of the Transvaal Indian Congress. The court remarked that the report
was interspersed with 'strongly worded
comment' on the political
climate of the time.
[18]
[27] In overturning
the conviction, the Appellate Division held that ' [t]he essential
enquiry appears to be: what did the appellant
intend to convey to the
persons at the meeting when he used the words contained in the
passage in question?'.
[19]
After weighing up the evidence the court concluded that -
'[i]t thus appears that the evidential material upon
which the State relies for a conviction does not establish with the
requisite
degree of proof that the appellant, in addressing the
persons attending the meeting, intended his words to be understood as
an
exhortation to them (and Indians in general) to embark on a
campaign involving contraventions of the Group Areas Act.'
[20]
[28] This was in
light of the fact that the report strongly urged its readers not to
remain silent, to fight against injustice and
inhumanity , and to
make it clear to previous community leaders who had already began
defiance campaigns against the Group Areas
Act that they were not
alone. This is all to show that, shorn of any heated political
rhetoric, the clear intention to influence
the mind of another to
commit a crime must be present. This evidently is a high bar for the
State to prove beyond a reasonable
doubt.
[29] There is some
disagreement on whether or not the incitee must possess the requisite
intention to commit the crime they have
been incited to commit. The
case of
Milne
appears to lend support to the notion that the
inciter must also know that the incitee will act with the intention
required to commit
the crime.
[21]
There the accused was charged with incitement, having caused another
to make false entries into a book of accounts in contravention
of the
Companies Act 27 of 1914. The accused was not convicted of incitement
for the reasons that he knew the entry would be false,
but also knew
that the person he caused to make the entry did not know the entry to
be false and would make the entry thinking
it to be correct.
[22]
[30] This line of
thinking was referred to in
Segale,
where the court held:
'The incitement of municipal employees to stay away from
their work on the days in question was therefore in the circumstances
of
the incitement, clearly an incitement to commit an act which to
the knowledge of the inciters would have been an offence if committed
by the incitees , and the decision in Rex v. Milne and Erleigh (7),
1951 (1) S.A. 791
(A.D.) at p. 822, is not applicable as in that case
the incitee was incited to commit an act which the inciter knew would
not constitute
an offence if committed by the incitee .'
[23]
[31] On this basis
it has been argued that the inciter must believe that the incitee
will actually possess the requisite intention
to commit the crime in
question. As only this would satisfy the requirement in section 18(2)
of the RA Act that what is incited
is the commission of a crime. This
would be due to the fact that where there is no intention on the part
of the incitee then there
can be no crime.
[24]
[32] However, the
relevance of the intention on the part of the incitee to the
liability on the part of the inciter is not clear-cut.
[25]
It might be required that the inciter is guilty only if the act
committed would be a crime for the incitee, including the fact
that
they possessed the requisite intention, regardless of what the
inciter actually believed. This, in our view, would be incorrect
for
the simple reason that liability for the crime of incitement does not
require that the incited crime was actually committed.
[33] The better
position is that the presence or absence of intention on the part of
the incitee is irrelevant to whether or not
the inciter is liable.
The question is whether the inciter believed that the act incited
would, all things considered, be unlawful,
notwithstanding that the
incitee might be ignorant to the fact that they are committing a
crime. To reiterate what was held in
Nkosiyana,
the decisive
question is whether or not the inciter intended to influence the mind
of another to commit a crime.
[34] Subsequently,
it is clear that for the crime of incitement to be committed the
accused must possess the direct intention to
influence the mind of
another so that they may intend to commit a crime. I must refer back
to the fact that the constitutional
challenge against section·
18(2) has been brought without the benefit of the trial proceedings
being concluded. It is not
for this Court to pronounce on the
validity of the allegations against Mr Malema. However, it must be
said that nothing from the
above excursus of the crime of incitement
indicates that heated political rhetoric would necessarily constitute
the crime of incitement.
The
scope of the right to freedom of expression
[35] It is now trite
that the right to freedom of expression plays an important and
venerated role in our constitutional democracy.
The Constitutional
Court has referred to it as the ' cornerstone of democracy'.
[26]
Section 16 guarantees that:
1.
Everyone has the right to freedom of expression, which
includes
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas;
c. freedom of artistic creativity;
d. academic freedom and freedom of scientific research.
[36] The right to
freedom of expression plays a particularly important role when it
comes to political debate. · As put by
the Constitutional
Court in
Mcbride,
' untrammelled debate enhances truth-finding
and enables us to scrutinise political argument and deliberate social
values'.
