NEWS & ANALYSIS

Why Malema can be charged with incitement - Solidarity

Union publishes opinion by Carel Snyman on legal basis for such a prosecution

SOLIDARITY MEDIA BRIEFING ON 21 SEPTEMBER 2012

Introduction

Following the criminal charges that Solidarity recently laid against Julius Malema, the Hawks have  indicated that these charges are being investigated. Solidarity seeks to assist the Hawks with  their investigation in any possible manner and we have therefore decided to assist by providing a solid legal basis for our claims that Julius Malema must be prosecuted for incitement to public violence and intimidation.

With this in mind, we approached Professor CR Snyman, one of the country's leading authors and experts on criminal law, for a legal opinion on whether a case for incitement to public violence and intimidation could be successfully brought against Malema.

We will present this opinion to the Hawks as a contribution to the ongoing investigation against Malema.

Relevant background

On 4 September 2012 Dirk Hermann, acting in his capacity as Deputy General Secretary of Solidarity, laid criminal charges of incitement to public violence and incitement to intimidation against Julius Malema.

These  charges  were  initially  laid  at  the  SAPS  in  Lyttelton,  but  the  matter  was subsequently transferred to SAPS, Springs, since the actions of Julius Malema (more fully  described below) occurred within the jurisdiction of the SAPS, Springs. The Springs case number of 173/9/2012 was subsequently  allocated.

On Thursday, 30 August 2012, Malema is reported to have promised to lead a revolution which, he said, would make all mines in the country ungovernable. He is quoted as having told: workers at the Aurora mine at Grootvlei, Springs. "...We are going  to  lead  a  mining  revolution  in  this  country...  We  will  run  these  mines ungovernable until the Boers come to the table...".

The sworn affidavit by Dirk Hermann, with annexures dealing more fully with this, is attached (PDF.)

On 12 September 2012 Dirk Hermann, on the advice of the investigating officer at the SAPS,  Springs,  filed  a further  affidavit  under  the  SAPS,  Springs,  case  number 173/9/2012, laying further charges of incitement to public violence and incitement to intimidation after Julius Malema's actions at Goldfields' KDC Mine. These second affidavit has since been referred to the SAPS, Carletonville, for a case to be opened there. We are waiting for the case number.

The  further  charges  relate  to  Malema's  actions  on  11  September  2012,  while addressing striking mineworkers at Goldfields' KDC Mine, when he said "...there must be a national strike at all the mines until Frans Baleni and the NUM leadership step down...".

The further sworn affidavit by Dirk Hermann, with annexures dealing more fully with this, is attached (PDF.

Solidarity's reasons for filing complaints against Julius Malema

Solidarity mandated Dirk Hermann to lay these charges for the following reasons:

Our concern, first and foremost, is for the safety of our members in the mining industry and for their security of employment. It is therefore our responsibility to act on  matters  that   we  deem  to  threaten  our  members'  safety  and  security  of employment. Malema's actions by calling  the mines to be made ungovernable, for a mining revolution and for strike  action, contribute to the instigation of illegal strike action and alsol prolongs ongoing illegal strikes.

The recent events at Lonmin have again confirmed that strike action in South Africa, particularly illegal strikes, are as a rule characterised by intimidation, assault, malicious damage to property, and even murder.  During the Lonmin strike Solidarity's members were unable to go to work due to fear for their safety. Calls for strike action in the mining industry, a mining revolution and for making the mines ungovernable therefore directly influence the wellbeing of our members.

Solidarity regards the sanctity of the rule of law as non-negotiable. As a responsible trade  union we must assist in confirming and protecting the rule of law in South Africa. Where we are of the opinion that criminal actions have taken place, we must act in the appropriate fashion.

The  mining  industry  plays  an  important  role  in  the  South  African  economy.

Widespread  worker  unrest  in  the  mining  industry,  such  as  that  which  we  have experienced in recent weeks, is extremely harmful to the South African economy. The actions of Julius Malema as described above, contribute to the ongoing labour unrest in  mines. Criminal prosecution may assist in stopping Malema from further similar actions in  the future. This is of paramount importance for ensuring that the mining industry in South Africa remains intact and stable.

