Intimidation Act 72 of 1982 - application for declaration of unconstitutionality and invalidity - freedom of expression - Supreme Court of Appeal - Constitutional Court

This case in the North Gauteng High Court emanates from a criminal charge laid against General Alfred Moyo following attempts by him and other residents of the Makause informal settlement to hold a march against police brutality in Primrose, Germiston in 2012. He has been 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. This application is to declare section 1(1)(b) of the Intimidation Act unconstitutional and invalid. Moyo's trial in the Germiston Regional Magistrate’s Court will be postponed until this challenge is finally determined.

Section 1(1)(b) of the Intimidation Act states that

“(1)    Any person who –

1. . . .
2. 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-
   1. 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; and
   2. . . . [subsection 2 has been repealed]

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.”

Moyo, together with the Centre for Applied Legal Studies (CALS), argues that this provision criminalises any speech or conduct which creates a subjective state of fear in any person – whether or not the fear itself is reasonable, and whether or not the conduct or speech in question was intended to create fear. The offence is also committed where no fear is in fact created. All that need be established is speech or conduct which, reasonably apprehended, might have created fear. In other words, a person may be convicted under section 1(1)(b) if they expressed themselves in a manner that put someone, somewhere in fear, or might reasonably have been expected to do so. The fear need not be specific. A complainant need only allege that they feared, or might reasonably have feared, or that someone else feared, or might reasonably have feared, for themselves, their property, their livelihood, or the persons, property or livelihoods of others. This constitutes a far-reaching interference with the right to freedom of expression contained in section 16 of the Constitution.

This application therefore argues that the breadth of the interference with section 16 of the Constitution that section 1(1)(b) creates cannot be justified in terms of the limitation clause in section 36 of the Constitution, and the section accordingly falls to be declared unconstitutional and invalid.

In April 2015 heads of argument were filed in the Moyo case. Heads of argument were also filed in Sonti and Another v Minister of Justice and Constitutional Development and Others, in which SERI is the second applicant. This case seeks to have section 1(2) of the Intimidation Act declared unconstitutional and invalid.

The application was dismissed on 30 November 2016, and the court refused to declare section 1(1)(b) inconsistent with section 36 of the Constitution. No reasons for the court's decision were given, however. SERI filed for leave to appeal the decision.

On 17 January 2017, SERI received the judgment. In it, the Court reasoned that the restriction of the right to freedom of expression is reasonable and necessary, and the fact that section 1(1)(b) of the Act covers expressions that also fall outside the restriction in section 16(2) of the Constitution does not mean that it violates, or is contrary to, any fundamental rights, as long as such expressions instil the fear of being harmed or personal safety being compromised. 

In light of this judgment, SERI supplemented its grounds and argued the leave to appeal on 22 March 2017. Leave to appeal to the Supreme Court of Appeal (SCA) was granted on the same day. On 24 August 2017, SERI filed it's heads of argument before the SCA in which Moyo argues that section 1(1)(b) of the Intimidation Act is overbroad and has the effect of criminalising a wide range of expression protected by the right of freedom of expression enshrined in section 16(1) of the Constitution. In addition, Moyo challenges the reserve onus created in section 1(2) of the Act on the basis that it breaches the right to silence, the right not to be compelled to make self-incriminating admissions, and the right to be presumed innocent. Under this section, an accused person must sacrifice the rights 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, he or she wishes to exercise his or her rights to silence and protection from self-incrimination, he or she must accept that he or she will not be presumed innocent. 

On 20 June 2018, the SCA handed a judgment finding section 1(2) of the Act unconstitutional, and upheld SERI's appeal in that respect. The SCA judges, however, differed in some aspects of the judgment. The majority judgment, written by Wallis JA, found that section 1(2) breaches the right to silence while the minority judgment, written by Mbha JA, found that section 1(2) created an unconstitutional reverse onus, which required, in some circumstances, an accused person to prove the lawfulness of an utterance without the prosecution leading any evidence of its unlawfulness.

In relation to section 1(1)(b), the minority found section 1(1)(b) unconstitutional as it infringes the right to free expression and upheld the appeal. The majority, however, refused to uphold the appeal and found section 1(1)(b) to be constitutionally valid.

On 18 July 2018, Moyo filed an application for leave to appeal the matter to the Constitutional Court. The application for leave to appeal argues that the majority judgment of the SCA that found section 1(1)(b) of the Intimidation Act 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". This, Moyo argues, indicates that the SCA should have declared section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution". The matter will be heard in the Constitutional Court on 18 February 2019. On 19 october 2018, Moyo filed his heads of argument, which argues that the SCA's interpretation of the Intimidation Act is flawed. According to the heads of argument, Moyo asserts that the Intimidation Act "is a product of apartheid era legislation that was designed to control dissent against an unjust system" that "goes beyond criminalising expressive acts intended to cause reasonable fears of imminent harm". For this reason, Moyo calls for the Constitutional Court to declare section 1(1)(b) of the Intimidation Act unconstitutional.

On Tuesday, 22 October 2019, the Constitutional Court issued an order declaring that section 1(1)(b) of the Intimidation Act 72 of 1982 (the Act) unconstitutional and therefore invalid. The Constitutional Court also confirmed a Supreme Court of Appeal (SCA) order declaring section 1(2) of the Intimidation Act as unconstitutional. 

In a unanimous judgment penned by Ledwaba AJ, the Constitutional Court concurred with SERI’s argument that section 1(1)(b) was unconstitutional in that it unjustifiably limited the right to freedom of expression. The Constitutional Court further found that the SCA erroneously applied an interpretation to section 1(1)(b) that it cannot reasonably sustain and impermissibly strained its meaning.

Key documents: 

• Constitutional Court judgment (22 October 2019) here.
• Moyo and Sonti's heads of argument in the Constitutional Court (19 October 2018) here.
• Directives in the Constitutional Court (1 August 2018) here.
• Moyo's application for leave to appeal (18 July 2018) here and founding affidavit (18 July 2018) here.
• Judgment in the Supreme Court of Appeal (20 June 2018) here.
• Sonti and Moyo's appeal heads of argument in the Supreme Court of Appeal (23 August 2017) here. 
• Sonti and Moyo's notices of appeal in the Supreme Court of Appeal available (10 April 2017) here and here .
• SERI's heads of argument (20 March 2017) here.
• SERI's application for leave to appeal (23 December 2016) here.
• Judgment of the North Gauteng High Court (20 December 2016) here.
• Moyo heads of argument (20 April 2015) here.
• Sonti heads of argument (20 April 2015) here.
• Notice of motion (7 April 2014) here.
• Founding affidavit (7 April 2014) here.