[27]
It is only when political actors, and the citizenry generally, can
speak freely that democracy thrives. It allows for the contestation
of ideas, that may involve' particularly controversial or unpopular
views, or those that inconvenience the powerful.'
[28]
Robust political debate should not be unduly suppressed, as to do so
would not only violate the inherent worth of the right to
freedom of
expression, but impact on other affiliated rights, such as the right
to vote.
[29]
[37] The Minister
put forward the argument that section 16 only offers protection to
expressive acts within a certain scope. The
applicants are correct
that this view should be rejected. The right to freedom of expression
is not limited to the values of a
functioning of democracy,
self-fulfilment and the search for truth, as was proposed. The right
extends to any and all conduct that
is not excluded in section 16(2)
of the Constitution.
[38] So
much is clear from what the Constitutional Court held in
Print
Media:
' Section 16(2) provides an exclusionary list of the
varieties of expression not protected by the right. Section 16(1), on
the other
hand, is merely illustrative of the kinds of protected
expression and is non-exhaustive in character. It necessarily follows
that
whatever expression does not fall under section 16(2) must do so
under the purview of section 16(1). Put differently, any expression,
which is not excluded from protection under the Constitution,
benefits from the preserve of the right.'
[30]
[39] For section l
8(2)(b) of the RA Act not to infringe the right in section 16(1), it
must criminalise only that conduct which
falls within section 16(2).
The applicants' make much of the fact that section l 8(2)(b) of the
RA Act criminalises conduct that
goes far beyond the 'incitement of
imminent violence' exclusion in section 16(2) of the Constitution. We
find this argument unpersuasive.
[40] The incitement
of many crimes will fall under the exclusions in section 16(2). The
incitement to murder in
Nkoyisani
is an obvious example of
incitement of imminent violence. But that is not the only exclusion
implicated. The exclusion in 16(2)(c),
of the advocacy of hatred
based on race, ethnicity, gender and religion that constitutes
incitement to cause harm, could readily
be applied to any number of
crimes. Xenophobic rhetoric that calls for the dispossession of
foreign owned property is but one example.
[41] It now remains
to assess to what extent, if any, section 18(2)(b) infringes the
right to freedom of expression guaranteed in
section 16(1) of the
Constitution.
The
right to freedom of expression is infringed
[42] It is clear
that section l 8(2)(b) criminalises conduct by a person which
evidences an intention to influence the mind of another
to themselves
commit a crime. As stated above, much of this conduct would fall
within the exclusions of free speech listed in section
16(2) of the
Constitution.
[43] The section
criminalises, at least for some conduct, acts which would form part
of the general right to free speech enshrined
in section 16(1).
Whilst other legislation might criminalise expressive conduct, yet
possess a ' free speech defence' in section
16(1), the RA Act is no
such legislation. It actively criminalises conduct that is otherwise
protected by section 16(1) and for
this reason alone is an
infringement of the right to freedom of expression.
[31]
It does so because it states that a person is guilty of an offence by
inciting any other person to commit
any offence.
[44] The example
given by the applicants, of a person inciting a group of people to
take part in a tax revolt is one such example.
Another would be
certain instances of theft. Generally, such crimes will not form part
of the exclusions in section 16(2).
[45] To reiterate,
whilst the prohibition of the incitement of certain crimes would
violate section 16(1), the incitement of a number
of crimes would
form part of section 16(2). It remains now to assess whether such an
infringement is reasonable and justifiable,
in line with section 36
of the Constitution.
[46] One last point
needs to be made on this aspect. The applicants argued at length
regarding the history and circumstances in
which section 18(2) was
enacted. These were truly deplorable times in our country' s history.
However, that this is so is of little
value in determining whether or
not section 18(2) is unconstitutional. We no longer interpret the
meaning of statutory provisions
by resort to the phantom of
legislative intent, as was reaffirmed in
Endumeni.
[32]
Instead, one looks to the purpose of the statute and identifies
the mischief which it seeks to correct.
The
section is a reasonable and justifiable infringement of section 16(1)
of the Constitution.
[47] Having
determined that a constitutional right has been limited, we are then
required to conduct a limitations analysis in terms
of section 36(1)
of the Constitution. Section 36(1) of the Constitution reads:
'(1) The rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the
limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including-
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its
purpose; and
(e)
less restrictive means to achieve the purpose.'
