In the matter between -
First applicant: Economic Freedom Fighters (EFF); and Second applicant: Mr Julius Sello Malema; and
First respondent: Minister of Justice and Correctional Services; and Second respondent: National Director of Public Prosecutions (NDPP); and
First Amicus Curiae (Friend of the court): Socio-economic Rights Institution of South Africa; and Second Amicus Curiae: Sakeliga NPC
This matter is, inter alia, about the meaning and/or objective and/or interpretation of certain legal provisions in our law. They are -
(1) Section 18 of the Riotous Assemblies Act 17 of 1956 which provides as follows:
“18. Attempt, conspiracy and inducing another person to commit offence
(1) Any person who attempts to commit any offence, against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
(2) Any person who -
(a) conspires with any other person to aid or procure the commission of or to commit;
(b) 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.”
Comment: Only section 18(2)(b) of this Riotous Assemblies Act is relevant to this matter. Section 18(1) and (2)(a) are, however, included supra for the sake of completeness. In the Afrikaans text, section 18(2)(b) reads as follows: “18(2)(b) Iemand wat -
(b) ‘n ander persoon uitlok, aanstig, beveel of verkry om so ‘n misdryf te pleeg, is aan ‘n misdryf skuldig en by skuldigbevinding strafbaar met die straf waarmee ‘n persoon wat weens die werklike pleging van daardie misdryf skuldig bevind is, gestraf kan word.”
(2) Section 1(1) of the Trespass Act 6 of 1959 (in Afrikaans text: “Wet op Oortreding") provides as follows:
“1. Prohibition of entry or presence upon land and entry of or presence in buildings in certain circumstances
(1) Any person who without the permission -
(a) of the lawful occupier of any land [in Afrikaans text: ‘grond’] or any building or part of a building; or
(b) of the owner or person in charge of any land or any building or part of a building that is not lawfully occupied by any person, enters or is upon such land or enters or is in such building or part of a building, shall be guilty of an offence unless he or she has lawful reason to enter or be upon such land or enter or be in such building or part of a building.
(1A) A person who is entitled to be on land in terms of the Extension of Security of Tenure Act (ESTA), 1997, shall be deemed to have lawful reason to enter and be upon such land”.
(Words in square brackets inserted by Pollex.)
(3) The Prevention of Illegal Evictions from and Unlawful Land Act 19 of 1998 (“PIE Act”) where, in section 8, provision is made for certain offences and private prosecutions.
(4) Sections 16 and 167(5) and (6) of the Constitution of the RSA, 1996, provide as follows:
“16. Freedom of expression
(1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) [supra] does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”