On 19 October 2018, SERI filed heads of argument on behalf of Makause informal settlement resident and political activist, General Moyo, in the Constitutional Court. Moyo is challenging the constitutional validity of sections of the Intimidation Act, which he argues infringe the right to freedom of expression as protected in section 16 of the Constitution.
This case emanates from a criminal charge laid against Moyo and two other activists from the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, following attempts by him and other residents to hold a march against police brutality in Primrose, Germiston in 2012. He was charged with “intimidating” the Station Commander of the Primrose Police Station in Germiston, in terms of section 1(1)(b) of the Intimidation Act 72 of 1982. Moyo, with the assistance of SERI, seeks to have sections 1(1)(b) and 1(2) of the Intimidation Act declared unconstitutional and invalid because it has the effect of criminalising a wide range of expression protected by the right of freedom of expression. His trial in the Germiston Regional Magistrates’ Court has been postponed until this challenge is finally determined.
In Moyo's application for leave to appeal, he argues that the majority judgment of the Supreme Court of Appeal (SCA) that found section 1(1)(b) of the Intimidation Act was constitutionally compliant is incorrect because the judges misconstrued the purpose and effect of this section in historical context and that the judges applied an interpretation to section 1(1)(b) that "it cannot reasonably bear". Moyo's heads of arguments take this argument further by asserting that the Intimidation Act "is a product of apartheid era legislation that wasdesigned to control dissent against an unjust system" that "goes beyond criminalising expressive acts intended to cause reasonable fears of imminent harm". As a result, Moyo argues, the Constitutional Court should declare section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution".
General Moyo at a protest march in Johannesburg. Photo by Kate Stegeman.