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The Constitutional Court has ruled that an apartheid-era law under which Julius Malema was indicted is unconstitutional. (File photo: Ashraf Hendricks)
The Constitutional Court says a law used to indict EFF leader Julius Malema violates freedom of expression.
First Posted by GroundUp
On Friday the Constitutional Court declared unconstitutional the crime of “incitement” under the Law of Revolutionary Assemblies.
The Riotous Assemblies Act is a piece of “security” legislation that was passed in 1956 to suppress political opposition to the apartheid government. One of the ways in which the act tried to achieve this was to create the crime of “incitement.”
It was used to discourage civil disobedience. For example, Robert Sobukwe was convicted of incitement in 1960 for encouraging blacks to disobey pass laws.
Read the judgment
Under the act, a person is guilty of incitement if he encourages or instigates another to commit a crime. If found guilty, they can be sentenced to the same punishment as the person who actually committed the crime.
For example, if someone influences other people to engage in civil disobedience by encouraging them not to pay electronic tolls, they may be found guilty of incitement and receive the same punishment that someone actually found guilty of not paying could be sentenced to. electronic tolls.
In EFF against Minister of Justice and Penitentiary Services, a majority of the Constitutional Court declared the crime of “incitement” unconstitutional under the Law of Revolutionary Assemblies.
According to the majority ruling of the Chief Justice Moegeng Moegeng, this is because the crime unjustifiably violates the constitutional right to freedom of expression.
Background
In 2014 and 2016, EFF leader Julius Malema made several public statements in which he allegedly encouraged people to illegally occupy private land.
Following Malema’s statements, the National Prosecutor’s Office (NPA) charged him with incitement under the Rebel Demonstrations Act. The NPA brought the charges against Malema on the grounds that he allegedly incited people to commit a crime by encouraging them to trespass on private property, which constitutes a criminal offense under the Illegal Entry Act.
Malema and the EFF later challenged the constitutionality of the incitement in the Pretoria High Court. His constitutional challenge was based on two points.
First, the crime of incitement unjustifiably limits the constitutional right to freedom of expression. Malema said this was because the incitement could result in the criminal prosecution of someone for exercising their constitutional right to speak freely about injustice or unjust laws. He also said that he never encouraged anyone to act violently. Incitement should be limited to criminalizing only expression that encourages violent acts and not peaceful acts of civil disobedience, Malema and the EFF argued.
Second, Malema argued that he had not encouraged anyone to commit a crime. He argued that this was because the Prevention of Illegal Evictions Act (PIE) and the Security of Tenure Extension (ESTA) provide constitutional protection to people occupying private property without permission. Because PIE and ESTA were enacted to give effect to people’s constitutional right not to be evicted without a court order, the Apartheid-era Trespass Act should not apply when someone occupies private property without permission.
This means that someone would not be committing a crime under the Intrusion Act when occupying private property without permission, because PIE and ESTA have priority.
On July 4, 2019, the Pretoria High Court determined that, while the incitement limits the right to freedom of expression, the limitation was reasonable and justifiable.
However, the court declared the Revolutionary Assemblies Law unconstitutional to the extent that it allowed someone who incited a crime to be sentenced to the same punishment that someone convicted of committing the crime could be sentenced to.
The High Court refused to rule on Malema and the EFF’s argument on whether PIE and ESTA take precedence over the Intrusions Act.
The High Court ruling was then referred to the Constitutional Court, which was to determine whether the High Court correctly rejected Malema’s remaining arguments on the incitement and the Search Law.
Why incitement limits the constitutional right to freedom of expression
Judge Moegeng explained that the Constitution protects all forms of expression. Only expression that amounts to war propaganda, incitement to imminent violence or the defense of hatred based on race, ethnicity or religion is not protected.
Therefore, if someone is prosecuted for encouraging another person to commit a violent crime, they cannot argue that their constitutional right to freedom of expression will be violated.
The crime of incitement, however, is not limited to criminalizing forms of expression that are not protected by the Constitution. This is because it penalizes the expression that incites another person to commit “any crime”.
Therefore, incitement also criminalizes speech that encourages people to commit non-violent crimes or to engage in peaceful and non-violent civil disobedience of laws they consider unjust.
The majority of the court determined that the crime of incitement, as defined by the Law of Revolutionary Assemblies, limits the constitutional right to freedom of expression. The second question the court considered was whether this was justified under the general limitation clause.
Why the limitation could not be justified
The general limitation clause is a section of the Constitution that allows the government to violate a constitutional right, if it can show the court that the violation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Given their importance, there should be very compelling reasons to show that it is justifiable to criminalize constitutionally protected forms of expression.
The majority ruling concluded that while the incitement has the legitimate objective of dissuading people from encouraging others to commit criminal acts, its limitation on the right to freedom of expression went too far and was neither reasonable nor justifiable.
This was because it is not reasonable and justifiable to criminalize expression that does not encourage others to commit non-violent crimes or crimes that are not “serious”.
The majority judgment said that a better solution would be for incitement to criminalize only expression that encourages others to commit a “serious” crime, such as murder, rape or armed robbery. This would allow people to encourage others to engage in peaceful civil disobedience, but would also allow the government to prosecute people who encourage others to commit violent or serious crimes that would still achieve the goal of crime prevention.
Therefore, the offense of incitement under the Riot Demonstrations Act was declared unconstitutional to the extent that it allowed for the prosecution of someone for encouraging others to commit a “trivial” crime or a crime that is not “serious”.
Parliament has been given 24 months to solve the constitutional problems of the law.
The court ruled that, in the interim, the offense of incitement should be read to allow only the prosecution of persons who encourage others to commit a serious or violent crime.
The majority ruling refused to confirm the Superior Court order.
This means that a person convicted of incitement for encouraging others to commit a serious or violent crime may still be sentenced to the same punishment that someone actually convicted of committing that crime could be sentenced. (A dissenting minority ruling by Judge Steven Majiedt would have upheld the Superior Court order.)
Why the court refused to consider the Invasion Law argument
Like the High Court, the Constitutional Court refused to consider whether it is still a crime to occupy private property without permission under the Intrusion Act as long as PIE or ESTA is applied.
The court said this argument essentially meant that Malema and the EFF were asking the court to declare the Intrusions Act unconstitutional without directly questioning its constitutionality. If Malema and the EFF wanted to challenge the constitutionality of the Intrusions Law, they should have started legal proceedings to declare it unconstitutional. They did not.
Judge Moegeng said nothing prevents Malema or the EFF from filing a court case to challenge the constitutionality of the Intrusion Act in the future if they so choose.
Each party was ordered to pay its own legal costs. DM
