Moyo v Minister of Justice and Constitutional Development and Others; Sonti v Minister of Justice and Correctional Services and Others (387/2017; 386/2017) [2018] ZASCA 100; 2018 (8) BCLR 972 (SCA); [2018] 3 All SA 342 (SCA); 2018 (2) SACR 313 (SCA) (20 June 2018)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2018
>>
[2018] ZASCA 100
|

|

Moyo v Minister of Justice and Constitutional Development and Others; Sonti v Minister of Justice and Correctional Services and Others (387/2017; 386/2017) [2018] ZASCA 100; 2018 (8) BCLR 972 (SCA); [2018] 3 All SA 342 (SCA); 2018 (2) SACR 313 (SCA) (20 June 2018)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 387/2017
In
the matter between:
GENERAL
ALFRED
MOYO
FIRST
APPELLANT
THE
CENTRE FOR APPLIED LEGAL STUDIES
SECOND
APPELLANT
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
FIRST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH
GAUTENG
THIRD
RESPONDENT
THE
MINISTER OF
POLICE
FOURTH
RESPONDENT
and
Case
No: 386/2017
NOKULUNGA
PRIMROSE
SONTI
FIRST
APPELLANT
SOCIO-ECONOMIC
RIGHTS INSTITUTE
OF
SOUTH
AFRICA
SECOND
APPELLANT
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
FIRST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
NORTH
WEST
PROVINCE
THIRD
RESPONDENT
THE
MINISTER OF
POLICE
FOURTH
RESPONDENT
Neutral
citation:
Moyo v The Minister of
Justice and Constitutional Development & others
(387/2017);
Sonti v The Minister of Justice and
Correctional Services & others
(386/2017)
;
[2018] ZASCA 100
(20 June 2018).
Coram:
Maya P, Wallis, Mbha and Van der Merwe
JJA and Makgoka AJA
Heard:
2 March 2018
Delivered:
20 June 2018
Summary
:
Constitutional law – constitutionality of
s 1(2)
of the
Intimidation Act 72 of 1982
–
s 1(2)
presumes that
accused’s actions or utterances are without lawful reason if
such reason not advanced prior to close of prosecution
case –
whether presumption reverses the onus of proof or is merely
evidential –
s 35
of Constitution – right to a fair
trial, to be presumed innocent and to remain silent.
Majority
– presumption evidential – places pressure on the accused
to disclose content of defence prematurely –
infringes the
right to a fair trial and the right to remain silent – no
justification for limitation of rights in terms of
s 36 of
Constitution – section 1(2) unconstitutional and invalid.
Minority
– presumption reverses onus of proof requiring the accused to
prove the existence of a lawful reason for their acts
or utterances –
accused can be convicted even though no proof of guilt beyond
reasonable doubt – infringes the right
to be presumed innocent
and the right to remain silent - no justification for limitation of
rights – section 1(2) unconstitutional
and invalid.
Constitutionality
of s 1(1)
(b)
of
Intimidation Act – whether
infringes right of freedom of expression as contained in
s 16(1)
of Constitution - section capable of being interpreted in conformity
with Constitution.
Majority
– section to be interpreted in light of s 39(2) of
Constitution – criminal provision to be construed in
favour of
the liberty of the citizen – presumption of
mens rea
in
the absence of express provision negating presumption
Section
1(1)
(b)
to be construed as relating only to conduct that is
intimidatory in character – section requires
mens rea
–
conduct or utterances constituting intimidation must induce actual
fear in target or inducing such fear would reasonably
be the
consequence of such conduct or utterances – mere anxiety,
nervousness or apprehension not constituting fear within
the meaning
of the section – conduct that is lawful in terms of the
Constitution or statute not unlawful – lawful expression
in
terms of s 16(1) of Constitution not falling within the section
and not constituting intimidation.
Minority
– section impermissibly wide – contravenes s 16(1)
of Constitution – no justification for limitation
of rights –
section 1(1)
(b)
unconstitutional and invalid.
ORDER
On
appeal from:
Gauteng Division, Pretoria
(Khumalo J, sitting as court of first instance): judgment reported
sub nom Moyo and Another v Minister of
Justice and Constitutional Development and Others; Sonti and Another
v Minister of Justice
and Correctional Services and Others
2017 (1) SACR 659
(GP).
The
following order is made:
1
The appeal in
Moyo and Another v Minister of Justice and
Constitutional Development and Others
is dismissed, with all
parties to pay their own costs.
2
The appeal in
Sonti and Another v Minister of Justice and
Correctional Services and Others
is upheld with costs, including
the costs of two counsel.
3
The order of the court a quo is set aside and in its stead is
substituted the following:
‘
(i)
It is declared that
s 1(2)
of the
Intimidation Act 72 of 1982
is
unconstitutional and invalid.
(ii)
The order of invalidity is retrospective only to the extent that it
affects pending trials or appeals and does not extend to
any
convictions where the right of appeal has been exhausted.
(iii)
The matter is referred to the Constitutional Court in terms of s
172(2)
(a)
of the Constitution.
(iv)
The Minister of Police is ordered to pay the costs of this
application, including the costs of two counsel.’
JUDGMENT
Mbha
JA (dissenting in part) (Van der Merwe JA concurring):
[1]
These two appeals, which were heard together in accordance with a
practice directive of the President of this court, concern
the
constitutional validity of ss 1(1)
(b)
and 1(2) of the Intimidation Act 72 of 1982 (the Act). The appeals
are against the judgment of Khumalo J, sitting in the Gauteng

Division of the High Court, Pretoria (the court a quo) who
simultaneously heard, and thereafter dismissed, the appellants’

applications for declaratory orders of invalidity and
unconstitutionality of ss 1(1)
(b)
and
1(2) respectively. The court a quo found that s 1(1)
(b)
of the Act does not infringe the right to freedom of expression, and
that the provision only criminalises expressive acts which
are
reasonably construed to be threats of violence. With regard to s 1(2)
of the Act, the court a quo accepted that this provision
infringed
the right to be presumed innocent, the right to remain silent and the
right against self incrimination. However,
it found that these
infringements were justified on two bases. First, it was not possible
for the State to disprove the existence
of a lawful reason as
required by s 1(1)
(a)
of the Act. Secondly, the reverse onus created by s 1(2) served the
purpose of combating intimidation, the incidence of which,
the court
a quo found, was ‘rife’ in the country. Both appeals are
with leave of the court a quo.
[2]
The first appellants in each of these appeals are respectively
General Alfred Moyo (Mr Moyo) and Nokulunga Primrose Sonti (Ms

Sonti). Mr Moyo is currently facing a charge of contravention of s
1(1)
(b)
in
the Germiston Regional Court. Ms Sonti is charged in the Rustenburg
Regional Court with contraventions of both s 1(1)
(a)
(ii)
and s 1(1)
(b)
(i)
of the Act. Neither has yet pleaded to the charges and their trials
are still pending, having been adjourned pending the outcome
of these
proceedings.
[3]
Section 1(1) of the Act provides as follows:
‘
Any
person who –
(a)
without lawful reason and with intent to compel or
induce any person or persons of a particular nature, class or kind or
persons
in general to do or to abstain from doing any act or to
assume or to abandon a particular standpoint –
(i)
assaults, injures or causes damage to any person; or
(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 –
(i)
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
(ii)
…
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 fine and such imprisonment.
(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.’
[4]
In the first appeal, Mr Moyo, together with the second appellant (the
Centre for Applied Legal Studies, CALS), challenges the

constitutionality of s 1(1)
(b)
of the Act, on the ground that its provisions violate the right to
freedom of expression as guaranteed in s 16(1) of the
Constitution of the Republic of South Africa, 1996 (the
Constitution). They contend that the section criminalises any speech
or
conduct which creates a subjective state of fear in any person
regardless of whether the conduct or speech in question is intended

to create fear. An offence is also committed, so they contend, where
no fear is in fact created and only speech or conduct which

reasonably apprehended might have created fear is established.
[5]
The appellants aver that s 1(1)
(b)
is overbroad as it criminalises many forms of expression which fall
within the protection of s 16(1) of the Constitution. The appellants

further submit that the breadth of the interference with s 16(1) of
the Constitution created by s 1(1)
(b)
of the Act, cannot be justified in terms of the limitation clause in
s 36 of the Constitution and consequently falls to be declared

unconstitutional and invalid.
[6]
The fourth respondent (the Minister), opposes the appeal on the basis
that Mr Moyo’s utterances and conduct, which
form the
basis of the charge against him, properly construed constitutes
incitement of imminent violence which falls within the
unprotected
categories of expressions provided for in s 16(2)
[1]
of
the Constitution. The Minister also contends that s 1(1)
(b)
of the Act does not criminalise speech or conduct which creates a
subjective state of fear in the addressee, but criminalises speech
or
conduct which if reasonably construed the natural and probable
consequences thereof would be that a person perceiving the conduct

fears for his or her own safety or that of another. The Minister
further submits that s 1(1)
(b)
postulates
the determination, on objective grounds, whether the utterances could
be perceived to constitute a threat to the addressee
or any other
person affected thereby.
[7]
In the second appeal, Ms Sonti, together with the second appellant,
Socio Economic Rights Institute of South Africa (SERI),

challenges the constitutionality of s 1(2) of the Act on the basis
that the section creates a reverse onus in all proceedings brought

under s 1(1)
(a)
of
the Act. They contend that the effect of the reverse onus is that an
accused person must prove on a balance of probabilities,
that he or
she had a lawful reason to issue the threat criminalised under
s 1(1)
(a)
(ii)
of the Act, unless the accused makes a statement ‘clearly
indicating the existence’ of a lawful reason before the

prosecution closes its case. If no such statement is made, the threat
is presumed to have been unlawful. The appellants therefore
contend
that s 1(2) of the Act breaches the fair trial rights entrenched in s
35(3)
(h)
and
(j)
of
the Constitution, namely the rights to be presumed innocent, to
remain silent and not to be compelled to give self incriminating

evidence. The appellants contend further that the effect of s 1(2) is
that an accused person must sacrifice the rights to be silent
and
against self incrimination if he or she is to be given the
benefit of the presumption of innocence. If, on the other hand,
the
accused wishes to exercise his or her right to silence and protection
from self incrimination, the accused will attract
an onus and
will not be presumed to be innocent.
[8]
Ms Sonti also avers that s 1(2) constitutes an unjustifiable
limitation on the right to freedom of expression, enshrined in
s 16
of the Constitution, in that it presumes any threat and therefore any
expression which falls within s 1(1)
(a)
(ii)
to be unlawful, unless a statement setting out a lawful reason for it
is made in advance. She then contends that s 16 of the
Constitution
requires all expressions it protects to be presumed to be innocent
and lawful unless the state can prove beyond reasonable
doubt that
they constitute a crime.
[9]
The Minister opposes this appeal on the basis that the provisions of
s 1(2) of the Act properly construed, do not create a reverse
onus
requiring the accused person to prove an element of the crime on a
balance of probabilities. The presumption created by this
section, so
the Minister submits, merely imposes an evidentiary burden on the
accused. In the alternative, and if it were found
that the provisions
of s 1(2) violate the right to freedom of expression or the
right to a fair trial, both rights are not
absolute and may be
limited in terms of s 36 of the Constitution, which the Minister
submits, is the case in this matter.
[10]
I now turn to consider the merits of each appeal separately. Before
doing so however, I need to dispose of a point in
limine
raised by the Minister. The point raised is this: The applications
for orders declaring the relevant provisions of the Act
unconstitutional
arise from the pending criminal trials in the
regional court of the first appellant in each appeal. Accordingly, it
was submitted
that both appellants should first go through their
trials and then raise the constitutional validity of ss 1(1)
(b)
and 1(2) on appeal, if necessary. The Minister submitted that it was
undesirable that the appellants should require this court
to decide
the constitutionality of the provisions of the Act, without the
benefit of the criminal trials’ findings on a number
of issues
which could have a bearing on the question whether the relevant
provisions should be declared unconstitutional.
[11]
In support of this contention, the Minister sought to rely on the
dicta by Kriegler J in
S
v Bequinot.
[2]
There
the learned judge found, on the facts of that case, that there was no
identifiable
ratio
for the referral of the case to the Constitutional Court, and that
there was nothing indicating: (a) why the court a quo regarded
the
constitutionality of s 37 of the Act 62 of 1955 to be
potentially decisive of the case before it; (b) why it was considered

to be in the interest of justice to order referral of that issue; and
in that context, (c) why the referral was made at that juncture,

before considering the appeal on non-constitutional grounds. The
Minister submits that this court is placed at a disadvantage for
it
is required to deal with difficult questions of law, constitutional
or otherwise, and has to perform the balancing exercise
demanded by s
36(1) of the Constitution virtually as a court of first instance, in
circumstances where the constitutional issues
raised might not be
decisive of the cases. The Minister concludes that the regional
courts, before which Mr Moyo and Ms Sonti are
to stand trial, are
better placed than this court to evaluate the effect of the alleged
overbreadth of s 1(1)
(b)
,
and of the so-called reverse onus of s 1(2) of the Act on the
essential fairness of a criminal trial.
[12]
Although it must be accepted that the ordinary procedure would be to
challenge the constitutionality of ss 1(1)
(b)
and 1(2) of the Act at the trial or in post conviction
proceedings, it must be noted that both Mr Moyo and Ms Sonti have
been charged in the regional courts. Regional courts lack
jurisdiction to strike down unconstitutional statutes. Indeed, the
regional
courts would be bound to decide the matter on the basis that
ss 1(1)
(b)
and 1(2) of the Act are constitutionally valid in terms of
s 110(2)
of the
Magistrates Courts Act 32 of 1944
. This would mean that both
Mr Moyo and Ms Sonti would have to run the risk of conviction
and imprisonment under the Act, before
having an opportunity to raise
the constitutional validity of the provisions they claim are
unconstitutional.
[13]
In my view the Minister’s aforesaid approach would be unjust to
the appellants. The Constitutional Court has held that
it is
permissible to challenge the constitutional validity of a statutory
offence before trial, even if legislation is being challenged
‘in
the abstract’.
[3]
In
this matter
,
the
referral for constitutional validity of the provisions concerned,
even before the trials of Mr Moyo and Ms Sonti get underway,
cannot
by any stretch of imagination be an abstract challenge. They
challenge the constitutionality of the very provision that
they are
charged with. The mere laying of the charge under the Act is enough
to create a threat to rights under s 38 of the Constitution.
I am
also satisfied that the particulars of the charges, taken together
with the facts alleged in the appellants’ affidavits,
do create
a body of facts in relation to which the constitutional validity of
ss 1(1)
(b)
and 1(2) of the Act may be tested. In any event, there would be no
need to determine the truth of any of the factual allegations
against
the appellants, because, as the Constitutional Court has held:
‘
[T]he
enquiry is an objective one … The subjective positions in
which parties to a dispute may find themselves cannot have
a bearing
on the status of the provisions of a statute under attack. The
Constitutional Court, or any other competent Court for
that matter,
ought not to restrict its enquiry to the position of one of the
parties to a dispute in order to determine the validity
of a law.’
[4]
[14]
I am also of the view that it is in the public interest to finally
determine the constitutional validity of ss 1(1)
(b)
and 1(2) of the Act. An important consideration in this regard is
that the high court judgment created a precedent that is binding
on
lower courts. If the judgment is wrong, it is in the public interest
that it should not stand.
[15]
In light of what I have stated above, I find that the point in
limine
raised by the Minister, must fail.
[16]
I need to point out that although the aforesaid point in
limine
was squarely an issue before the court a quo, there is no mention
thereof whatsoever in the judgment under appeal. The omission
of so
important an issue in the judgment, which had the potential to be
decisive of the matter, is particularly concerning.
The
first appeal: The constitutional validity of section 1(1)
(b)
of
the Act.
[17]
The criminal charge of intimidation in terms of s 1(1)
(b)
of the Act, which has been preferred against Mr Moyo (there is an
alternative charge of assault which has no bearing in this matter),

arose under the following circumstances. Mr Moyo is the chairperson
of a community based organisation known as the Makause Community

