Amicus curiae - Trespass Act - Riotous Assemblies Act - Constitutional Court - Economic Freedom Fighters (EFF)

On 17 December 2019, SERI lodged its application to intervene as amicus curiae in this application for leave to appeal, set down before the Constitutional Court on 18 February 2020. The matter revolves around two pre-1994 legislation, namely the Riotous Assemblies Act 17 of 1956 and the Trespass Act. The applicants in this matter seek a declaration that section 18 (2) (b) of the Riotous Assemblies Act 17 of 1956 (“the Riotous Assemblies Act”) is unconstitutional, and a declaration that the Trespass Act 6 of 1959 (“the Trespass Act”) does not apply to the exclusion of various land tenure statutes, including the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act 19 of 1998 (“the PIE Act”). SERI agrees with this.  

Section 18 (2) (b) of the Riotous Assemblies Act states that – 

“Any person who incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”

SERI submitted that section 18 (2) (b) of the Riotous Assemblies Act criminalises advocacy of civil disobedience, even where that disobedience is merely symbolic in nature, thus encouraging insubstantial and foolish prosecutions of expression, whether or not that expression really amounted to incitement. 

SERI also submitted that the PIE Act impliedly repealed the Trespass Act to the extent of any inconsistency between the two statutes. 

  • Constitutional Court judgment (27 November 2020) here.
  • Amicus' Founding Affidavit (17 December 2019) here.
  • Respondent's Heads of Argument (10 December 2019) here
  • Applicant's Heads of Argument (27 November 2019) here.
  • Respondent's Answering Affidavit (6 August 2019) here.
  • Applicant's Founding Affidavit (July 2019) here