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[2016] ZAGPPHC 1077
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Moyo and Another v Minister of Justice and Constitutional Development and Others; Sonti and Another v Minister of Justice and Correctional Services and Others (28532/14; 41487/14) [2016] ZAGPPHC 1077; 2017 (1) SACR 659 (GP) (20 December 2016)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
28532/14
20/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
GENERAL
ALFRED
MOYO 1
st
APPLICANT
THE
CENTRE FOR ALLIED LEGAL
STUDIES 2
ND
APPLICANT
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 1
ST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 2
ND
RESPONDENT
THE
DIRECTOR OF PUBLIC PORSECUTIONS SOUTH GAUTENG 3
RD
RESPONDENT
THE
MINISTER OF
POLICE 4
TH
RESPONDENT
AND
CASE
NO: 41487/14
NOKUWNGA
PRIMROSE
SONTI 1
ST
APPLICANT
SOCIO-ECONOMIC
RIGHTS INSTITUTE OF SOUTH AFRICA 2
ND
APPLICANT
And
THE
MINISTER OFJUSTICE AND CORRECTIONAL SERVICES 1
ST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 2
ND
RESPONDENT
THE
DIRECTOR OF PUBLIC
PROSECUTIONS 3
RD
RESPONDENT
NORTH
WEST PROVINCE
MINISTER
OF
POLICE 4
TH
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
The two matters came by way of special motion. The 1
st
Applicant in each of the Applications has a pending criminal trial in
the Regional Court and 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
[2]
In the first Application the 1st Applicant, General Alfred Moyo ("Mr
Moya") a resident In the Makause settlement and
Chairperson of a
community based organization known Makause Community Development
Forum ("MCDF").is cited together with
the Center for Allied
Legal Studies, ("the CALS") as his co-Applicant (the 2
nd
Applicant") which is a center 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 of litigation,
advocacy and research; and to act on behalf of the vulnerable.
[3]
Nokulunga Primrose Sonti, ("Sontl"), the 1
st
Applicant in the second Application is a member of parliament. She is
supported by the Socio Economic Rights Institute ("SERI"),
the 2
nd
Applicant, which is said to be a provider of
professional services to individuals, communities and socio 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 Public Prosecutions ("the NDPP") and
the Minister of Police ("the Minister") are cited
as
Respondents. The Minister of Justice has indicated his wish not to be
heard and to abide by the court's decision.
[5]
Moyo's case is pending in the Germiston Regional Magistrate's Court
where he has been charged with contravention of s 1(1) (b)
read with
s 1 (2) of the Act He has as such cited the Director of Public
Prosecutions, Gauteng as the 3
rd
Respondent.
[6]
Sonti's trial is pending before the Rustenburg Regional Magistrate
Court, hence the Director of Public Prosecutions, North West
Province
is cited as the 3n1 Respondent in her Application
.The
charge against Sonti is the contravention of s 1(1) (a) (II) read
with s 1(2) of the Act.
[7]
Mr Wilson and Mr De Jager appeared respectively for the Applicants
and the Minister, the 4
th
Respondent.
[8]
The Applicants have indicated that due to the impediment that arises
from the matter proceeding in the Regional Court, were
the
constitutional validity of the legislation cannot be entertained,
they have decided to bring their Applications to this court
before
the criminal trial can be finalized at the Regional Court.
ISSUES
RAISED
[9]
Moyo and the CALS are challenging the validity and constitutionality
of s 1 (1) (b) of the Act on the ground that the subsection
violates
the right to freedom of expression as enshrined in the Constitution
of the Republic of South Africa, 1996 ("the Constitution")
and the extent of the Interference It creates cannot be justified In
terms of the limitation in s 36 of the Constitution. Also
contend
that the effect of s 1(2) of the Act is to violate the rights in s 35
(3) (h) of the Constitution.
[10]
Sonto and SERI allege that the unconstitutionality and invalidity of
the provisions of s 1(2) of the Act, is on the basis that:
[9.1]
when properly construed, the subsection constitute a reverse onus in
that it inverts/reverses the burden of proof and relieves
the
prosecution from proving the contravention of s 1(1) (a) of the Act.
[9.2]
it is inconsistent or in violation of the Applicants' right to be
presumed innocent, to remain silent and not to be compelled
to give
self·incriminating evidence as provided in s 35 (3) (h),
including their right to freedom of expression as provided
in s 16 of
the Constitution.
[11]
Therefore the common ground upon which the Applicants are challenging
both sections of the Act is their alleged infringement
of the rights
in s 16 and s 35 (3)(h) of the Constitution.
FACTUAL
BACKGROUND
[12]
The charge in terms s 1 (1) (b) brought against Moyo arose from a
complaint that was laid against him on 18 October 2012 by
a Station
Commander of Primrose Police Station and one of her senior officers
("the complainants following utterances or the
speech he made
and conduct he displayed in a meeting at the Primrose Police Station.
The complaints are, that he made statements
to the following effect,
that:
[12.1]
he will make sure that they are removed;
[12.2]
they will not last long at Primrose; and or;
[12.3]
threatened to repeat what happened at Marikana; and or
[12.4]
there will be bloodshed; and or
[12.5]
pointed fingers at the Station Commander; and or
[12.6]
charged towards the Station Commander.
[13]
Mayo's organization, the MCDF had sought to obtain permission to
march to the Ekurhuleni Metropolitan Police Department {"EMPD")
and requested a meeting with the EMPD in terms of the Regulation of
Gatherings Act 205 of 1993. The meeting was arranged at the
Primrose
Police Station when Moyo had preferred it to be held at the EMPD
offices and the permission to march denied, which infuriated
Moyo. He
was also not happy that members of a certain political party were
invited to the meeting. All that resulted in the allegedly
offending
conduct and speech he made. He was arrested the next day whilst
addressing a gathering at a football pitch in Makause.
[14]
In his founding affidavit Moyo alleges that the charges are simply a
device to frustrate the members of MCDF's legitimate right
to protest
against and criticize what they see as biased policing policies
sanctioned by the Complainants. He contends that the
alleged conduct
and speech is an expression that is protected by s 16 of the
Constitution, does not propagate war, Incite to cause
imminent
violence, or advocate hatred based on race, ethnicity, gender or
religion which constitutes incitement to imminent harm
(within the
limitation criteria). He says his utterances or conduct are not
alleged to have caused any specific harm or to have
had any specific
focus. He practically denies that he intended to intimidate anybody
and alleges that the fear alleged is extremely
broad and non
specific, as it extends to the complainants, all of their colleagues
at the Primrose Police Station itself and all
of its property. It Is
not alleged that he intended to intimidate or induce fear In the
complainants, yet his alleged conduct and
speech is deemed in terms
of the
Intimidation Act, actionable
.