LEGAL OPINION BY PROFESSOR C R SNYMAN ON MR MALEMA'S POSSIBLE CRIMINAL LIABILITY FOR CERTAIN WORDS UTTERED IN THE COURSE OF RECENT SPEECHES BY HIM

1.

I, Professor Carel Rainier Snyman, retired Professor of Criminal and Procedural Law at the University  of  South  Africa,  have  been  requested  by  Solidariteit  to  write  a  legal  opinion concerning the  conduct of Mr Julius Malema during the recent strikes and labour unrest at Lonmin mine and Marikana near Rustenburg during August and September 2012

2.

I hold the degrees LL.B and LLD, obtained from the University of the Orange Free State. I am admitted as an advocate of the High Court of South Africa. I have practised as an advocate in Bloemfontein for five years from 1964 till 1969. Thereafter I have been a senior lecturer in Public Law at what was then  known as the Rand Afrikaans University. Since 1975 till 2005 (thirty years) I was Professor in Criminal and Procedural Law at the University of South Africa.  I am the author of a number of books on criminal law, including "Strafreg", the sixth edition of which appeared in 2012, and its English version "Criminal Law", the fifth edition of which appeared in

2008. The book is used extensively in the courts by practitioners, judges and magistrates and is also prescribed at a number of universities in South Africa.

3.

According to the information at my disposal, Mr Julius Malema, the former leader of the ANC Youth League, is quoted as saying in the course of a speech on or about 30 August 2012 that "[w]e  are  going  to  lead  a  mining  revolution  in  this  country  ...  We  will  run  these  mines ungovernable until the boers come to the table". He is further quoted as having said on or about

3 September 2012 in another speech that the S.A. mines will be "revolutionised".

4.

The question is whether the above words uttered by Mr Malema to large crowds amounts to the commission of any crime. I am of the opinion that the words indeed amount to the commission of one or more of the following crimes:

4.1 Incitement to public violence;

4.2  Incitement to malicious injury to property;

4.3 Incitement to commit either common assault or a qualified form of assault, such as assault with intent to do grievous bodily harm;

4.4 Intimidation in contravention of section 1 of the Intimidation Act 72 of 1982

5.

Incitement to commit any crime is punishable by virtue of the provisions of section 18(2) of the

Riotous Assemblies Act 17 of 1956, the relevant portions of which read as follows:


"Any person who ... incites, instigates, commands or procures any other person to commit any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable".

6.

Incitement to commit any crime is punishable. The definition of the crime does not distinguish between successful and unsuccessful incitement. The crime is formulated widely. Liability does not depend on whether the incitee (ie the person or persons to whom the accused addressed his words) had indeed committed the crime to which he or she was incited. Neither does it even depend on whether the incitee  has in any way been actually influenced by the words of the accused. The crime is completed the  moment the accused influences another to commit the crime. In order to obtain a conviction of incitement, the prosecution need not prove that, as a result of the inciting words, the incitee indeed  committed the crime. No causal relationiship between the accused's words and any subsequent  action  by the incitee is required (State v Nkosiyana 1966 (4) SA 655 (A).)

7.

In order to obtain a conviction of incitement, the prosecution need not prove that the accused specifically named the crimes to which he incited the people by the precise technical legal names of the crimes. He may be convicted of incitement even if he had not specifically exhorted the crowd "to commit public violence or malicious injury to property". If the words he used can reasonably be  interpreted as implying an exhortation to commit the abovementioned specific crimes, his words qualify as incitement. Neither is it required for a conviction that the accused should have specified the precise  time, place, method of execution or precise victims of the conduct or crimes which he has incited the incitees to commit. This is another reason why it is submitted that Mr Malema would not have a valid defence to a charge of incitement.

8.

