Today SERI, in partnership with the the Centre for Applied Legal Studies (CALS), launched an application in the North Gauteng High Court to challenge the constitutionality and validity of section 1(1)(b) of the Intimidation Act 72 of 1982. A charge of "intimidation" in terms of this section of the Act was laid against General Alfred Moyo following attempts by him and other residents of the Makause informal settlement in Germiston to hold a march against police brutality at Primrose police station in 2012.
Section 1(1)(b) of the Intimidation Act states that "Any person who –
(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication-
(i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person; and
(ii) ..... [subsection repealed]
shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.”
The application argues that this provision criminalises any speech or conduct which creates a subjective state of fear in any person – whether or not the fear itself is reasonable, and whether or not the conduct or speech in question was intended to create fear. The breadth of the interference with section 16 of the Constitution (which protects freedom of expression) that section 1(1)(b) creates cannot be justified in terms of the limitation clause in section 36 of the Constitution, and the section of the Intimidation Act should therefore be declared unconstitutional and invalid. Moyo's trial will be postponed until this challenge is finally determined.