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Concourt rules in favour of pair found guilty of issuing threats

The Constitutional Court has ruled that two sections of the Intimidation Act are unconstitutional and invalid.
The Constitutional Court has ruled that two sections of the Intimidation Act are unconstitutional and invalid.

The constitutional court on Tuesday declared that two sections of the Intimidation Act of 1982 were unconstitutional and invalid.

Section 1(1)b of the act criminalised any speech or conduct which created a subjective fear in any person, regardless of whether the conduct or speech in question was intended to create fear.

Section 1(2) provided that a person charged under Section 1 would have to prove there existed a lawful reason for their conduct.

The matter arose from two cases, in which two people were charged under these sections.

A community activist from Germiston, Gen Alfred Moyo, was charged after a complaint by the station commander of Primrose police station, Lt-Col Thembi Nkhwashu, and her assistant in 2012.

The charge, in terms of the act, was that Moyo made statements to the effect that he would make sure the commander and her assistant were removed and that they would not last long at Primrose, and threatened to repeat what happened at Marikana in 2012.

In another case, EFF MP Nokulunga Sonti was charged under the same sections after a number of “threatening” text messages were sent and telephone calls made to a complainant in a criminal matter..

Before they were due to go on trial, Moyo and Sonti challenged the constitutionality of the sections.

The high court in Pretoria dismissed both applications. It found that section 1(1)(b) infringed the right to freedom of expression, but that the infringement was reasonable and justifiable.

The high court also found that though section 1(2) infringed a number of fair-trial rights,  the infringement was justifiable as the state would otherwise be unable to secure a competent conviction.

Last year, the Supreme Court of Appeal found that section 1(1)(b) did not infringe the right to freedom of expression.

However, the SCA found that section 1(2) was constitutionally invalid as it created a burden on the accused to prove his innocence.

Sonti and Moyo applied to the constitutional court for an order to confirm the declaration that section 1(2) was unconstitutional. They also applied for leave to appeal against the finding by the SCA that section 1(1)(b) was lawful.

In a unanimous judgment, acting judge Aubrey Ledwaba found that section 1(1)(b) was unconstitutional as it unjustifiably limited the right to freedom of expression.

Regarding section 1(2), Ledwaba confirmed the declaration of invalidity made by the SCA.

He said the section absolved the state from proving all the elements of the crime created in section 1 of the act.

“This is an obvious and impermissible infringement of the right to be presumed innocent, to remain silent and not to be compelled to give self-incriminating evidence, as enshrined in ... the constitution.

“For at least the past century, our law has recognised that no one can be compelled to give evidence incriminating him or herself,” Ledwaba said.

Moyo, who was in court, welcomed the judgment.

“I am a quite relieved. It is not only me who gets this kind of relief. It is most activists who are falling victim to apartheid-informed laws that are still are being used in this democratic era,” he said.

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