However, a closer reading of the Riotous Assemblies Act suggests that there may be nothing untoward regarding its provisions. In fact, if anything, the current provisions of the Act may withstand constitutional muster.

At issue is the fact that section 18(2)(b) amongst other things makes it an offence to incite another person to commit an offence. The section reads as follows “Any person who… incites, instigates, commands or procedures 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”.

All modern systems of criminal law penalise the trio of inchoate or incomplete offences: attempts, conspiracies and incitements – South Africa is not unique in this aspect. Such offences, while being preliminary, are far from being unconstitutional. Perhaps the only defence Mr Malema might have to this charge, is that he lacked the intention to incite – but that would not be enough for a direct constitutional challenge.

It is unfortunate that the Act is still called the Riotous Assemblies Act. The sections dealing with riotous assemblies have been repealed and all that remain are the sections in Chapter III, which deal with, as the title suggests, ‘Amendments of the Criminal Law’. Another section, section 16, deals with special precautions in the interest of public safety in dealing with explosives – it was repealed by section 34 of the Explosives Act 15 of 2003, but as of 1 March 2015, it had not been put into operation. As such, the Riotous Assemblies Act should really be re-named the Criminal Law Amendment Act.

Key laws (such as the Population Registration Act of 1950, the Group Areas Act of 1950, the Black Land Act of 1913 and the Separate Amenities Act of 1953) which underpinned apartheid policies have been repealed, while other laws such as the Black Administration Act of 1927 remain in force, with the unconstitutional provisions having been repealed. Just because legislation pre-dating South Africa’s constitutional democracy still remain in statute books does not automatically render the particular law as unconstitutional.

Of course South Africa’s constitutional democracy is transformative and is underpinned by values including human dignity, the achievement of equality and the advancement of human rights and freedoms. As the Constitution is the supreme law of the land, it stands to reason that the foundational values should be reflected in the law and further that laws or conduct in conflict with the Constitution are invalid. This is not to suggest that pre-1994 laws, enacted at a time of parliamentary sovereignty, are inherently unconstitutional. Were that the case, then South Africa would find itself in a position of legislative vacuum since many laws including the Administration of Estates Act of 1991, the Enforcement of Foreign Civil Judgment Act of 1988 and the Prescription Act of 1969 were all enacted before 1994.

In assessing the constitutionality of such laws, it is important that their provisions be weighed up against the Constitution. In this instance, the Riotous Assemblies Act ostensibly interferes with the constitutionally protected right to assembly, demonstrate and picket – however the Constitution permits the limitation of most rights in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society. As such, the provisions of the Riotous Assemblies Act, as a law of general application place reasonable limitations on Mr Malema’s right to assembly, demonstrate and picket by excluding his ability to incite other individuals to commit offences. It is thus a misnomer to describe the Riotous Assemblies Act as unconstitutional, as it arguably reasonably and justifiably limits some rights in accordance with the Constitution.  

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights

Photo credit: GovernmentZA via / CC BY-ND