[48] The nature of
the right to freedom of expression is well known and has already been
discussed.
[33]
That is not to say that the right can never be justifiably limited.
Freedom of expression naturally may implicate other rights,
such as
the right to dignity. Our courts have long grappled with achieving
the appropriate balance in this regard.
[34]
Crimen iniuria
is an example where the right to dignity is
protected by criminal sanction at the expense of the right to freedom
of expression.
[49] As to the
purpose of the limitation, the respondents pointed to the fact that
should Mr Malema's call be taken up, the result
would be chaos. This
would take the form of a mass violation of property rights across the
country and an impermissible resort
to ' self-help'. The latter due
to the fact that the government has put in place plans to provide
access to land and housing in
a manner that is orderly and
predictable.
[35]
Such plans would be frustrated if even a fraction of Mr Malema's
supporters resort to land invasions.
[50] It remains to
be tested at trial whether Mr Malema was calling for the kind of land
invasions countenanced by the Constitutional
Court and the self-help
to which the respondent refers. As a matter of general principle, our
courts have stated that the purpose
of criminalising incitement is to
prevent crimes from happening before they occur.
[36]
The text and context of the RA Act plainly evidences that the purpose
of section 18(2) is the prevention of the commission of crimes.
[51] The importance
of this purpose is self-evident. Our law has already prescribed that
certain acts are unlawful. It is vital
to the functioning of our
criminal justice system that our law should also prohibit the
incitement of committing such unlawful
acts, so that they do not in
fact arise. Beside the crime of incitement being a prophylactic
measure to prevent the commission
of crimes, it serves other
important ends. It ensures that we do not live in a society of fear
marked by the threat of acts which
have already been determined as
undesirable and unlawful.
[52] It is true that
robust political debate is important for democracy. Though it is
difficult to see how this important purpose,
crime prevention, is
somehow in competition with political debate. In our view, robust
political debate is not necessarily furthered
by allowing a person to
intentionally incite others to commit criminal acts. We fail to see
how this preserves freedom of expression
and does not in fact prevent
it. If political opponents are faced with the incitement of harm
against them, it is unlikely that
such a threat will lead them to
express their opinions more freely.
[53] In all
likelihood it will have the opposite and undesirable effect of
causing them to change their opinions out of fear. It
may even cause
them to not express their opinions at all.
[37]
The right to freedom of expression is guaranteed so that we may have
a culture of robust political debate, not a culture of fear
marked by
the incitement of criminality. The limitation in section 18(2) serves
this worthwhile purpose. To equate robust political
rhetoric with the
incitement of criminal acts is, sadly, to say little about the
quality of our political discourse.
[54] The nature and
extent of the limitation is also marginal. In
De Reuk
the
Constitutional Court distinguished between limitations concerning the
core and the periphery of the right to freedom of expression.
The
Court held that -
'the limitation of the right caused by section 27(1)
does not implicate the core values of the right. Expression that is
restricted
is, for the most part, expression of little value which is
found on the periphery of the right and is a form of expression that
is not protected as part of freedom of expression in many
countries.'
[38]
[55] The limitation
in section 18(2) does not attack the core of the right to freedom of
expression. It most apparently limits the
listed ground in l6(1)(b)
of the Constitution which enshrines the ' freedom to receive or
impart information or ideas'. Section
18(2) only limits this to the
extent that one is prohibited from imparting the idea to commit a
crime that would not otherwise
be excluded in section 16(2). It is
not a wholesale restriction on speech, but merely a prohibition on
influencing the minds of
others to commit acts that our law already
considers to be unlawful.
[56] It is important
to reiterate the requirement that the inciter must intend for the
incitee to commit a crime. The mere voicing
of an opinion will not be
enough. This is exactly that what the applicants argued in this
matter, that Mr Malema did not possess
the requisite intention to
incite anyone to commit any crime. It would have been appropriate to
raise this as a defence in the
criminal trial.
[57] Some argument
was made by the applicants that section 18(2) would curtail political
expression by activists who wish to mount
defiance campaigns or
commit acts of civil disobedience. This in tum would silence opposing
political voices. This argument is
wrong. In the context of a
defiance campaign, the singular purpose is to purposefully and
consciously break a law that one thinks
is unjust.
[39]
In the setting of a defiance campaign, political actors choose to
break a law in the hope that doing so will bring about its repeal.
It
would be strange to think that the law itself could somehow
facilitate this purpose.