Development Forum (MCDF) in the Makause informal settlement.
According to him, the MCDF has had a difficult relationship with the

local branch of the African National Congress (ANC), which always
challenged the right of the MCDF to conduct any organising or
other
work of a social or political nature in the settlement. He states
that as a result of tensions between the two organisations,
the ANC
laid various spurious allegations and complaints against MCDF
members, which resulted in their arrest and detention. However,
no
convictions have resulted from any of these arrests.
[18]
The charge against Mr Moyo concerns a speech and conduct attributed
to him during a meeting at the Primrose Police Station,
Germiston, on
18 October 2012. He had allegedly had gone to organise a peaceful and
lawful march to demonstrate against what he
saw as ineffective and
biased policing practices in the Makause informal settlement, arising
from the unfair treatment of MCDF
members at the hands of the police.
The complainants are Lieutenant Colonel Nkwashu, the station
commander of Primrose Police Station,
and Lieutenant Colonel Shiburi,
a senior police officer at that station. The complainants allege that
Mr Moyo uttered the following
words and conducted himself in a manner
described in the charge sheet as follows:
‘
(a)
he will make sure that they are removed;
(b)
threatened to repeat what happened at Marikana and/or;
(c)
that there will be bloodshed; and/or
(d)
by pointing fingers at the complainants; and/or
(e)
charging towards the complainants; and/or
(f)
said that the complainants will not last at Primrose.’
Mr
Moyo denies that he did or said anything with the intention of
intimidating the complainants. In his view, the charges that have

been preferred against him are simply a ploy to frustrate the MCDF’s
legitimate rights to protest and criticise what they
see as biased
policing practices sanctioned by the complainants.
[19]
I need to point out at this stage that whether or not Mr Moyo uttered
the words or conducted himself in the manner alleged
or with the
intention of intimidating the complainants, is an issue that must be
determined by the trial court. Furthermore, such
issue will not form
the basis upon which the constitutionality of the provisions of
s 1(1)
(b)
of the Act should be decided.
[20]
I deem it prudent at this point to consider the context in which the
Act was adopted, together with its legislative history,
as this will
be helpful in determining the purpose and meaning of the provision.
[21]
Section 1(1)
(b)
was imported into the Act by the Internal Security and Intimidation
Amendment Act 138 of 1991 (the Internal Security Amendment
Act).
Although the one purpose of the Internal Security Amendment Act was
to reduce the length of time a person could be detained
without trial
by the apartheid state, and to ease some of the more draconian
aspects of the internal security legislation in force
at the time,
that Act also significantly broadened the statutory offence of
intimidation. The reason for doing so was to reverse
a series of
prior decisions of the high court that had narrowed the range of
conduct and speech that could count as intimidation.
These decisions
included
S v Mohapi
en Andere
1984 (1) SA 270
(O), in which it was held that a general threat
directed at the inhabitants of an area as a whole, cannot constitute
intimidation;
S v Kekana
(an unreported decision of the Witwatersrand Local Division under
case number A444/88), in which it was held that a mere threat
that is
not intended to induce particular conduct in another person is not
intimidation; and
S v Malevu
(an unreported decision of the Witwatersrand Local Division under
case number A635/87), in which it was held that a striker did
not
intimidate three non-strikers who he had told would encounter
problems and would be hurt if they continued to work. This was

because it was not established beyond a reasonable doubt that these
utterances conveyed anything more than a warning.
[22]
Clearly, the purpose of the Internal Security Amendment Act was to
widen the statutory offence of intimidation to include speech
and
conduct which, under apartheid, was considered harmful, but would
certainly be considered innocuous today. This is confirmed
by the
explanatory memorandum to the Internal Security and Intimidation
Amendment Bill which sets out the objects of the bill as
to render
certain intimidatory conduct which does not fall within the scope of
the Act, punishable.
[23]
Even at the time it was passed, the breadth of s 1(1)
(b)
was
controversial in that it was not limited to serious threats of
unlawful conduct. Members of the House of Assembly, at the second

reading of the Intimidation Bill, raised consumer boycotts as
legitimate forms of political action criminalised by s 1(1)
(b)
.
Mr A S K Pitman MP
[5]
highlighted
during the debate that it should not be a criminal offence to embark
on a consumer boycott.
[24]
At a textual level, s 1(1)
(b)
of the Act creates an offence in
two sets of circumstances. A person will be guilty of an offence
where he or she –
(a)
acts or conducts himself or herself in such a manner or utters or
publishes such words that it has or they have the effect that
a
person perceiving the act, conduct, utterance or publication fears
for his or her own safety, the safety of his or her property
or the
security of his or her livelihood, or the safety, property or
livelihoods of others (whether reasonable or not); or
(b)
acts or conducts himself or herself in such a manner or utters or
publishes such words 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
fears for his
or her own safety or the safety of his or her property or the
security of his or her livelihood, or the safety, property
or
livelihoods of others (even if no fear is actually created).
[25]
Clearly, the text of s 1(1)
(b)
does not require that fear be caused intentionally or negligently.
Although our courts read a penal statute, where possible, as

requiring some sort of fault on the part of the person to be charged,
the text of s 1(1)
(b)
leaves no room for such an exercise. If an expressive act results in
someone feeling fearful or might reasonably have that result,
then
there is an offence under the section.
[26]
The court a quo interpreted the section as only criminalising the
creation of reasonable fear. In this regard, the court sought
to
rely, inexplicably, in my view, on the decision in
Setlogelo
v Setlogelo
,
[6]
which
with respect is inapplicable to the circumstances or situation dealt
with herein. The court a quo held 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.
[27]
In my view this is erroneous as the text of the section precludes
such an interpretation. The section clearly creates an offence
where
a person ‘acts or conducts himself or herself in such a manner
or utters or publishes such words that it has or they
have the
effect, or that it might be reasonably expected that the natural and
probable consequences thereof would be that a person
perceiving the
act, conduct, utterance or publication’ would be placed in
fear. Furthermore, the use of the word ‘or’
is clearly
intended to distinguish between two situations: one in which fear is
created, whether reasonably or not, and another
in which reasonable
fear might be created, regardless of whether it was in fact created.
An offence is committed in both situations.
[28]
The second interpretative error adopted by the court a quo was to
characterise s 1(1)
(b)
as
being directed only at threats of violence. In this regard the
learned judge observed that the Act is one of the pre-democracy

pieces of legislation remaining in our statute books with the aim of
fighting violence in all its forms. But this is wholly untenable

because s 1(1)
(b)
of the Act criminalises a much wider range of expressive acts than
mere threats of violence. One need only consider the provision
in its
immediate statutory context to see this. Threats of violence are
explicitly criminalised in s 1(1)
(a)
of the Act and, if s 1(1)
(b)
were meant only to criminalise threats of violence, then clearly it
would be superfluous. On the plain meaning of s 1(1)
(b)
it includes acts or conduct not relating to violence.
[29]
The plain text of the section places emphasis on how the person being
threatened feels or might reasonably feel, not on what
the expressive
act actually means or was intended to achieve. To illustrate the
scope of s 1(1)
(b)
of the Act, it bears emphasising what Mr Moyo is not charged with. It
is not alleged that any harm of a specific nature actually
resulted
from anything which Mr Moyo said or did; that the fear said to have
been induced by his utterances or conduct had any
specific focus; or
importantly, that he intended at any stage to induce fear in the
police officers and to intimidate them.
[30]
The fundamental problem with s 1(1)
(b)
of the Act is that it obliterates the distinction between ‘true
threats’ and ‘political hyperbole’ as it
covers
both categories of expression, and a lot more. A true threat is a
threat of unlawful violence made by a person who intends
to carry
that threat out and has the means to do so. On the other hand,
political hyperbole is (often emotionally charged) rhetoric
with no
serious intent to harm, or capacity to cause harm and can include
anything from popular struggle songs to trite political
slogans. Thus
even advocating a consumer boycott, as I have mentioned earlier, or
campaigning to remove a politician from office
would constitute
criminal acts if they are demonstrated to have actually or reasonably
placed someone in fear for the security
of the livelihood of any
person.
[31]
For all these reasons, the interpretation the court a quo placed on
s 1(1)
(b)
of the Act is untenable. Textually the section creates significant
inroads into the right of freedom of expression. I say so because
s
1(1)
(b)
debars people from speaking their minds lest they place another in a
subjective state of fear or might reasonably do so. However,
unless
hate speech, incitement of imminent violence or propaganda for war as
proscribed in s 16(2) of the Constitution are involved,
no one is
entitled to be insulated from opinions and ideas that they do not
like, even if those ideas are expressed in ways that
place them in
fear. Indeed, in present day South Africa many will be afraid of the
political and social possibilities that are
advocated for daily in
high stakes debates that characterise a transforming society with a
violent, racist past. Obviously this
may place many South Africans in
a condition of subjective or ‘reasonable’ fear. But that
does not entitle them to
expect the State to lock up those whose
chosen forms of expression placed them in a subjective state of fear
or might reasonably
(but not in fact) have placed them in fear.
[32]
Even expressive acts that create reasonable fear are deserving of
constitutional protection. Unless they are accompanied by
threats of
violence on which the person making the threat is capable of acting,
or they constitute unprotected expression defined
in s 16(2) of the
Constitution, fear-creating expressive acts are lawful, even if they
are aggressive and hostile. This court,
in
Hotz
v UCT
[7]
expressed
itself on this subject as follows:
‘
A
court should not be hasty to conclude that because language is angry
in tone or conveys hostility it is therefore to be characterised
as
hate speech, even if it has overtones of race or ethnicity’.
The
court recognised however, that in guaranteeing freedom of speech, the
Constitution also places limits upon its exercise. Thus
where it goes
beyond a passionate expression of feelings and views and becomes the
advocacy of hatred based on race or ethnicity
and constitutes
incitement to cause harm, it oversteps those limits and loses its
constitutional protection.
[33]
The aforesaid position holds true in the United States. In
Watts
v United States
[8]
the
Supreme Court held that only ‘true threats’ fall outside
a person’s first amendment protection against interference
with
free speech. The defendant, at a public rally at which he was
expressing his opposition to the military draft, said, ‘if
they
ever make me carry a rifle the first man I want to get in my sights
is L.B.J’. He was convicted of violating a federal
statute that
prohibited ‘any threat to take the life of or to inflict bodily
harm upon the President of the United of States’.
The Supreme
Court reversed that finding. Interpreting the statute ‘with the
commands of the First Amendment clearly in mind’
it found that
the defendant had not made a ‘true threat’, but had
indulged in mere ‘political hyperbole’.
Clearly, although
the utterances in
Watts
may have placed reasonable people in fear, they were still protected
under the first amendment of the US Constitution. The point
is that
the conduct of Mr Watts could have constituted a crime under s
1(1)
(b)
of the Act.
[34]
What matters for present purposes is whether an expressive act
amounts to an intentional, serious and violent threat, not whether
it
places or might reasonably place anyone in fear of their safety,
property or livelihood, or those of another. Clearly, s 1(1)
(b)
of the Act sets the bar for unlawful expression far too low. The
court a quo’s interpretation of s 1(1)
(b)
as only criminalising the creation of reasonable fears, is
incompatible with the text of the section. It is in fact precisely
the kind of ‘unduly strained’ reading down of a statute
that the Constitutional Court warned against in
Hyundai
[9]
where
the court said:
‘
There
will be occasions when a judicial officer will find that the
legislation, though open to a meaning which would be
unconstitutional,
is reasonably capable of being read “in
conformity with the Constitution”. Such an interpretation
should not, however,
be unduly strained.’
[35]
The real problem with s 1(1)
(b)
is, in any event, its
overbreadth, which could not be cured by the court a quo’s
attempt to read it down. As I have demonstrated
above, it in fact
matters little whether s 1(1)
(b)
of the Act only applies to
the creation of reasonable fears. Even if it could be read that way,
which in my view it definitely
cannot, its prohibitions would still
not confine it to violent threats. This section plainly limits the
right to freedom of expression
guaranteed in s 16 of the
Constitution.
Can
the limitation of the right of freedom of expression be justified?
[36]
As it has been shown that s 1(1)
(b)
of the Act limits s 16(1) of the Constitution, the next enquiry is to
determine whether the limitation can be justified under s
36 of the
Constitution. If the limitation cannot be justified, then s 1(1)
(b)
of the Act will be rendered unconstitutional.
[37]
Section 36 of the Constitution provides as follows:
‘
(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.
(2)
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.’
[38]
It is trite that once a constitutional infringement is established,
as has happened in this matter, then it is for the party
relying on
the legislation to establish the justification, and not for the party
challenging it to show that it was not justified.
[10]
The
evaluation of the justification of a limitation under s 36 of the
Constitution involves a process described in
S
v Makwanyane & another
[11]
as
the ‘weighing up of competing values, and ultimately an
assessment based on proportionality … which calls for the

balancing of different interests’. The relevant considerations
in the balancing process include those that are listed in
s 36(1) of
the Constitution. Although s 36(1) does not expressly mention the
importance of the right infringed in an open and democratic
society
based on human dignity, it is a factor that must of necessity be
taken into account in any proportionality evaluation.
[39]
The process of balancing different interests takes place in the
following manner:
‘
On
the one hand there is the right infringed; its nature; its importance
in an open democratic society based on human dignity, equality
and
freedom; and the nature and extent of the limitation. On the other
hand there is the importance of the purpose of the limitation.
In the
balancing process and in the evaluation of proportionality one is
enjoined to consider the relation between limitation and
its purpose
as well as the existence of less restrictive means to achieve this
purpose.’
[12]
[40]
I did not understand counsel for the Minister to argue that s 1(1)
(b)
as
interpreted in this judgment, is justifiable under s 36. I
nevertheless consider this question below. The importance of the
right of freedom of expression has received considerable attention by
the Constitutional Court on numerous occasions. I cite a few.
In
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
[13]
the
Constitutional Court described the relevance and necessity of this
right as follows:
‘
Ours
is a constitutional democracy that is designed to ensure that the
voiceless are heard, and that even those of us who would,
given a
choice, have preferred not to entertain the views of the marginalised
or the powerless minority, listen.’ (Footnote
omitted).
[41]
In
Khumalo
& others v Holomisa
[14]
the
Constitutional Court explained that the right to freedom of
expression is ‘integral to a democratic society for many
reasons’, including the reason that the right is constitutive
of the dignity and autonomy of human beings and because, without
it,
the ability of citizens to make responsible political decisions and
to participate effectively in public life would be stifled.
[42]
One of the purposes of the right to freedom of expression is to
foster tolerance of competing political views and the manner
in which
they are expressed. In a democracy such as ours, we have to tolerate
people who have different views, and we have to accept
that those
views might be expressed in ways we do not like. Significantly, in
his answering affidavit, the Minister correctly accepted
that it is
‘undeniable’ that freedom of expression is ‘indispensable
. . . [to] a State such as South Africa’
and that it is a
right of ‘core importance for the democratic dispensation’.
[43]
With regard to the question of the importance of the purpose of the
limitation, I have taken into consideration the legislative
history
of s 1(1)
(b)
of the Act.  What clearly emerges from such history is that the
offence of intimidation is a product of apartheid era legislation

that was designed to control dissent against an unjust system. It
then becomes clear that its purpose has been rendered
constitutionally
offensive in modern day South Africa.
[44]
The contention that s 1(1)
(b)
of the Act promotes ‘inter-communal peace and harmony’
is, in my view, a classic analogue of the justifications given
in
non democratic regimes for stifling political dissent. There can
be no debate over the fact that democracy thrives on the
expression
of disagreement. Of course, some limitations on the right to freedom
of expression are necessary. But there can be no
justification for
the imposition of limitations on the right to freedom of expression
simply to pacify the expression of disagreement,
or to create a
comfortable, placid political atmosphere.
[45]
I accordingly find that s 1(1)
(b)
of the Act constitutes one of the last and most insidious of the
apartheid regime’s efforts to curtail freedom of expression
and
political action that was aimed at bringing that abominable regime to
an end. It has no place in a free, open and democratic
South Africa
which respects, protects, promotes and fulfils the right to freedom
of expression and falls to be struck from our
statute books.
[46]
The nature and extent of the limitation contained in s 1(1)
(b)
of the Act can be devastating on any person caught on its wrong side.
It carries a maximum sentence of ten years imprisonment and
the
option of a fine of R40 000 which is prohibitively expensive for
an indigent person charged with the manner of expression
that the Act
criminalises. For these reasons, I find that s 1(1)
(b)
of the Act is clearly egregious, both in its nature and its extent.
[47]
The aspect of the relation between the limitation and its purpose
raises two questions. The first is whether there is a rational