[15]
Moyo further argues that the conduct/utterances are harmless
therefore the limitation placed upon the right cannot be justified
under the provisions of s 36 of the Constitution. The
Intimidation
Act criminalizes
a broad range of speech and conduct which is
protected under s 16 of the Constitution.
[16]
On the other hand Sonti's indictment emanates from telephone calls
and text messages that a "Complainant", Ms Nobuhle
Zwane
("Zwane") alleges Sonti sent to her on 17 and 18 December
2012 at Marikana, threatening her, in order to compel
her to withdraw
a criminal complaint she had laid against one Anele Zonke ("Zonke").
The text messages and telephone
calls are alleged to contain threats
to kill the complainant or bum her house down. Sonti agrees that she
knows and has interacted
with Zwane, however denies that she
threatened to kill or burn her house. According to Sonti upon a
request made by Mr Zonke's
relative she contacted Zwane to find out
the reason for Zonke's arrest and if the dispute between her and
Zonke could be resolved
by the families. That is not the issue to be
resolved in this matter.
[17]
Germane is that Sonto alleges that s 1 (2) of the Act creates a
plainly suspect reverse onus, depriving her of the right to
remain
silent and interferes significantly with the right to freedom of
expression because as an accused person, she must provide
evidence
that she acted lawfully. This is so even if the prosecution leads no
evidence that she acted unlawfully, and she wants
to remain silent.
[18]
Sonti further argues that s 1 (2) criminalizes a wide range of
expressions which do not amount to unprotected speech of this
nature,
idle threats to hit or frighten a person. Trenchant/scathing and
passionate criticism
of a person or group of people or even
threats made in jest
are potentially covered by s 1 (2) of the
Act, they are presumed to be unlawful unless an explanation of their
lawfulness is provided
in advance.
[19]
The essence of the Applicants' contestation is the criminalization of
the conduct or speech complained about on two grounds.
[18.1]
They deny that their conduct or speech offends, saying the
provision is too wide covering utterances or conduct that does not
offend
or intended to offend. It therefore interferes or is
inconsistent with their right to
freedom of expression protected
under s 16 of the Constitution and therefore Invalid. Also the
presumption of guilt as contained
in s 1(2) thereunder inconsistent
with the right in s 35 (3) (h), to a fair trial.
LEGAL
FRAMEWORK
[20]
Section 1 of the Act reads:
"(1)
Any person who-
(a)
without lawful reason and with intent to compel
any person or
persons of a particular nature, class or kind or kind or persons in
general to do or abstain from doing any act or
to assume or to
abandon a particular standpoint-
(i)
(ii)
In any manner threatens to kill, assault, injure or cause damage to
any person or persons of a particular nature class or kind,
or
(b)
acts or conducts himself in such a manner or utters or publishes such
words that it has or they have the effect, or that
it might
reasonably be expected that the natural and probable consequences
thereof would be, that a person perceiving the act,
conduct,
utterance or publication-
(iii)
fears for his own safety or the safety of his property or the
security of his livelihood, or for the safety of any other person
or
the safety of the property of any other person or the security of the
livelihood of any person; and
(iv)
...[ s 1 (1) (b) (ii) deleted by s 6 of Act 126 of 1992)
Shall
be guilty of an offence and liable on conviction to a fine not
exceeding R40 000 or to imprisonment for a period not exceeding
ten
years. or to both such a fine and such imprisonment."
[21]
Section 1 (2) of the Act reads:
"(2)
In any prosecution for an offence under subsection (1),
the onus
of proving the existence of a lawful reason as contemplated in that
subsection shall be upon the accused,
unless a statement clearly
indicating the existence of such a lawful reason has been made by or
on behalf of the accused before
the close of the case for the
prosecution."
[22]
Section 16 of the Constitution provides 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; and
(d)
academic freedom and freedom of scientific research,
(2)
The right in subsection (1) does not extend to -
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred; that is based on race, ethnicity, gender or
religion, and that
Whilst
section 35 (3) (h) of the Constitution provides that:-
"(3)
Every accused person has a right to a fair trial, which includes the
right-
(a)
...
(b)
...
(c)
(f) ...
(h)
To be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i)
not to be compelled to give self-incriminating evidence;
CONSTITUTIONAL
PERSPECTIVE
[23]
Fundamental human rights are the cornerstone of our democracy,
guaranteed by the Constitution, the supreme law of the Republic,
to
all persons who live in the Republic. Obligations imposed by the
Constitution must be fulfilled and any law or conduct that
is
contrary to it is invalid; see s 2 in Chapter 1 and s 36 (2) of the
Constitution. Our courts should rely primarily on the Republic's
Constitution, as the supreme law of our country and not on that of
other countries when considering the constitutionality of provisions
in our statutes.
[24]
The guidelines for the interpretation of a fundamental rights
constitution prescribe that fundamental rights and freedoms are
to be
interpreted generously rather than legalistically. Provisions
allowing for restrictions are therefore to be narrowly and
strictly
construed. A restriction of a fundamental right applies only in so
far as is strictly necessary for protecting the values
enumerated in
the restrictions clause, s36 of the Constitution. Such restrictions
and derogations may only be imposed by "law';
see
ANC (Border
Branch) v Chairman, Council of
State
of the Republic of Ciskei
1992 (4) at 447A-4490.
[25]
Therefore in deciding on an impugned statutory provision alleged to
be inconsistent with the Constitution, the following constitutional
principles and phases of consideration apply:
[25.1]
The meaning/content and application of the fundamental right (a right
or freedom) in question should be identified. This
is to be done by:-
[25.1.1]
interpreting the constitution from a broad perspective, having regard
to its spirit and objectives, avoiding a too legalist
or positivist
approach. Chaskalson P in S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3)
SA 391
(CC) at Par 104 spoke about the wider Implications Which the
right has for our society. In
Government of the Republic of
South
Africa v Sunday Times' Newspaper and Another
1995 (2) SS
221(T) Joffe J advocated for a generous or liberal construction to be
adopted, imploring the judiciary as guardian of
the Constitution to
be astute in determining the full ambit of the rights enshrined in
the Constitution and be vigorous in its
protection.
[25.1.2]
an analysis of the purpose of such a guarantee (in the light of the
interest it was meant to protect). Chaskalson spoke
of the purpose
for which the right is limited; the importance of that purpose to our
society;
[25.2]
It can then be established whether the statutory provision in
question limits the fundamental right; the extent of the limitation
and its effectiveness. The question asked would be whether there is a
violation of a fundamental right caused by the legislation
which is
tested? Is the interference with the fundamental right prescribed by
the law?
[25.3]
if it does then the justification of the interference or limitation
must be established proving that:
(a)
the limitation or interference is prescribed by law, that it falls
within the terms of an exception or limitation prescribed
or allowed
by the constitution itself;
(b)
the legislation is necessary;
(c)
it is reasonable; Whether the objectives of the limitation could
reasonably be achieved by means less damaging to the
right.
(d)
the provisions thereof actually further the purpose for which it is
legislated.
