Moyo and Another v Minister of Justice and Constitutional Development and Others; Sonti and Another v Minister of Justice and Correctional Services and Others (28532/14; 41487/14) [2016] ZAGPPHC 1077; 2017 (1) SACR 659 (GP) (20 December 2016)

Moyo and Another v Minister of Justice and Constitutional Development and Others; Sonti and Another v Minister of Justice and Correctional Services and Others (28532/14; 41487/14) [2016] ZAGPPHC 1077; 2017 (1) SACR 659 (GP) (20 December 2016)

The court held that section 1(1)(b) of the Intimidation Act does not unjustifiably infringe the right to freedom of expression, as the conduct and speech targeted by the section fall within the exclusion criteria of section 16(2) of the Constitution, namely incitement to imminent violence. The section is subject to an objective test, requiring that the conduct instill reasonable fear of harm, and is justified in the context of South Africa's high levels of violence and intimidation. Regarding section 1(2), the court found that although the provision imposes a reverse onus on the accused to prove a lawful reason, this burden arises only after the prosecution has established a prima facie...

Citation
[2016] ZAGPPHC 1077
Parties
Applicant: General Alfred Moyo; Applicant: Centre for Applied Legal Studies; Applicant: Nokulunga Primrose Sonti; Applicant: Socio-Economic Rights Institute of South Africa; Respondent: Minister of Justice and Constitutional Development; Respondent: National Director of Public Prosecutions; Respondent: Director of Public Prosecutions, Gauteng; Respondent: Minister of Police; Respondent: Minister of Justice and Correctional Services; Respondent: Director of Public Prosecutions, North West Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 December 2016
Case Number
28532/14; 41487/14
Procedural Posture
Constitutional Application / Judgment
Outcome
Application for a declaratory order of invalidity and unconstitutionality of sections 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 is dismissed.
Judges
N V Khumalo
Legal Topics
Freedom of Expression, Reverse Onus, Presumption of Innocence, Intimidation Act, Limitation of Rights, Fair Trial Rights
Constitutional Law Criminal Law Freedom of Expression Reverse Onus Presumption of Innocence Intimidation Act Limitation of Rights Fair Trial Rights

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Parties

General Alfred Moyo

Applicant

Centre for Applied Legal Studies

Applicant

Nokulunga Primrose Sonti

Applicant

Socio-Economic Rights Institute of South Africa

Applicant

Minister of Justice and Constitutional Development

Respondent

National Director of Public Prosecutions

Respondent

Director of Public Prosecutions, Gauteng

Respondent

Minister of Police

Respondent

Minister of Justice and Correctional Services

Respondent

Director of Public Prosecutions, North West Province

Respondent

Procedural Posture

Constitutional Application / Judgment

Legal Issues

  1. 1 Whether section 1(1)(b) of the Intimidation Act 72 of 1982 unjustifiably limits the right to freedom of expression under section 16 of the Constitution.
  2. 2 Whether section 1(2) of the Intimidation Act imposes an unconstitutional reverse onus, violating the rights to remain silent, presumption of innocence, and protection against self-incrimination under section 35(3)(h) of the Constitution.
  3. 3 Whether the limitations imposed by the Intimidation Act are reasonable and justifiable under section 36 of the Constitution.

Ratio Decidendi

The court held that section 1(1)(b) of the Intimidation Act does not unjustifiably infringe the right to freedom of expression, as the conduct and speech targeted by the section fall within the exclusion criteria of section 16(2) of the Constitution, namely incitement to imminent violence. The section is subject to an objective test, requiring that the conduct instill reasonable fear of harm, and is justified in the context of South Africa's high levels of violence and intimidation. Regarding section 1(2), the court found that although the provision imposes a reverse onus on the accused to prove a lawful reason, this burden arises only after the prosecution has established a prima facie...

Court Disposition

Application for a declaratory order of invalidity and unconstitutionality of sections 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 is dismissed.

Orders

  • The application for a declaratory order of invalidity and unconstitutionality of sections 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 is dismissed.
  • No order as to costs.