Intimidation Act struck down as unconstitutional

THE section of the Intimidation Act that has been declared unconstitutional by the Constitutional Court was so broad that it could even lead one to be jailed for calling for expropriation of land without compensation.

This was the finding of Acting Justice Aubrey Ledwaba, who yesterday delivered the apex court’s judgment that invalidated section 1(1)(b) of the Intimidation Act 72 of 1982.

Justice Ledwaba found that the section effectively criminalised any speech that induced “any fear, of any kind” in someone.

He ruled in favour of Germiston-based community activist General Alfred Moyo, and EFF MP Primrose Sonti, who argued that the apartheid-era legislation was so wide-ranging that it criminalised free speech.

“On a plain reading, the section criminalises any person who acts in a manner that has the effect of causing another to fear for their own safety, or the safety of their property or livelihood,” said Justice Ledwaba.

“This, in my view, casts the net of liability too wide as it depends simply on the experience of fear by another.

“For example, the act of handing out fliers advocating expropriation of land without compensation in a known libertarian suburb could, all things considered, lead to a charge of intimidation.

“This is because such an activity would, in all likelihood, be fear-causing. It is unlikely that such an infringement on freedom of expression and the adjacent political rights could ever be justified,” Justice Ledwaba said.

Invalidation of the section meant all trials or appeals of people accused under the section fall away.

Justice Ledwaba ruled that the judgment was not retrospective insofar as cases where there had already been convictions and sentences.

Moyo and Sonti had been criminally charged under the section that they had challenged, and faced 10 years behind bars.

They argued that the section allowed for their arrest and prosecution merely on the perception that their utterances were meant to induce fear. The section was open to be used by anyone to unreasonably claim that certain remarks made them fearful, the apex court heard during a hearing held in February.

In his case, Moyo was indicted by the Germiston Regional Court for allegedly threatening police with bloodshed during a meeting in 2012. The meeting was held as part of plans for a community march on Primrose Police Station, in Germiston, against police brutality.

Claiming Moyo’s utterances made them fear for their lives, the local police arrested Moyo and charged him under section 1(1)(b).

Moyo denied ever making utterances intended to threaten the safety of police during the meeting.

Sonti faced prosecution for allegedly sending a fellow Marikana resident, Nobuhle Zimela, texts threatening to kill her and burn down her house in 2012. She also denied sending Zimela texts intended to induce fear.

Socio-Economic Rights Institute (SERI), a public interest law centre that represented Moyo, said the ruling vindicated rights to free speech.

“It is one step closer to eradicating abuse of the criminal justice system to silence dissent,” said Nkosinathi Sithole, an attorney at SERI.