Freedom of expression or incitement to commit an offence? A constitutional challenge

The applicants also sought a declaratory order excluding occupiers of land protected by the Extension of Security of Tenure Act, No 62 of 1997 (ESTA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (PIE) from the application of s1(1) of the Trespass Act, No 6 of 1959 (Trespass Act) and an order setting aside the criminal charges brought against Julius Malema (Mr Malema) by the National Prosecuting Authority (NPA) in terms of s18(2)(b) of the Riotous Act.

On 7 November 2016 and during a rally in Newcastle, Mr Malema told members of the EFF to occupy any vacant land they could find. As a result of this utterance, the NPA laid charges of incitement in terms of s18(2)(b) of the Riotous Act against Mr Malema alleging that he unlawfully and intentionally incited, EFF followers to commit the crime of trespassing in terms of s1(1) of the Trespass Act.

The High Court had to decide:

• Whether s18(2)(b) of the Riotous Act (impugned section) unjustifiably and unreasonably infringed on the constitutional right to freedom of speech guaranteed and protected in s16 of the Constitution of the Republic of South Africa, 1996 (Constitution);
• Whether a declaratory order outlining the proper interpretation of s1(1) of the Trespass Act was warranted due to an alleged conflict with PIE; and
• Whether the charges against Mr Malema could and should be set aside in light of the alleged unconstitutional vagueness thereof.

The applicants argued inter alia that the definition of incitement was too broad and that the impugned section unjustifiably limits the right to freedom of speech contained in s16 of the Constitution. The court held that the crime of incitement hinges on the intention of the inciter to influence the mind of an incitee to commit a crime through words or conduct and not the result of the incitement. The court further held that the criminalisation of incitement serves an important role in crime prevention as it seeks to stop crimes before they occur.

In analysing the Constitutionally guaranteed freedom of speech, the court drew a distinction between speech expressly protected in s16(1) such as the freedom of press and expression, and speech excluded from protection in s16(2) such as incitement of imminent violence. The court found that s16(2) exhaustively establishes which speech can be limited without infringing on freedom of speech, but s16(1) does not exhaustively establish which speech is protected by the right to freedom of speech. The court found that any speech not excluded by s16(2) is protected by s16(1) even if it is not specifically referenced in s16(1).

The court went on to find that in order for the impugned section not to limit protected free speech in terms of s16(1), it had to exclusively criminalise speech excluded from protection. The impugned section criminalises incitement to commit any offence. The scope of incitement which it criminalises is accordingly broader than “incitement of imminent violence” and “incitement to cause harm” in s16(2). As a result, it criminalises incitement to commit offenses that are not explicitly prohibited by s16(2), criminalises and therefore limits free speech protected by s16(1). Although the impugned section limits the right to free speech, the court found that the limitation was justified and reasonable under s36 of the Constitution and therefore not unconstitutional.

The court dismissed two of the applications on the basis that the court was ill-suited to provide such relief. It held that there was no imminent conflict between s1(1) of the Trespass Act and ESTA and PIE and that as such, the provisions of the Acts could co-exist without the provision of a declaratory order.

Finally, the court held that the remedy in relation to the alleged vagueness of the charges against Mr Malema was to be found in s85 and s87 of the Criminal Procedure Act, No 51 of 1977 and should be raised at the trial.

The EFF has communicated its intention to appeal the judgment before the Constitutional Court.