[58] The same would
apply to acts of civil disobedience. However, the difference here is
that a law itself is not necessarily challenged.
Instead, the
peaceful refusal to follow a legal norm is undertaken in the
furtherance of ones' political agenda. We cannot think
that any
activist worth her salt would wish that the law would somehow allow
for the commission of crimes when it is in the aid
of a worthy
political purpose. In truth, such would render the act of civil
disobedience impotent.
[59] We now deal
with the relationship between the limitation and its purpose. Quite
clearly the limitation bears a rational relation
to the purpose of
timely law enforcement and the prevention of the commission of crimes
en masse.
[40]
[60] There is
however one aspect of section 18(2) that, in our view, is not
suitably connected to this purpose. This also exposes
that a less
restrictive means is available in achieving the purpose of the RA
Act. That is the part of section 18(2) which reads:
'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.'
[61] The result is
that a person who incites a crime, for instance murder, is liable to
the maximum punishment as if they had actually
committed that crime.
This cannot be rationally connected to the purpose of crime
prevention. The mere possibility of criminal
sanction is enough to
successfully dissuade one from inciting another to commit a crime. It
is also difficult to find a rational
reason why a person who incites
the commission of a crime should be punished to the same extent as
the person who actually committed
the crime. The fact is that,
properly understood, the crime of incitement is reserved for
instances in which the crime has not
yet been committed.
[62] It is therefore
not reasonable and justifiable that the inciter should be held liable
as if they actually committed the crime.
To this limited extent
section 18(2) is unconstitutional.
The declaratory relief sought in relation to the
Trespass Act
[63] The applicants
argued that even if the RA Act withstands constitutional scrutiny,
then it does not necessarily follow that
Mr Malema has committed the
crime of incitement. This, they argued, is seen when one properly
understands the constitutionally
compliant interface between the
Trespass Act and our post Constitution eviction laws. Section 1
of the Trespass Act provides
that:
'(1) Any person who without permission -
(a)
of the lawful occupier of any land or any building or part of a
building; or
(b)
of the owner or person in charge of any land or any building or part
of a building that is not lawfully occupied by any person,
enters or is upon such land or enters or is in such
building or part of a building, shall be guilty of an offence unless
he has
lawful reason to enter or be upon such land or enter or be in
such building or part of a building.
(1A) A person who is entitled to be on land in terms of
the
Extension of Security of Tenure Act, 1997
, shall be deemed to
have lawful reason to enter and be upon such land.'
[64] The gist of the
applicants' argument is that land occupation falls outside the
Trespass Act and so the charge against Mr Malema
is a ' non-starter'
because he in fact incited no crime at all.
[65] The applicants
argued that the Trespass Act must be read subject to our post
Constitution eviction laws, including PIE
and ESTA. Such a reading,
conducted with the injunction of section 39(2) of the Constitution in
mind, shows that the Trespass Act
stops where PIE starts. In other
words, someone who is an ' unlawful occupier' under PIE is not guilty
under the Trespass Act.
Mr Malema then incited no crime by calling
for the occupation of land.
[66] The applicants
ask for an appropriate declarator on the proper interpretation of
section 1(1) and related relief. We must agree
with the respondents
that this is ill conceived for at least two reasons.
[67] The first is
obvious in light of the analysis of the RA Act above. The applicant's
request for appropriate declaratory relief
is just another way of
saying that Mr Malema did not commit the crime of incitement.
According to the applicants, what Mr Malema
actually called for was
the occupation of land and, in light of PIE and ESTA, that is no
longer a crime. The result is that under
the guise of statutory
interpretation the applicants are in fact raising a defence to the
charge of incitement.
[68] As discussed
above, that defence might simply be that Mr Malema never intended to
incite any crime by calling for the occupation
of land. The main
thrust of the applicants' argument is that on their interpretation of
the interplay between the Trespass Act
and PIE, Mr Malema did not
incite anything unlawful. The defence being that where no crime is
committed there can be no incitement.
[41]
An obvious problem arises regarding the declarator the applicants
seek in this regard.
[69] As has already
been stated, this Court is not the appropriate forum to adjudicate
such a defence. The applicants are in effect
asking this Court to
determine whether the utterances or conduct of Mr Malema amounted to
the incitement of a crime (trespass)
or lawful activity (occupation).
Such a determination is better left to the trial court.
