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

The National Prosecuting Authority charged Mr Julius Malema, leader of the Economic Freedom Fighters (EFF), with incitement under section 18(2)(b) of the Riotous Assemblies Act 17 of 1956, based on public statements encouraging people to occupy land without permission. The alleged incitement related to the offence of trespass under the Trespass Act 6 of 1959. Malema and the EFF challenged the constitutionality of section 18(2)(b), arguing that it impermissibly limited freedom of expression by criminalising incitement to commit ‘any offence’ and that its sentencing provision was unconstitutional. They also sought a declaration that the Trespass Act does not apply to unlawful occupiers protected by the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The High Court held the sentencing aspect of section 18(2)(b) unconstitutional but found the limitation of expression justified, and rejected the challenge to the Trespass Act.

Section 18(2)(b) of the Riotous Assemblies Act was declared unconstitutional and invalid to the extent that it criminalises incitement to commit ‘any offence’. The declaration of invalidity was suspended for 24 months, with a reading-in limiting the offence to incitement to commit a ‘serious offence’. The High Court’s order on sentencing invalidity was set aside. The application to exclude the application of the Trespass Act to unlawful occupiers under PIE was refused. No order as to costs was made.

The case is a leading authority on freedom of expression and criminal incitement in South African law. It clarifies that broad criminalisation of incitement can unjustifiably infringe protected expression and affirms the importance of proportionality and overbreadth analysis under section 36. It also confirms the coexistence of the Trespass Act with PIE, preserving the role of criminal law alongside constitutional land protections.