connection between the limitation and its purpose. The second is
whether the limitation is proportional to the purpose it serves.
[48]
Although the court a quo found that the purpose of s 1(1)
(b)
of the Act was to combat violence and threats of violence, this was
erroneous. In truth, its scope extends beyond threats of violence.
As
I have demonstrated, expressive acts that merely ‘have the
effect’ of creating fear or might reasonably have that
effect,
are criminalised. There is accordingly no rational connection between
the text of s 1(1)
(b)
and the protection of the individual from violent threats.
[49]
To the extent that it is contended that s 1(1)
(b)
of the Act
is necessary to protect the individual against threats, violent or
otherwise, various narrowly tailored offences that
meet these
objectives already exist. These are, apart from s 1(1)
(a)
and
s 1A of the Act (which prohibits the intimidation of the general
public, a particular section of the population or the
inhabitants of
a particular area):
(a)
Crimen injuria
, which is the unlawful and intentional
impairment of the dignity of another person and can include abusing,
insulting or degrading
conduct of a sufficiently serious nature which
can also include incidents similar to stalking another person;
(b)
Assault, which includes intentionally inducing the fear of imminent
violence in another person; and
(c)
Public violence, which is the unlawful and intentional commission, by
a number of people acting in concert, of acts of sufficiently
serious
dimensions which are intended to violently disturb the peace or
security or invade the rights of others.
[50]
In light of what I have stated above, s 1(1)
(b)
of the Act is
not a justifiable limitation on the right to freedom of expression.
It is inconsistent with the Constitution and
must be declared
unconstitutional.
Just
and equitable relief
[51]
I have found that s 1(1)
(b)
is inconsistent with the Constitution and that it must accordingly be
declared invalid in accordance with s 172(1)
(a)
of
the Constitution. In terms of the doctrine of objective
constitutional invalidity, s 1(1)
(b)
will become invalid from the date upon which the Constitution came
into operation.
[15]
[52]
In light of the fact that the purpose of s 1(1)
(b)
of the Act has been unlawful since at least the commencement of the
Constitution, and that there are several criminal offences
that can
effectively curb criminal conduct involving threats, I come to the
conclusion that there is no reason to suspend the declaration
of
invalidity.
[53]
I am also of the view that the order of invalidity should apply
retrospectively. The effect thereof will be adequately managed
by the
fact that any person previously convicted of contravening s 1(1)
(b)
of the Act may have his or her conviction set aside on appeal or
review application.
Second
appeal: constitutional validity of section 1(2) of the
Act
.
[54]
The challenge by Ms Sonti against the constitutionality of s 1(2) of
the Act arose in the following instances. Ms Sonti is
a Member of
Parliament. At the time she was charged, she was the leader of a
community based organisation known as ‘Sikhala
Sonke’,
which provides support for the victims of the Marikana massacre.
[55]
The charge laid against Ms Sonti concerns telephone calls and text
messages she is alleged to have directed to Ms Nobuhle Zimela
(the
complainant) on 17 and 18 December 2012 near Marikana. The
complainant alleges that these telephone calls and text messages

contained threats to kill the complainant and burn her house down
with the intention of compelling her to withdraw criminal complaints

she had made against a certain Mr Anele Zonke. Ms Sonti denies all
the allegations made against her.
[56]
Ms Sonti applied for an order declaring s 1(2) of the Act
unconstitutional because it unjustifiably infringes her right to

freedom of expression and her fair trial rights namely, to remain
silent, to be presumed innocent and not to be compelled to make

self-incriminating admissions, which are entrenched in ss 35(3)
(h)
and
(j)
of the Constitution.
[57]
In light of my finding in Mr Moyo’s appeal that s 1(1)
(b)
of the Act violates the right to freedom of expression, I do not deem
it necessary to deal with that aspect in this appeal. I will

accordingly confine myself to the issue of the alleged infringement
of Ms Sonti’s fair trial rights.
[58]
Ms Sonti’s attack on s 1(2) of the Act is that the section
creates a reverse onus in proceedings brought under s 1(1)
(a)
of the Act. She avers that the effect of the reverse onus created by
this section is that an accused person must prove on a balance
of
probabilities, that he or she had a lawful reason to issue the threat
criminalised under s 1(1)
(a)
(ii),
unless he or she makes a statement ‘clearly indicating the
existence’ of a lawful reason before the prosecution
closes its
case. If no such statement is made, the threat is presumed to have
been unlawful.
[59]
Ms Sonti therefore submits that s 1(2) of the Act is unconstitutional
as it breaches the right to silence, the right not to
be compelled to
make self-incriminating admissions, and the right to be presumed
innocent. Furthermore, under its terms, an accused
person must
sacrifice the right to silence and against self-incrimination if he
or she is to be given the benefit of the presumption
of innocence. If
on the other hand, the accused wishes to exercise his or her rights
to silence and protection from self incrimination,
the accused
will attract a true onus and will not be presumed innocent.
[60]
The court a quo accepted that s 1(2) of the Act infringes the right
to be presumed innocent, to remain silent and not to incriminate

oneself. However, it held that these infringements were justified on
two bases. Firstly, that it is not possible for the State
to disprove
the existence of a lawful reason for making a threat as defined in
s 1(1)
(a)
of the Act; and secondly, that the reverse onus serves the purpose of
combating intimidation the incidence of which, the court
a quo found,
is ‘rife’ in South Africa.
[61]
The Minister contended that the provisions of s 1(2) of the Act do
not require an accused person to prove or disprove on a
balance of
probabilities, any element of the crime as contended for by the
appellants. The Minister contended further that the
provisions mainly
require the accused to make a statement indicating the lawful reason
for his or her conduct and that he or she
does not have to convince
the court as to the lawfulness of such statement. This means that no
proof on a balance of probabilities
of the lawfulness of the
statement is required, except in the event that the accused elects
not to put lawfulness in dispute by
not making a statement indicating
the existence of a lawful reason – for example, self-defence or
necessity or whatever such
reason may be – and doing so before
the close of the prosecution’s case. The Minister states that
once the statement
is placed before the court, the prosecution will
still bear the onus of proof beyond a reasonable doubt that all the
elements of
a crime exist and have been proven before any conviction
could follow. In other words, no possibility exists, so the Minister
contended,
for the conviction of the accused despite a reasonable
doubt.
[62]
In my view, the Minister’s understanding of the provisions of s
1(2) is untenable. Textually, s 1(2) casts on the accused
person the
legal burden of proving a ‘lawful reason’ for conduct
criminalised by s 1(1)
(a)
,
unless he or she makes a statement disclosing the ‘lawful
reason’ upon which they intend to rely, before the closing
of
the State’s case. Therefore, an accused person that invokes the
right to remain silent and the right not to be compelled
to
self-incriminate, will bear the onus of proving a lawful reason for
the conduct in question. In such a case it may very well
happen that
at the conclusion of the trial the court is unable to find that the
accused had shown lawful reason on a balance of
probabilities, but
may entertain a reasonable doubt as to whether the conduct was
justified by lawful reason. This will result
in a conviction despite
the existence of a reasonable doubt as to the guilt of the accused.
Also, an accused person cannot offer
a lawful reason for the conduct
in question, without admitting that conduct. It follows that in order
to avoid the reverse onus
the accused will have to abandon the right
to remain silent and the right not to be compelled to
self incriminate himself
or herself by admitting the conduct
that the prosecution has to prove, thus relieving the prosecution of
the duty to prove the
guilt of the accused beyond a reasonable doubt.
In both respects there is a clear breach of the fundamental right to
be presumed
innocent.
[63]
The court a quo correctly accepted this and correctly rejected the
Minister’s contention that s 1(2) of the Act places
a mere
‘evidentiary burden’ on an accused to indicate that he or
she has some lawful basis for conduct proved against
him or her. It
correctly found that this is at odds with the plain text of the
section, which states that ‘the onus of proving
the existence
of a lawful reason’ is placed on the accused.
[64]
Section 1(2) clearly creates a full onus on the accused, in the event
that he or she chooses to remain silent before the State’s
case
is closed. However, it bears mentioning that even the creation of an
‘evidentiary burden’ that allows for conviction
despite
reasonable doubt is nonetheless unconstitutional. It thus matters not
whether s 1(2) creates what is classified as
a ‘full onus’
or ‘an evidentiary burden’. What is important, rather, is
whether the final effect of s 1(2)
of the Act is to displace the
presumption of innocence. Therefore, whatever label one chooses to
apply to s 1(2) of the Act
that is indeed its final effect.
[65]
As I have said, the court a quo accepted, correctly, that there was
an infringement of fair trial rights. However, it characterised
the
infringement of rights as slight, because threats criminalised under
s 1(1)
(a)
(ii)
of the Act, in respect of which the reverse onus operates, will
always be inherently unlawful. The court a quo erred in this
respect.
[66]
Section 35(3) of the Constitution guarantees all accused persons the
right to a fair trial. It reads as follows:
‘
Every
accused person has a right to a fair trial, which includes the right—
…
(h)
to be presumed innocent, to remain silent, and not
to testify during the proceedings;
…
(j)
not to be compelled to give self-incriminating
evidence.’
[67]
In addition, in a trial, if at the close of the case for the
prosecution the court is of the view that there is no possibility
of
a conviction unless an accused incriminates himself or herself in a
witness box, then, pursuant to
s 174
of the
Criminal Procedure Act 51
of 1977
, the accused is constitutionally entitled to be
discharged.
[16]
This
is because the accused is presumed innocent, and the requirement that
the State prove its allegations beyond reasonable doubt
means that he
or she is entitled to be acquitted and discharged. The presumption of
innocence is, accordingly sacrosanct and underpins
the fairness of a
trial.
[68]
As I have said, s 1(2) of the Act creates the real risk of a
conviction despite the presence of a reasonable doubt. At a trial
the
evidence for the prosecution may tell one tale and evidence for the
defence may tell another. If the State succeeds in proving
two
elements of the offence namely, conduct that constitutes a threat
intended to compel an act or an omission from another, and
a court
finds it impossible to determine the existence or otherwise of a
lawful reason, then the court will necessarily have a
reasonable
doubt as to the proof of the said element. Yet s 1(2) of the Act
will demand a conviction, unless the accused admits
the conduct
upfront, and relies on a ‘lawful reason to justify it’.
[69]
The above is anathema to the long accepted rule in criminal law that
an accused person is not required to assist the State
to prove its
case by explaining incriminating facts as and when they are
presented.
[17]
This
principle was affirmed in
Dubois
v The Queen
[18]
where
the Supreme Court of Canada held that–
‘
[t]he
accused need only respond once. The Crown must present its evidence
at an open trial. The accused is entitled to test and
to attack it.
If it does not reach a certain standard, the accused is entitled to
an acquittal. If it does reach that standard,
then and
only
then
is the accused required to
respond
to or stand convicted
.’ (My
emphasis).
In
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC), Kentridge AJ, in the
context of the right to remain silent after arrest, the right not to
be compelled to make a confession,
and the right not to be a
compellable witness against oneself, stated that–
‘
These
rights, in turn, are the necessary reinforcement of Viscount Sankey’s
“golden thread” – that it is
for the prosecution to
prove the guilt of the accused beyond reasonable doubt (
Woolmington
’s
case,
supra
).
Reverse the burden of proof and all these rights are seriously
compromised and undermined.”
[19]
[70]
Where, as in this case, an accused person denies the charge in its
entirety, remaining silent while the State lays out its
evidence will
normally be an important way of protecting him or her against unfair
self-incrimination. It will also enable the
accused to provide a
full, consistent explanation for all the facts proved against him or
her, to the extent that he or she is
able to do so.
[71]
It is plain from above that s 1(2) of the Act infringes the right to
be presumed innocent, to remain silent and not to be compelled
to
give self-incriminating evidence.
Justification
of section 1(2) of the Act in terms of section 36 of the Constitution
[72]
I have found that s 1(2) of the Act limits the fair trial rights in
s 35(3)
(h)
and
(j)
of
the Constitution. The next stage of the enquiry is whether or not s
1(2) of the Act can be justified under s 36 of the Constitution.
[73]
In paras 37 to 39 I dealt in a fair amount of detail with the
applicable principles in the evaluation of the limitation of
rights
in terms of s 36 of the Constitution. Those principles are also
applicable to Ms Sonti’s appeal. I do not deem it
necessary to
repeat them.
[74]
The Minister submitted that intimidation by its nature is a threat of
unlawful action, implying physical harm on others. He
then averred
that the Act acknowledges and gives recognition to an enshrined right
in s 12(1) of the Constitution, which gives
to everyone the right to
freedom and security of the person. Accordingly s 1(2) of the Act
viewed in the context of the protection
of the rights enshrined in s
12(1) of the Constitution, acknowledges that the existence of the
lawfulness of the reasons of the
utterance would ordinarily be within
the exclusive knowledge of the utterers of the words, and that it
would be unreasonable to
expect the State to lead in anticipation
evidence on the existence of lawful reasons to utter such
intimidatory words or threats.
[75]
The nature and importance of the rights to be presumed innocent, to
remain silent and not to be compelled to make self-incriminating

admissions, cannot be over emphasised. They lie at the core of
our constitutional order and protect the individual against
the
State’s over-reach and constitute essential preconditions for
the development of individual freedom and the realisation
of the
self. Accordingly, any limitation of these rights must require
compelling justification which in this matter is, in my view,

lacking.
[76]
The Minister’s reliance on the decision of the majority in
Prince
v President, Cape Law Society
[20]
is
misplaced. In that case the Constitutional Court was faced with the
question of the constitutional validity of the prohibition
on the use
or possession of cannabis when its use or possession is inspired by
religion. The crux of the majority judgment was
that the legitimate
government’s purpose of the legislation in preventing harmful
drug use outweighed the impact on Mr Prince’s
right to freedom
of religion. In my view, the nature of the right in that case, can
hardly be compared to the type of rights we
are dealing with here,
which lie at the very core of our constitutional order.
[77]
The Minister’s contention that s 1(2) of the Act is justified
by the difficulty of the prosecution proving the absence
of lawful
reason, is untenable. In truth, this burden is slight. Proof of
conduct that falls within the provisions of s 1(1)(a)
– ie
assault, causing injury or damage, a threat to kill, assault, injure
or cause damage with intent to compel or induce
action or inaction –
will almost always constitute prima facie proof of unlawfulness. The
prima facie case will become conclusive
in the absence of evidence by
the accused that raises a reasonable doubt as to the lawfulness of
the conduct. It follows that there
is no real need for a reverse
onus.
[78]
Both the court a quo and the Minister failed in this respect to heed
the warning by the Constitutional Court in
S
v Coetzer and Others
[21]
where
Langa J held that it is not enough –
‘
[T]hat
an obligation to prove an element of an offence which falls
peculiarly within the knowledge of the accused makes it more

difficult for the prosecution to secure a conviction. The question is
whether it makes it so difficult as to justify the infringement
of
the accused’s right to be presumed innocent on the grounds of
necessity … Discharging the burden of proof is a
function
which the criminal justice system requires the prosecution to perform
in the normal course with regard to many common
law and statutory
offences. It was not claimed that if all the circumstances
surrounding the false representation are fully and
properly
investigated and presented in evidence the prosecution cannot obtain
the conviction to which it might be entitled.’
(Footnote
omitted).
[79]
The court a quo’s finding that s 1(2) was justified because
intimidation was ‘rife’ in South Africa falls
to be
rejected. The court a quo heard no evidence in that regard and it was
not entitled to draw that inference. In any event,
the court a quo’s
approach flies in the face of the warning by the Constitutional Court
that ‘(o)ne must be careful
to ensure that the alarming level
of crime is not used to justify extensive and inappropriate invasions
of individual rights’.
[22]
The
mere assertion, without more, that ‘intimidation is rife’
was accordingly not enough to justify the invasion of
the rights
embodied in s 1(2) of the Act.
[80]
The nature and extent of the limitation embodied in s 1(2) in the
form of a reverse onus, is undoubtedly egregious. It has
the
potential, where an accused person exercises his or her rights under
s 35
(h)
of
the Constitution, to create the possibility of his or her conviction
where his or her guilt is reasonably in doubt.
[81]
It has not been demonstrated that there is a rational connection
between s 1(2) of the Act, and the purpose proffered
for it,
namely relieving the prosecution of an impossible burden. I have
already found that the burden is not impossible and can
be discharged
by leading evidence of the context in which the alleged threat was
made. Furthermore, this will, in my view, be a
less restrictive means
to achieve the section’s aforesaid purpose.
Just
and equitable relief
[82]
It is plain from what I have stated above, that s 1(2) of the Act is
incompatible with the provisions of s 35(3)
(h)
and
(j)
of the Constitution and must be declared invalid and
unconstitutional. There is, in my view, no need to suspend the
declaration
of invalidity because:
(a)
The effect of invalidating s 1(2) of the Act will be that the State
will henceforth be required to prove all the elements of
the offences
created by s 1(1)
(a)
of the Act;
(b)
The situation of people convicted of contravening s 1(1)
(a)
of the Act and who would not have been convicted but for the reverse
onus in s 1(2), can be dealt with in terms of the ordinary
appeals
processes.
[83]
In the light of the reasons set out above I would have upheld both
appeals and made an order declaring both impugned sections