(e)
it is demonstrably justifiable in the particular society.
[26]
Section 36 provides for the limitation of rights and reads:
(1)
The rights in the Bill of Rights maybe 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
(f)
Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched
in the Bill of
Rights. (my emphasis).
[27]
A party that challenges the constitutionality of a statutory
provision is the one that bears the onus of establishing
prima
facie
, on a balance of probabilities that the provision effects a
restriction on the fundamental right; See
Kauesa
v Minister
of
Home Affairs and Others
1994 (3) BCLR 1(NmH).
[28]
The Applicants must persuade the court that, the said regulation is
not reasonably justifiably in a democratic state. Also
that the
pending prosecution is an infringement of his fundamental freedom to
have made the speech or because it is a threat to
his fundamental
right to a fair trial in that the statutory provision upon which the
charge is based, is unconstitutional.
[29]
Where it is shown that a fundamental right has been infringed, the
onus shifts to the party seeking to justify such restriction
or the
offender. The latter party in order to succeed must establish that
the restriction meets the limitations criteria allowed
by the
Constitution itself, that is, it is necessary, reasonable and
furthers the objective of the legislation and demonstrably
justifiable, showing that the infringement was authorized in all
essential respects.
[30]
Therefore the enquiry into the constitutionality of the
impugned sections 1 (1) (b) and s 1 (2) essentially involves
a two
stage enquiry; Firstly, whether the sections inconsistent with a
fundamental right or freedom contained In Chapter 3 of the
Constitution; if it is, whether the inconsistency is saved in terms
of s 36 of the Constitution.
Nature
and Extent and Effect
[31]
In his affidavit Moyo avers that s 1 (1) (b) is contrary to his right
to freedom of expression as in s 16 of the Constitution
in that:
[29.1]
it criminalizes conduct or speech that has the effect of inducing a
subjective/personal state of fear, which fear need not
be reasonable
or intended to induce fear and would still be sufficient to convict
under the section (which might be frivolous)
opening the section to
potential abuse. This has resulted in the grave concern raised about
the constitutional validity of the
section in a number of High Court
decisions and its potential abuse. Referring to
Holbrook v
S
[1998] 3 ALL SA 597)
(E);
S v Motshari
2001
(1) SACR 550
(NC);
S
v
Cele
2009 (1) SACR 59
(N). Significant in
Holbrook
was
the empty threat to kill the complainant's cat issued in a state of
irritation and insobriety.
[29.2]
the fear induced or reasonably expected need not be specific or
imminent nor it be limited to fear for the safety of the
persons
hearing the speech or observing the conduct. but it is enough that
any person subjectively fears for the safety or security
of himself,
his property, the livelihood or of any other person's safety,
property or livelihood.
[29.3]
No actual harm or need that any person attempt to harm another as a
result of any conduct or speech in order for a person
to be
convicted, criminalizing a wide range of conduct and speech which
clearly falls within the protection of s 16 (1) of the
Constitution
and does not constitute the unprotected forms of propaganda and
advocacy of hatred or violence set out in s 16 (2).
[32]
There being no contention about the conduct or utterances made, the
main argument advanced was that the conduct or speech does
not
justify a prosecution on the basis that:
[32.1]
it is not offending
per
se and supposedly harmless if viewed
within the context it was made.
[32.2]
it is protected by the constitutional right to freedom of expression.
As a result the applicable provision of s 1 (1) (b)
must be found to
be unconstitutional as they are contradictory to a right conferred by
the Constitution.
[32.3]
Further that as far as it may be found that the conduct or utterances
do not pass the Constitutional fortification as a result
of the
provisions of s16 (2), the question of the validity or
fairness/constitutionality of the provisions of s16 (2) must be
interrogated.
[33]
In addition Mr Wilson on behalf of Applicants argued that Moyo's
speech and conduct complained about is indeed harmless assessing
it
from the context in which it was made. Moyo himself has alleged that
not only is his speech or conduct harmless, but has not
been shown or
alleged to have been directed to any specific person. It was argued
to be such a harmless speech or conduct that
needs to be protected.
[34]
As it has been pointed out, according to s 16 (2) the right to
freedom of expression propagated in s 16 (1) does not extend
to
certain acts, that is propaganda for war; or incitement of imminent
violence and advocacy for hatred based on race, ethnicity,
gender or
religion that constitutes incitement to cause harm.
[35]
The fundamental rights, including the right of freedom of expression
are not absolute. To gain total protection afforded by
the right the
speech must first escape the exclusion criteria as expounded in s 16
(2). Since each of the prohibited circumstances
instigate or lead to
a commission of a crime, its prohibition is therefore justified.
Therefore to arrive at a conclusion regarding
its constitutional
fortification the context in which the speech was made would indeed
have to be established as proposed by Mr
Wilson. However to test
fully if it escapes the exclusion as provided in s 16 (2) the context
as well as the content of the threat
is relevant.
[36]
Moyo's utterings or conducts were made at a meeting. At the time Moyo
was unhappy about several happenings, inter alia, that
the meeting
took place at the Primrose Police Station instead of at Ekurhuleni
Metropolitan Police Department, also that contrary
to his wishes
members of a party that was not in good terms with his organization
to whom he thought the police were showing some
bias were invited to
the meeting. To cap it all he was told that his organization's
request for permission to hold a march was
refused. He was as a
result very aggrieved, incensed and had lodged a complaint, therefore
not in a good state of mind. The threats
were made in that
acrimonious atmosphere.
[37]
The threat made was with reference to what happened at Marikana,
coupled with threats of bloodshed, to make sure that the Complainants
are removed and not last long in Primrose. The meaning of bloodshed
is carnage, bloodbath, the killing or wounding of people, typically
on a large scale during a conflict or act of spilling blood. The
synonyms include, murder, slaughter, slaying of people,
killing,
massacre, bloodletting or bloodbath; see
Wikipedea and Shorter
oxford English Dictionary 5
th
Edition.
Moyo
is also a leader representing a disenchanted community. It is
consequently to be established from what the threat entails and
the
context in which it was made, if the speech escapes the restriction
as is set out in s 16 (2). and also does not infringe other
rights.
The choice of words used and context within which the threat was made
gives credence to its exclusion from the protection
of the right of
freedom of expression. It defies the notion that It is to be regarded
as harmless. The threat relays an incitement
to imminent violence,
the extent and kind of harm that resembles a large scale of violence
that clearly false squarely within the
s 16(2) exclusion from
protection of the right of freedom of expression.
[38]
It is of importance to deal with the purpose for which the impugned
section was enacted, looking at which rights it seeks to
protect. The
Constitution in s 12 bestows on everyone the Freedom and Security of
the person which includes
inter alls,
the right:
[38.1]
to be free from all forms of violence from either public or private
Sources;
[38.2]
not to be tortured in any way; and
[38.3]
not to be
treated
or
punished in a cruel, inhuman or degrading way.
