Freedom of expression or incitement to commit an offence? A constitutional challenge

By Gillian Lumb, Regional Practice Head, Director, Siyabonga Tembe, Associate, Cliffe Dekker Hofmeyr


On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.


The applicants also sought a declaratory order excluding occupiers of land protected by the Extension of Security of Tenure Act, No 62 of 1997 (ESTA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (PIE) from the application of s1(1) of the Trespass Act, No 6 of 1959 (Trespass Act) and an order setting aside the criminal charges brought against Julius Malema (Mr Malema) by the National Prosecuting Authority (NPA) in terms of s18(2)(b) of the Riotous Act.


On 7 November 2016 and during a rally in Newcastle, Mr Malema told members of the EFF to occupy any vacant land they could find. As a result of this utterance, the NPA laid charges of incitement in terms of s18(2)(b) of the Riotous Act against Mr Malema alleging that he unlawfully and intentionally incited, EFF followers to commit the crime of trespassing in terms of s1(1) of the Trespass Act.


The High Court had to decide:

  • Whether s18(2)(b) of the Riotous Act (impugned section) unjustifiably and unreasonably infringed on the constitutional right to freedom of speech guaranteed and protected in s16 of the Constitution of the Republic of South Africa, 1996 (Constitution);

  • Whether a declaratory order outlining the proper interpretation of s1(1) of the Trespass Act was warranted due to an alleged conflict with PIE; and

  • Whether the charges against Mr Malema could and should be set aside in light of the alleged unconstitutional vagueness thereof.


The applicants argued inter alia that the definition of incitement was too broad and that the impugned section unjustifiably limits the right to freedom of speech contained in s16 of the Constitution. The court held that the crime of incitement hinges on the intention of the inciter to influence the mind of an incitee to commit a crime through words or conduct and not the result of the incitement. The court further held that the criminalisation of incitement serves an important role in crime prevention as it seeks to stop crimes before they occur.


In analysing the Constitutionally guaranteed freedom of speech, the court drew a distinction between speech expressly protected in s16(1) such as the freedom of press and expression, and speech excluded from protection in s16(2) such as incitement of imminent violence. The court found that s16(2) exhaustively establishes which speech can be limited without infringing on freedom of speech, but s16(1) does not exhaustively establish which speech is protected by the right to freedom of speech. The court found that any speech not excluded by s16(2) is protected by s16(1) even if it is not specifically referenced in s16(1).


The court went on to find that in order for the impugned section not to limit protected free speech in terms of s16(1), it had to exclusively criminalise speech excluded from protection. The impugned section criminalises incitement to commit any offence. The scope of incitement which it criminalises is accordingly broader than “incitement of imminent violence” and “incitement to cause harm” in s16(2). As a result, it criminalises incitement to commit offenses that are not explicitly prohibited by s16(2), criminalises and therefore limits free speech protected by s16(1). Although the impugned section limits the right to free speech, the court found that the limitation was justified and reasonable under s36 of the Constitution and therefore not unconstitutional.


The court dismissed two of the applications on the basis that the court was ill-suited to provide such relief. It held that there was no imminent conflict between s1(1) of the Trespass Act and ESTA and PIE and that as such, the provisions of the Acts could co-exist without the provision of a declaratory order.


Finally, the court held that the remedy in relation to the alleged vagueness of the charges against Mr Malema was to be found in s85 and s87 of the Criminal Procedure Act, No 51 of 1977 and should be raised at the trial.


The EFF has communicated its intention to appeal the judgment before the Constitutional Court.


For more information, please contact Gillian Lumb at  or Siyabonga Tembe at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr









POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr


2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 


POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.


It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 


Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 


The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.


The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.


In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.


Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.


Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 


Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.


An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?


A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.


So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.


For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr






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