On 24 August, SERI filed heads of arguments before the Supreme Court of Appeal on behalf of Makause community activist, General Moyo.
This case in the emanates from a criminal charge laid against Moyo and two other activists from the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, following attempts by him and other residents to hold a march against police brutality in Primrose, Germiston in 2012. He 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 72 of 1982. Moyo, with the assistance of SERI, seeks to have sections 1(1)(b) and 1(2) of the Intimidation Act unconstitutional and invalid. His trial in the Germiston Regional Magistrates’ Court will be postponed until this challenge is finally determined.
Section 1(1)(b) of the Intimidation Act criminalises expressive acts which “have the effect” or “might reasonably be expected” to have the effect of placing any person in fear for their personal safety, the safety of their property or their livelihood, or the safety of the person, property or livelihood of another. In the heads of argument before the Supreme Court of Appeal, SERI, on behalf of Moyo, argues that this provision is overbroad, and has the effect of criminalising a wide range of expression protected in terms of the right of freedom of expression enshrined in section 16(1) of the Constitution.
In addition, Moyo challenges section 1(2) of the Act, which creates a reverse onus in all proceedings brought under section 1(1)(a) of the Act. Section 1(1)(a)(ii) of the Act criminalises threats made “without lawful reason” to “kill, assault, injure, or cause damage” to any person with the intention of inducing that person to “do or restrain from doing any act” or “assume or abandon a particular standpoint”. The effect of the reverse onus in section 1(2) is that an accused person must prove, on a balance of probabilities, that he or she had a lawful reason to issue the threat criminalised under section 1(1)(a)(ii), unless he or she makes a statement “clearly indicating the existence” of a lawful reason before the prosecution closes its case. If no such statement is made, the threat is presumed to have been unlawful. On this basis, Moyo argues that section 1(2) breaches the right to silence, the right not to be compelled to make self-incriminating admissions, and the right to be presumed innocent (contained in section 35 of the Constitution). This is due to the fact that an accused person must sacrifice the rights to silence and against self-incrimination, if he or she is to be given the benefit of the presumption of innocence. If, on the other hand, he or she wishes to exercise his or her rights to silence and protection from self-incrimination, he or she must accept that he or she will not be presumed innocent.
Photo by Kate Stegeman.