Author: Gary Moore
Date: 7 March 2017
Among these, the Act provides that a person is deemed to have committed the common-law offence of incitement to public violence if he has spoken or published such words that “it might reasonably be expected” that the “natural and probable consequences” of his speech or publication would be the commission of public violence by members of the public generally or persons to whom the speech or publication was addressed.
The accused’s intention is irrelevant, the criterion being what a reasonable man should expect. The test is objective and asks whether a reasonable man would regard the words as an incitement to public violence. The accused cannot rebut such a finding by showing his mind was devoid of wrong intent.
Because the provision does not, to secure a conviction, require proof of the accused’s intention, it may be asked if it requires proof of any fault at all by the accused, or if it creates a strict-liability offence. If the latter, the provision could be unconstitutional.
The provision however probably does not create strict liability. On a proper interpretation, it indeed requires proof of fault on the part of the accused, in the form of negligence. (Although negligence plays a very limited role in common-law crimes, in many statutory offences it suffices to ground a conviction.) Thus the provision does not create strict liability and is hence not invalid on that ground.
Does the provision violate the Rule of Law by fettering freedom of expression? The 1959 Delhi Declaration on the Rule of Law stipulates that a legislature in a free society must not place restrictions on freedom of speech, except as necessary to ensure the status and dignity of the individual in society.
The provision states a person is deemed to commit incitement to public violence if he speaks or publishes such words that it might reasonably be expected the natural and probable consequences of his speech or publication would be public violence.
The Rule of Law is a Constitutional founding value. Facets of the founding values are given effect elsewhere in the Constitution, and it is said courts may rely on the founding values only if there is no relevant provision of the Constitution. Regarding freedom of expression, the Constitution states everyone has the right to freedom of expression, but this does not extend to incitement of imminent violence or to advocacy of hatred based on race, ethnicity, gender or religion constituting incitement to cause harm.
It is concluded that on balance the provision does not violate the Rule of Law as applied in South Africa.
 Riotous Assemblies Act 17 of 1956.
 Riotous Assemblies and Criminal Law Amendment Act 27 of 1914. This was aimed at curbing “rebellious white workers.” Class and Colour in South Africa, 1850-1950. H J & R E Simons 1969, p 430. (The Heart of Hope, P O’Malley, “1914. Riotous Assemblies & Criminal Law Amendment Act No 27” (accessed 2 Mar 2017: https://www.nelsonmandela.org/omalley/index.php/site/q/03lv01538/04lv01646/05lv01747.htm.)
 Intimidation Act 72 of 1982; Internal Security Act 74 of 1982. (The latter has in turn been replaced. Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 s 27.)
 Section 16 (Special precautions in interest of public safety as regards explosives); s 17 (Acts or conduct which constitute an incitement to public violence); s 18 (Attempt, conspiracy and inducing another to commit offence).
 Riotous Assemblies Act s 17 (Acts or conduct which constitute an incitement to public violence). Its 1914 predecessor was in similar terms: Riotous Assemblies and Criminal Law Amendment Act 27 of 1914 s 7.
 The common-law offence of public violence consists of the commission of such acts as openly and publicly effect, or are intended to cause, a violent and forcible disturbance of the public peace and security, or a forcible invasion of the rights of other people. R v Segopotsi and others  2 All SA 267 (T) 270.
The acts must be unlawful, intentional, of serious dimensions, and committed by several people acting in concert. Law of South Africa vol 6, 2 ed repl vol, “Criminal Law,” A St Q Skeen, updated S Hoctor: Common law crimes: Crimes against the state and administration: Public violence par 180. The interest protected is public peace and order. This distinguishes the offence from sedition, which also involves an unlawful gathering, but the interest protected is the authority of the government. Ibid par 182.
 In any place.
 Or has acted or conducted himself.
 Or act or conduct.
 Under the circumstances.
 Or in whose presence the act or conduct took place.
 This is a departure from the general rule that, for a person to be guilty of an offence of incitement, he must have intended to influence the mind of another person towards committing an offence. S v Nkosiyana and Another  4 All SA 456 (A) 459. R v Segale and Others  1 All SA 456 (A) 461.
 Under the circumstances.
 As natural and probable consequences.
 The provision states “it might reasonably be expected,” not “he might reasonably have expected.”
 R v Maxaulana  2 All SA 146 (E) 148. (This and the case cited below were decided under the prior Act’s substantially identical provision: Riotous Assemblies and Criminal Law Amendment Act 1914 s 7.)
 R v Radu  2 All SA 155 (E) 158. The state must prove the act may reasonably be expected to lead naturally and probably to commission of public violence. (Reasonable doubt is for the benefit of the accused.)
(The provision does not require the State to prove the accused’s act resulted in violence. Nor does it require that public violence be the inevitable, or only, consequence of his act. Ibid.)
 A blameworthy state of mind. As a rule, criminal liability requires fault in that to be convicted the accused should have mens rea (a guilty mind). (Actus non facit reum nisi mens sit rea. An act does not make [the doer] guilty unless the mind be guilty. Black’s Law Dictionary.)
 See S v Coetzee and Others 1997 (4) BCLR 437 (CC) par  per O’Regan J.
 Law of South Africa op cit: General principles: Strict liability: Statutory offences par 111 at fnn 77–83; ibid, Statutory offences: Principles of general application: Principle of mens rea par 359 fnn 11–13).
 The only common-law crimes for which negligence suffices are culpable homicide (S v Van As 1976 2 SA 921 (A) 927–928; Law of South Africa op cit: Common-law crimes: Crimes against the person: Culpable homicide par 243), and contempt of court by a newspaper editor (S v Harber 1988 4 All SA 496 (A) 506; Law of South Africa ibid: General principles: Mens rea or culpability: Negligence par 98).
 To name but a few statutory offences which require only negligence to ground a conviction:
Negligent driving (National Road Traffic Act 93 of 1996 s 63(1): S v Shimbarta  2 All SA 69 (N) 74);
Sale of contaminated foodstuffs (Local Government Ord 21 of 1942 (N) s 197(1)(f); Durban Food By-laws 1950, bylaw 18(c): Amal Bev Inds Natal (Pty) Ltd v Durban City Council  2 All SA 222 (A) 230–231);
Unlawful possession of a firearm (Arms and Ammunition Act 28 of 1937 ss 4(1), 30(e): S v Duma  1 All SA 63 (N)) 70 (believing it to be a toy).
(For other examples see Law of South Africa ibid par 98 fn 3.)
 Declaration of Delhi, 1959: International Commission of Jurists. The Rule of Law in a Free Society (report on international congress of jurists held in New Delhi on 5–10 January 1959) p 314. Conclusions: First Committee: The Legislative and the Rule of Law): cl 4(e).
 Or has acted or conducted himself.
 Or act or conduct.
 By members of the public generally or persons to whom the speech or publication was addressed.
 Constitution of the Republic of South Africa, 1996, Ch 1 (Founding provisions) s 1(c).
 Or in ordinary laws.
 Freedman, D W, Law of South Africa vol 5(3) 2ed repl vol, “Constitutional Law: Structures of Government” para 7 fn 14 (citing Currie & De Waal, The New Constitutional and Administrative Law, 2001, p 73).
 Or ordinary laws.
 Constitution Ch 2 (Bill of rights) s 16(1).
 Constitution s 16(2)(b).
 Constitution s 16(2)(c).
 Except perhaps insofar as it applies to incitement of other than imminent violence or advocacy of hatred based on grounds other than race, ethnicity, gender or religion constituting incitement to cause harm.
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