[39]
The state is required to respect, protect, promote and fulfill the
rights in the Bill of Rights; see s 7 (2) of Chapter 2 of
the
Constitution. It is therefore obligated to enact legislation that
will promote, respect and protect these rights and outlaw
any action
that would prohibit their advancement. In fulfilment of the
obligation to safeguard these rights and freedoms and with
a purpose
to counter or combat any acts of violence and prohibit certain acts
of intimidation the Legislature has as a result enacted
several Acts
and let some of the pre- democracy legislation remain in our statute
books such that there are more than 23 Acts in
our statute books, the
Intimidation Act is
one of them. All of them legislated with the aim
of fighting, mainly, violence in all forms.
[40]
However due to the propensity of the statutes to encroach on other
fundamental rights, several of them have been subjected
to a
constitutional scrutiny. Regarding section 1 (1) (b) of the Act there
has been an outright decision as to its validity and
constitutionality since there has not been a direct constitutional
challenge of the section; see
Holbrook, Mtshali
and Cele
supra.
[41]
At the same time as the legislature strives to give protection and
effect to these fundamental rights, it has to guard against
the
erosion or adversely affecting other fundamental rights, unless if it
can be established that such erosion justifiable and
in accordance
with the Constitution. The Constitutional recognition of fundamental
rights in criminal trials means that statutory
erosion of any of
these rights and principles cannot be accepted without question. Any
legislation that adversely affect such rights
as entrenched in
Chapter 3 of the Constitution will have to meet the limitations
criteria of s 36 of the Constitution; see S
v Bhulwana;
S
v
Gwadiso
[1995] ZACC 11
;
1996 (1) SALR 388
(CC); 1995 (12) BLCR1579 (CC) at [16].
[42]
Section 1 (1) (b) of the Act was recognized as an effective toot to
combat not only certain forms of intimidation but also
all forms of
violence. The essence thereof being to prohibit the use or threatened
use of violence for whatever end, or any use
or threatened use of
violence for the purpose of putting any person, the public or any
section of the public in fear. Regrettably
intimidation is rife in
South Africa, however very few people get to be prosecuted for these
crimes as many people who have been
subjected to intimidation are
afraid of laying criminal charges of intimidation or of testifying
about the commission of the crime
in a court, precisely because of
intimidation. The assurance of successful prosecution of perpetrators
may go a long way in encouraging
people to act against intimidation.
[43]
So Expressions or acts of threats or of instigation of violence are
excluded from protection as a fundamental right of freedom
of
expression by a specific provision in the Constitution that excludes
any acts or utterances that may instigate or might be perceived
as
promoting or begetting violence, hatred and degradation in s 16 (2).
[44]
The Respondent has recognized the relevance of s 12 (1) of the
Constitution and that of s 7 (2) in identifying the purpose
of the
restriction of freedom of expression to such categories of acts or
utterances. It stated that it is precisely because they
could
seriously compromise the right to freedom from violence, as well as
the right to life and at the same time disrupt the very
foundation
upon which the democratic constitutional values are premised.
Accordingly the Respondent asserted the necessity of the
section and
also that the limitation or interference with the freedom of
expression is prescribed by the Constitution itself and
falls within
the terms of an exception or limitation prescribed or allowed by the
Constitution. The Applicants ill-advisedly do
not agree with this
assertion and denounce the relevance of s 12 (3) and s 7 (2) of the
Constitution.
[45]
It is further appropriately recognized in the submission by
Respondent's Counsel that on the question of hate speech, the
jurisprudence of the Constitutional Court recognizes that the
prohibition is directed towards the maintenance of public peace and
of sound relations among the communities and the Constitutional Court
has held that it is precisely for that reason that certain
categories
of expression, namely expression that are incompatible with the
maintenance of a plural society do not enjoy constitutional
protection. The protection from impairment of the fundamental right
of security of life and property should be the basis upon which
it is
established if the restriction imposed on the right of freedom of
expression is justified.
[46]
The Applicants on the other hand have argued that the provisions of s
1 (1) (b) actually do not further the purpose for which
the section
was legislated as it has the propensity to punish frivolous threats
for which the perpetrator did not intend to cause.
Also that even the
fear itself need not have manifested itself. Specifically those
threats that are made during a time of passion
or anger. Arguing
that, it is so due to the fact that the question whether or not the
conduct is intimidating is subjective, with
the criminalization of
conduct
I
or act that has the effect of inducing a subjective
state of fear.
[47]
The test applicable is that the conduct or speech should have the
effect, that the person perceiving the act or conduct, fears
for his
own safety or that of another, or such conduct will only be brought
within the confines of the section if It
might reasonably
be
expected that the natural and probable consequences thereof would be
that a person perceiving the conduct fears for his own safety
or that
of another.
[48]
The statement that the section calls for a subjective test is very
far from the truth in that the section specifically refers
to
intimidation where It
might reasonably be expected
that the
natural and probable consequences thereof would be that a person
perceiving the act, conduct, and utterance or publication
fears for
her or his life. The reference to "might reasonably be expected"
signifies an objective assessment of the effect
of the conduct or
speech. The perceived fear of harm expected to be within reasonable
bounds.
[49]
It is therefore incorrect that the fear inducing a subjective state
of fear need not be reasonable. From the reading of the
subsection it
follows as argued by the Respondent that in deciding if the conduct
constitutes intimidation as defined in the Act,
the court will not be
confined to the determination whether the person perceiving the act,
or utterances as per publication fears
for his safety or the safety
of his property. The enquiry extends beyond the person's subjective
mind. The test being whether objectively
viewed the conduct or
utterances have the effect or as envisaged in subparagraph (1) and or
whether, objectively, it might reasonably
be expected to have the
effect contemplated in the subparagraph; see
Holbrook.
[50]
The apprehension of injury or harm (fear) is therefore one which a
reasonable man might entertain on being faced with certain
facts. The
state/complainant is not required to establish that injury will
follow; but to show that it is
reasonable to apprehend
that
injury or harm will result. This means that, the court must decide,
on the facts presented to it whether there is any basis
for the
entertainment of a reasonable apprehension by the person threatened;
see
Setlogelo v Setlogelo
1914 AD 221
; and
Minister
of Law and Order v Nordien
1987 (2) SA 894
(AD) at 896F-H.
[51]
The objective test has been found to be difficult to square with the
subjective test applied by the courts to determine the
existence of
intention, since a conviction does not only follow from the fact that
the Complainant had in fact feared for his or
her life, but the court
still has to be satisfied, objectively speaking, that the words
complained of had the meaning, and therefore
were likely to have the
consequences, alleged by the State; see
S v Cele in [29] - [33],
Holbroek.
A mechanism to avoid prosecution of frivolous conduct.
[52]
The onus is on the state to establish beyond reasonable doubt that
the Accused's words and actions had such effect. Whether
the onus is
discharged will be determined in the light of the circumstances which
prevailed during the happening of the incident
in question, as
already illustrated
supra.
