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During the suspension period of the annulment order of that article, it should be read in the meantime:
“Any person who incites, instigates, orders or induces another person to commit a serious crime, whether under common law or against a legal regulation, will be guilty of a crime and will be subject to sentence, with the penalty that corresponds to a person convicted of actually committing that crime would be responsible. “
The reading will disappear when the correction of the constitutional defect specified by the parliament enters into operation.
If the parliament fails to remedy the defect within 24 months, the reading will be final.
Mogoeng said that the Constitutional Court had a different opinion than the higher court regarding the confirmation of the constitutional invalidity of the act.
“We hold that the meaning of the word responsible in sections 18 (2) (b) of the Riot Assemblies Act does not connote the absence of judicial discretion.
“Its correct meaning is that the inciter is susceptible to the same punishment as the actual perpetrator. The declaration of unconstitutionality by the high court is, therefore, untenable and the order it issued will not be confirmed.
The second request for the criminalization of incitement to commit any crime under article 18 (2) (b) was also considered. This is the type of incitement that limits the constitutional right to freedom of expression provided for in Article 16 (1) of the Constitution ”, the sentence reads.
Section 18 (2) (b), the court concluded, limited the right to freedom of expression.
“Whether that limitation is reasonable and justifiable in an open and democratic society based on the values of human dignity, equality and freedom is a question we had to consider.”
According to Mogoeng, citizens should enjoy the freedom to express themselves for or against any law within the limits of the general scope of section 16 (1) of the constitution.
“Speaking or defending laws or crimes that are considered unjust should not be easily outlawed by the law and, therefore, it is encouraging but does not force others to challenge them. The criminalization of incitement to any offense under section 18 (2) (b) is such a far-reaching and far-reaching limitation that it will be difficult to know in advance what is actually prohibited or permitted.
“Therefore, any crime is indisputably overboard and its inhibition of freedom of expression is markedly disproportionate to the benefit of society …
“Therefore, we have no other option to invalidate section 18 (2) (b) to the extent of the disproportionality of its social benefit to its vast invasion of free expression and the consequent inconsistency with section 16 (1) of the Constitution”.
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