[70] The crime that
is incited need not to have been committed. The pivotal question is
whether the accused intended to incite a
crime. It is open to the
prosecution to prove that whilst Mr Malema called for lawful
occupation he also intended to incite people
to commit trespass. The
exact crime need not be explicitly specified. Whilst a vague
statement won' t do, the utterance of ' I
want you to attack x, take
all his belongings and run away' clearly means to incite the crime of
robbery.
[71] Whether or not
Mr Malema incited trespass is best left to the trial court to
determine. Finally, even if this Court was to
give a declarator that
' unlawful occupiers' under PIE are not guilty under the Trespass
Act, this would not render an inquiry
by the trial court into the
charge against Mr Malema unnecessary.
[72] Notwithstanding
the above, should this Court embrace the interpretive question in
order to decide what appropriate relief should
be granted, the second
reason for the application being ill-conceived becomes apparent.
However, it is difficult to comprehend
the crux of the applicants
substantive argument. It appears to be a thinly-veiled attack on the
constitutionality of the Trespass
Act. Certainly this is the way in
which the respondents understood the argument.
[42]
[73] There is a
clear benefit to the applicants mounting an attack on the
constitutionality of the Trespass Act. If the applicants
fail to show
that Mr Malema's conduct concerned not incitement to trespass but
unlawful occupation under PIE and ESTA, then the
charge can still be
avoided by attacking the constitutionality of the Trespass Act
directly. Although this is neither here nor
there, as we understand
the applicants case to be one of constitutional interpretation rather
than one seeking an order of constitutional
invalidity. The relevance
of this to the charge of incitement against the Mr Malema is, for the
reasons given above, not altogether
clear.
[74] It would appear
that the relief sought is a declaration that the Trespass Act is
somehow inconsistent with PIE and ESTA when
read in light of the
section 39(2) injunction in the Constitution. This is not so. This
Court gave judgment in
Zwane,
a matter dealing with a direct
constitutional attack to the Trespass Act on grounds substantively
similar to those that the applicants
gesture to in this case.
[43]
[75] In
Zwane
the
applicant submitted that:
'[B]oth the Trespass Act and the PIE Act apply to the
same class of persons, i.e. 'un lawful occupiers' where in both
instances
the 'occupation ' is without permission or other lawful
right to occupy. . . the effect of the two acts contradict each
other.
The Trespass Act criminalises unlawful occupation of property
and provides for summary ejectment, whereas on the other hand, the
PIE Act decriminalises unlawful occupation and limits the eviction
only where it would be just and equitable in the circumstances.'
[44]
[76] The court in
Zwane
correctly found that this argument conflated the
provisions of the Trespass Act and that of PIE. It was held that the
' two Acts
can exist together. The two Acts are not necessarily
conflicting. They are ' complimentary to each other'.
[45]
The facts of
Zwane
bear this out.
[77] In
Zwane
the
appellant was convicted under section 1(1) of the Trespass Act after
unlawfully entering a property that she had been lawfully
evicted
from under PIE. It would entirely defeat the purpose of PIE if,
following a lawful eviction, the appellant was allowed
to re-enter
the property and remain in unlawful occupation in perpetuity. Section
1(1) of the Trespass clearly applied as the appellant
had re-entered
and re-occupied the property without the permission of the
complainant in order to thwart the eviction order.
[78] The court also
dealt with a constitutional challenge to section 2(2) of the Trespass
Act, which reads:
'A court which convicts any person under subsection (I )
may make an order for the summary ejectment of such person from the
land
concerned: Provided that an occupier who has a right of resident
or right to use land in terms of the
Extension of Security of Tenure
Act, 1997
, shall not be ejected in terms of this subsection from land
in respect of which he or she has such a right'
[79]
The argument posed there, much the same as put by the applicants in
this case, was that
section 2(2)
allowed for ' eviction by the back
door'. There is no merit in this submission. The section merely
confers a discretion to a court
that it
may
make an order for summary ejectment. This
discretion is unfettered and must be exercised judiciously. It
requires the court to investigate
the relevant circumstances prior to
exercising such a discretion. It in no way circumvents PIE nor can it
be said to lead to an
arbitrary eviction as contemplated in section
26(3) of the Constitution.
[80]
Our courts have repeatedly held that ' the Director of Public
Prosecutions should not allow prosecutions for trespass to be
used as
a means to procure a person' s eviction without compliance with the
onerous but salutary provisions of the PIE Act'.
[46]
The court in
Koko
was
alive to the fact that a conflict may arise between section 2(2) of
the Trespass Act and the provisions of section 4(1) in PIE.
