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Speech by Minister of Justice and Correctional Services, Michael Masutha, MP (Adv) National Assembly, on the Debate on Draft Resolution of Apartheid Legislation, Parliament Tuesday 22 November 2016

Madam Speaker
Ministers and Deputy Ministers
Honourable Members
Distinguished Guests
Ladies and Gentlemen

The matter before us this afternoon is bound to invoke much emotion in most of us, understandably so, given the recent past of apartheid oppression we endured as a nation prior to liberation and the ushering in of constitutional democracy in our country two decades ago. Indeed a preamble that still exists on our statute books, of the kind that is at issue in this debate and that reads: “This Act was enacted to consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between European and non-European inhabitants of the Republic” only serves to remind us of the history of the struggle to which many of our heroes and heroines past and present even in this house, as we speak selflessly contributed towards. Our constitution in its preamble has the following to say

“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;”

This having been said however, it is the same constitution that further states in Schedule 6 section 1 (1) that all law that was in force when the new Constitution took effect, continues in force unless amended or repealed and if it is consistent with the new Constitution. This rule equally applies to the Act which is the subject of this debate.

As the ANC government we undertook as clearly stipulated in the National Development Plan to ensure that our people are and feel safe. This is a commitment that is being realised throughout the country as various government departments roll out a number of programmes to ensure a better life for all. As the Justice Crime Prevention and Security Cluster, we have a responsibility to enforce and implement laws that are meant to protect our citizens. Imagine a country where peace and stability is compromised by public violence instigated by many through what they say and encourage in various fora and law enforcement is left powerless because the only effective tool available to the State to meaningfully counter such undesirable action is an old law passed under Apartheid. This, even if it has since been amended by democratic parliament, at least in so far as its provisions that are relevant in this instance despite it commencing with a preamble that is no longer appropriate under a constitutional democracy. This is more so in light of the fact that the EFF bases its constitutional challenge on the preamble of the law in question without necessarily confronting the specific sections that are used to charge many whose actions cause irreparable harm due to their committing crimes that have serious bearing on peace and stability in our country.  

We are law abiding citizens and a government that has the best interests of its people at heart and therefore allowing such would be failure to ensure safety of all our people.

Honourable members
I will exercise restraint in my submissions here in view of the matter being subject to judicial determination before the North Gauteng High Court. Let me in the same breath state that it is therefore mischievous of the Economic Freedom Fighters to bring this matter up for debate in this august legislature when they have simultaneously sought to have it adjudicated upon by the courts. It is merely a ploy to get this House, which participates in this debate to express a view on a matter that has since been placed before the Judiciary. This is yet another example of the EFF tendency of seeking to condemn others for failing to uphold the Constitution, the rule of law and respect for the independence of the judiciary which are key pillars of our constitutional democracy and yet render themselves guilty of same provoked or unprovoked thus offending on the proverbial English adage-those who live in glass houses don’t throw stones. 

Honourable Members
Allow me to reflect on the legislation in its current form. The Riotous Assemblies Act of 1956 remains on our statute books but with three sections only, namely sections 16,17 and 18 still in force.

These 3 remaining sections are intended to deal with;
a.         public safety and the handling of explosives
b.        acts or conduct which constitutes incitement to violence and
c.         Attempt, conspiracy and inducing another person to commit offence

We hold the firm view that regardless of the era in which the provisions were passed, they remain necessary as putting them aside without anything in their place in the immediate, would result in the State being unable to effectively respond to anarchic behaviour sought to be propagated by the EFF through a number of its campaigns aimed at promoting lawlessness. 

Therefore the focus on the preamble without addressing ourselves to these relevant sections is to adopt a narrow approach to a matter that requires a holistic interrogation of the issue at hand.

The General Law Amendment Act 49 of 1996, into the Riotous Assemblies Act of 1956 in particular sections 17 and 18 addresses the acts or conduct which constitutes an incitement to public violence hence the view that same remains relevant and are of necessity. The Amendment reads as follows:

“A person shall be deemed to have committed the common 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”.

The amendment of the criminal law on section 18 addresses the issue of attempt, conspiracy and inducing another person to commit offence and it reads as follows:

(1)       Any person who attempts to commit any offence against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
(2)       Any person who -
(a)  conspires with any other person to aid or procure the commission of or to commit; or
(b)       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.

Madam Speaker
The cornerstone of any criminal regime is the criminalisation of inchoate crimes such as incitement and conspiracy with a view to preventing irreparable harm which follows if a crime is carried out. In the case of South Africa, the Legislature in terms of the General Law Amendment Act 49 of 1996 I alluded to earlier, criminalises conspiracy and incitement in terms of the Riotous Assemblies Act, making such activities criminal offences when linked to common law and statutory crimes. The Act is therefore simply a mechanism to codify a fundamental principle of criminal law.

Inchoate crimes have the status of customary international law and there is no provision in the Constitution to the effect that they should not be part of South African law. In State v Basson 2007(1) SACR 566(CC) the Riotous Assemblies Act 17 of 1956 was before the Constitutional Court. This would have been an ideal opportunity to strike the legislation down as unconstitutional. On the contrary the Court extended its ambit to conspiracies to commit crimes outside the borders of South Africa when required by international obligations. The Act has also been used in the crafting of many indictments and charge sheets since the dawn of democracy and the birth of our Constitution without any successful constitutional challenge.

Thank you