unconstitutional and invalid and referring them to the Constitutional
Court in terms of s 172(2)(
a
) of the Constitution.
______________
B H
Mbha
Judge
of Appeal
Wallis
JA (Maya P and Makgoka AJA concurring)
[84]
I have had the privilege of reading the careful judgment of my
colleague Mbha JA (the main judgment). Unfortunately, I find
myself
unable to agree with his conclusion in Mr Moyo’s appeal that
s 1(1)
(b)
of
the Intimidation Act 72 of 1982 (the Act) infringes s 16(1) of
the Constitution and falls to be struck down. In my view
it is
capable of being construed in a way that is compatible with the
Constitution and serves the valuable purpose of providing
the
protection of the criminal law against intimidatory conduct that is
abhorrent in any democratic society. I have in mind sexual
harassment
falling short of any of the crimes in the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, stalking,
trolling attacks on social media, cyber attacks and the like. As the
author of the relevant section in a leading textbook
[23]
notes:
‘the problem of intimidation in society, and the need for the
law to intervene to prevent this from occurring, is generally

acknowledged, even by critics of the Act.’
[85]
If the section is struck down it will leave
our police without any means to protect the people of this country
against such conduct.
It will also rob them of a weapon to be used
against anyone making threats having a broader impact, such as a
threat to release
a poisonous substance into a city’s water
supply, or a hoax warning that an explosive device has been placed in
a football
stadium or shopping centre. Accordingly, if I shared my
colleague’s view that the section impermissibly infringed on
forms
of expression protected by s 16(1) of the Constitution, I
would suspend any order of invalidity, subject to conditions that

would prevent the section being used to prosecute people for
constitutionally protected expression.
[86]
My view can be shortly summarised. It is
that the appellants’ submissions on the meaning of the section
ignore fundamental
rules in regard to the constitutional approach to
the interpretation of statutes and other well-established principles
of statutory
interpretation, especially as applicable to provisions
imposing criminal liability. Contrary to those submissions, I hold
that,
properly interpreted, s 1(1)
(b)
requires proof of both
mens rea
and
unlawfulness; is only concerned with intimidatory conduct that
induces or would induce fear properly so called in a reasonable

person; and does not criminalise conduct that is otherwise lawful in
terms of the Constitution and other legislation.
[87]
On Ms Sonti’s appeal I agree with my
colleague that s 1(2) of the Act is unconstitutional, but do so
for materially different
reasons from his. I also take a different
view of the appropriateness of the procedure that has resulted in the
prosecution of
these two cases being delayed for nearly six years in
the case of Mr Moyo and nearly five years in the case of Ms Sonti. I
will
deal with my reasons for holding that view in the closing
section of this judgment. However, because matters have proceeded
this
far and dismissing the appeals on this narrow ground might be
thought to leave the judgment of the high court unscathed and
authoritative,
I agree that it is in the interests of justice for us
to adjudicate the case on its merits. I also agree with my
colleague’s
criticism of the reasoning of the high court. For
ease of comparison between the two judgments I will follow the order
adopted
by my colleague and deal first with Mr Moyo’s appeal
and s 1(1)
(b)
of
the Act, then with Ms Sonti’s appeal and s 1(2), and
lastly with the procedural history of these two cases.
Section
1(1)
(b)
Interpreting
the section
[88]
My
starting point is the proper interpretation of s 1(1)
(b)
and
the injunction in s 39(2) of the Constitution when construing
legislation to promote the spirit, purport and objects of
the Bill of
Rights. Wherever possible, without straining the language of a
statutory provision, it must be given an interpretation
that is
within constitutional bounds in preference to one that involves an
infringement of constitutionally protected rights.
[24]
The
task must also be approached in the light of the summary of the
proper approach to interpretation in
Endumeni
,
[25]
a
judgment that has been repeatedly cited and followed in this court
and in the Constitutional Court.
[26]
The
words of the section are the starting point, but they are to be
considered in the light of their context, the apparent purpose
of the
provision and any relevant background material. A sensible meaning is
to be preferred to one that leads to impractical results.
[89]
Two
principles particularly relevant to the interpretation of criminal
statutes need mention. Firstly, when dealing with a provision
that
creates a criminal offence it is to be construed in favour of the
liberty of the subject.
[27]
If
there is more than one meaning available, the meaning that is least
onerous should be adopted. Secondly, it is presumed that
the
commission of statutory offences requires intention (
mens
rea
).
Clear wording is required to exclude the need for intention
because:
[28]
‘
In
view of such general maxims as
nulla
poena sine culpa
and
actus
non facit reum nisi mens sit rea
, the
Legislature, in the absence of clear and convincing indications to
the contrary in the enactment in question, is presumed
to have
intended that violations of statutory prohibitions would not be
punishable in the absence of
mens
rea
in some degree or other.’
When
the penalties provided for the offence are heavy and the potential
inroads into the rights of the citizen substantial that
reinforces
the need for the prosecution to establish
dolus
.
[29]
[90]
Lastly,
it is a basic principle of interpretation that internal inconsistency
in a statute is to be avoided. So far as possible
it is to be
construed as a coherent whole. The need for internal consistency
assumes particular importance when dealing with a
crime such as
intimidation that can manifest itself in slightly different ways
involving the same central concepts. Otherwise differing
standards
for imposing criminal liability would be applicable to the same
crime.
[30]
This
was the effect of the appellants’ argument, but it is
inconsistent with principle.
The
constitutional challenge
[91]
The
appellants did not, as I understood it, challenge the notion that
criminalising intimidatory behaviour is legitimate in a democratic

society. Stalking was put as an example to counsel and he accepted
that it is covered by the section and ought properly to be
criminalised. Nonetheless he argued that the section should be struck
down as over-broad and having the effect of criminalising
‘a
wide range of expression protected by section 16(1) of the
Constitution’ and a ‘vast quantity of everyday
political
speech’. It was submitted that the language of the section
‘clearly evinced an intention to create no fault
liability’,
that is, that criminal intention was not required. The offence
created by the section was deconstructed into
two separate offences,
the one subject to considerations of reasonableness and the other
not. In summary it was said that the section
‘obliterates the
distinction between “true threats” and “political
hyperbole”’.
[31]
I
turn to consider whether the language of the section supports these
arguments.
The
offence of intimidation
[92]
The Act creates thee offence of
intimidation, but provides that it may manifest itself in different
ways. That is apparent from
s 1(1), which reads:
‘
1.
Prohibition of and penalties for certain forms of intimidation.
—
(1)
Any person who—
(
a
)
without lawful reason and with intent to compel or induce any person
or persons of a particular nature, class or kind or persons
in
general to do or to abstain from doing any act or to assume or to
abandon a particular standpoint—
(i)
assaults, injures or causes damage to any person; or
(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—
(i)
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 other person …’
[93]
Intimidation
is a single offence. It may occur in various ways, but that does not
detract from the fact that all of its manifestations,
under both
ss 1(1)
(a)
and
(b)
,
deal with the same thing, namely, intimidation. They do not, as
suggested by the appellants, give rise to several separate
offences.
[32]
Whether
under sub-section
(a)
or
(b)
the
offence is the same and attracts the same penalties.
[94]
That leads to the next point, which is that
the nature of the offence is derived from its name, in the same way
as the general nature
of theft or murder are derived from their
names. The offence is directed at behaviour constituting intimidation
and the statutory
purpose should be understood as having that goal. A
construction that captures conduct that is not intimidatory in
character is
incorrect as it disregards the very essence of the
offence. In argument we were given some examples of speech and
conduct, such
as colourful political rhetoric, that lacked the
essential element of being intimidatory. Far from demonstrating that
the section
was overbroad, they demonstrated that the interpretation
being urged by the appellants was overly literal and inconsistent
with
the principles set out in paras 89 to 91.
[95]
Intimidation is committed by acts or
conduct, or through the spoken or published word. I refer to these
compendiously as ‘intimidatory
acts’. The proper
interpretation of s 1(1) requires that the offence retain the
same character in each of these manifestations,
that is, it must in
all cases be intimidatory. Some intimidatory acts, in the form of
threats to person, property or livelihood,
are captured in s 1(1)
(a)
,
against which no constitutional complaint is levelled. Ms Sonti is
charged under sub-section (ii) of that section with threatening
to
kill someone and burn their house down if they did not withdraw
criminal charges against a third party. I hasten to point out
that
she denies making any such threat. Not all intimidatory acts take
this simple form of threats to life, limb or property.
Section 1(1)
(b)
addresses more complex cases. Threats of violence directed at the
general public are dealt with in s 1(1A) of the Act, which
was
introduced at the same time as the amendments to s 1(1)
(b)
.
There is plainly some overlap between these two sections, but that
need not concern us here.
[96]
Intimidatory
acts may manifest themselves in various ways. Seeking to persuade a
person to vote for a particular political party,
or in favour of
strike action, by standing at the entrance to the polling station,
catching their eye and drawing one’s hand
across one’s
throat, simulating a knife cutting their throat, is an example of
intimidation by act or conduct. A bank manager
who threatened to
withdraw a customer’s overdraft if they did not vote for a
particular political party, or against a strike
at the bank, is an
example of intimidation by utterance or, if the threat is in writing,
publication.
[33]
Respondents’
counsel proffered the example of someone in dispute with their
neighbour sitting outside the neighbour’s
house night after
night, ostentatiously loading and unloading a firearm. The writing of
anonymous threatening letters of the ‘If
you don’t
co-operate, I know where you live and where your children go to
school’ variety is another obvious example.
[97]
Examples of intimidatory conduct that are
particularly apposite to current issues in the world are stalking and
harassment. These
are specific criminal offences in many parts of the
world and stalking and harassment go hand in hand with intimidation
and conduct
directed at inducing fear in the victim. A good example
is the Crimes (Domestic and Personal Violence) Act 80 of 2007 of the
state
of New South Wales in Australia, which provides in s 13(1)
that:
‘
A
person who stalks or intimidates another person with the intention of
causing the other person to fear physical or mental harm
is guilty of
an offence.’
Fear
of physical or mental harm includes fear of physical or mental harm
to another person with whom the victim has a domestic
relationship.
[34]
The
intention to cause fear of physical or mental harm is established if
the accused knows that the conduct in question is likely
to cause
fear in the other person.
[98]
That
statute defines both ‘intimidation’ and ‘stalking’.
[35]
The
former is constituted by:
‘
(a)
conduct amounting to harassment or molestation of the person, or
(b)
an approach made to the person by any means (including by telephone,
telephone text messaging, e-mailing and other technologically

assisted means) that causes the person to fear for his or her safety,
or
(c)
any conduct that causes a reasonable apprehension of injury to a
person or to a person with whom he or she has a domestic
relationship,
or of violence or damage to any person or property.’
and
the latter is defined as including:
‘
the
following of a person about or the watching or frequenting of the
vicinity of, or an approach to, a person's place of residence,

business or work or any place that a person frequents for the
purposes of any social or leisure activity.’
[99]
There
is a similar offence in the state of Victoria in terms of s 21A
of the Crimes Act 1958.
[36]
The
basis of the offence is that the conduct in question could reasonably
be expected to cause physical or mental harm to the victim
or to
arouse apprehension or fear in the victim for their own safety or
that of any other person. The intention to bring about
that result is
established by showing that the accused knew that this course of
conduct (which may be physical or verbal) would
be likely to cause
such harm or arouse that apprehension or fear, or ought to have
understood that it would be likely to have that
result.
[100]
My
researches have shown that legislation directed at harassment and
stalking has been passed in India,
[37]
Singapore,
[38]
New
Zealand,
[39]
Scotland
[40]
and
the rest of the United Kingdom.
[41]
There
is specific legislation on stalking in 21 member states of the
European Union and Article 34 of the Council of Europe Convention
on
Preventing and Combating Violence against Women and Domestic Violence
obligates all signatory states to enact legislation criminalising

stalking. Seven states have not yet introduced legislation. Only
Denmark has entered a reservation against this provision, preferring

non-criminal remedies.
[42]
There
is similar legislation in all states in the United States of
America
[43]
and
in at least some provinces in Canada.
[101]
A common thread running through all this
legislation is that conduct that operates to induce fear, or that is
directed at inducing
fear, in the victim is rendered criminal. It
appears to be unusual to specify the subject of that fear, unlike the
Act, which refers
to fear in regard to personal safety, property or
the security of a person’s livelihood. However expressed, it is
the intimidatory
nature of the conduct that gives rise to criminal
liability. South Africa provides civil remedies against stalking and
harassment
by way of protection orders under the Protection from
Harassment Act 17 of 2011, but only the Act, and specifically
s 1(1)
(b)
,
imposes criminal penalties.
[102]
The
examples mentioned thus far involve conduct by individuals directed
at other individuals, but intimidation may be aimed more
generally at
the population at large or specific sections thereof.
[44]
Smearing
pig’s blood on the entrance to a mosque or synagogue,
accompanied by anti-Islamic or anti-Semitic slogans, provides
an
example. So does the example postulated by Justice Holmes of a person
falsely shouting ‘Fire’ in a crowded theatre.
[45]
Another
is someone sending a threat to the media that, unless a prisoner is
freed from gaol, the water supply of a city will be
poisoned, an
explosive device triggered, or fresh food, medicine or baby food in
shops contaminated. Where such threats are made
to obtain money they
will usually constitute the offence of extortion, but when they are
pursuant to social demands, such as the
release of prisoners, or the
closure of clinics providing reproductive help advice, they would not
ordinarily do so. Nor would
threats made by way of a hoax intended to
induce fear and panic, such as a bomb threat at a sports stadium or a
shopping centre,
attract criminal consequences apart from the
Act.
[46]
[103]
All
of these examples fall within the ambit of s 1(1)
(b).
The
suggestion in argument that they are all encompassed by the crimes of
crimen
injuria
,
assault and public violence is incorrect. At points there may be some
overlap between them and intimidation, but none of the examples
in
paras 97 to 103 are covered by those common law crimes. I should
mention
crimen
injuria
in particular because of the suggestion that it encompasses stalking.
In the absence of any suggestion of sexual impropriety, the
only case
I have found of the type commonly regarded as stalking resulting in a
conviction of
crimen
injuria
,
is a 1923 decision in which an older man pursued a young woman around
a public library.
[47]
The
court held that it was a marginal case and in the similar case of
Ferreira
,
[48]
where
the accused on five separate occasions followed women who were
unknown to him, whilst making innocuous remarks, the convictions
were
set aside on appeal.
[104]
The
discussion of
crimen
injuria
in
the textbooks
[49]
reveals
it to be a crime of uncertain ambit, dependent on perceived
infringements of the vague concept of
dignitas.
Its
own vagueness may render it liable to constitutional challenge and it
is not concerned with inducing fear but with infringements
of
personality rights. It cannot be said with any certainty that it
encompasses stalking in all its many manifestations and it
is
preferable that this be dealt with by statute. The need for statutory
intervention to deal with intimidation is apparent from
the
background to the introduction of legislation dealing with harassment
and stalking in other countries. It was generated by
the inadequacy
of common law crimes to deal with intimidatory behaviour causing
fear. As already mentioned, there is no challenge
to the
appropriateness of criminalising such behaviour.
[105]
I
have gone into this in a little detail in order to illustrate the
multifarious ways in which intimidatory conduct can manifest
itself
and the necessity for appropriately broad language to be used in a
statute criminalising such behaviour in order to encompass
the full
range of conduct that is intimidatory. Such language needs to be
sensibly and sensitively construed bearing in mind its
potential to
limit constitutional rights, but neither its breadth nor its complex
drafting is a reason to contend that it is constitutionally

