Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another

The Economic Freedom Fighters (EFF) and Julius Malema were charged with incitement under section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 based on statements made between 2014-2016 encouraging people to occupy land. The charges alleged incitement to commit the offence of trespass under section 1(1) of the Trespass Act 6 of 1959. The applicants challenged the constitutionality of the Riotous Assemblies Act and the applicability of the Trespass Act. The High Court declared section 18(2)(b) unconstitutional to the limited extent that it compelled the same sentence for inciters as for those who actually committed the offence, but otherwise upheld it. The High Court rejected the argument that PIE (Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998) made the Trespass Act inapplicable to unlawful occupiers.

• Whether section 18(2)(b) of the Riotous Assemblies Act is unconstitutional in its sentencing provisions
• Whether criminalizing incitement to commit 'any offence' is an unjustifiable limitation of freedom of expression under section 16(1) of the Constitution
• Whether the Trespass Act applies to unlawful occupiers protected under PIE
• Whether less restrictive means exist to achieve crime prevention while protecting freedom of expression

1. The High Court order declaring section 18(2)(b) unconstitutional regarding sentencing was set aside. 2. Leave to appeal directly to the Constitutional Court was granted. 3. Section 18(2)(b) of the Riotous Assemblies Act was declared inconsistent with section 16(1) of the Constitution and invalid to the extent it criminalizes incitement of 'any offence'. 4. The declaration of invalidity was suspended for 24 months. 5. During suspension, section 18(2)(b) must be read as criminalizing incitement to commit 'any serious offence'. 6. The reading-in becomes final if Parliament fails to cure the defect within 24 months. 7. The prayer for a declaration that the Trespass Act does not apply to unlawful occupiers under PIE was refused. 8. No order as to costs.

Freedom of expression under section 16(1) of the Constitution, while fundamental to democracy and of utmost importance given South Africa's history of suppression, is not absolute and may be limited under section 36(1). Criminalizing incitement to commit 'any offence' constitutes an overbroad limitation of freedom of expression that is not reasonable and justifiable. The limitation is disproportionate because less restrictive means exist - namely, limiting criminalization to incitement of serious offences rather than any offence. The phrase 'liable to' in section 18(2)(b) regarding sentencing denotes susceptibility to punishment and allows judicial discretion, not mandatory identical sentencing. Section 16(2) defines minimum, not maximum, boundaries of unprotected expression - legislation may extend beyond section 16(2) if it meets section 36(1) justification criteria. For a limitation of free expression to be permissible, legislation must be demonstrably meant to curb incitement of offences that seriously threaten public interest, national security, dignity or physical integrity of individuals. The interpretation of the Trespass Act in relation to PIE requires a direct constitutional challenge and cannot be determined through interpretive means alone.

The Court made several important observations: (1) The historical origins and apartheid-era preamble of the Riotous Assemblies Act, while abhorrent, do not automatically render the provision unconstitutional in the democratic era - legislation must be assessed on its current constitutional compliance. (2) Free expression serves as a 'virtual exhaust pipe' for citizens to express frustration and is indispensable for accountability and exchange of ideas. (3) Leaders bear heavier responsibilities to preserve ubuntu, justice and equality-based values. (4) Courts should not abdicate responsibility to define bounds of permissible legislative encroachment to police and prosecuting authorities - prosecutorial discretion cannot save otherwise unconstitutional provisions. (5) Landlessness and land reform are issues of great public importance requiring robust debate, but this cannot justify incitement to commit crime. (6) The concept of 'serious offence' while not perfectly clear, can be guided by existing jurisprudence and Schedules to the Criminal Procedure Act. (7) Comparative foreign law shows many democracies criminalize incitement without requiring 'seriousness' or 'imminent violence', but South Africa's specific constitutional framework and history require a different approach. (8) The dissent extensively discussed countervailing factors including mens rea requirements, burden of proof, de minimis rule, common law defenses, prosecutorial discretion, and sentencing discretion as safeguards against abuse.

This case is significant for: (1) clarifying the scope and limits of freedom of expression in South Africa, particularly regarding political speech and land reform advocacy; (2) establishing that freedom of expression, while fundamental, is not absolute and does not rank higher than other rights; (3) providing guidance on the overbreadth doctrine and less restrictive means analysis under section 36(1); (4) addressing the constitutional validity of apartheid-era legislation in the democratic dispensation; (5) emphasizing the transformative importance of freedom of expression given South Africa's history of suppression; (6) demonstrating the tension between crime prevention and constitutional rights; and (7) illustrating the Court's approach to interim remedies through reading-in while respecting separation of powers by allowing Parliament time to legislate. The judgment is also notable for the substantive dissent on whether criminalizing incitement of 'any offence' passes constitutional muster, reflecting different approaches to limitations analysis and the role of countervailing safeguards.