Moyo and Another v Minister of Police and Others; Sonti and Another v Minister of Police and Others

Two consolidated matters challenged the constitutionality of provisions of the Intimidation Act 72 of 1982. In the Moyo matter, Mr Alfred Moyo, a community leader, was arrested and charged under section 1(1)(b) of the Act following allegedly threatening conduct at a police station after permission to march was refused. He denied intimidatory intent and contended that the charge suppressed lawful protest. In the Sonti matter, Ms Nokulunga Primrose Sonti, a Member of Parliament, was charged under sections 1(1)(a)(ii) and 1(1)(b)(i) of the Act for allegedly sending threatening calls and messages to compel a complainant to withdraw a criminal case. She denied the allegations. Both applicants, supported by public interest organisations, mounted abstract constitutional challenges before their trials, contesting section 1(1)(b) for overbroad criminalisation of expressive conduct and section 1(2) for placing an onus on the accused.

Leave to appeal was granted in both matters and both appeals were upheld. Section 1(1)(b) and section 1(2) of the Intimidation Act 72 of 1982 were declared unconstitutional and invalid. The declarations of invalidity operate retrospectively in pending trials or appeals where appeal rights have not been exhausted. The Minister of Police was ordered to pay the applicants’ costs, including costs of two counsel.

The case is a leading Constitutional Court authority on the limits of criminalising expressive conduct and on unconstitutional reverse-onus provisions. It affirms robust protection of freedom of expression, particularly in political and protest contexts, and reinforces the presumption of innocence by striking down statutory provisions that shift the burden of proof to accused persons.