defective. It is only if, when properly construed, the provision
infringes the protection of freedom of expression in s 16
of the
Constitution that the complaint of over-breadth may be justified.
There is no complaint in the present case of the section
being
invalid on the ground of being impermissibly vague.
[50]
The
grounds for the constitutional challenge
[106]
Three reasons were proffered in support of
the proposition that s 1(1)
(b)
infringes s 16 of the
Constitution. First, it was said that it criminalised any expression
that induced subjective feelings
of fear in the persons at whom such
expressive actions or speech were directed, irrespective of whether
that fear was reasonable.
Second, it was submitted that the section
created ‘no fault’ liability. Third, it was submitted
that in any event the
section criminalised political hyperbole;
emotionally charged rhetoric in the context of both political and
industrial action and
legitimate public and social aims, such as, the
advocacy of radical land redistribution, consumer boycotts; and
campaigns for the
removal of politicians, however errant, from
office. I will deal with each in turn.
Subjective
fear
[107]
The first submission misreads the section.
An intimidatory act is, or intimidatory acts are, criminal if ‘it
has or they have’
the effect of inducing fear, or ‘that
it might reasonably be expected that the natural and probable
consequence would be’
that it or they would induce fear in a
person perceiving that behaviour. The language covers two general
situations. The first
is where someone complains that intimidatory
conduct induced fear in them personally. The second is where the
threat is not directed
at individuals, but at the public generally or
a section thereof, such as the general threats described in para 103.
In the latter
case the person who makes the threat can be prosecuted
without it being necessary for any one person among the general body
of
the public, to say they experienced fear as a result of the
threat. It suffices for the prosecution to establish that this would

reasonably have been expected as the natural and probable consequence
of the threat. Take the case of a threat to detonate a bomb

communicated to a television or radio station, but not broadcast
publicly, so as to afford the police time to find and arrest the

perpetrator. The threat may not have induced fear in the staff of the
station because they trusted the police to catch the perpetrator.
In
the absence of the second case it would not be possible to arrest or
prosecute the perpetrator unless the threat was broadcast
and induced
actual fear in some citizens. The ‘reasonable expectation’
relates to that latter situation, where it can
reasonably be expected
that if the threat had reached its intended audience it would have
induced fear.
[108]
The
appellants argue that, in a case where fear is induced in an
individual, all that is required for a conviction is subjective
fear
on the part of the complainant,
[51]
while
in what I have called the second case the fear needs to be
reasonable. I do not agree. The section requires either that fear
be
induced, or that it might reasonably be expected to be induced as the
natural and probable consequence of the intimidatory act.
Appellants
accepted that the latter case postulates an objective test of
reasonableness. Fear only qualifies if it would reasonably
be
expected to arise. This is reinforced by the requirement that the
fear be expected as the natural and probable consequence of
the
intimidatory act. Subjective fear that might be induced because some
people are of a nervous disposition or a ‘timorous
faint-heart
always in trepidation lest he or others suffer some injury’,
[52]
would
not qualify. Why should the position be any different when the
nervous person or timorous faint-heart comes forward to say
that the
intimidatory act induced fear in them? I can think of no good reason
for differentiating between the two situations and
none is evident
from the language of the section. It introduces inconsistency without
reason.
[109]
That
reasonableness is the yardstick by which to measure the existence of
genuine fear was the approach of Leach J in
Holbrook
.
[53]
The
appellant, a young man under the influence of liquor went for a swim
at night at the flat where he lived. Regarding his neighbour’s

cat as a nuisance he threw it into the pool. A row ensued with the
cat owner who told him that she would phone the agent and have
him
evicted. She ignored his pleas for her to reconsider and the row
escalated to the point where he said ‘I’ll kill
you, you
bitch.’ She ignored this and went to her own room, where she
put the cat down, armed herself with a revolver and
went back to
confront Holbrook, not to protect herself, but to induce him to stop
pleading with her not to have him evicted. Leach
J held that
Holbrook’s conduct did not fall within the section and was no
more than verbal abuse uttered under the influence
of liquor. It was
incapable of inducing fear in a reasonable person and in fact had not
reasonably induced fear in the complainant.
[110]
The appellants submitted that the use of
the word ‘or’ between ‘it has or they have the
effect’ and ‘it
might reasonably be expected’
justified an interpretation that the former dealt with subjective
fear and the latter with
reasonable fear. That was a slender reed on
which to support so far-reaching a conclusion. Grammatically ‘or’
is the
natural way in which to introduce a provision dealing with
general rather than specific threats as explained earlier. To leap
from
there to the contention that its use clearly distinguished
between two situations, one in which actual fear, whether reasonable

or not, was induced, and another in which reasonable fears might
reasonably be expected to be induced, is fanciful. No reason was

advanced for initially creating an offence based on inducing
subjective and potentially unreasonable fears and, in the next breath

in the same section, restricting the alternative manifestation of the
same crime to reasonable fears. That alone is improbable,
but to
suggest that it was achieved by using the common conjunction ‘or’
to separate the two situations was perverse.
[111]
Creating a crime that depended on fear
being induced in the mind of the victim gave rise to questions of
interpretation. The fear
must obviously be genuine. That much is
common cause. Would any subjective, albeit fanciful, fear suffice?
Even without the second
part of the section the answer must surely be
‘No’. Only a fear that was reasonable qualified. Any
other answer would
create the possibility of prosecutorial
manipulation of the charge. Take the case of a speaker at a political
rally saying: ‘The
land is ours. Whites must give it back or we
will take it.’ A prosecutor, concerned that this piece of
political rhetoric
would not reasonably be expected to induce fear,
could seek out an individual who claimed to have seen the speech on
the television
news and feared for their property as a result. On the
appellants’ argument the speaker could be convicted because of
that
person’s subjective fear, even though a conviction could
not be obtained on the ground of a reasonable expectation that fear

would be induced by the speech. That is not a sensible construction
of the section. This possibility alone points strongly in favour
of
an objective construction requiring proof that the fear induced was
reasonable in both circumstances.
[112]
A closer examination of the second
situation for which the section provides reinforces this conclusion.
Here criminal liability
arises if it can ‘reasonably’ be
expected that the natural and probable consequence would be to induce
fear. It can
only be reasonably expected that this will occur if the
fear is reasonable. One does not reasonably expect unreasonable fear.
That
is reinforced by the requirement that this be the natural and
probable consequence of the act, conduct, utterance or publication
in
question. The connection required is direct and only a reasonable
inference that fear will be induced suffices. The appellants
accepted
that this related to reasonable fears.
[113]
I have already made the point that the
section creates only one offence namely intimidation. The appellants’
argument requires
that the section be read as saying that criminal
liability attaches if a person subjectively, but unreasonably, fears
certain consequences
and also where it is reasonable to infer as the
natural and probable consequence of the accused’s actions that
reasonable
fear would be induced. That gives rise to an internal
contradiction, where the creation of sometimes reasonable, and
sometimes
unreasonable, fears would attract criminal liability. Such
an interpretation must be rejected in accordance with basic
principles.
The proper interpretation of the section requires that
the fear that is induced is fear that would be induced in a
reasonable person
by the actions in question.
[114]
This
conclusion is reinforced by the constitutional protection afforded
freedom of expression. Ours is a society where debate is
perforce
vigorous, passions run high and language and expressive acts may be
blunt to the point of abuse.
[54]
The
appellants in argument cited the decision in this Court in
Hotz
[55]
as
an illustration of this and of how broad the parameters of
constitutionally protected expression are.
[56]
That
being so there is no reason to hold, in the context of the Act and
its prohibition on intimidatory conduct inducing fear, that
a
subjective, but unreasonable, fear suffices, making criminal
liability dependent on the vagaries of the complainant’s
personal predisposition. A conviction of intimidation should not
depend upon the subjective feelings of the more timorous individuals

among us and s 1(1)
(b)
should not be construed in this way. Properly construed both
manifestations of the crime of intimidation provided in this section

require the fear induced by, or reasonably expected as the natural
and probable consequence of, the intimidatory act, to be reasonable

fear, not subjective fear.
No
intention to induce fear
[115]
This argument built upon the proposition
that the fear induced by an intimidatory act did not have to be
reasonably entertained.
It was then submitted that the section
catches expressive acts that are not intended to create fear. It was
difficult to ascertain
the scope of this argument, but in the heads
of argument appellants submitted that the section leaves no room for
any
mens rea
requirement
and that it clearly evinced an intention to create no fault
liability. I will deal with it on that footing.
[116]
We were not referred to any of the
authorities cited in para 90 dealing with the requirement of
intention (
mens rea
)
in statutory offences. The appellants misstated the correct approach.
Their heads of argument said that courts read down penal
statutes
where possible to require some sort of fault. That waters down the
proper approach beyond recognition. The correct approach
is that
mens
rea
is presumed to be required in the
absence of clear and convincing indications to the contrary in the
enactment in question. That
is all the more the case where the
statutory offence is one attracting substantial potential penalties.
[117]
There is nothing in the section to suggest
that
mens rea
is
not required. The only argument presented to us was that where the
charge was based on what might reasonably be expected as the
natural
and probable consequence of an intimidatory act, absolute liability
was intended because actual fear does not have to be
induced in a
specific person. But that misunderstands this requirement. The
requisite inference can only be drawn if a specific
group of people
within the population or the population at large can be identified as
the target of the intimidatory act. The trial
court must be satisfied
on reasonable grounds that the natural and probable consequence of
the intimidatory act would be to induce
fear in members of that
group. In order for there to be a conviction, the court would have to
be satisfied beyond a reasonable
doubt that, if members of that group
had perceived the intimidatory act, they would in fact as a result
have feared for their personal
safety, or that of their property or
livelihood. So it is incorrect to say that actual fear is not
required and this is a case
of no fault liability without the need to
prove
mens rea
.
It must be remembered that
mens rea
has to do with the state of mind of the accused, not the consequences
of the accused’s actions. An intention to induce a
state of
fear is entirely compatible with a failure to achieve that purpose,
although that would raise the question whether a conviction
of
attempt, rather than intimidation, would be the proper verdict.
[118]
The
argument proceeded on the basis that no
mens
rea
of any type was required, so we have not had the benefit of argument
on whether
dolus
or
culpa
would be required. The serious nature of the offence and the
potential severity of the sentences that can be imposed point
strongly
in the direction of it being
dolus
,
an intention to induce fear or an anticipation that fear would be
produced and continuing reckless of whether it was. That is

reinforced by the potential effect on freedom of expression. The only
factor pointing away from that conclusion is the use of language
that
is frequently encountered when dealing with
culpa
,
that is, the foresight of the reasonable person, rather than the
subjective foresight and reckless continuation with the conduct
in
question that may amount to
dolus
eventualis
.
[57]
[119]
This difficult question need not be
resolved in the present case. It suffices to say that the offence is
not one of strict liability.
Intention, either in the form of
dolus
or
culpa
,
is a requirement for conviction. Choosing between the two may raise
constitutional issues that were not ventilated before us and
it is
preferable to go no further than saying that intention (
mens
rea
) is a necessary ingredient of the
offence of intimidation.
The
section criminalises conduct protected by s 16(1) of the
Constitution
[120]
Section 16(1) of the Constitution
guarantees the right of freedom of expression, including in
particular the freedom to receive
or impart information or ideas.
That is subject to the qualification in s 16(2) that this
freedom does not extend to propaganda
for war; incitement of imminent
violence; or advocacy of hatred based on race, ethnicity, gender or
religion, and that constitutes
incitement to cause harm. I need not
emphasise the importance of this right in our democracy. The
Constitutional Court has repeatedly
asserted it in ringing terms. The
question is whether the provisions of s 1(1)
(b)
infringe that right. That is the
primary issue. A justification analysis is only reached if the answer
to that question is in the
affirmative.
[121]
The injunction in s 39(2) of the
Constitution is that we should interpret the section in accordance
with the spirit, purport
and objects of the Bill of Rights. The
jurisprudence of the Constitutional Court says that we must, where
the language of the statute
fairly permits, choose a constitutional
rather than an unconstitutional meaning. Bearing that in mind, the
short answer to the
appellants’ contention is that by
definition constitutionally protected expression lacks the necessary
quality of being intimidatory
and is lawful. It is lawful and
protected by the supreme law. It is not conduct directed at inducing
fear in any of the respects
referred to in the section. Neither the
intention that I hold is necessary in order to commit the offence,
nor the intimidatory
purpose that is likewise in my view a
requirement, is present. Let me expand on this.
[122]
In
common parlance the concept of ‘intimidation’ conveys
various shades of meaning. A child may find their teacher
intimidating and a university student may regard an examination as
intimidating. Most junior advocates find their initial encounters

with judges intimidating. Some people are intimidating because of
their position, reputation, fame, or the fact that they hold
high
office or have achieved great things. But none of these instances is
intimidation within the meaning of the section. It is
intimidation
only in its most general sense. That is made clear by the requirement
that the offence is only committed when fear
for physical safety, the
safety of property or the security of livelihood is induced or might
reasonably be expected to be induced.
The understanding of
‘intimidate’ that informs the section is ‘to
discourage, restrain or silence illegally or
unscrupulously; as by
threats or blackmail’.
[58]
Intimidation
is:
‘
the
action of intimidating someone, now
esp
in
order to interfere with the free exercise of political or social
rights; the fact or condition of being intimidated.’
[59]
[123]
The appellants’ argument attributed
to the concept of fear the meaning of a sense of worry, anxiety,
nervousness, concern
or apprehension, however, modest or restricted.
Again I do not regard that as justified either by the language of the
section or
its context and purpose. The fear with which the section
is concerned is a real belief that the individual concerned will
suffer
imminent harm in consequence of the intimidatory act.
[124]
All human beings suffer from daily anxiety
or concern about the state of the world, what Shakespeare referred to
as ‘the slings
and arrows of outrageous fortune’ and its
‘sea of troubles’, but, to construe a statutory provision
dealing with
intimidation inducing fear for life, limb and property
on the basis that it is concerned with those anxieties, rather than
belief
that danger and harm is imminent is not in my view
appropriate. Were the criminal standard that low, I would, in our
constitutional
disposition, regard it as overbroad. That brings me
back to the basic principles of interpretation that we are enjoined
to apply
in this case namely, a reasonable interpretation consistent
with constitutional norms and preferring a constitutionally compliant

construction to one that is non-compliant.
[125]
Turning to the various instances advanced
by the appellants in support of their argument, they started with the
example of a consumer
boycott, first raised in the parliamentary
debate when the Act was introduced in 1982. The section did not then
contain section
1(1)
(b)
.
Mr A S K Pitman MP claimed that it criminalised any form of consumer
boycott. The response was that this ignored the context of
the Bill
as a whole, which required an unlawful purpose and a very specific
intention ‘with a view to the aims in this Bill’,
that
is, intimidation. A consumer boycott is generally speaking – I
leave open the possibility of it being invoked for illegitimate