In so far as the Complainants are
concerned, the fact that objectively viewed, a reasonable man would
or would not have considered
the Appellant's utterances or actions to
be a threat to their personal safety is a factor that would be
considered in establishing
whether they in fact, on perceiving the
Appellant's conduct and utterance feared for their safety.
[53]
The restriction of the right to freedom of expression is therefore
reasonable and necessary; notwithstanding that the statutory
provision covers a wide range of behavior as per the Applicants'
complain. Its necessity is unquestionable in a society where
incidents of violence have reached alarming proportions and still
rising. The failure to effectively curb incidents of intimidation
affect also the proper prosecution of crime. The fact that s 1 (1)
(b) covers expressions that also falls outside the restriction
in s
16 (2) does not mean that it violates or its contrary to the
fundamental rights as argued by the Applicants as long as such
expressions instill the fear of being harmed or personal safety being
compromised. Its application is justifiable so that people
should not
be discouraged from performing their work without fear or favors or
what they are legally entitled to do or coming forward
to report a
crime as in Sonti or in Moyo conducting proper policing.
[54]
The Applicant has not made a case for the invalidation of the
subsection or shown that his utterances are protected by his
right to
freedom of expression and could not prove that the statutory
provision is inconsistent with the Constitution.
[55]
Finally, a side comment I thought is necessary. It is within reason
that an Applicant who applies for an order protecting,
inter
alia,
or in effect the freedom of expression relating to a particular
speech and that speech is alleged in a pending criminal matter
to
have violated the fundamental rights and freedoms of others, like the
right of other persons to be free from all forms of violence,
dignity
or their right not to be defamed, would recognize that such parties
have a direct and substantial interest in the issue
and should be
joined. Applicants have failed to join the Complainants in their
pending criminal matters. As the point was not taken
at the hearing
nor raised by the court, though regarded as an important fact, it
will not be pursued further.
[56]
A question whether the objectives of the limitation could reasonably
be achieved by means less damaging to the right has been
addressed by
the Applicants suggesting that the offence be brought under the
category of either Crimen lnuiria, Common Assault
or Public Violence.
Common- law assault is mentioned since the offence's definition
includes "inspiring a belief in another
that force is
immediately to be applied." The focus on the s 1 (1) (b) offence
is the instilling of a belief that harm is
imminent which could
result from any form of action besides the application of force.
Assault is restricted to force. Use of the
word immediate in common
-law as sault, compared to the use of imminent on the latter is
restrictive, since harm contemplated
in the s 1 (1) (b) offence need
not be immediate but imminent. Assault will therefore not cover
incidents of intimidation adequately.
As much as intimidation can
also be assault, there are other acts of intimidation that cannot be
brought under the act of assault.
[57]
Another alternative remedy is resorting to "Orders to keep the
peace" in terms of s 384 of Act 56 of 1955, one of
the only
remaining sections of the old Criminal Procedure Act. In terms
thereof a complaint is made under oath to a Magistrate
regarding any
person conducting himself in a violent manner or is threatening to
cause harm to another person, or the property
of another, damage or
harm or has used a language and behaved generally in a manner that is
likely to cause a breach of the peace
or an assault. It carries no
criminal sanction.
Intimidation Act is
a law of general application,
which can be used to limit any constitutionality protected right in
terms of s 36 (1) of the Constitution.
[58]
The Applicant has not succeeded in proving that the statutory
provision that is s 1 (1) (b) violates any of the Applicant's
constitutionally entrenched fundamental rights or offends or
contradicts the Constitution justifying its invalidation or
eradication
from the statute book.
SECTION
1 (2) OF THE ACT
[59]
A further question is whether the requirement in s 1 (2) that the
Applicants prove the existence of a lawful reason for the
alleged
threats made in terms s 1 (1) (a) in order to escape liability amount
to a reverse onus imposed on an Accused, that is
inconsistent with
the right to, remain silent, be presumed Innocent and not to testify
during proceedings, as provided in s 35
(3) (h) of the Constitution,
warranting its declaration as unconstitutional and invalid as sought
by the Applicants?
[60]
Section 35 (3) (h) entrenches as a fundamental constitutional value,
the fact that it is the duty of the prosecution to prove
the guilt of
an accused person in a criminal case. In S
v Zuma and Others
1995
(2) SA 842
(CC) Kentridge AJ at (25] pointed out that:
"the
presumption of innocence is derived from the centuries-old principle
in English law, forcefully restated by Viscount Sankey
in his
celebrated speech in
Woolmington
v Director of Public
Prosecutions
[1935] UKHL 1
;
(1935) AC 462
(HL) at 481, that it is always for the
prosecution to prove the guilt of the accused person, and that proof
must be proof beyond
reasonable doubt."
[61]
The rights as encompassed in s 35 (3), requiring criminal trials to
be conducted in accordance with those notions of basic
fairness and
justice and the courts hearing the criminal trials or appeals to give
content to the notions. The
onus
is rooted in the rights to be
presumed innocent, to remain silent during trial and not to be
compelled to give self-incriminating
evidence entrenched in the
Constitution.
[62]
A statutory presumption and any other legislation that adversely
affect any of the fundamental rights or values in the Constitution
have therefore to meet the criteria of s 36. In S
Bhulwana; S v
Gwadiso
1996 (1) SALR (CC) at (15] O'Regan J on behalf of the
unanimous court, with reference to the general rule restated by the
Appellate
Division in
R v Ndlovu
1945 AD 369
at 386 that:
"[1]
in all criminal cases it is for the Crown to establish the guilt of
the accused, not for the accused to establish his
innocence. The onus
is on the crown to prove all averments to establish his guilt,”
pointed
out that the presumption of innocence was not new to our legal system
but was in fact an established principle of our law."
(my
emphasis)
[63]
Sonti alleges that section 1 (2) of the Act:
[63.1]
creates a reverse onus by stipulating that the onus of proving the
existence of a lawful reason as contemplated in subsection
1 (1)
shall be upon the accused, unless a statement clearly indicating the
existence of such a lawful reason has been made by or
on behalf of
the accused by the close of the case for the prosecution. Restating
the provision to highlight what needs to be proven,
it reads:
(1)
Any person who-
(a)
without lawful mason and with intent to compel any person or persons
of a particular nature, class or kind or kind or
persons in general
to do or abstain from doing any act or to assume or to abandon a
particular standpoint-
(b)
In any manner threatens to kill, assault, Injure or cause damage to
any person or persons of a particular nature class
or kind
[63.2]
The provision of s 1 (2) has the effect of relieving the prosecution
of the burden of proving every element of the offence
created by s
1(1) and instead the accused has to prove the existence of a lawful
reason, unless if by the end of the prosecution's
case such lawful
reason has been submitted either by him or on his behalf.