The words "revolution" and "ungovernable" implies actions which are unlawful. A "revolution" implies the overthrowing, totally or at least partially, of the existing legal order, mostly by violent means. This is what happened during for example the French, American or Russian revolutions. Funk and Wagnells New Practical Standard Dictionary (1946) give as synonyms for the word "revolution"  the  following:   "anarchy,  disorder,  insubordination,  insurrection,  lawlessness, rebellion and riot". To make an institution such as a mining operation "ungovernable" implies preventing such institution to operate according to the accepted legal rules and to force it by threats of inter alia violence to change its policies and ways of operation.

9.

In order to obtain a conviction of incitement, the prosecution must prove that the accused intentionally committed the incitement. In the leading case of State v Nkosinyana (above at p 658H) Holmes JA defined incitement as follows: an inciter is somebody who comes into contact with another and influences or seeks to influence the other verbally or by conduct to commit a crime. There can be no doubt that Mr Malema intended his words to influence the members of the crowd to "revolution" and "ungovernability (of the mines)". At the very least he subjectively foresaw the possibility  that his words may have this effect and he reconciled himself to this possibility.

10.

The generally accepted definition of the crime of public violence is that the crime consists in the unlawful and intentional commission, together with a number of people, of an act or acts which assume  serious  dimensions  and  which  are  intended  forcibly  to  disturb  public  peace  and tranquillity or to invade the rights of others. (See State v Mlotshwa 1989 (4) SA 787 (W) at p.

794; State v Whitehead 2008 (1) SACR 431 (SCA) par 38.) The crime protects public peace and tranquillity or security (Rex v Salie 1938 TPD 136 at p. 139).

11.

The courts have held that violent resistance to the police may amount to the commission of the crime (State v Samaai 1986 (4) SA 860 (C)). Rioting may also amount to the commission of the crime (State v Khumalo 1991 4 SA 310 (A)), as well as forcible coercion by strikers of other workers (Regina v Cele 1958 1 SA 144 (N)). The crime can be committed even though there is no actual disturbance of public  peace or security. It is sufficient if the conduct in intended to disturb the peace or security (State v  Cele, above, at p 153C-E). The violence or intended violence must assume serious proportions (State v Nxumalo 1960 (2) SA 442 (T)).

12.

A reasonable deduction from the words allegedly uttered by Mr Malema is that he indeed intended his words to result in conduct which disturbs the public peace or security. Mr Malema used the words "revolution" and "making the mines ungovernable". A reasonable deduction from his use of these words and the circumstances in which they were uttered is that he subjectively foresaw the possibility of his words resulting in riot, unlawful conduct such as resistance to the police, assault, injury to others and damage to property. A mine, just as other institutions, only becomes  ungovernable  if  the  ordinary  rules  of  the  law  are  disobeyed  or  broken.  This  is tantamount to the disturbance of public peace and security.

13.

Seeing that the words have been directed at a large crowd or otherwise have reached the ears of  a  large  number  of  workers  through  the  media  or  other  means  of  communication,  it  is reasonable to draw the conclusion that he also foresaw that the acts resulting from his words would assume serious proportions.

14.

As far as the possible crimes of incitement to commit assault or malicious injury to property (mentioned above in par 4) are concerned, it should be borne in mind that public violence may overlap  other crimes such as assault and malicious injury to property. At least one of these crimes are usually committed in the course of the commission of public violence, yet because of the dangerous dimension of the conduct the accused is charged, not with one of these crimes, but with public violence. Incitement  to  commit assault or malicious injury to property may be added to the charge sheet as alternatives to a charge of incitement to commit public violence.

15.

As far as the possibility of prosecuting Mr Malema for intimidation is concerned, the Intimidation Act 72 of 1982 criminalises certain forms of conduct amounting to intimidation. The Act creates two crimes  relating  to intimidation. The first one is created in section 1(1) and the second insection 1A(1). The  purpose of these crimes is to punish people who intimidate others to conduct themselves in a certain manner, such as to support an illegal strike, to riot, or to assault people such as police who oppose their actions or to commit damage to property.

16.

The statutory definitions of these crimes are very long. I shall limit myself to quoting only those portions  of the definitions which are relevant for present purposes. Section 1(1) provides in essence as follows:

"Any person who -

(a)        without lawful reason and with intent to ... induce a person ... of a particular ... class or kind or persons in general to do  ... any act or to abandon a particular standpoint -

(i)         ...

