EFF: ConCourt finds criminalising inciting others to commit 'any offence' is overbroad

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Picture: Felix Dlangamandla
  • The Constitutional Court has set aside an order of the Gauteng High Court in Pretoria, which declared a section of the Riotous Act unconstitutional and invalid. 
  • The Constitutional Court delivered the judgment on Friday morning.
  • The EFF challenged the Act on the basis that it was apartheid legislation.

The Constitutional Court handed down judgment in a complex legal matter which will have important bearing on the National Prosecuting Authority's prosecution of EFF leader Julius Malema for allegedly inciting people to occupy land.

On Thursday, the apex court set aside an order of the Gauteng High Court in Pretoria, which declared the punishment regime of a section of the Riotous Assemblies Act unconstitutional and invalid.  

Last year, the High Court found that the Riotous Assemblies Act was constitutionally invalid, to an extent that, "it requires someone found guilty of inciting others to commit a crime to be punished with the same severity as the person who actually committed the crime".  

However, handing down judgment on Friday, Chief Justice Mogoeng Mogoeng, who penned the majority judgment, said the court held that the meaning of the word "liable" in section18(2)(b) of the Act, "does not connote absence of judicial discretion".

He said:

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 unsustainable and the order it made will not be confirmed.

Mogoeng said: "The order of the Gauteng division of the High Court, Pretoria declaring sec 18(2)(b) of the Riotous Assemblies Act 17 of 1966 unconstitutional and invalid to the limited extent of dealing with sentence is set aside."

The court, in the majority judgment, also found that the, "criminalisation of inciting other to commit 'any offence' is overbroad and inconsistent with the right to freedom of expression in section 16(1) of the Constitution".

However, the minority judgment, "noted that the criminalisation of incitement is vital in the country's fight against the pervasive crime wave".

ALSO READ | Don't stop occupying land - Malema to Dunoon residents

The chief justice also said, "Mr Julius Sello Malema and the Economic Freedom Fighters' prayer for an order declaring that the Trespass Act 6 of 1959 does not apply to unlawful occupiers under the prevention of illegal evictions from an unlawful occupation of Land Act 19 of 1998 is refused".

The operation of invalidity was suspended for a period of 24 months to enable Parliament to rectify the Constitutional defect.  

The Chief Justice said during the period of suspension of the order of invalidity, section 18(2)(b) of the Riotous Assemblies Act should be read as, "...any person who incites, instigates, commands or procures any other person to commit any serious offence whether at common law or against a statute or a statutory regulation shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable".

In 2014 and 2016, Malema called on people to occupy vacant land. The National Prosecuting Authority (NPA) instituted charges against Malema under the same section of the Act.

ALSO READ | Malema should escape punishment, ConCourt hears in Riot Act application

The EFF and Malema then approached the High Court to set aside the NPA's decision to prosecute the party's leader.

They also sought to declare the section of the Act unconstitutional and to re-interpret the Trespass Act to mean that it is no longer a crime.

The EFF also challenged the Act on the basis that it was an apartheid legislation, which was enacted in response to the adoption of the Freedom Charter at the Congress of the People in 1955.

Advocate Tembeka Ngcukaitobi, on behalf of the EFF and Malema, argued earlier this year that the section of the Riot Act was out of place with South Africa's new Constitution.

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