[63.3]
violates the right to silence and the right against
self-incrimination, in that it compels an accused person to make a
self-incriminating
statement before the close of the state's case if
she is to be relieved from the burden of proving that her utterances
or conduct
were lawful; s 35 (3).
[63.4]
constitutes an unjustifiable limitation on the right to freedom of
expression, entrenched in s 16 of the Constitution, in
that it
presumes expression which falls within section 1 (1) (a) (ii) to be
unlawful, unless a statement setting out a lawful reason
for it is
made in advance.
Violation
of the rights to remain silent, presumption of Innocence and against
self-incrimination and justification
[64]
The approach to the application of the provision of s (1) (2) in the
context of s 1 (1) (a) should be with the understanding
that section
35 (3) (h) rights are consequently procedural rights which are
central to our adversarial criminal process. The order
in which
evidence is called is linked to the onus of proof and has to assert
the right to a fair trial, which it does by imposing
on the
prosecution the burden of proving the essential elements of the
offence charged beyond reasonable doubt and to the accused
the duty
of rebuttal. Emphasis is also in the significance of the presumption
of Innocence as a general procedural safeguard minimizing
the risk
that innocent persons may be convicted and imprisoned, thereby
reducing on an acceptable level the risk of error in the
court's
overall assessment of evidence tendered in the course of the trial;
see S v
Manamela (Director General of Justice Intervening)
2000
(3) SA 1.
[65]
The following observation was adopted from the statement by Brennan J
in
Speiser v Randall
[1958] USSC 154
;
357 US 513
(1956) at 525-6 that:
"There
is always a margin of error representing error in fact finding, which
both parties must take into account. Where one
party has at stake an
interest of transcending value-as a criminal defendant his
liberty-this margin of error is reduced as to
him by the process of
placing on the other party the burden of producing a sufficiency of
proof in the first Instance, and of persuading
a fact-finder at the
conclusion of the trial of his guilt beyond a reasonable doubt."
[66]
Applying these principles to the provisions of s 1 (1) (a) in
casu,
and being mindful of the presumption of innocence, the state has,
first, to prove by the close of its case, beyond reasonable doubt
the
intimidation or a threat made with the intention to compel a
complainant to do something he is not legally entitled to do or
refrain from doing something that he is legally entitled to do,
without a lawful reason whereupon the burden to justify the proven
conduct would arise, intimidation being inherently unlawful.
[67]
However s 1 (2) imposes the
onus
of proving the essential
element of the existence of a lawful reason on the accused as a legal
duty, which onus arises at the close
of the state's case,
significantly at a time when a
prims facie
case of
intimidation (a threat) with an intention to compel, would have to
have been proven by the state. So when in general the
state's onus is
to be discharged by proving all the elements of the crime, the
absence of a lawful reason is discharged by a presumption,
and the
onus of proof thereof placed upon the accused, resulting in a reverse
onus.
[68]
For the accused to escape the onus, provision is made by the section
for the making of a statement prior to the close of the
state's case
by either the accused or anyone on his behalf setting out the lawful
reason, failing which the accused would cany
the onus. The question
that has arisen from the Applicant's contention is whether the
proviso for making the statement compels
the accused to make it
before the state's case is closed as alleged by the Applicants and
thereby amounts to the violation of the
Applicant's right to remain
silent, against self-incrimination and presumption of innocence at
that stage? Failure to have made
such a statement would it just
ordinarily result in a conviction?
[69]
The ordinary use of the words
'unless a statement would have
been made'
indicate that the accused is not compelled to make
a statement but if he has done so he would be exonerated from the
onus to prove
a lawful reason at the close of the state's case. The
accused is not prohibited from exercising his right to remain silent
or against
self-incrimination and not make the statement. Therefore
the rights are protected until at the close of the state's case
whereby
a legal burden is then imposed to prove the lawful reason.
The conviction would follow only on failure by the accused to
discharge
the onus. subject to a
prima face
case having been
proven by the state.
[70]
The statement referred to, that would have been made by the accused
or on his behalf by the close of the prosecution's case
is in all
probability a statement in explanation of a plea. I do not expect a
trial in these proceedings to be run differently
to any other
ordinary criminal trial on a common law charge. The accused is not
compelled to make a statement before the close
of the state's case.
The presumption of Innocence and right of the accused to remain
silent prevailing. It would be the accused's
decision whether or not,
to make the statement. Where it would appear that a
prims facie
case of a threat to assault or kill with intent to compel a
certain outcome has been proven, and the accused has not made a
statement
prior to the close of the state's case (accused having
exercised his right to remain silent), the accused in any other
ordinary
criminal proceedings would have carried the evidentiary
burden to rebut the prima facie case or of proof of justification.
The
general principle being that it is up to the state to discharge
the legal burden of proof in a criminal trial.
[71]
The state's onus constitutes discharging the legal burden by proving
the presence of all the elements of the crime beyond reasonable
doubt
to persuade the court of the accused's guilt. Therefore it is
inappropriate of the provision to impose a legal burden in
substitute
of the evidentiary burden that would have arisen under ordinary
procedure and violates the accused rights against self-incrimination
and the presumption of innocence.
[72]
It is the use of the words 'onus to prove' that is problematic, as in
every criminal trial the accused is not compelled to
give evidence
self- incriminatory or otherwise, been argued that the is no legal
duty for the accused to justify his threats..
The antithetical
situation suggested by the Respondent is to allow the reading of the
word "prove" in the section differently
to instead denote
an evidential burden to adduce evidence in rebuttal of the
presumption of guilt arising from proof of the threat
and its
intended purpose. Notwithstanding, the section imposes a legal burden
creating a reverse onus on the accused.
[73]
Sonto would then instead be required to establish on a balance of
probabilities that she has a lawful reason for having intimidated
the
complainant with the intention to compel her to withdraw the charges,
failing which she would be convicted. A reasonable possibility
that
the ground exists, will not suffice to avoid conviction. Consequently
a legal burden creates a possibility of a conviction
being secured
even on the basis of doubt of the presence of a lawful reason, which
the Applicant argues opens a risk of innocent
persons being
convicted. It is of significance though that the onus of proving the
presence of a lawful reason imposed on the accused
according to the
provisions of s 1(2) arises at the close of the state's case, at a
stage when the general principle requires that
the prosecution must
have proven a prima facie case against the accused to secure a
conviction. As a result the mere fact that
if accused fails to prove
the lawful reason at the close of its case, the court would insist on
proof of a prima facie case, does,
although not prevent, minimize the
risk.
[74]
As already alluded, the provision is an inroad to the accused's right
to be presumed innocent, remain silent and against self-
incrimination. In
R v Oakes
(1986) 26 DLR (4th) 200 AT 214 it
was held that the presumption of Innocence contains three fundamental
components: the onus of
proof lies with the prosecution, the standard
of proof is beyond reasonable doubt; and the method of proof must
accord with fairness.