reasons, such as xenophobic attacks on refugees – an entirely
legitimate form of protest in pursuit of legitimate ends. It
is not
intimidatory, merely because it seeks to impose some level of
coercion on the target of the boycott to alter their behaviour
in
some way, and it is not conducted with the intent to intimidate. It
is trite that the field of labour relations involves the
exercise of
coercive power, especially by employers over employees, but also by
trades unions against employers. Much commercial
activity in society
may have the same effect. Yet even the most extreme submissions did
not suggest that the section encompassed
these activities.
[126]
Reference
was made to three cases in which the section has come before the
courts where comments were made about its apparent breadth.
The first
was
Holbrook
dealt
with in para 110, but it does not support the appellants. Contrary to
the submission it held that the fear induced by intimidatory
acts
needed to be reasonable. It rejected an unduly literal approach as
bringing about absurd results. We were referred to a passage
where
Leach J referred to the tortuous language of the section. But obscure
or complex or even meaningless language is not a ground
of
constitutional invalidity.
[60]
The
remedy is a rigorous and correct approach to its interpretation. When
that comes from a court of binding authority it will operate
as a
salutary deterrent to prosecutions advanced on an insubstantial
basis.
[127]
Motshari
[61]
was
another case where the prosecution arose in circumstances far removed
from the purposes of the Act. It was a domestic dispute
where the
accused discovered on his return from serving a prison sentence that
certain furniture in the home had been damaged and
other furniture
repossessed, for which he blamed his partner. In ranting at her he
threatened to kill her.
[62]
Kgomo
J, after analysing the history of the Act held that its provisions
did not apply to that situation.
[63]
As
had occurred in
Holbrook
the
judge adopted a sensible approach to the scope and ambit of the
section and correctly held that it was inapplicable to the type
of
domestic dispute with which he was concerned.
[128]
The
judgment in
Cele
[64]
appears
to be the source of the idea that the section creates several
different offences. That led the court to conclude that on
its
literal meaning no intention to induce fear was required to commit
the offence, and that it was irrelevant whether the fear,
giving rise
to the charge, was reasonable.
[65]
For
the reasons set out above both propositions are incorrect. In
fairness to the court, it went on to hold that a restrictive
interpretation was called for and that intention to commit one of the
acts specified in the section was a requirement. I agree.
The case
arose out of an industrial dispute where, in the course of a heated
row, the accused had said to the complainants, their
superiors
employed at the prison, that ‘We will crucify you.’ The
court acquitted the three appellants on the ground
that this was not
intended literally and that it could not reasonably be construed as
conveying that physical harm to life, limb,
or property was intended.
[129]
In all three of these cases the courts
acquitted the appellants on the basis of elements of the same kind of
principled, sensible,
constitutionally compliant interpretation of
s 1(1)
(b)
as in my view should be given to the section. Prosecutions under the
Act should not have been pursued in any of them, but in each
case
sense prevailed when the matter came before the high court. The
existence of occasional foolish prosecutions is not, however,
a
reason for holding the section to be unconstitutional.
[130]
I
venture to suggest that the same would have occurred if any of the
examples of the offence postulated in an academic article cited
in
these cases
[66]
had
ever seen the light of day in a court. The first of these was that of
a policeman monitoring a picket by singing and dancing
workers. The
postulate was that the policeman might unreasonably fear for the
safety of passers-by and try to break up the picket,
or call for
reinforcements, or make a report to a superior officer. The example
fails at every level. Unreasonable fear does not
justify a conviction
and it was so held in
Holbrook
.
The policeman’s response to the picket, which was only a
relevant consideration when s 1(1)
(b)
(ii)
was part of the section, which it no longer is, would not have been
induced by fear, but by the obligation to perform police
duties and
safeguard the public. Lastly, the picketers were not intending to
induce fear for the safety of the passers-by, so they
could not, as
the authors suggest, be convicted of an offence they were unaware
they were committing. That is why
mens
rea
is
a requirement of the offence. Lastly, in our constitutional
dispensation, where there is statutory protection for picketing
activities under the Labour Relations Act 66 of 1995 (the LRA), the
example has ceased to have any relevance. One cannot construe
as
unlawful, conduct that is specifically sanctioned by law.
[131]
The other example given by the authors was that of
a motorist seeing a graffiti artist about to deface a wall and,
fearing damage
to property, hooting to alert the owner of the
property to what was happening. It is unnecessary to spend much time
on it. The
conduct by the graffiti artist is not intimidatory or
intended to be intimidatory. Like
Holbrook
and
Motshari
it is a case to which the Act does not
apply.
[132]
I
am aware that in
Holbrook
,
in the light of submissions made to the court that the section was
overbroad with reference to the academic article just discussed,
the
court referred its judgment to the Law Commission for consideration.
It expressed a general concern about the potential scope
of the
section, but, understandably, without undertaking the detailed
analysis undertaken here. Those general concerns were echoed
in
Motshari
and
Cele,
as well as
Gabatlhole
,
[67]
none
of which contains a detailed exercise interpreting the section as a
whole as this court has been compelled to do.
Gabatlhole
was a case where a burglar apprehended by the householder repeatedly
said that he would return with his ‘bandiet tjommies’

(criminal friends). The conviction was set aside on technical grounds
that do not affect the present case. However, echoing what
had been
said in
Motshari
the
court expressed doubt whether the case fell within the Act.
[133]
In
Gabatlhole
Majiedt
J drew attention to the fact that s 1(1)
(a)
refers
to intimidatory acts performed ‘without lawful reason’
and suggested that the same requirement of absence of
a lawful reason
for conduct is also required by s 1(1)
(b)
.
This is in accordance with basic principles of criminal liability
that if the accused has a lawful reason for acting there can
be no
criminal liability. If so it reinforces the conclusion that
constitutionally protected conduct and conduct authorised by
law
cannot be intimidatory for the purposes of the crime constituted
under s 1(1) of the Act. In the absence of unlawfulness
there
can be no criminal liability. This point is well made by Professor
Snyman
[68]
when saying:
‘
The
mere fact that there is an act which complies with the definitional
elements does not mean that the person who performs the
act is liable
for the particular crime. Satisfying the definitional elements is not
the only general requirement for the particular
crime. The next step
in the determination of liability is to enquire whether the act which
complies with the definitional element
is also unlawful.’
[134]
There
is no
numerus
clausus
(closed
number) of grounds of justification for conduct that would otherwise
be unlawful.
[69]
The
fact that s 1(1)
(b)
does
not contain the express provision in s 1(1)
(a)
that
the conduct criminalised must have been undertaken without lawful
reason, does not mean that if there was a lawful reason for
such
conduct that would not protect the perpetrator from criminal
liability. Accordingly if the conduct said to constitute intimidation

is objectively lawful for some reason, for example, it is conduct
sanctioned by other legislation, such as the LRA or, to give
another
example close to the issues raised by the appellants, participation
in a gathering or demonstration authorised in terms
of the Regulation
of Gatherings Act 205 of 1993, it cannot constitute the criminal
offence of intimidation.
[135]
Given that the appellants’ argument
is that the section is constitutionally invalid because it infringes
the right of freedom
of expression under s 16(1) of the
Constitution, the requirement of unlawfulness in order for the
conduct to constitute intimidation
provides an immediate stumbling
block in the path of the argument. Conduct that is lawful, because it
is constitutionally protected
freedom of expression cannot at the
same time be unlawful. The case of
Watts
in the Untied States, to which I will
refer below, makes this clear.
[136]
The heads of argument contain some general
statements of the kind of expressive conduct that it was submitted
would be within the
ambit of the section. They said that the section:
‘…
criminalises
a vast quantity of everyday political speech. There are innumerable
statements that might create a state of fear in
another. Many
struggle songs and political slogans are actionable under its terms.
Threatening to sue someone, or to have them
punished for something
they did wrong, will also often constitute an offence. Pressing for
land redistribution through expropriation
would put many people in
fear for their property. Even campaigning to remove an unpopular
politician is actionable under section 1(1)
(b)
,
as that politician might reasonably fear for his livelihood if he was
removed from office.’
It
was submitted that the problem with the section is that it
obliterates the distinction between ‘true threats’ and

‘political hyperbole’, so that emotionally charged
rhetoric with no serious intent to cause harm comes within its
compass. This encompassed, so the argument proceeded, anything from
popular struggle songs, to trite political slogans, such as
‘there
will be blood in the streets’ all of which are rendered
unlawful.
[137]
None of these examples fall within the ambit of
the section when it is construed, as in my view it must be, as
requiring
mens rea
;
only applying to intimidatory conduct properly so called; requiring
that the fear relied upon is both genuine and reasonable and
based on
a fear of imminent harm, not a general state of nervousness, concern
or apprehension. Lastly, if the conduct is lawful
in the sense of
enjoying either constitutional or statutory protection then it is not
intimidatory. All of the examples proffered
by the appellants would
escape criminal liability in accordance with this construction of the
statute.
[138]
Most surprising, in the light of the
somewhat overheated rhetoric in which the appellants’ argument
was couched, is that,
so far as I am aware, no-one has suggested that
charges of intimidation could or should be brought against persons
singing ‘Umshini
Wam’, anymore than in days past it was
seriously thought that singing ‘We shall overcome’ would
induce fear.
Nor have any of the many politicians and public figures,
who in recent times have been denounced as scoundrels, thieves,
criminals
and deserving of gaol, thought of laying a charge of
intimidation against their critics. The reasons are obvious. None of
this
is intimidatory. None of it is incompatible with the right of
freedom of expression. None of it is intended to intimidate, as
opposed
to campaign, or persuade, or expose to public scrutiny, by
open, noisy and public means. None of it can reasonably induce fear
in its intended sense, of imminent harm to life, limb, property and
livelihood, as opposed to nervousness, concern or apprehension
about
what the future may hold. When criminals apprehend going to gaol for
their crimes or forfeiting their ill-gotten gains that
is not fear in
terms of the section. The suggestion that a threat to sue someone is
intimidation, or that to expropriate their
property for the purpose
of land redistribution – something that is expressly provided
for in sections 24(5) to (8) of the
Constitution – can be
treated as intimidation is, with respect to counsel who made that
submission, far-fetched.
[139]
Counsel sought to use the allegations in Mr
Moyo’s case to illustrate their point. That was unwise and I
refrain from dealing
in detail with them because that will be a
matter for the trial court. If his conduct does not constitute the
offence of intimidation
within the parameters I have outlined he will
be acquitted. Likewise if the charge sheet is defective in the light
of those parameters
it can be set aside. It would be inappropriate
for this court in its judgment to express any view as to whether the
various allegations
in the charge sheet are capable of constituting
the offence as that would pre-empt the function of the trial court.
Whether his
conduct can be construed as protected expression or
intimidatory, involving a threat of violence, depends upon the
context in which
it occurred, as indeed is almost inevitably the case
with alleged intimidation. This was conceded. The argument was based
on the
propositions that a conviction does not require proof of
intention or that any fear to which the complainants may testify be
reasonable.
For the reasons given earlier I regard both propositions
as incorrect.
[140]
The
approach to the interpretation of s 1(1)
(b)
that I hold to be correct is the same as the approach adopted by the
United States Supreme Court to the legislation in
Watts
.
[70]
The
statute in question created the criminal offence of ‘knowingly
and wilfully … [making] any threat to take the life
of or to
inflict bodily harm upon the President of the United States’.
Mr Watts, aged 18, was participating in a small group
of young people
discussing police brutality during a public gathering at the
Washington Monument, and said in the context of his
having been
drafted to serve in Vietnam: ‘if they ever make me carry a
rifle the first man I want to get in my sights is
L.B.J.’
[71]
[141]
Mr
Watts’ conviction under the statute was set aside by the
Supreme Court in a
per
curiam
opinion holding that the statute was constitutional, but needed to be
interpreted ‘with the commands of the First Amendment
[72]
clearly
in mind’. A ‘threat’ had to be distinguished from
constitutionally protected speech. That is my approach,
namely, that
expression sanctioned by s 16(1) of the Constitution needs to be
distinguished from intimidatory acts. The statute
in issue in
Watts
referred to a threat, which seems to correspond with an intimidatory
act as I have referred to the acts, conduct, words or publications
in
the Act, and the Court said that: ‘We do not believe that the
kind of political hyperbole indulged in by the petitioner
fits within
that statutory term’. However, a similar statement by a member
of a right wing militia, protesting against laws
restricting the
right to bear arms, might well have justified a conviction.
[142]
The
other American case referred to by the appellants
[73]
is
far removed from the present one on its facts. It concerned the
imposition of tortious (delictual) liability for conspiracy in

respect of business losses suffered during a consumer boycott of
White owned stores. Its only relevance is the finding by the Supreme

Court that such a claim could not succeed insofar as the boycott and
the damages suffered by the claimants arose from speech, which
in
America encompasses all forms of expressive conduct, protected by the
First Amendment. Liability could only arise as a result
of criminal
conduct or statements not qualifying for protection under the First
Amendment.
[74]
I
agree that this would be the case in similar circumstances in South
Africa if a charge were brought under s 1(1)
(b)
of
the Act arising out of a consumer boycott or similar action protected
by the right to free expression.
[143]
It follows that I do not accept the
submission that s 1(1)
(b)
encompasses cases of conventional and
protected freedom of expression as suggested in the examples
proffered by the appellants in
support of that contention. That would
only be the case if the section were interpreted to cover such cases,
an interpretation
that in my view is inconsistent with the applicable
principles of statutory interpretation and the Constitution.
General
and conclusion
[144]
Some
play was made in argument of the origins of the Act in our unsavoury
past and the malign intentions of the amendments to s 1(1)
(b)
directed
principally at organisations campaigning for an end to apartheid and
the trade union movement. It is unnecessary for me
to canvas that
history as it is amply set out in the article by Plasket and Spoor
and the judgment in
Motshari
.
I have borne it in mind but do not think that it can be decisive. The
only reported judgment in a case arising from a work
stayaway is that
of Mahomed J, as he then was, in
Ipaleng
,
[75]
where
the appellant’s conviction was set aside on the basis that
there was inadequate evidence of any intimidation. There
is no other
evidence that the section has been used for the purposes that gave
rise to concern in the labour law community at the
time of its
enactment.
[76]
[145]
Were there evidence of widespread use of
the section to stultify political debate or hamper trade union and
worker activities, this
would raise concern and possibly illustrate
defects in the section that are not apparent to me from the argument
addressed to us,
but there does not appear to be any. The vague and
inconclusive allegation expressed in identical words by Ms Sonti and
Mr Moyo,
save for the substitution of the Centre of Applied Legal
Studies (CALS) for the Socio-Economic Rights Institute (SERI), that
‘SERI
is regularly approached for advice and support by people
who are charged with intimidation because their community organising
or
political activities have been alleged to intimidate others’
is unhelpful. That is all that is said on behalf of Mr Moyo with
no
indication at all of how extensive this is said to be. Ms Sonti goes
further to say that courts have frequently set aside convictions
for
failure to explain the reverse onus to an unrepresented accused, but
no detail is given of this and it is not reflected in
the law
reports. In the absence of greater detail it is impossible to
conclude that there is a widespread use of the Act to stifle

legitimate expressions of view.
[146]
The
Act was preserved by item 2(1) of Schedule 6 to the Constitution,
subject to consistency with the Constitution. That not only
meant
that it was preserved to the extent that it was consistent with the
Constitution, but reinforced the injunction that it should
be
construed, so far as possible within the limitations of the text, in
a manner consistent with the Constitution. There has been
no move to
repeal it, and it features in other legislation, for example, as one
of the offences in Schedule 1 to POCA.
[77]
This
may convey a limited measure of parliamentary consideration and
approval, at least of the need generally for the crime of
intimidation.
[147]
For those reasons I conclude that s 1(1)
(b)
passes constitutional muster. I would
dismiss the appeal by Mr Moyo. Were I to take a different view,
however, my view is that there
is a proper case to be made for
legislation rendering criminal a range of conduct falling within
s 1(1)
(b)
that
is not suggested to be constitutionally offensive. To invalidate the
section without leaving open the possibility for prosecutions
of
stalking and harassment, while parliament considered the possible
introduction of amending legislation, would remove a protection
that
vulnerable people, especially women, enjoy at present. That is in my
view undesirable. I would therefore suspend the operation
of any
period of invalidity for a period of two years, subject to a
provision that during the period of suspension it would be
a defence
to a charge in terms of the section that the accused was exercising
the right to freedom of expression conferred by s 16(1)
of the
Constitution.
Section
1(2)
[148]
Section 1(2) provides that:
‘
(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.’
The
main judgment holds that this is a reverse onus provision placing the
onus of proof of lawfulness on the accused and hence constitutionally

impermissible. I would agree were it not for the words:
‘
unless
a statement clearly indicating the existence of such lawful reason
has been made by or on behalf of the accused before the
close of the
case for the prosecution.’
In
my view the presence of those words prevents this from being a
reverse onus provision of the type that has been condemned in
a
number of cases by the Constitutional Court.
[149]
A reverse onus is constitutionally
objectionable because it infringes the presumption of innocence that
is part of the common law
and now enjoys constitutional protection
under s 35(3)
(h)
of the Constitution. Its corollary is that it is the prosecution’s
task to prove the guilt of the accused to the applicable
criminal
standard of proof, usually beyond a reasonable doubt. Where the onus
is reversed, so that the accused has to prove (or
disprove) something
in order to escape conviction, they are no longer presumed to be
innocent. The possibility exists of their
being convicted
notwithstanding the presence of a reasonable doubt in regard to the
elements of the offence. No citation of authority
is necessary for
the proposition that a presumption of that character is
unconstitutional.
[150]
Sub-section
1(1)
(a)
commences
with the words ‘without lawful reason’ so it is apparent
that s 1(2) applies in that case. There are
no corresponding
words in s 1(1)
(b)
,
but as discussed in para 134 there is merit in the suggestion in
Gabatlhole
[78]
that
their absence does not mean that an offence can be committed under
that provision even if the accused had a lawful reason for
their
conduct. Accordingly, I assume that in both instances the crime of
intimidation is committed where the conduct is without
lawful
reason.
[79]
[151]
If s 1(2) placed the burden of proof
of lawfulness on the accused in all instances, I would regard that as
a reverse onus provision.
But the opening words of s 1(2) are
qualified by the rider that there is no such onus if accused persons
have at any time
during the course of the prosecution’s case
made a statement clearly indicating that they contend that they acted
with a
lawful reason and describing the nature of that reason. In
that event in order to obtain a conviction the prosecution would have