[47]
However, a conflict could only arise in cases where a court chose to
exercise its discretion in terms of section 2(2) and order
ejectment.
[48]
As stated
above, such a discretion would have to be judiciously exercised·
.
[81]
The upshot of all of this is that there is no immediate conflict
between the Trespass Act and PIE which requires this Court
to grant
any declaratory or other relevant relief. Accordingly the applicants
challenge to the Trespass Act, absent a direct constitutional
attack,
must fail.
The review and setting aside of the charges against Mr
Malema
[82] The applicants
argued that, notwithstanding the success or failure of their
arguments against the RA Act and the Trespass Act,
the charge against
Mr Malema must be set aside for two reasons.
[83] The first is
that Mr Malema has a constitutional right to be informed of the
charge against him with sufficient detail with
which to answer
it.
[49]
The argument is that if section l 8(2)(b) of the RA Act is declared
unconstitutional and is read to require the incitement of only
'
imminent violence' then the current charge is deficient. This is
because there is no mention, let alone ' sufficient detail'
of
imminency or a crime of violence in the charge. This ground of review
does not apply. This Court has not found that the RA Act
is
unconstitutional for criminalising the incitement of crimes. It is
only unconstitutional in that the sentence it imposes on
the incitee
is the same as if they had in fact committed the crime.
[84] The second is
that the charge against Mr Malema is unconstitutionally vague. This
is because, according to the applicants,
a charge of inciting
trespass must contain all the statutory elements of trespass itself.
This is incorrect. What is required is
that the inciting words are
not vague or equivocal.
[50]
The essential elements of trespass need not be listed because the
state is not required to prove that the crime of trespass did
in fact
occur. Instead the state must prove the elements of the crime of
incitement, as given above.
[85] There is a
further fatal flaw to the applicants argument. If the charge against
Mr Malema omits to state the essential elements
of the offence, then
the correct remedy would be to invoke section 87 of the Criminal
Procedure Act
[51]
(CPA) to request further and better particulars. Further, it is open
to Mr Malema to object to the charge. Section 85 of the CPA
governs
the objection procedure before a criminal court. The section outlines
a clear procedure for an objection and the grounds
of objection,
including:
'(a) that the charge does not comply with the provisions
of this Act relating to the essentials of a charge;
(b) that the charge does not set out an essential element of the
relevant offence;
(c) that the charge does not disclose an offence;
(d) that the charge does not contain sufficient particulars of any
matter alleged in the charge;'
[52]
[86] The appropriate
avenue then is for any objection to the charge against Mr Malema to
be raised at trial. This Court is not required
to decide this issue
and has confined itself to answering the constitutional challenge to
the RA Act and the correct interpretation
of the Trespass Act.
Remedy
[87] An appropriate
remedy must be granted as section 18(2) of the RA Act has been found,
to a limited extent, to be constitutionally
wanting.
[88] The remedy of
severance is appropriate in this case, as section 18(2) is only
inconsistent in part with the Constitution. Generally,
the remedies
of severance, notional severance and reading in are to be preferred
rather than the striking down of legislation.
This is less intrusive
on the powers that are granted to the legislature.
[53]
The
test for severance was laid down by the Constitutional Court some
time ago in
Coetzee.
The test being:
‘if the good is not dependent on the bad and can be separated
from it, one gives effect to the good that remains after the
separation if it still give s effect to the main objective of the
statute. The test has two parts: first, is it possible to sever
the
invalid provisions and second, if so, is what remains giving effect
to the purpose of the legislative scheme?' (footnotes omitted)
[54]
[89] The
requirements for the test are satisfied in this case. It is indeed
possible to sever the offending section. The part of
section 18(2)
which reads:
‘and liable on conviction to the punishment to which a person
convicted of actually committing that offence would be liable.
'
can
be removed without problem. The section offends for the very reason
that it is not rationally connected to the purpose of the
Act. The
result is that the legislative scheme remains intact but the issue of
unconstitutionality is avoided.
Costs
[90] In case number
87638/2016 the applicants have been, in part, successful. The
question then is whether an adverse costs order
should be made
against the respondents? We think not. As each party has been partly
unsuccessful, each party should pay their own
costs.
[55]
[91] In case number
4566/2017 the applicants have been unsuccessful. The question then is
whether the
Biowatch
principle, that an unsuccessful
constitutional litigant should not be mulcted with an adverse costs
order, should apply.
