The Constitutional Court of South Africa declared Friday that section 18(2)(b) of the Riotous Assemblies Act on the crime of incitement is inconsistent with section 16(1) of the Constitution, which provides for freedom of expression.

Julius Malema had on various occasions called upon his supporters to occupy land regardless of their lack of title. The National Prosecuting Authority charged him with incitement to commit trespass under the Trespass Act. Malema and the Economic Freedom Fighters party challenged the constitutionality of the Riotous Assemblies Act and the applicability of the Trespass Act at the Gauteng Division of the High Court of South Africa. The court declared the Riotous Assembly Act unconstitutional but held that the Trespass Act was applicable as it was not in conflict with any law that the applicants had cited. The applicants moved to the Constitutional Court to appeal the latter and get a confirmation of the former.

The Constitutional Court stated the right to freedom of expression is the lifeblood of a genuine constitutional democracy. However, it set aside the declaration of unconstitutionality by the High Court. In a majority decision, the court held that criminalizing incitement to any offence cast the net too wide and violated the right to freedom of expression. Thus, it declared the section inconsistent with the Constitution.

On the other hand, a dissenting opinion reasoned that the law on incitement was a necessary limitation to freedom of expression and ensured that citizens enjoyed other rights provided in the Constitution freely. The court unanimously held that the applicants’ challenge to the Trespass Act should have been launched as a challenge to the constitutionality of section 1(1) of the Act. It rejected the application to declare the Trespass Act inapplicable.

The court suspended the operation of the section for 24 months as the parliament rectifies its defects. During this period, the wording of the section will be changed from “any offence” to “any serious offence.”