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Bequinot was heard less than two weeks after the judgment in Scagell was handed down. Accordingly, any limitation of these rights must require compelling justification which in this matter is, in my view, lacking.

Projects vary and have to be suited to availability of staff. Therefore, an accused person that invokes the right to remain silent and the right not to be compelled to self-incriminate, will bear the onus of proving a lawful reason for the conduct in question. The language covers two general situations. It will also enable the accused to provide a full, consistent explanation for all the facts proved against him or her, to the extent that he or she is able to do so. Otherwise it might be thought to justify a resort to the civil courts whenever there was doubt as to the parameters of an offence.

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The next step in the determination of liability is to enquire whether the act which complies with the definitional element is also unlawful. That is the primary issue. The quoted passage from Savoi provides no support for the course that this litigation has taken. That waters down the proper approach beyond recognition.

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The conduct by the graffiti artist is not intimidatory or intended to be intimidatory. Arguments could have been advanced that the section should be construed in the manner outlined in this judgment. Can the limitation of the right of freedom of expression be justified? That gives rise to an internal contradiction, where the creation of sometimes reasonable, and sometimes unreasonable, fears would attract criminal liability.

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Their potentialities are no less real, and of no less importance, because they do not readily lend themselves to measurement by the conventional criteria of academic achievement. Unreasonable fear does not justify a conviction and it was so held in Holbrook.

There can be no absolute rule in this regard, however. You can scroll through it or use the following links to go to the various chapters.

The trial has not yet commenced. None of this is intimidatory. Any other answer would create the possibility of prosecutorial manipulation of the charge. But none of these instances is intimidation within the meaning of the section. The jurisprudence of the Constitutional Court says that we must, where the language of the statute fairly permits, choose a constitutional rather than an unconstitutional meaning.

Secondly, it is presumed that the commission of statutory offences requires intention mens rea. We were referred to a passage where Leach J referred to the tortuous language of the section. They challenge the constitutionality of the very provision that they are charged with. Assuming for a moment that there is substance in that, it would be unfair to expect the applicants to plead to charges, list of mmorpg no the inner and outer contours of which they have no idea. In the absence of unlawfulness there can be no criminal liability.

Were the criminal standard that low, I would, in our constitutional disposition, regard it as overbroad. However expressed, it is the intimidatory nature of the conduct that gives rise to criminal liability.

The court a quo heard no evidence in that regard and it was not entitled to draw that inference. In the absence of the second case it would not be possible to arrest or prosecute the perpetrator unless the threat was broadcast and induced actual fear in some citizens. In any event, if it held that the threats allegedly made by Ms Sonti were not proven, an acquittal would have followed. If his conduct does not constitute the offence of intimidation within the parameters I have outlined he will be acquitted. Neither the intention that I hold is necessary in order to commit the offence, nor the intimidatory purpose that is likewise in my view a requirement, is present.

Many struggle songs and political slogans are actionable under its terms. It suffices to say that the offence is not one of strict liability.

In ranting at her he threatened to kill her. That is reinforced by the potential effect on freedom of expression. It is not conduct directed at inducing fear in any of the respects referred to in the section. The need for statutory intervention to deal with intimidation is apparent from the background to the introduction of legislation dealing with harassment and stalking in other countries. Furthermore, under its terms, an accused person must sacrifice the right to silence and against self-incrimination if he or she is to be given the benefit of the presumption of innocence.

The evidential burden will then be imposed upon them to produce evidence of the lawful reason. For the reasons given earlier I regard both propositions as incorrect. If the trial is only likely to commence far in the future, the victim should be able to engage in preliminary litigation to enforce his or her fundamental rights. But those words were written in relation to a challenge on the grounds of vagueness. The concern in this case is that it has been done outside the ambit of the criminal proceedings, which is the only place where the constitutionality of the legislation is in issue.


Even with delays in the conduct of the proceedings it is hard to believe that the case would not have been resolved long ago. None of it is incompatible with the right of freedom of expression. The offence of intimidation. Otherwise differing standards for imposing criminal liability would be applicable to the same crime. Group A goes out, buys patterns and material, and aims to make a garment in one week.

Ms Sonti said in her founding affidavit that she knew the complainant, and had some interaction with her, the nature of which she explained. That is reinforced by the requirement that this be the natural and probable consequence of the act, conduct, utterance or publication in question.

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On the other hand there is the importance of the purpose of the limitation. The prima facie case will become conclusive in the absence of evidence by the accused that raises a reasonable doubt as to the lawfulness of the conduct. Only Denmark has entered a reservation against this provision, preferring non-criminal remedies.

It is the prosecution that advances a wider construction of the statute. The State Attorney, Bloemfontein. The need for internal consistency assumes particular importance when dealing with a crime such as intimidation that can manifest itself in slightly different ways involving the same central concepts. There is plainly some overlap between these two sections, but that need not concern us here. The Crown must present its evidence at an open trial.