On Tuesday, 19 February 2019, SERI argued an application in the Constitutional Court, on behalf of General Alfred Moyo, to have section 1(1)(b) of The Intimidation Act72 of 1982 declared unconstitutional.
The case emanates from a criminal charge laid against General Moyo after an attempt by him and other residents of the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, to hold a march protesting against police brutality in Primrose, Germiston in 2012.
SERI, on behalf of General Moyo, have consistently argued that section 1(1)(b) of The Intimidation Act 72 of 1982 is unconstitutional as it criminalises any speech or conduct which creates a state of fear in the person towards whom the speech or conduct is directed. This drastically limits the right to freedom of expression found in s16 of the Constitution.
The matter was heard on appeal from the Supreme Court of Appeal (SCA) which declared s1 (2) of the Act invalid, but held that s1(1)(b) was constitutionally compliant.
SERI argued that the purpose of the provision has been consistently misinterpreted by the courts which, incorrectly limited the right to freedom of expression. One of the issues recognised by the SCA was the broad language used in s1(1)(b). It believed to have remedied this issue by narrowing the interpretation of the section by “reading in” the fact that for a sense of fear to be actionable under s1(1)(b) it had to be imminent. However, SERI argued that the breadth of the language in the provision caters to a whole range of potential fears to an individual, their property, livelihoods and to third parties. If the section was limited in this way it would, in many justified situations, render the provision powerless.
SERI also argued that the section was being applied to situations which were not intended by the legislature. It was submitted, that the way in which the SCA interpreted s1(1)(b) went beyond the scope originally intended by the legislature. The SCA advocated for the broad definition of the section on the basis that it allowed the protection of s1(1)(b) to be extended to crimes such as cyber-bullying, stalking and harassment. SERI argued that not only are these offences protected by other pieces of legislation but also that stretching the section in this way defeated its purpose and again, unjustly limits the right to freedom of expression.
The pending outcome of the judgement will serve to clarify whether s1(1)(b) will continue to be considered constitutionally valid. This brings into question whether or not a person can be arrested and criminally charged for speech or publication which induces fear in another, for their own safety or the safety of their property or that of a third party.