Incitement to commit public violence

A particular aspect of the offence of incitement to commit public violence, considering the tragic consequences, is that the accused’s actual intention is irrelevant.    

Alleged instigators of the recent July unrest in Kwa-Zulu Natal and Gauteng[1], have started to make their court appearances facing amongst other charges, that of incitement to commit public violence under section 17 of the Riotous Assemblies Act No. 17 of 1956[2].

The statutory provision of section 17 reads as follows:

Acts or conduct which constitute an incitement to public violence

"17. A person shall be deemed to have committed the common Acts or conduct law offence of incitement to public violence if, in any place whatever, he has acted or conducted himself in such a manner, or has spoken or published such words, that it might reasonably be expected that the natural and probable consequences of his act, conduct, speech or publication would, under the circumstances, be the commission of public violence by members of the public generally or by persons in whose presence the act or conduct took place or to whom the speech or publication was addressed."

A particular aspect of this crime is that the accused’s actual intention is irrelevant, what is relevant is whether a reasonable person would expect public violence to be a probable consequence of his or her act. It is therefore an objective test, and as the meaning of incitement is not defined in the Act, it must be given its ordinary meaning as per Gardiner in R v Maxaulana [1953] 2 All SA 146 (E):

"To incite means to urge, stir up (person etc. to action, to do); see the Concise Oxford Dictionary. Obviously incitement may take a number of forms, e.g. an order, instruction or request, or a question, e.g., “who will rid me of this troublesome priest”—Thomas a’ Beckett’s death followed—and it is not necessary that any particular person be ordered to carry out the order; see R. v. Mqati, 1952 (3) S.A. 112 at p. 115 (N); or that the order be carried out. Although the audience may refuse to act, the accused may be guilty; and the incitement, if it is such, arises at once. I presume that the test is whether the reasonable man would hold that the speech in the circumstances is an incitement to public violence.[3]"

In assessing whether the conduct, speech or publication of such words amounts to incitement, and the evidence required, Gardiner J stated that attention should be directed at:

• The background or history of the matter.
• The speeches of others at the meeting.
• The conduct of the accused and that of his audience may be pertinent to the enquiry whether incitement could be inferred.

Incitement using social media

Does social media activity amount to having “acted or conducted himself in such a manner, or has spoken or published such words”?

Regarding the requirement of publication, “a word or phrase is to be given its ordinary meaning unless it is defined in the statute where it is located”.[4] The accepted, ordinary meaning of publishing includes internet posts.

For example, Regulation 11(5) issued in terms of section 27(2) of the Disaster Management Act penalising “fake news” is instructive in its definition of publish:

(5) Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about -

(a) COVID-19;

(b) COVID-19 infection status of any person; or

(c) any measure taken by the Government to address COVID-19, commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.

Publication on any medium, including social media – therefore logically includes SMS, WhatsApp, Twitter, Facebook, Instagram, online videos, other messaging and networking or social media platforms.  It also certainly constitutes evidence of conduct.

[1] https://www.dailymaverick.co.za/article/2021-09-06-july-riot-instigator-mdumiseni-khetha-zuma-back-in-pietermaritzburg-court/
[2] https://www.gov.za/sites/default/files/gcis_document/201505/act-17-1956_2.pdf
[3] R v Maxaulana [1953] 2 All SA 146 (E) at 148.
[4] Independent Institute of Education (Pty) Limited v Kwazulu-Natal Law Society and Others [2019] ZACC 47