[75]
As a result the legal burden imposed is contrarily to the principle
of state proving all the elements of a crime and clearly
encroaches
on an accused's rights against self-incrimination and presumption of
innocence which is contrary to the principle of
the state proving all
the elements of a crime. I however doubt that the number of innocent
accused persons who might be open to
the risk of conviction at the
close of the prosecution's case are of such a proportion that might
justify or call for the revocation
of the section when all the other
elements of the crime would have been prima facie proven, which are:
[75.1]
the threat to kill or assault or injure a person/s or to cause damage
to his or her property;
[75.2]
made with intention to compel the person/s to do or abstain from
doing any act or to assume or to abandon a particular standpoint;
and
[75.3]
in a situation where the information to be proven is only accessible
to the accused.
[76)
That is the reason I place emphasis on the significance of the onus
to justify the accused's conduct arising only at the close
of the
state case, when the prosecution is required to have proven a
prima
facie
case for the accused to answer to or justify its proven
conduct. In
casu
the Applicant is alleged to have threatened
the complainant with death, in order to force her to withdraw charges
against a suspect.
The prosecution will have to prove those facts
first thereafter it would be reasonable to expect the Applicant to be
able to prove
the presence of a lawful reason as that is information
that would be known to her. Similarly if at the end of the
prosecution's
case it appears that a lawful reason exists justifying
the proven acts of intimidation, the onus will have been discharged
and
would result in the accused's acquittal. Unless the burden, as
submitted on behalf of Respondent, is read as an evidentiary burden
(instead of a legal burden) requiring accused to adduce evidence that
rebuts or justifies the proven offensive conduct.
[77]
The imposition of a burden to prove facts which can only be within
the accused's access does not amount to an unfair process
or an
unfair limitation of the presumption of innocence or an unjustifiable
reverse onus, since it also arises at the close of
the state's case
and the prosecution would pretty much not have access to information
relating to the lawful reason. However It
would be unreasonable and
detrimental to a fair process to expect the prosecution to know or to
have access to information on accused's
possible defenses.
[78]
The Respondent has argued that the onus is in fact an evidential
burden to rebut the
prima facie
case that would have been
proven by the prosecution. If the accused's act is covered by a
ground of justification such as private
defence, necessity or
official capacity she will obviously have a lawful reason for her
conduct; see Snyman's
Criminal Law 5
th
Edition,
which information would normally not be accessible to
the prosecution.
[79]
I agree with the Applicant's counter argument that the incidence of
burden of proof cannot be altered merely because the facts
happen to
be within the knowledge of the other party; see
R v Cohen
1933
TPD 18.
Failure of such an opponent to give evidence may weigh
heavily against him, however a fact which should not alter the onus.
In
some Instances however, this does not amount to equitable results
especially H there is no way that the state could be able to access
the information but for the offender himself to volunteer.
[80]
This was also noted as a peculiar situation that requires to be
handled differently necessitating a balancing approach that
will
ensure a justifiable conviction. In
R v Chaulk
(199) 1 CRR
(2d) 1 Lamer CJC noted that:
"An
accommodation of three important societal interests was involved:
avoiding a virtually impossible burden on the Crown;
convicting the
guilty; and acquitting those who truly lacked the capacity for
criminal intent” (my emphasis)
[81]
In S
v Manamela (Director General ofjustice Intervening)
2000
(3) SA 1(CC)
it was emphasized that:
"It
is clear from the wording of s 36 (1) that no right enshrined in
Chapter 2 of the Constitution is absolute. Although this
court has so
far not found an impugned reverse onus provision to pass
constitutional muster, it has been at pains to articulate
that there
are circumstances in which such measures may be justifiable. The
effective prosecution of crime is a societal objective
of great
signiflcance which could, where appropriate, justify the infringement
of fundamental rights.·
[82]
Acknowledging the possibility of the aforementioned being realized,
Kentridge AJ in
Zuma supra
at para [41] emphasized that:
"the
effect of his judgment was not to invalidate every legal presumption
reversing the onus of proof, since some presumptions,
may be
justifiable as being rational in themselves, requiring an accused
person to prove only facts to which he or aha has easy
access, and
which It would be unreasonable to expect the prosecution to disprove
....Or there may be presumptions which are necessary
if certain
offences are to be effectively prosecuted, and the state is able to
show that for good reason It cannot be expected
to produce the
evidence itself.
(my
emphasis)
[83]
The circumstances of each case will determine whether the
establishment of the elements of the offence should be reorganized.
There being other ways of securing a conviction, like through
circumstantial evidence. The provision could only be fatal if it
lacks inherent mechanism to exclude the probability of a conviction
of an innocent accused who may find themselves within the reach
of
the section whose rights the presumption of innocence was intended to
safeguard. A sentiment eloquently explained by Sachs J
in
State v
Coetzee [1997] 2 LRC 593 that Lord Bingham of Cornhill in
H M
Advocate v Mcintosh, P.C.
(51212001) found worth setting out the
significance of the presumption of innocence in full [para 220 at
677):
"There
is a paradox at the heart of all criminal procedure in that the more
serious the crime and the greater the public interest
in securing
convictions of the guilty, the more important do constitutional
protections of the accused become. The starting point
of any
balancing enquiry where constitutional rights are concerned must be
that the public interest in ensuring that innocent people
are not
convicted and subjected to ignominy and heavy sentences massively
outweighs the public interest in ensuring that a particular
criminal
is brought to book... Hence the presumption of innocence, which
serves not only to protect a particular individual on
trial, but to
maintain public confidence In the enduring integrity and security of
the legal system. Reference to the prevalence
and severity of a
certain crime therefore does not add anything new or special to the
balancing exercise. The perniciousness of
the offence is one of the
givens, against which the presumption of innocence is pitted from the
beginning, not a new element to
be put into the scales as part of a
justificatory balancing exercise. If this were not so, the ubiquity
and ugliness argument could
be used in relation to murder, rape,
car-jacking, housebreaking, drug-smuggling, corruption . . .the list
is unfortunately almost
endless, and nothing would be left of the
presumption of innocence, save, perhaps, for its relic status as a
doughty defender of
rights in the most trivial of cases".
[84]
Although Lord Bingham found the logic of this reasoning inescapable.
He nevertheless found it right to say that in a constitutional
democracy limited inroads on presumption of innocence may be
justified. The approach to be adopted was stated by the European
Court of Human Rights in
Salabiaku v France
[1988] ECHR 19
;
(1988) 13 EHRR
379
, 388 (para 28) as follows:
"Presumptions
of fact or of law operate in every legal system. Clearly the
Convention does not prohibit such presumptions in
principle. It does,
however, require the Contracting States to remain within certain
limits In this respect as regards criminal
law. Article 6(2) does not
therefore regard presumptions of fact or of law provided for in the
criminal law with indifference.