[56]
We think it does.
[92] It cannot be
said that the applicants are not 'constitutional litigants' in line
with what was stated in
Biowatch.
The applicants have not
asked for declaratory relief absent any meaningful constitutional
dimension. The relief they seek is directed
at a determination of the
constitutional interpretation to be given to the Trespass Act in
light of PIE and ESTA, which are both
pieces of legislation that give
effect to the right to property enshrined in section 26 of the
Constitution. Various constitutional
rights are at play and the
matter has a clear constitutional dimension.
[93] That the
applicants have failed to show that any conflict exists between the
Trespass Act and our post-Constitution eviction
legislation does not
mean they should be mulcted with costs. The applicants have not acted
in a vexatious or frivolous manner in
bringing this application and
therefore are entitled to be immunised from an adverse costs
order.
[57]
Conclusion
[94] Section 18(2)
of the RA Act is invalid to the extent that it allows for those that
incite crimes to be liable to the punishment
as if they had in fact
committed such a crime.
Order
[95]
We therefore make the following order:
Under
case number 87638/2016:
1) Prayer 1 in the notice of motion, requesting that section l
8(2)(b) of the Riotous Assemblies Act 17 of 1956 be declared
unconstitutional
in its entirety, is dismissed.
2) In terms of section 172(l)(a) of the Constitution, section l
8(2)(b) of the Riotous Assemblies Act 17 of 1956 is declared
unconstitutional
and invalid to the limited extent dealing with
sentence, in that a person convicted under the section is:
'liable on conviction to the punishment to which a
person convicted of actually committing that offence would be
liable.'
3) The declaration is referred to the Constitutional Court in terms
of section l72(2)(a) of the Constitution for confirmation.
4) Prayers 2 and 3 in the notice of motion are dismissed.
5) The parties are ordered to pay their own costs.
Under
case number 4566/2017:
1) The application is dismissed
2) The parties are ordered to pay their own costs.
________________________
A.
P Ledwaba
Deputy
Judge President of the High Court Pretoria
I
agree.
________________________
C.
Pretorius
Judge
of the High Court Pretoria
I
agree.
__________________________
D.
S. Molefe
Judge
of the High Court Pretoria
APPEARANCES
:
For the
Applicant: Adv. T. Ngcukaitobi, Adv. J. Mitchell, Adv. T. Ramogale,
Adv C Tabata
Instructed
by: Ian Levitt Attorneys
For the
Respondent: Adv H. Epstein SC, Adv. M. Osborne, Adv P. Khoza
Instructed
by: The State Attorney
[1]
17 of 1956.
[2]
6 of 1959
[3]
62 of l997.
[4]
19 of 1998.
[5]
51 of 1996.
[6]
Moyo v Minister of Justice and Constitutional Development and
Others; Sonti v Minister of Justice and Correctional Services and
Others
2018 (2) SACR 313
(SCA); Savoi and Others v National Director
of Public Prosecutions and Another 2014 (5) S A 317 (CC)
[7]
S v Nkosiyana (1966]
4 All SA 456
(A) at 458
[8]
Ibid at 459.
[9]
See Snyman A Draft Criminal Code for South Africa (Juta, Cape Town,
1995) at 18 for a more detailed definition.
[10]
Snyman, Criminal law 6ed (Lexis Nexis, 2014) at 291
[11]
See Snyman ' Die misdaad uitlokking'
2005 THRHR 428
at 435 - 38 for
a more detailed account of a ' concretisation' requirement.
[12]
S v Nathie [
1964] 3 All SA 581
(A) at 586
[13]
Ibid. See also Nkosiyana supra note 7 at 458 - 459.
[14]
Ibid. See also R v O 1952 (3) SA 185 (T)
[15]
There is academic consensus that the negligent commission of the
crime of incitement is impossible, see Snyman op cit 10 and
Burchell
Principles of Criminal law 4ed (Juta, 2014) at 544.
[16]
S v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA 527
at 177.
[17]
S v Nathie supra note 12 at 595; R v Milne and Ereliegh (7) [195 1]
2 All SA 113
(A); R v Segale
[1960] 1 All SA 456
(A) at 732.
[18]
Nathie supra note 12 at 585.
[19]
Ibid at 586.
[20]
Ibid at 587.
[21]
Milne supra note 17 at 822.
[22]
Ibid at 822.
[23]
Segale supra note 17 at 463.
