The Constitutional Court has unanimous held that section 1(1)(b) and 1(2) of the Intimidation Act 72 of 1987 are unconstitutional, finding that it limits the right to freedom of expression. The freedom of expression is provided for in the Bill of Rights under section 16 of the Constitution of the Republic. In the judgment, Justice Leona Theron handed down on 22 October 2019, the Constitutional Court held that Sections 1(1)(b) and 1(2) of the Intimidation Act limit freedom of expression and that Section 1(2) of the Act created a reverse onus.

Section 1(1)(b) provide as follows:

(1) 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) ……

[Sub-para. (ii) deleted by s. 6 of Act 126 of 1992.]

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.

[Sub-s. (1) substituted by s. 32 of Act 138 of 1991.]

Section 1(2)

(2) Any person who- in any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution. Justice Leona Theron held that, “the Respondent had failed to place any evidence before this court which showed why such an infringement is reasonable or justifiable. In terms of Section 1(2) this court confirms the declaration of constitutional invalidity made by the Supreme Court of Appeal, however, the court finds that this section creates a reverse onus and not a mere evidentiary burden on the accused”.

The Applicant, Mr General Alfred Moyo, represented by the Socio-Economic Rights Institute of South Africa (SERI), an activist of the Macodefo civic structure in the Makause informal settlement on the East Rand. In 2012, the police accused Mr Moyo of intimidation after according to Mr Moyo in the Primrose police attempted to prevent a march by the Makause residents against police brutality.

Prior to the commencement of the march, a meeting between Mr Moyo and the police was held in which Mr Moyo and his colleagues criticised the police. Mr Moyo was thereafter accused of making statements that caused the station commander and her armed colleagues to fear for their lives. However this was found to be false allegation in an attempt to silence Mr Moyo.

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