Constitutional Court: Sections of Intimidation Act limit freedom of expression

Bench of the Constitutional Court. (Alon Skuy, Gallo Images, Sowetan)
Bench of the Constitutional Court. (Alon Skuy, Gallo Images, Sowetan)

In a unanimous judgment, the Constitutional Court has ruled that sections of the Intimidation Act are unconstitutional, finding that it limits the right to freedom of expression.

In the judgment, which Justice Leona Theron handed down on Tuesday, the court found that Sections 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 limited freedom of expression and that Section 1(2) of the Act created a reverse onus.

"The respondent failed to place any evidence before this court which showed why such an infringement is reasonable or justifiable," Theron said.

"In terms of Section 1(2) this court confirms the declaration of constitutional invalidity made by the Supreme Court of Appeal, however, the court finds that this section creates a reverse onus and not a mere evidentiary burden on the accused."

READ | Sanef takes on EFF in court for 'intimidation' of journalists

After unsuccessful attempts to strike down the Act in the High Court and Supreme Court of Appeal, the Constitutional Court ruled that certain sections of the Act were unconstitutional.

General Alfred Moyo, represented by the Socio-Economic Rights Institute of South Africa (SERI), is an activist of the Macodefo civic structure in the Makause informal settlement on the East Rand.

His criminal case dates back to 2012, when police accused him of intimidation after – according to Moyo – Primrose police attempted to prevent a march by the Makause residents against police brutality.

Before the march started, a meeting between Moyo and the police was held in which Moyo and his colleagues criticised the police.

"Moyo is accused of making statements that caused the station commander and her armed colleagues to fear for their [lives]," Macodefo and Right 2 Know (R2K), who joined the case as friends of the court, said in a statement.

The intimidation charge, they said, was an attempt to silence Moyo.

"General Moyo represented by the Socio-Economic Rights Institute of South Africa (SERI), challenged this clause for violating the freedom of expression for activists who speak truth to power."

'Broad infringement of free speech'

They added: "This case is the latest example of how protesters and activists have been forced to challenge unjust laws which continue to be used to silence dissent and criminalise acts of protest."

This, however, is not an isolated incident, according to Moyo and R2K.

During the Fees Must Fall protests, police used the same charge to arrest students, they claimed.

The Intimidation Act criminalises speech or conduct which is seen to threaten another person – whether or not this threat is actually carried out, they argued.

"This broad infringement of free speech allows police to target people for saying things that offend or criticise them, using a criminal charge to silence them," Moyo and R2K submitted.

Speaking to the media, Moyo said he was relieved by the judgment, but it was not enough as there were many other laws that prevented protesters from exercising their rights.

"When we start challenging that, then the police look for scapegoat policies and laws that they can use to criminalise you and make sure you are not the voice of the dissenting voices," he said.

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