(ii)        in any manner threatens to kill, assault, injure or cause damage to any person ... ; or

(b)        acts or conducts himself in such a manner or utters  ... such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable  consequences  thereof  would  be,  that  a  person  perceiving  the  ... utterance .. -

(i)         fears for his own safety or the safety of his property or the security of his livelihood,  or for the safety of  any other person  or  the safety of  the property of any other person ...

shall be guilt of an offence ...

(The italics have been inserted by myself)

17.

Paragraph (a) of section 1(1) punishes the commission of a certain act, whereas paragraph (b) punishes the causing of a certain condition. In order to obtain a conviction of the crime created in paragraph (b)  the prosecution need not necessarily prove that the prohibited result (ie, a person fearing for his safety etc) necessarily ensued. Instead of the actual ensuing of the result, it  is  sufficient  that  "it   might   reasonable  be  expected  that  the  natural   and  probable consequences" of the conduct  would be that a person fears for his safety or that the other possible consequences may ensue. To obtain a conviction for the crime created in paragraph (b) the prosecution need not even prove  intention. Negligence is sufficient, because of the words "reasonably expected that the natural and probable consequences ... would be ... etc". This facilitates the task of the prosecution considerably.

18.

Mr Malema's words clearly can be brought within the terms of the crime created in section

1(1)(a) and (b) quoted above. The reasonable and probable consequences of his words are that people would fear for their own safety or the safety of their property (eg mining equipment) or the security of their livelihood (ie that people may lose their jobs).

19.

The crime created in section 1A(1) of the Intimidation Act creates a crime which is differently worded and which in essence reads as follows:

"Any person who with intent to put in fear or to demoralize or to induce the general public, a particular section of the population ... to do or to abstain from doing any act, ...

-

(a) commits an act of violence or threatens or attempts to do so;


(b) performs any act which is aimed at causing, bring about, promoting or contributing towards such act or threat of violence ...

(c) ...

(d) incites,  instigates,  commands,  aids,  advised,  encourages  or  procures  any  other person to commit , bring about or perform such act or threat,

shall be tuillty of an offence ..."

(The italics in the above quotation have been supplied by myself.)

20.

Mr Malema's words clearly falls within the ambit of the above definition of the crime created in section  1A(1) quoted immediately above. He put in fear ... a section of the population; by implication he threatened to commit an act of violence (this is the deduction that can be made from his use of the  words "revolution" and "ungovernable"; he performed an act aimed at causing,  promoting  or  contributing  towards  an  act  or  threat  of  violence;  and  he  incited, instigated, encouraged others to commit such acts (of violence).

21.

It should be noted that, because of the provisions of subparagraph (d), which speaks of incites, instigates ... encourages...etc there would seem to be no such crime as incitement to commit intimidation, at least the crime of intimidation as set out in section 1A(1). As in the crime of high treason, incitement merges with the main, substantive crime of intimidation. Stated differently: the definition of this form of intimidation already includes  incitement to commit it.

22.

A further important reason why Mr Malema's words fall within the scope of the definition of the crime created in section 1A(1), is that the word "violence" as used in this subsection 1A(1) is further defined in subsection (4) as including not only the infliction of bodily harm upon, or the killing of, or  endangering  of the safety of any person, but also the damaging, destruction or endangering of property. This amplification of the concept of "violence" makes it easier to bring Mr Malema's conduct within the letters of the definition of the crime. The prosecution need only prove that Mr Malema foresaw the possibility that his words may contribute towards the damage of the property of the mining company to ensure that his words comply with the definition of the crime created in section 1A(1).

23.

To summarise: I am of the opinion that, for the reasons set out above, Mr Malema's words uttered in the course of his speeches, especially his use of the words "revolution" and "rendering the mines  ungovernable" amount to the commission of one or more of the crimes I have specified above in paragraph 4.

PROFESSOR C R SNYMAN

18 September 2012

Issued by Solidarity, September 21 2012

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