It requires States to confine them
within reasonable limits which take into account the Importance of
what is at stake and maintain
the rights of the defence. This test
depends upon the circumstances of the Individual case".(my
emphasis)
[85]
Lord Bingham conclusion was that 'It follows that a legislative
Interference with the presumption of innocence requires justification
and must not be greater than is necessary. The principle of
proportionality must be observed.' O Regan J in
Manamela
also
was mindful that Rules regulating the burden of proof seem to
determine the acceptable level of risk and who should bear it
in each
case, she concluded that 'the imposition of any reverse burden should
be fair and proportionate, taking into account various
factors
including the seriousness of the offence and the maximum sentence,
the ease of proof by one party over the other and the
danger of
convicting the innocent.
[86]
It is understandable that the presumption of innocence and in
particular the rules concerning the burden of proof exist because
fact finding by a court can never be without the risk of error and
because at times courts cannot determine the facts at all. The
arising of a presumption of absence of a lawful reason after the
close of the prosecution's case at the time when the state would
have
proven a prima facie case should be viewed as a mechanism that
ensures the exclusion of the possible conviction of innocent
accused.
The legality of their actions is also within access of the accused.
[87]
Whether such circumstances have arisen Is a matter to be determined
under s 36 (1) of the Constitution that provides that 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 less
restrictive means to achieve the purpose
[88]
Accordingly, the provision would be eradicated as unconstitutional
and invalid unless it defensible as a permissible limitation
of the
right. Like any other fundamental right, the presumption of innocence
is not absolute. Once infringed the question arises
as indicated in
the mentioned authorities whether there are important reasons
outweighing the importance of the presumption, for
increasing the
risk of error through varying the burden or incidence of proof. The
Constitutional Court had al ready acknowledged
that there are
circumstances in which a burden of proof may be imposed upon an
accused even though it had not yet found in favour
of such sentiment;
see
Makwanyane supra.
A view that has manifested in the
English Justice for a long time on several occasions holding reverse
onuses to be justified limitations
of the presumption of innocence.
Woolmington v DPP
[1935] UKHL 1
;
[1935] AC 462
is a landmark of the House of
Lords case, where the presumption of innocence was first articulated
in the Commonwealth identifying
the common law exception and the
statutory exceptions as examples where the burden of proof was
reversed requiring the Defendant
to discharge a legal burden to avoid
a conviction.
[89]
In
Regina v Lambert
UKHL 37 (2001] the Court emphasized that
the prosecution always bear the primary obligation of proving the
main elements of an offence.
Where a legal burden is imposed it must
be legitimate and proportionate. After that, the legality of the
reverse burden would be
assessed in light of all of the
circumstances, including the
aim of the legislation,
the fact
that
Parliament had intended
to pass such a statute, and
the
ease with which the prosecution could discharge the burden should It
be placed on them.
Every reverse burden will therefore involve a
balancing exercise, involving several factors, to ensure that the
burden is proportionate.
[90]
The section is a law of general application and other factors have
already been addressed in respect of accessibility of the
information
required to discharge the onus that it is not within reach of the
prosecution. The minimized risk as a result of the
actual onus
arising at the close of the prosecution's case and the requirement
that conviction be returned if a
prima facie
case is proven
plus the accused has failed to discharge the onus.
[91]
The purpose of this crime is to punish people who intimidate others
to compel them to conduct themselves in a certain manner,
such as not
to give evidence in court, report crime, and support a certain cause
or a political party, then committee illegal acts
or not do their
work properly. It is also well known in South Africa that
intimidation is rife especially during strike actions,
of witnesses
in courts and victims of crime. Intimidation therefore hampers the
successful prosecution of perpetrators of crime
impact to such
success. Consequently if crime in general is to be combated and the
public deterred from committing crime through
successful prosecution
of, the protection of potential witnesses from intimidation is
paramount. It is also to protect the public's
right to freedom from
violence or threat of violence. The combating of crime outweighing
the inconvenience of standing trial at
a slight risk of a wrong
conviction.
[92]
I have already dealt with the provisions infringement of the rights
in s 35 (3) (h). On conviction the offence carries a sanction
as
stipulated in the Act not exceeding R40 000 or imprisonment sentence
for a period not exceeding ten years, or to both such a
fine and such
imprisonment. Even though according to Snyman's Criminal Law at 463 s
1 (2) of the Adjustment of Fines Act 101 of
1991, the maximum amount
is adjusted to the maximum number of years in prison 10 x R20 000
which equals R200 000.00. Whatever it
may be, the offence carries a
hefty sentence to deter those who might be tempted to follow. This is
a very serious offence and
for all the mentioned reasons s 1 (2)
cannot be lightly invalidated.
[93]
it is for the reasons that the evidence sought to be proven is within
the exclusive knowledge of the accused and it would not
be easy for
the prosecution to prove the evidence required if the onus is left to
the state, it is logical, just and necessary
that the burden of proof
of the existence of the lawful reason is imposed upon the accused. At
the end of the day, and taking into
account all the evidence, the
court would still have to be convinced beyond reasonable doubt that
the accused was indeed guilty,
having intimidated the complainant
with the intention to compel a certain situation without a lawful
reason.
[94]
The removal of the section from the statutes may have far-reaching
consequences in that ordinary members of the community as
it usually
happen will continue to withhold information because they are too
terrified and intimidated to come forward. Such conduct
exacerbates
incidents of crime, ineffective policing and criminals acting with
impunity, taking advantage of the fears of the community.
The
Constitution requires that such pressing and social concerns that
affect the everyday lives of ordinary citizens who are doing
their
duties to see to it that crime is prosecuted must be addressed by
providing, if necessary, a reverse burden of proof that
is held to be
justified and as pursuing a legitimate aim. The provision is
therefore of sufficient importance.
[95]
The burden is therefore proportionate and less invasive than the
infringement caused in other reverse onus. There is a balanced
interference between the general interest of the community and the
fundamental protection of the rights of the individual. taking
all
the factors into consideration. The preservation of the section is
justified by the nature of the penalty sanctioned, the ease
with
which the defendant can discharge the legal burden. the fact that the
prosecution still has to prove the essential elements
of the offence
and the significance of the presumption of innocence as a general
procedural safeguard that is maintained. Due to
the proportionality
of the section. the Respondent's proposal of reading down the
provision as imposing an evidential burden is
not necessary. There is
also no sufficient cause for the invalidation of the provision or its
declaration as unconstitutional.
[96]
Under the circumstances I make the following order:
[96.1]
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.
___________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Applicant:
S WILSON SC, MKHULULI STUBBS
Instructed
by:
CENTRE FOR APPLIED LEGAL STUDIES
C/O
LAWYERS FOR HUMAN RIGHTS
Tel.
011 717 ·8600
Ref:
Z Sujee:
For
the 4
th
Respondent:
PJJ DE JAGER SC, H A MPSHE
Instructed
by:
THE STATE ATTORNEY
Tel
012 309 1500
Ref:
Mr E Snyman