Case CCT174/18 & CCT178/18
[2019] ZACC 40

 Date of Hearing:  19 February 2019
Judgement Date: 22 October 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 22 October 2019 at 10h00, the Constitutional Court handed down judgment in a consolidated application for leave to appeal against the judgment and order of the Supreme Court of Appeal.  This consolidated application concerned the constitutionality of section 1(1)(b) and section 1(2) of the Intimidation Act 72 of 1982 (Act).

The applicant in the first application, General Alfred Moyo (Mr Moyo), was charged under section 1(1)(b) of the Act.  This arose from an incident that took place on 18 October 2012 at the Primrose Police Station, Germiston, where Mr Moyo allegedly conducted himself in a violent and threatening manner towards members of the police at the station.  The applicant in the second application, Ms Nokulunga Primrose Sonti, was charged under section 1(1)(a)(ii) and 1(1)(b)(i) of the Act.  The charge arose from a number of text messages and telephone calls that were made to a complainant in a criminal matter which were alleged to be of a threatening nature.

Before going to trial, both applicants opted to challenge the constitutionality of sections 1(1)(b) and section 1(2) of the Act.  In terms of section 1(1)(b), the applicants argued that the section is overbroad and criminalises a vast array of constitutionally protected free speech.  This is because the section criminalises any conduct that has the effect of causing a person to fear for their own or another’s safety, the safety of their property, or the security of their livelihood.  In terms of section 1(2), a person charged under subsection (1) will have to prove that there existed a lawful reason for their conduct, unless they have already made a statement to that effect at the close of the prosecution’s case.  The applicants argued that section 1(2) is a reverse onus provision, which absolves the State from proving an element of the crime, and violates an accused’s right to remain silent, be presumed innocent and not to be compelled to give selfincriminating evidence.

The High Court of South Africa, Gauteng Division, Pretoria (High Court) dismissed both applications.  The High Court found that section 1(1)(b) infringed the right to freedom of expression, but that this was reasonable and justifiable due to the necessity of intimidatory conduct facing criminal sanction.  Section 1(2) was found to have infringed a number of fair trial rights, but again, justifiably so as the State would otherwise be unable to secure a competent conviction.  The applicants, aggrieved by this decision, sought leave to appeal before the Supreme Court of Appeal.

The Supreme Court of Appeal rejected the approach taken by the High Court regarding section 1(1)(b).  Instead, the Supreme Court of Appeal held that the section must be understood in light of our principles of statutory interpretation and the ordinary canons of construction of criminal statutes.  The Supreme Court of Appeal found that, in light of these interpretive aids, section 1(1)(b) did not infringe the right to freedom of expression.  The section criminalised unlawful conduct intended to create a reasonable fear of imminent harm, which is already prohibited by section 16(2) of the Constitution.  With regard to section 1(2), the Supreme Court of Appeal found that the provision was constitutionally invalid as it created an evidentiary burden on the accused.  This violated both the right to remain silent and the right not to be compelled to give self-incriminating evidence.

The applicants thereafter applied to the Constitutional Court for an order confirming the declaration of invalidity regarding section 1(2).  The applicants further sought leave to appeal against the order of the Supreme Court of Appeal in respect of section 1(1)(b).  The applicants were joined in their constitutional challenge by Right2Know, a non-profit organisation that campaigns for the free flow of information, which was admitted as amicus curiae.  The applicants submitted that the interpretive approach by the Supreme Court of Appeal amounted to an impermissible reading-in of numerous qualifications.  These qualifications strained the meaning of section 1(1)(b).  The amicus curiae added that, given the complex wording of section 1(1)(b), any interpretation would only exchange the problem of overbreadth for one of vagueness.  The Minister of Police supported the approach taken by the Supreme Court of Appeal stating that on a proper interpretation section 1(1)(b) does not infringe the right to freedom of expression.

In terms of section 1(2), the applicants and respondent agreed that the provision was unconstitutional.  The applicants disagreed with the Supreme Court of Appeal only insofar as section 1(2) creates a reverse onus and not a mere evidentiary burden.

In a unanimous judgment penned by Ledwaba AJ, the Constitutional Court found that section 1(1)(b) was unconstitutional as it unjustifiably limited the right to freedom of expression.  The section could not be saved by the interpretive approach undertaken by the Supreme Court of Appeal, which impermissibly strained the meaning of section 1(1)(b).  It did so by importing the qualification of “imminent harm” into the definition of intimidatory conduct.  This qualification was not apparent in the text, context or purpose of the Act.  In respect of section 1(2), the Court confirmed the declaration of invalidity made by the Supreme Court of Appeal.  However, the Constitutional Court held that the section created a reverse onus and not a mere evidentiary burden on the accused.  This was because it absolved the State from proving an element of the offence.

In the result, leave to appeal was granted and the appeal upheld.  The Constitutional Court issued an order declaring that section 1(1)(b) of the Intimidation Act was unconstitutional and therefore invalid.  It also confirmed the order of invalidity that section 1(2) of the Intimidation Act was unconstitutional.

The Full judgment  here