[24]
See Snyman op cit note 10 at 294 .
[25]
Cf. Burchell op cit note 1 5 a t 545- 7 and Segale supra note 17
[26]
Democratic Alliance v African National Congress
2015 (2) SA 232
(CC)
at 122
[27]
The Citizen 1978 (Pty) Ltd and Others v McBride
2011 (4) S A 191
(CC) at 82.
[28]
Democratic Alliance supra note 26 at 125.
[29]
In Democratic Alliance supra note 26 at 124 the Constitutional Court
remarked that the right to freedom of expression forms part
of a web
of associated rights and that:
'Apart from its
intense connection to the right to vote, it is closely related to
freedom of religion, belief and opinion, the
right to dignity, as
well as the right to freedom of association and the right to
assembly.' (footnotes omitted)
[30]
Print Media South Africa and Another v Minister of Home Affairs and
Another
2012 (6) SA 443
(CC) at 48.
[31]
Cf. The
Intimidation Act 72 of 1982
. In Moyo v Minister of Justice
and Constitutional Development and Others; Sonti v Minister of
Justice and Correctional Services
and Others the Supreme Court of
Appeal 20
18 (2) S ACR 313
(SCA) the Supreme Court of Appeal held
that section l(l)(b) past constitutional muster for, inter alia, the
reason that on a
proper interpretation the section only criminalise
d conduct falling within section 16(2) of the Constitution. A free
speech
defence was therefore applicable to those alleged to have
contravened the Act.
[32]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) at 20 - 1.
[33]
See further Case and Another v Minister of Safety and Security and
Others; Curtis v Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (5)
BCLR 609
(CC) at 28; Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (8) BCLR 771
at 21; Islamic Unity Convention v Independent Broadcasting Authority
and Others
[2002] ZACC 3
;
2002 (5) BCLR 433
at 24.
[34]
See De Reuck v Director of Public Prosecutions (WLD) and Others
2003
(12) BCLR 133
3 (CC) at 59; Khumalo supra note 33;Mthembi-Mahanyel e
v Mail and Guardian and Another
2004 (11) BCLR 1182
(SCA); and l e
Roux and Others v Dey 201 1 (6) BCLR 577 (CC).
[35]
Such an approach being endorsed by the Constitutional Court, inter
alia, in Government of the Republic of South Africa and Others
v
Grootboom and Others 2000 (11) BCLR 1169
[36]
Nkosiyana supra note 7 at 458
[37]
See D Bilchitz ' Why incitement to harm against those with different
political opinions is constitutionally impermissible '
2019 TSAR 364
at 372.
[38]
De Reuk supra note 34 at 59.
[39]
Cf. Nathie supra note 12; notwithstanding the fact that a conviction
of incitement to defy the Group Areas Act was overturned.
[40]
Quite clearly the purpose of the crime of incitement is not only to
prevent the individual commission of crimes, but also crimes
committed en masse, meaning either by a group or by widespread acts
of criminality. See further Burchell op cit 15 at 541.
[41]
See paragraph [22] above and the works cited the re.
[42]
The respondents sought to have the application dismissed on the
grounds that Rule 16A (I) of the Uniform Rules of Courts, regarding
the mandatory requirements on any person who raises a constitutional
issue in an application, was not complied with.
[43]
Zwane v Sand Another 2016 (A635 /2016) (GP) (unreported judgment)
[44]
Ibid at 17.
[45]
Ibid at 19.
[46]
S v Koko
[2005] JOL 14870
(C) at 24; Du Plessis v S
[2016] ZAWCHC 68
at 18 . See also Samuels v S
[2016] ZAWCHC 33
at 25
[47]
The provisions in section 4(1) of PIE are those that guard against
summary ejectment and which provide the constitutionally mandated
procedure for eviction
[48]
Koko supra note 46 at 10
[49]
Section 35(3)(a) of the Constitution.
[50]
See paragraph [21] above and the case of Nathie supra note 12
[51]
51 of 1977.
[52]
Section 85()) of the CPA.
[53]
See De Reuck supra note 34 at 86.
[54]
Coetzee v Government of the Republic of South Africa, Matiso and
Others v Commanding Officer Port Elizabeth Prison and Others
1995
(10) BCLR 13
82 at 16.
[55]
Ferreira v Levin NO & Others; Vryenhoek & Others v Powell NO
& Others 1996 (
2) SA 621
(CC) at para 3.
[56]
Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA
232 (CC)
[57]
Id at para 24