MOYO AND ANOTHER v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS 2017 (1) SACR 659 (GP)
Intimidation — Contravention of s 1(1)(b) read with s 1(2) of Intimidation Act 72 of 1982 — Constitutionality of — Expressions or threats of instigation of violence excluded from protection of freedom of expression by s 16(2) of Constitution — Reverse onus provision in s 1(2) justified by nature of penalty sanctioned and ease with which accused could discharge onus — Provisions not unconstitutional.
The first applicants in two matters were facing trial separately in regional magistrates’ courts on charges under the Intimidation Act 72 of 1982 (the Act). As the issues were the same in both cases, namely their seeking an order declaring s 1(1)(b) and s 1(2) unconstitutional and invalid, they were dealt with together.
In the first case, the relevant facts were that the first applicant, the chairperson of community organisation, had sought permission to march to the local metropolitan police department and requested meeting with the department to arrange authorisation for the gathering. The meeting was instead arranged at the local police station (he preferred the department office) and permission to march denied, which infuriated him. He was also upset at the presence of members of particular political party. All this resulted in him allegedly making certain utterances to the station commander of the police station and one of her senior officers, to the effect that: he would make sure that they were removed; they would not last long at the police station; he would repeat what had happened at Marikana; and that there would be bloodshed.
The allegations against the first applicant in the second case arose from telephone calls and text messages, allegedly sent to complainant, threatening to kill her or burn her house down in order to compel her to withdraw criminal complaint.
Both applicants contended that the provisions of the Act in effect criminalised what was right under the Constitution, namely that to free speech. They contended that the provision was too wide as it covered utterances or conduct that did not offend or intend to offend — they denied their speech or conduct offended. It was inconsistent with their right to freedom of expression protected under s 16 of the Constitution and was therefore invalid. They also contended that the presumption of guilt, contained in s 1(2), amounted to reverse onus provision which was inconsistent with the right, in s 35(3)(h) of the Constitution, to fair trial.
Held, that expressions or acts of threats or of instigation of violence were excluded from protection as fundamental right of freedom of expression by s 16(2) of the Constitution (see ).
Held, further, that in deciding if the conduct complained of constituted intimidation, as defined in the Act, the court was not confined to determining whether the person perceiving the act or utterances actually feared for his safety or the safety of his property. The test was whether, objectively viewed, the words or conduct had the effect as envisaged in s 1(1) and/or might reasonably be expected to have that effect (see ).
Held, further, that the choice of words used in the first case, and the context within which the threat was made, could not be regarded as harmless. The threat relayed incitement to imminent violence, the extent and kind of harm that resembled large-scale violence that fell squarely within the s 16(2) exclusion (see ).
Held, further, as to whether the requirement that the applicants had to prove the existence of lawful reason amounted to reverse-onus provision, the legal burden imposed clearly encroached on an accused’s rights against self-incrimination and the presumption of innocence. It was, however, doubtful whether the number of innocent accused persons, who might be open to the risk of conviction at the close of the prosecution’s case, were of such proportion that might justify call for the revocation of the section when all the other elements of the crime would have been prima facie proven (see).
Held, further, that the imposition of burden to prove facts which could only be within the accused’s knowledge did not amount to an unfair limitation of the presumption of innocence or an unjustifiable reverse onus since it arose at the close of the state’s case and the prosecution would not have access to such information (see ).
Held, further, that the removal of the section from the statutes might have far-reaching consequences in that ordinary members of the community would continue to withhold information because they were too terrified and intimidated to come forward. The preservation of the section was justified by the nature of the penalty sanctioned and the ease with which the defendant could discharge the legal burden. There was accordingly insufficient cause for its invalidation as unconstitutional. The application was dismissed.