to prove that they acted without a lawful reason. The prosecution
would have to prove that the reason was factually unfounded or,
if
factually correct, did not constitute a lawful reason for the
accused’s conduct.
[152]
I am unable to see on what basis it can be
said that one and the same offence may sometimes require the
prosecution to prove the
accused’s guilt beyond reasonable
doubt and sometimes not. What would happen in the case of two accused
being accused of
intimidation arising out of a single event and one
disclosed a lawful reason before the close of the prosecution case,
while the
other did not until after the close of the prosecution
case? If s 1(2) imposed a true reverse onus then, if the facts
constituting
the lawful reason were unclear from the evidence, the
one accused would be acquitted and the other not. That is absurd and
leads
inevitably to the conclusion that this is not a true reverse
onus provision. What then is it?
[153]
The answer is that it is a provision
addressing an evidential issue. If a lawful reason is disclosed
before the end of the prosecution
case, the prosecution will have to
lead evidence to disprove it before closing its case. If that
evidence is unsatisfactory the
accused may then obtain a discharge at
the close of the prosecution case without being put on their defence
and without having
to decide whether to give evidence. The effect of
the presumption is that, if no lawful reason is disclosed prior to
the close
of the prosecution case, the accused will not be able to
seek and obtain a discharge on the basis that the prosecution has
failed
to show that they acted without a lawful reason. The
evidential burden will then be imposed upon them to produce evidence
of the
lawful reason.
[154]
An
evidential burden does not impose a reverse onus, nor is it a
per
se
case of a constitutional infringement.
[80]
Nonetheless
there is a constitutional problem with the section. It contravenes
the provisions of s 35(3)
(h)
of
the Constitution, not because it infringes the presumption of
innocence, but because it places improper pressure on an accused
to
forego their constitutional right to silence and not to give
self-incriminating evidence. That is inconsistent with the broader

right to a fair trial, because it relieves the prosecution in the
first instance from the need to lead evidence to show that the

actions of the accused are without lawful reason and, after the close
of the prosecution case, it constrains the accused to give
evidence
themself or to lead evidence from others. As such it infringes the
constitutional right in a more insidious way in that
it operates as a
compulsion on the accused to disclose at an early stage of the
proceedings what may be the key element of their
defence. Indeed, as
correctly pointed out in para 62 of the main judgment, it may go so
far as to compel the accused to make admissions
that relieve the
prosecution of the obligation to prove certain facts. So it infringes
the right to a fair trial and probably the
right to silence.
[81]
As
Ms Sonti said in her replying affidavit it seeks to force the accused
to break their silence before the close of the prosecution
case.
[155]
I agree with my colleague that there is no
basis upon which this constitutional infringement can be justified as
a permissible limitation
of rights under s 36 of the
Constitution and that no purpose would be served by suspending the
order of invalidity. The declaration
of invalidity must be
retrospective to the extent that the conviction in any pending trial
or appeal is dependent upon the invocation
of the provisions of
s 1(2), but not otherwise. Cases where the appeal process has
been exhausted should not be affected by
the order of invalidity.
Procedural
issues
[156]
I made the point in the opening paragraph
of this judgment that as a result of these proceedings Mr Moyo’s
trial has been
delayed for some six years and will be delayed even
further while these proceedings are taken further as is inevitable in
the light
of my colleague’s judgment. Ms Sonti’s trial
has been delayed for about one year less. This is most unsatisfactory
as it means that their criminal trials have not been brought and
concluded without undue delay as required by s 35(3)
(d)
of the Constitution. It has not only created a situation where the
criminal charges continue to hang over their heads, but is a
denial
of justice to those who made the allegations on which those charges
rest. They are legitimately entitled to ask why their
allegations
have not been brought before a court and their complaints heard and
determined by an impartial judicial officer.
[157]
In s 35 the Constitution guarantees a
range of rights to arrested, detained and accused persons. Section
35(3) guarantees to
all accused persons the right to a fair trial.
That is secured in practice by the provisions of the Criminal
Procedure Act 51 of
1977 (the CPA). The appellants do not seek to
impugn the provisions of the CPA in any way, yet they are seeking to
assert their
fair trial rights before a civil court. That should give
pause for thought. Why are issues germane only in the context of
criminal
proceedings being canvassed and determined in civil
proceedings and not in the constitutionally compliant forum, and in
accordance
with the constitutionally compliant statute, provided for
the adjudication of criminal cases?
[158]
The
appellants’ response to this question is to say that the
Constitutional Court has held in
Savoi
[82]
that
they have standing to bring the present proceedings.
Savoi
involved confirmation proceedings where the Constitutional Court was
obliged to accept jurisdiction. The issue arose indirectly
because
there was also an application for leave to appeal against the high
court’s refusal of orders of constitutional invalidity
in
respect of certain portions of the legislation under consideration.
In the present case the issue is not one of standing, but
solely one
of timing and procedure. At an appropriate stage and in appropriate
proceedings a person charged with a statutory offence
obviously has
standing to challenge the constitutionality of the statute under
which they have been charged. The concern in this
case is that it has
been done outside the ambit of the criminal proceedings, which is the
only place where the constitutionality
of the legislation is in
issue. It is an abstract challenge and, as Madlanga J rightly said in
par 13 of
Savoi
,
courts generally and rightly treat abstract challenges with
disfavour.
[83]
[159]
The
case of Ms Sonti shows how abstract the challenge to s 1(2) was.
The charge sheet alleged that she without lawful reason
and with the
intent to compel the complainant to withdraw certain criminal charges
threatened to kill the complainant and/or to
burn her house down.
There was no indication, as is required,
[84]
of
any intention on the part of the prosecution to rely on s 1(2) of the
Act. That is hardly surprising, as proof that she made
such a threat
would,
prima
facie
at least, be unlawful. Ms Sonti said in her founding affidavit that
she knew the complainant, and had some interaction with her,
the
nature of which she explained. She denied threatening to kill her or
burn her house down. Nothing in the explanation of her
interaction
with the complainant suggested that it would render lawful the
alleged threats if they were made. She denied threatening
or
intimidating the complainant. If the State fails to prove the threats
she must be acquitted. If it transpires that she did make
them, it is
difficult to see on what basis she could claim to have had a lawful
reason for doing so. The challenge to s 1(2) is
therefore wholly
academic on the facts of this case and, in the absence of evidence
that reliance is being placed on s 1(2)
in other cases, it is
academic there. That brings to mind what Ackermann J said in
Ferreira
v Levin
:
[85]
‘…
cases
for relief on constitutional grounds are not decided in the air …
The time of this Court is too valuable to be frittered
away on
hypothetical fears …’
[160]
In
the early days of our constitutional jurisprudence under the 1994
Constitution, where the grounds upon which cases could come
before
the Constitutional Court were different from the present grounds, a
case similar to the present one was brought before the
then Natal
Provincial Division asking that the constitutionality of a reverse
onus provision be referred to the Constitutional
Court. The
application was refused on the grounds that there was no indication
that the prosecution intended to rely upon the provision
so that it
was inappropriate to refer it to the Court.
[86]
That
approach was subsequently approved by the Constitutional Court, which
said that it illustrated how in practice deferring the
determination
of constitutional issues until they prove decisive promotes the
interests of justice.
[87]
[161]
Under
the present Constitution similar preliminary litigation in a criminal
case was considered by Langa ACJ
[88]
and
he said the courts:
‘…
should
discourage preliminary litigation that appears to have no purpose
other than to circumvent the application of s 35(5).
[89]
Allowing
such litigation will often place the prosecutors between a rock and a
hard place. They must, on the one hand, resist preliminary
challenges
to their investigations and to the institution of proceedings against
accused persons; on the other hand, they are simultaneously
obliged
to ensure the prompt commencement of trials. Generally disallowing
such litigation would ensure that the trial court decides
the
pertinent issues, which it is best placed to do, and would ensure
that trials start sooner rather than later. There can be
no absolute
rule in this regard, however. The court’s doors should never be
completely closed to litigants . . . If the trial
is only likely to
commence far in the future, the victim should be able to engage in
preliminary litigation to enforce his or her
fundamental rights. But
in the ordinary course of events, and where the purpose of the
litigation appears merely to be the avoidance
of the application of s
35(5) or the delay of criminal proceedings, all courts should not
entertain it. The trial court would then
step in and consider
together the pertinent interests of all concerned.’
[162]
I
am mindful of the fact that in
Jordaan
[90]
Cameron
J, giving the judgment of the Constitutional Court, said that the
initial approach of the Court that where possible it was
desirable
for cases to be disposed of without reaching the constitutional issue
‘has long since been abandoned in favour
of its opposite,
namely that constitutional approaches to rights determination must
generally enjoy primacy.’ Like
Savoi
that was a case where the Court’s jurisdiction arose from
confirmation proceedings where, apart from very unusual situations,

the Court’s jurisdiction is always engaged.
[91]
The
persons raising the issue – the proper interpretation of
s 118(3)
of the
Local Government: Municipal Systems Act 32 of
2000
– had a direct interest in the answer to the
constitutional issue, which Cameron J described as ‘pressing’
and
ripe for decision. In those circumstances the Court held that it
was in the interests of justice that the issue be decided.
[163]
None of those features characterise Ms
Sonti’s case. If she is successful, as we hold she should be,
she will return to the
Magistrates’ Court to face the same
charges under the same charge sheet as before, but the case will be
further delayed until
the Constitutional Court has decided whether to
confirm the order for constitutional invalidity and, if so, on what
terms. I am
unable to see on what basis that can be said to be in the
interests of justice. The justification given for following this
route
was that the Magistrates’ Court has no jurisdiction to
strike down a statutory provision as unconstitutional. That is true,

but it does have the obligation so far as possible, within the
constraints discussed earlier in this judgment, to give the provision

a constitutional interpretation. In any event, if it held that the
threats allegedly made by Ms Sonti were not proven, an acquittal

would have followed. Even with delays in the conduct of the
proceedings it is hard to believe that the case would not have been

resolved long ago. If, at the end of the day, a constitutional issue
existed it could have been dealt with then.
[164]
A curious feature of this case is that it
reverses the usual role of a lawyer defending a client against a
criminal charge. Usually
the defence is conducted on the basis that
facts are disputed and, if the ambit of the offence is relevant,
defence lawyers argue
for a narrow construction of the statute in the
interests of their clients’ acquittal. It is the prosecution
that advances
a wider construction of the statute. Here, by contrast,
the legal representative for the two accused argued for the broadest
conceivable
interpretation of the section in pursuit of
constitutional invalidity. That is an undesirable situation and it
would not occur
if the issues relevant to the constitutional
challenge had been dealt with, as they ordinarily should have been,
at the trial.
If an issue of constitutional invalidity remained at
the end of the trial that could have been resolved on appeal.
[165]
Had Mr Moyo’s trial proceeded his
defence would have been conducted by challenging the factual basis
for the charge, in part
by placing it in the appropriate context.
Evidence would have been led to show that he was engaged in a
legitimate act of political
protest. Arguments could have been
advanced that the section should be construed in the manner outlined
in this judgment. The constitutional
point would have been reserved
for the appeal court assuming the case went that far. Assuming it was
reached it would have been
determined in the context of a live
dispute and not on the basis of hypothetical examples. That is always
preferable.
[166]
Mr Moyo sought to bring his case within the
principle stated in para 11 of
Savoi
that:
‘
The
applicants contend, amongst others, that the definitions of the
very offences that they are charged with are so vague as
to be
unintelligible. Assuming for a moment that there is substance in
that, it would be unfair to expect the applicants to plead
to
charges, the inner and outer contours of which they have no idea.’
But
those words were written in relation to a challenge on the grounds of
vagueness. That is not Mr Moyo’s challenge. He complains
that
s 1(1)
(b)
infringes
his right to freedom of expression. That is not a complaint of
vagueness, but of overreach. While accepting (at least
in argument)
that some of the conduct covered by the section is legitimately
within its purview, his complaint, quoting from the
heads of argument
on his behalf was that it ‘obliterated the distinction between
“true threats” and “political
hyperbole”’.
The quoted passage from
Savoi
provides
no support for the course that this litigation has taken. It is also
one that must be circumspectly applied. Otherwise
it might be thought
to justify a resort to the civil courts whenever there was doubt as
to the parameters of an offence. Such questions
are best dealt with
by way of exception to the charge or in argument in the ordinary
course of the criminal trial.
[167]
The reason advanced by both Ms Sonti and Mr
Moyo for not following the usual and ordinary course was the
possibility of their being
convicted and sentenced before the
constitutional complaint could be adjudicated. This was advanced as
the reason for raising the
alleged constitutional invalidity before
trial. I accept that if the trial had proceeded there might have been
some risk of this
occurring, but a magistrates’ court faced
with a colourable constitutional challenge to the legislation under
which it had
just convicted someone, would grant leave to appeal and
consider favourably an application for bail pending the appeal. That
diminishes
the risk considerably. In any event this argument creates
a situation where the ability to have a constitutional challenge
dealt
with in advance of the criminal trial would depend upon whether
the charge was laid in the magistrates’ court or the high

court. If there was thought to be a real problem, the National
Director of Public Prosecutions could have been approached to remove

the trial to the high court, where the case would take its usual
course, including disposing of the constitutional challenge. As
a
general rule departures from the procedures laid down in the CPA and
the effective removal of criminal proceedings to the civil
courts
should not be countenanced.
[168]
I do not understand Cameron J in
Jordaan
to say that magistrates’ courts
should as a matter of routine postpone criminal proceedings in order
to facilitate the bringing
of constitutional challenges in the high
court. Nor do I understand him to say that the high court should
necessarily hear such
cases. The delays that such litigation causes
in the conduct of criminal trials and the manner in which it serves
to defeat the
speedy resolution of criminal cases contrary to
s 35(3)
(d)
of
the Constitution point in the opposite direction.
[169]
The
problem of delay caused by this type of procedure is illustrated by
the preliminary litigation in
Moodley
,
[92]
which
had delayed the criminal trial for four years when it came to this
court over a preliminary challenge to the charge sheet.
According to
the chronology in Mr Savoi’s bail appeal in this court
[93]
the
criminal investigations commenced in 2006 and the charges in two
different courts were brought in 2011. The trial has not yet

