Boissie Mbha. Picture: TREVOR SAMSON
Boissie Mbha. Picture: TREVOR SAMSON

One of the apartheid regime’s "last and most insidious efforts to curtail freedom of expression and political action" has been declared unconstitutional by the Supreme Court of Appeal (SCA).

Judge Boissie Mbha said a section of the Intimidation Act introduced in 1991 by the Internal Security Amendment Act was a product of an "abominable regime" and had no place in a free‚ open and democratic SA.

Mbha ruled on Wednesday in the case of Gen Alfred Moyo‚ of Makause informal settlement in Germiston‚ Gauteng‚ who was charged under the act for allegedly threatening two senior officers at Primrose police station.

Moyo is alleged to have led a march to the police station and told the officers he would make sure they were removed and that there would be bloodshed.

Mbha also ruled in favour of EFF MP Primrose Sonti‚ who was charged under another section of the act after she allegedly threatened to burn down a Marikana resident’s house if she did not withdraw criminal charges against murder accused Lonmin mine worker Anele Zonke

The judge said the law unjustifiably infringed her constitutional rights to freedom of expression‚ to remain silent‚ to be presumed innocent and not to be compelled to make self-incriminating admissions.

"The nature and importance of [these rights] cannot be overemphasised‚" Mbha said. "They lie at the core of our constitutional order and protect the individual against the state’s over-reach and constitute essential preconditions for the development of individual freedom and the realisation of the self."

The ministers of police and justice‚ as well as the national director of public prosecutions‚ opposed the appeals by Moyo and Sonti against a ruling of the high court in Pretoria. But Mbha said their arguments were "untenable".

Moyo challenged section 1(1)(b) of the Intimidation Act after being charged in October 2012. His legal team from the Socio-Economic Rights Institute of SA (Seri) said the section was introduced in 1991 to reverse a series of high-court decisions that narrowed the range of conduct and speech that could be regarded as intimidation.

Mbha said the law was aimed at conduct that would have been considered harmful under apartheid but which is innocuous today.

"Even at the time it was passed‚ the breadth of [the section] was controversial in that it was not limited to serious threats of unlawful conduct‚" Mbha said‚ adding that MPs had raised concern at the time that it could even outlaw consumer boycotts.

By criminalising words or actions that cause‚ or might cause‚ fearfulness‚ the law "obliterates the distinction between ‘true threats’ and ‘political hyberbole’".

Under the section‚ even campaigning for the removal of a politician from office would constitute criminality if it placed someone in fear for their livelihood‚ said the judge.

"Unless hate speech‚ incitement of imminent violence or propaganda for war … are involved‚ no one is entitled to be insulated from opinions and ideas that they do not like‚ even if those ideas are expressed in ways that place them in fear.

"Indeed‚ in present-day SA, many will be afraid of the political and social possibilities that are advocated for daily in high-stakes debates that characterise a transforming society with a violent‚ racist past," Mbha said..

"Obviously‚ this may place many South Africans in a condition of subjective or ‘reasonable’ fear‚" he said‚ but that would not entitle them to expect those who had expressed upsetting ideas to be locked up.

"There can be no justification for the limitations on the right to freedom of expression simply to pacify the expression of disagreement‚ or to create a comfortable‚ placid political atmosphere."

When Sonti was charged under section 1(2) of the Intimidation Act‚ she was the leader of the Sikhala Sonke organisation, which provided support for victims of the Marikana massacre.

The high court agreed with her lawyers from the Socio-Economic Rights Institute that the section infringed the rights to be presumed innocent‚ to remain silent and not to incriminate oneself‚ but said these infringements were justified.

Mbha disagreed‚ saying the section required an accused person to provide a "lawful reason" for alleged criminal conduct. But they would not be able to do so if they exercised their right to remain silent.

The judge criticised High Court Judge Nomsa Khumalo’s finding that the law was justified because intimidation was "rife" in SA‚ saying she was not entitled to draw that inference and that it flew in the face of a Constitutional Court ruling that "one must be careful to ensure that the alarming level of crime is not used to justify extensive and inappropriate invasions of individual rights".

Mbha’s decisions will need to be confirmed by the Constitutional Court.

Correction: June 22 2018

Moyo's legal team was from the Socio-Economic Rights Institute (Seri) and not the Centre for Applied Legal Studies at Wits University, as stated in the original article.