Ruling favours expression of dissent

ON TUESDAY, the Constitutional Court issued an order declaring that section 1(1)(b) of the Intimidation Act 72 of 1982 (the Act) is unconstitutional and therefore invalid.

The Constitutional Court also confirmed a Supreme Court of Appeal (SCA) order declaring section 1(2) of the Intimidation Act unconstitutional.

The case emanates from a criminal charge against Mr General Moyo after an attempt by him and other residents of the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, to hold a march protesting police brutality in Primrose, Germiston, in 2012.

General Moyo was charged with “intimidating” the station commander of the Primrose Police Station in Germiston, in terms of section 1(1)(b) of the Intimidation Act.

The Socio-Economic Rights Institute (Seri), on behalf of Moyo, has consistently argued that section 1(1)(b) of the Intimidation Act is unconstitutional as it criminalises any speech or conduct which creates a state of fear in the person towards whom the speech or conduct is directed.

This drastically limits the right to freedom of expression found in section 16 of the Constitution.

Moyo’s case was consolidated with that of Ms Nokulunga Primrose Sonti who was similarly charged under section 1(2) and 1(1)(b)(i) of the act. Ms Sonti was represented by the Centre for Applied Legal Studies.

In a unanimous judgment written by Ledwaba AJ, the Constitutional Court concurred with Seri’s argument that section 1(1)(b) was unconstitutional in that it unjustifiably limited the right to freedom of expression. The Constitutional Court also found that the SCA erroneously applied an interpretation to section 1(1)(b) that it cannot reasonably sustain and impermissibly strained its meaning.

This judgment is a vindication of the rights to freedom of expression.

It is a vindication not only for Mr Moyo but for our constitutional democracy. It is a step closer towards eradicating the abuse of the criminal justice system to silence dissent. NKOSINATHI SITHOLE | Socio-Economic Rights Institute attorney.