commenced. It is commonplace to see in the media that the first step
in any criminal litigation involving a prominent person is
that they
will challenge the constitutionality of the charge, or the process
leading up to the commencement of criminal proceedings.
The term
‘Stalingrad defence’ has become a term of art in the
armoury of criminal defence lawyers. By allowing criminal
trials to
be postponed pending approaches to the civil courts, justice is
delayed and the speedy trials for which the Constitution
provides do
not take place. I need hardly add that this is of particular benefit
to those who are well-resourced and able to secure
the services of
the best lawyers.
[170]
All of this conveys to me that the wisdom
of Langa ACJ remains pertinent. There are echoes of that in Madlanga
J’s words in
Savoi
.
The question in every case is one of the interests of justice. In my
view the interests of justice in both of these cases demanded
that
the high court decline to hear them before the resolution of the
criminal trials. Like my colleague I deprecate the fact that
the
trial judge failed to address the point. However, like him, given
that the proceedings have reached this stage, I consider
it in the
interests of justice to deal with the appeal.
Order
[171]
I make the following order:
1
The appeal in
Moyo and Another v Minister of Justice and
Constitutional Development and Others
is dismissed, with all
parties to pay their own costs.
2
The appeal in
Sonti and Another v Minister of Justice and
Correctional Services and Others
is upheld with costs, including
the costs of two counsel.
3
The order of the court a quo is set aside and in its stead is
substituted the following:
‘
(i)
It is declared that
s 1(2)
of the
Intimidation Act 72 of 1982
is
unconstitutional and invalid.
(ii)
The order of invalidity is retrospective only to the extent that it
affects pending trials or appeals and does not extend to
any
convictions where the right of appeal has been exhausted.
(iii)
The matter is referred to the Constitutional Court in terms of s
172(2)
(a)
of the Constitution.
(iv)
The Minister of Police is ordered to pay the costs of this
application, including the costs of two counsel.’
________________________
M J
D WALLIS
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant: S Wilson (with him I De Vos and M Stubbs)
Instructed
by: SERI Law Clinic Johannesburg
and
CALS Law Clinic Johannesburg
Webbers,
Bloemfontein
For
Respondent: PJJ de Jager SC (with him HA Mpshe)
Instructed
by: The State Attorney, Bloemfontein
The
State Attorney, Bloemfontein
[1]
Section 16 of the Constitution provides:
‘
(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 constitutes incitement to cause harm.’
[2]
S
v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC) para 6
.
[3]
Savoi
and Others v National Director of Public Prosecutions and Another
[2014] ZACC 5
;
2014 (5) SA 317
(CC) paras 11 to 13.
[4]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(CC)
(Ferreira)
para 26.
[5]
For some reason his name is printed in Hansard as Mr SA Pitman, but
this is incorrect.
[6]
Setlogelo
v Setlogelo
1914 AD 221.
[7]
Hotz
& others v University of Cape Town
[2016] ZASCA 159
;
2017 (2) SA 485
(SCA) para 68.
[8]
Watts
v United States
[1969] USSC 88
;
394
US 705
(1968)
(Watts)
.
[9]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd & others in re: Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para 24.
[10]
Ferreira
above
fn 4 para 44.
[11]
S
v Makwanyane
and
Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 104.
[12]
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999 (1) SA 6
(CC) para 35.
[13]
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC) para 43.
[14]
Khumalo
and Others v Holomisa
2002
(5) 401 (CC) para 21.
[15]
Malachi
v Cape Dance Academy International (Pty) Ltd and Others
[2010] ZACC 24
;
2010 (6) SA 1
(CC) para 48.
[16]
S
v Lubaxa
2001 (2) SACR 703
(SCA) paras 18 to 19.
[17]
See
R
v Camane and Others
1925 AD 570
at page 575, wherein Innes CJ stated that –
‘
[I]t
is an established principle of our law that no one can be compelled
to give evidence incriminating himself. He cannot be
forced to do
that either before the trial, or during the trial … What the
rule forbids is compelling a man to give evidence
which incriminates
himself.’
[18]
Dubois
v The Queen
1985 (2) S C R 350
para 12.
[19]
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 33
[20]
Prince
v President of the Law Society of the Cape of Good Hope and Others
2002
(2) SA 794 (CC).
[21]
S
v Coetzer and Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC) para 15.
[22]
S v
Dlamini;
S v Dladla & others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC) para 68.
[23]
S V Hoctor, M G Cowling and J R L Milton
South
African Criminal Law and Procedure Volume III: Statutory Offences
(looseleaf,
2 ed, Service Issue 21,
2011) HA 1-5
5, p 9.
[24]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 21 to 26.
[25]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) paras 10-12.
[26]
Most recently in
Municipal
Employees Pension Fund v Natal Joint Municipal Pension Fund
(Superannuation) and Others
[2017] ZACC 43
;
2018 (2) BCLR 157
(CC) para 28;
Trinity
Asset Management (Pty) Limited v Grindstone Investments 132 (Pty)
Limited
[2017] ZACC 32
;
2018 (1) SA 94
(CC);
2017 (12) BCLR 1562
(CC) para
52 and
Food
and Allied Workers’ Union obo J Gaoshubelwe v Pieman’s
Pantry (Pty) Ltd
[2018]
ZACC 7
para 186
.
[27]
The principle is not novel.
R
v Milne & Erleigh
1951
(1) SA 791
(A) at 823;
R
v Sachs
1953
(1) SA 392
(A) at 399H-400B. The sentiments there expressed have
been endorsed both by this court (
Arse
v Minister of Home Affairs and Others
2012 (4) SA 544
(SCA) para 10) and the Constitutional Court (
Shaik
v Minister of Justice and Constitutional Development and Others
[2003] ZACC 24
;
2004 (3) SA 599
(CC) para 18). See also
S
v Baleka and Others
1986
(1) SA 361
(T) at 392J-393F. S V Hoctor, M G Cowling and J R L
Milton,
supra
fn 1
Chapter
1, para 1-42, p29 (Service 7, 1995).
[28]
S
v Arenstein
1967
(3) SA 366
(A) at 381D-E quoted with approval by O’Regan J in
S
v Coetzee and Others
[1997] ZACC 2
;
1997
(3) SA 527
(CC) para 165. The first maxim means that there is no
punishment without fault and the second that an act is not criminal
in
the absence of intention.
S
v Bernardus
1965
(3) SA 287
(A) at 296 E-F. Jonathan Burchell
South
African Criminal Law and Procedure: Vol I General Principles of
Criminal Law
(4
th
ed, 2011) 404-405.
[29]
R
v Tsotsi
1956
(2) SA 782
(A) at 785B-C.
Cases
such as
R
v Wallendotf
1920
AD 383
;
R
v H
1944
AD 121
at 126; affirm the need for proof of
dolus
in statutory offence, although the further proposition that once the
prosecution has brought the matter within the language of
the
statutory provision the onus is on the accused to rebut the
inference of
dolus
is
inconsistent with the jurisprudence of the Constitutional Court on
provisions placing the onus on the accused.
[30]
Minister
of the Interior v Estate Roos
1956
(2) SA 266
(A) at 271B-C;
Amalgamated
Packaging Industries Ltd v Hutt and Others
1975
(4) SA 943
(A) at 949H-I;
Panamo
Properties (Pty) Ltd and Another v Nel and Others NNO
2015
(5) SA 63
(SCA) para 27.
[31]
Relying
on
Watts
v United States
[1969] USSC 88
;
394
US 705
(1969) at 708.
[32]
The
appellants’ submission divides s 1(1)
(b)
into
two separate offences and does not deal with s 1(1)
(a)
,
but the underlying logic is that this is a third offence and s 1(1A)
a fourth.
[33]
Both
have been encou
ntered
in South African history.
[34]
A domestic relationship is broadly defined. See s 5.
[35]
Sections 7 and 8 respectively.
[36]
Also
in the state of Queensland in terms of s 359B of the Queensland
Criminal Code 1899.
[37]
The Criminal Law (Amendment) Act 2013.
[38]
Section 7 of the Protection from Harassment Act (Chapter 256A),
2014. The Act criminalises both harassment and stalking.
[39]
Harassment
Act 1997 (NZ), s 8.
[40]
Section
39 of the Criminal Justice and Licensing Act 2010. The crime is
committed when the accused engaged in the conduct in question
with
the intention of causing harm or knowing or ought to have known that
it would be likely to cause the victim to suffer fear
or alarm.
[41]
Protection
of Harassment Act 1997 as amended by s 11 of the Protection of
Freedoms Act (2012 c9).
[42]
Suzan
van der As ‘New Trends in the Criminalisation of Stalking in
the EU Member States’ published online in the Eur
J Crim
Policy Res on 20 September 2017 available at
https://link.springer.com/content/pdf/10.1007/s10610-017-9359-9.pdf
(accessed 17 April 2018). The appendix to this article sets out the
definitions of the offence of stalking in those member states
that
have criminalized this behaviour.
[43]
Joel
Best
Encyclopaedia
Brittanica
(online)
topic ‘Stalking’ available at
https://www.britannica.com/topic/stalking-crime
(accessed 17 April 2018).
[44]
As
my colleague notes in para 21 of his judgment, the 1991 amendments
to the Act were directed at including general acts of intimidation

directed at the public at large to overcome the decision in
S
v Mohapi en andere
1984
(1) SA 270
(O).
[45]
The
example is drawn from Holmes J’s judgment in
Schenck
v
United
States
249 US 47
at 52 where he said:
‘
The
most stringent protection of free speech would not protect a man in
falsely shouting fire in the theatre and causing a panic.
It does
not even protect a man from an injunction against uttering words
that may have all the effects of force.’
While
the exposition of the law in the case where that example was given,
namely, that the publication of words constituting a
‘clear
and present danger’ of harm could be prohibited, has been
altered, so that it is only permissible to punish
inflammatory
speech if it is ‘directed to inciting or producing imminent
and lawless action and is likely to incite or
produce such action’,
(
Brandenburg v Ohio
395
US 447
(1969)),
that does not render the example invalid nor
did counsel suggest, when it was put to him, that it was invalid or
that its criminalisation
constituted an infringement of the right to
freedom of expression.
[46]
A hoax of that nature in relation to an aircraft is an offence under
s 133
(e)
of
the
Civil Aviation Act 13 of 2009
.
[47]
R
v Van Meer
1923
OPD 77.
[48]
R
v Ferreira
1943
NPD 19.
See also
R
v Sackstein
1939
TPD 40.
[49]
C R
Snyman
Criminal
Law
(5
th
ed, 2008) pp 469-477; J R L Milton
South
African Criminal Law and Procedure Vol II: Common Law Crimes
(3
rd
ed, 1996) pp 491-517.
[50]
Affordable
Medicines Trust v Minister of Health
[2005]
ZACC 3
;
2006 (3) SA 247
(CC) para 108 (
Affordable
Medicines Trust
),
where the test is saod to be that the law must indicate with
reasonable certainty to those who are bound by it what is required

of them.
[51]
En
passant
the
impairment of
dignitas
required
for a conviction of
crimen
injuria
is
at least in part subjective and not subject to a requirement of
reasonableness.
[52]
Herschel
v Mrupe
1954
(3) SA 464
(A) at 490F.
[53]
Holbrook
v S
[1998]
3 ALL SA 597
(E) at 601.
[54]
Khumalo
v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) para 21;
Democratic
Alliance v African National Congress and Another
2015
(2) SA 232
(CC) para 133. This is not a new phenomenon although it
is perhaps less inhibited than in the past. See
Waring
v Mervis and Others
1969
(4) SA 542
(W);
Marais
v Richard
1981 (1) SA 1157
(A)
.
[55]
Hotz
v University of Cape Town
2017
(2) SA 485
(SCA) paras 67 and 68.
[56]
S
v Mamabolo
[2001] ZACC 17
;
2001
(3) SA 409
(CC) para 37.
[57]
S
v Humphries
2013
(2) SACR 1
(SCA);
Director
of Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
2016 (2) SA 317
(SCA);
2016 (1) SACR 431
(SCA) para 26.
[58]
Collins
English Dictionary
(6
th
ed, 2003) sv ‘intimidate’. The corresponding definition
in the
Shorter
Oxford English Dictionary
(6ed,
2007) is: ‘Terrify, overawe, cow. Now
esp.
force to or deter from some action by threats or violence.’
[59]
Shorter
Oxford English Dictionary
ibid
sv ‘intimidation’.
[60]
Scagell
and Others v Attorney-General, Western Cape and Others (Scagell)
[1996] ZACC 18
;
1997
(2) SA 368
(CC) para 25. For the degree of clarity required see
Affordable
Medicines Trust, supra
,
para 50.
[61]
S
v Motshari
2001
(1) SACR 550
(NC).
[62]
The
charge sheet said that he said ‘hy vir Lena Windvogel sal
doodmaak en doodslaan’.
[63]
Para
13, p 556.
[64]
S
v Cele and Others
2009
(1) SACR 59
(N). The charge sheet showed that the accused had been
charged and convicted under
s 1(1)
(a)
(ii)
and not 1(1)
(b)
but these portions of the judgment deal with the requirements of the
offence generally and apply to
s 1(1)
(b)
.
[65]
Cele
para
11.
[66]
Clive
Plasket and Richard Spoor ‘The New Offence of Intimidation’
(1991) 12
ILJ
747.
Professor Shannon Hoctor expressed the same view in writing the
section cited in fn 1 HA1-3 p 5.
[67]
S
v Gabatlhole
2004
(2) SACR 270 (NC).
[68]
C R
Snyman,
Criminal
Law
(5
th
ed, 2008) p 95.
[69]
Snyman
ibid
97.
[70]
Watts
v United States
[1969] USSC 88
;
394
US 705
(1969).
[71]
L. B. J. was
Lyndon
Baines Johnson the then President of the United States of America.
[72]
The
United States provision corresponding to
s 16(1)
of our
Constitution.
[73]
NAACP
v Claiborne Hardware Co.
[1982] USSC 185
;
458
US 886
(1982).
[74]
See
p 458 referring to the cases cited in fn 23.
[75]
S
v Ipaleng
1993
(2) SACR 185
(T). The applicant in
Mbambo
v Minister of Defence
2005
(2) SA 226
(T) was convicted by a military court of intimidation
under s 1(1)
(b)
but the judgment does not reflect the circumstances giving rise to
the conviction.
[76]
The
concerns are expressed in the article by Plasket and Spoor,
op
cit
.
Hoctor,
op
cit,
makes
the point that there is no evidence of widespread use of charges
under the Act or its abuse in the manner suggested in argument.
[77]
Prevention of Organised Crime Act 21 of 1998
.
[78]
Fn
67 ante.
[79]
If
this assumption is correct it strengthens the point that
constitutionally protected free expression cannot constitute the
offence of intimidation.
[80]
Scagell,
op cit,
fn
60, paras 11 and 12.
[81]
Scagell
,
ibid
,
paras 15-19.
[82]
Savoi
and Others v National Director of Public Prosecutions and Another
[2014]
ZACC 5
;
2014 (5) SA 317
(CC) para 13.
[83]
As
Innes CJ put it in
Geldenhuys
& Neethling v Beuthin
1918
AD 426
at 441:
‘
After
all, Courts of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce

upon abstract questions, or to advise upon differing contentions,
however important.’
[84]
The
principle was laid down by Ramsbottom J in
R
v Matsapula
1952
(4) SA 39
(T) at 40G-H that:
‘
Since
the Act creates a presumption and throws an
onus
upon
him, the charge must be framed in such a way as to inform him not
only of what the Crown will prove but what he will have
to prove if
he wishes to escape a conviction.’
See
Albert Kruger
Hiemstra’s
Criminal Procedure
(Electronic
version, May 2017); sv Section 84, p 14-10.
[85]
Ferreira
v Levin NO
1996
(1) SA 984
(CC) para 199.
[86]
Schinkel
v The Minister of Justice and another
1996
(6) BCLR 872
(N).
[87]
S
v Bequinot
[1996] ZACC 21
;
1997
(2) SA 887
(CC) at 895, footnote 18. By contrast in
Scagell
(para 4) the charge sheet made it clear that reliance would be
placed on the various statutory presumptions, deeming provisions
and
a reverse onus provision. On that basis the Constitutional Court
identically constituted, save for the presence of Kentridge
AJ, held
that it was appropriate for the court to accept jurisdiction.
Bequinot
was heard less than two weeks after the judgment in
Scagell
was handed down.
[88]
Thint
(Pty) Ltd
v
National Director of Public Prosecutions and others
;
Zuma
v National Director of Public Prosecutions and others
2009 (1) SA 1
(CC) para 65.
[89]
The
exclusion of evidence illegally obtained in breach of the Bill of
Rights where it would result in the trial being unfair or
would be
detrimental to the administration of justice.
[90]
Jordaan
and Others v Tshwane Metropolitan Municipality and Others
2017
(6) SA 287
(CC) para 8.
[91]
Constitution
s 167(5) read with Rule 16 of the Constitutional Court rules. Even
where the point has become entirely moot the Court
has held that it
retains jurisdiction in the interests of justice, if only to correct
an incorrect judgment by the high court.
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
[2009]
ZACC 8
;
2009 (4) SA 222
(CC) paras 59-67. There do not appear to be
any reported cases in which the court has refused to consider a
declaration of constitutional
invalidity on the grounds that the
high court should not have ruled on the question.
[92]
For
an example of repeated procedural delay see
National
Director of Public Prosecutions v Moodley and others
2009 (2) SA 588 (SCA).
[93]
Savoi
v National Director of Public Prosecutions
[2011]
ZASCA 234
para 20.