General Alfred Moyo and Another v Minister of Police and Others; Nokulunga Primrose Sonti and Another v Minister of Police and Others

Two consolidated cases challenging sections of the Intimidation Act 72 of 1982. In CCT 174/18 (Moyo matter), Mr Moyo, a community leader from an informal settlement near Germiston, was charged under section 1(1)(b) after allegedly making threatening statements at a meeting at Primrose Police Station on 18 October 2012 following the denial of permission to march. In CCT 178/18 (Sonti matter), Ms Sonti, a Member of Parliament, was charged under sections 1(1)(a)(ii) and 1(1)(b) based on allegations that she sent threatening telephone calls and text messages on 17 and 18 December 2012, attempting to compel a complainant to withdraw a criminal complaint. Both applicants denied the allegations and challenged the constitutionality of the provisions before proceeding to trial. The second applicants in each case (Centre for Applied Legal Studies and Socio-Economic Rights Institute of South Africa) joined in the public interest. The High Court dismissed both constitutional challenges. The Supreme Court of Appeal held that section 1(1)(b) was constitutional but declared section 1(2) unconstitutional. Both matters were consolidated for hearing before the Constitutional Court.

• Whether section 1(1)(b) of the Intimidation Act 72 of 1982 is unconstitutional for unjustifiably criminalising expressive conduct protected by section 16(1) of the Constitution
• Whether section 1(2) of the Intimidation Act 72 of 1982 unconstitutionally infringes the presumption of innocence, the right to remain silent, and the right against self-incrimination as enshrined in section 35(3)(h) and (j) of the Constitution
• Whether the interpretive approach adopted by the Supreme Court of Appeal majority to 'read down' section 1(1)(b) constituted an impermissible 'reading-in' or unduly strained the statutory text
• What is the appropriate remedy and whether any declaration of invalidity should be suspended or have retrospective effect

Leave to appeal was granted in both matters. The appeals were upheld. Section 1(1)(b) of the Intimidation Act 72 of 1982 was declared unconstitutional and invalid. Section 1(2) of the Intimidation Act 72 of 1982 was declared unconstitutional and invalid. Both orders of invalidity were made retrospective to the extent that they operate in trials or pending appeals where the right of appeal has not yet been exhausted. In CCT 174/18, the order of the Supreme Court of Appeal was set aside. The Minister of Police was ordered to pay the costs of both sets of applicants, including the costs of two counsel in each matter. Condonation for late filing was granted in CCT 178/18.

Section 1(1)(b) of the Intimidation Act 72 of 1982 is unconstitutional because it unjustifiably infringes the right to freedom of expression protected in section 16(1) of the Constitution by criminalising expressive conduct that does not fall within the excluded categories in section 16(2). The provision is overbroad as it criminalises any conduct that has the effect of causing another person to fear for their safety, property, or security of livelihood, without requiring imminent harm or violence. The provision cannot be saved by interpretive techniques because reading in a requirement of 'imminent harm' would unduly strain the text and amount to impermissible judicial legislation in breach of the separation of powers. Where a criminal statute is open to multiple interpretations, courts must prefer an interpretation that best promotes the liberty of the subject and conforms with the Constitution, but this interpretive exercise is limited to what the text is reasonably capable of meaning. Section 1(2) of the Intimidation Act is unconstitutional because it creates a reverse onus that requires an accused to prove the existence of a lawful reason for their conduct, thereby absolving the State from proving all elements of the crime. This infringes the presumption of innocence, the right to remain silent, and the right against self-incrimination protected in section 35(3)(h) and (j) of the Constitution. A declaration of invalidity should not be suspended where suspension would further undermine the constitutional rights in question, cause uncertainty, or where the provision is so fundamentally flawed that no just and equitable remedy short of immediate invalidity is available.

The Court made several important observations beyond the binding ratio. It noted that robust debate has been called the 'lifeblood of democracy' and that the Constitution empowers everyone to speak their mind without fear of undue recrimination. The Court observed that the rights to dignity and security must be balanced against freedom of expression, and that intimidatory conduct that negates these rights has no place in an open and democratic society. The Court commented that abstract constitutional challenges require applicants to bear a 'heavy burden' of showing provisions are facially unconstitutional, as such challenges ask courts to peer into the future and stretch the limits of judicial competence. The Court noted that criminal statutes should be sufficiently clear so that unrepresented accused persons can understand the charges against them, and that the deterrent value of a criminal offence is diluted without such clarity. The Court observed that while it is a longstanding principle that no one can be compelled to give self-incriminating evidence, this principle has been recognized in South African law for at least a century. The Court suggested that if the declaration of invalidity were suspended, accused persons might successfully apply for stays of prosecution as it would be 'radical' but 'not unwarranted' to avoid convictions under a law that may no longer exist when corrected by the Legislature. The Court noted that apart from the Intimidation Act, there is no other legislative scheme criminalising intimidatory behaviour of the kind envisaged in section 1(1)(b), creating a legal lacuna, but held this did not justify suspension as the provision in its present state causes uncertainty and confusion.

This case is highly significant in South African constitutional jurisprudence for several reasons. First, it reaffirms the primacy of freedom of expression as a foundational right in the democratic order, particularly protecting robust political speech and protest action. Second, it clarifies the limits of judicial interpretation of criminal statutes, distinguishing between permissible 'reading-down' to achieve constitutional conformity and impermissible 'reading-in' that amounts to judicial legislation. Third, it emphasizes rule of law principles requiring that criminal offences be sufficiently clear so that ordinary persons, including unrepresented accused, can understand the charges against them. Fourth, it protects the fair trial rights of accused persons by striking down reverse onus provisions that undermine the presumption of innocence. Fifth, the judgment provides important guidance on when declarations of invalidity should be suspended, holding that suspension is inappropriate when it would further undermine constitutional rights or create uncertainty. The case has practical implications for protest action, political speech, and the regulation of intimidatory conduct, requiring Parliament to craft new legislation that appropriately balances freedom of expression with protection from genuine intimidation. It demonstrates the Constitutional Court's willingness to strike down legislative provisions, even those serving important purposes, when they are overbroad and unjustifiably limit fundamental rights.