This week the Constitutional Court heard arguments on the possible unconstitutionality of a provision in the Riotous Assembly Act of 1956 that criminalises incitement to commit a crime. 

Julius Malema and the Economic Freedom Fighters (EFF) had originally challenged the constitutionality of this provision in the high court on the basis that it unlawfully infringed on the right to freedom of expression, but that court dismissed the challenge.

Whatever the outcome in the case, the larger question raised by it is why parts of this act (and several other pieces of legislation used to enforce apartheid) are still on the statute books 25 years after the transition.

The lawyer representing the EFF, advocate Tembeka Ngcukaitobi, made a telling point during oral argument in the Constitutional Court this week. 

Ngcukaitobi pointed out that the Riotous Assembly Act was not “just” law passed in the era of apartheid, it was law that was specifically passed to enforce apartheid — “to deal with Mandela” and the other political leaders agitating to fight the system. (This is according to a report in the Mail & Guardian written by the always excellent Franny Rabkin.) 

While most of the provisions of the act have been repealed, it is troubling that the act was not repealed in its entirety after 1994. (As incitement is also a crime at common law, this would have allowed the Constitutional Court to develop the common law to promote the spirit, purport and objects of the Bill of Rights as required by section 39(2) of the Constitution.) More troubling still, is the fact that parts of other apartheid legislation also remain on the statute books (more about that later).

The EFF and Malema are challenging the constitutionality of section 18(2) of the Riotous Assembly Act. This section prohibits any person from inciting, instigating, commanding, or procuring any other person to commit any offence, whether in common law or against a statute or statutory regulation. 

The high court held – correctly in my view – that this provision does infringe on the right to freedom of expression. However, the court further held that section 18(2) of the act justifiably limited the right and was therefore constitutionally compliant. The Constitutional Court is now being asked to hold that section 18(2) is overbroad because it criminalises incitement of even the most trivial criminal offences.

This is not the first time that the Constitutional Court has been asked to consider the constitutionality of legislation that directly advanced apartheid.

When the Constitutional Court was confronted with a case in which the North West provincial legislature had attempted to repeal a Proclamation which was issued in terms of the Native Administration Act of 1927 (in the case of Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another), Justice Sandile Ngcobo expressed concern that the act had not been repealed, describing this act as an “egregious apartheid law which anachronistically has survived our transition to a non-racial democracy”. 

A year later, the Constitutional Court was again asked to consider the constitutionality of a regulation made in terms of the Black Administration Act (as the Native Administration Act came to be called) in the case of Moseneke and Others v Master of the High Court. In his judgment, Justice Albie Sachs endorsed previous criticism by the court, and complained:

“It is painful that the act still survives at all. The concepts on which it was based, the memories it evokes, the language it continues to employ, and the division it still enforces, are antithetical to the society envisaged by the Constitution. 

“It is an affront to all of us that people are still treated as ‘blacks’ rather than as ordinary persons seeking to wind up a deceased estate, and it is in conflict with the establishment of a non-racial society where rights and duties are no longer determined by origin or skin colour.”

There are other pieces of oppressive and/or racist apartheid legislation that remain on the statute books. The most famous of these must be the National Key Points Act of 1980. This act was passed at a time when Umkhonto we Sizwe, the armed wing of the African National Congress, was stepping up attacks against infrastructure considered “strategic” by the apartheid regime. The attack in 1980 on the Sasol refinery, organised by Solomon Mahlangu of the Umkhonto we Sizwe Special Operations, is a case in point.

The aim of the National Key Points Act was to secretly arrange protection primarily for privately owned strategic sites. It enabled the apartheid government to compel private owners, as well as state-owned corporations, to safeguard such sites owned by them at their own cost. The act became famous when it transpired that then-president Jacob Zuma’s Nkandla home had been declared a national key point.

To be fair, last year Parliament passed the Critical Infrastructure Protection Act which will repeal the National Key Points Act when President Cyril Ramaphosa finally decides to bring the act into operation. 

But given the historical origins of the act, it is odd, to say the least, that the act has remained on the statute books for more than 25 years after the 1994 election. Odder, still, is that the act has been invoked by government officials in an attempt to justify the expenditure on the Nkandla homestead, to withhold information about it, and to prevent anyone from taking or publishing photographs of the homestead. At the very least, relying on legislation passed by the apartheid government with the explicit aim of foiling attacks on apartheid infrastructure by Umkhonto we Sizwe cannot be said to be “on brand” for Zuma.

Last week, my colleague Afton Titus alerted me to another piece of legislation whose continued presence on the statute book can only be described as shocking. This is the Coloured Persons Education Act of 1963. According to the preamble of the act, its main aim is to “to provide for the control of education for Coloured Persons by the Department of Internal Affairs”.

Several of its provisions remain in force. Why, is impossible to say. Section 1 (containing the definitions for phrases used in the act) remains in force and contains the following definition:

“ ‘Coloured person’ means a person classified under the Population Registration Act, 1950 (Act No. 30 of 1950), as a member of the Cape Coloured, Malay, Griqua or Other Coloured Group and includes any South African citizen having his home in an independent State and who would have been so classified had the provisions of the Population Registration Act, 1950, been applicable to him.”

It is difficult to imagine what might have gone through the mind of the officials,  government ministers, and members of Parliament who proposed and passed amendments to this act in 1996, but did not think that it was necessary to repeal the entire damn act. Why retain parts of the act when the very reason it was first passed was to promote and facilitate racial segregation in schools. This is evident when you look through the parts of the act which were not repealed. For example, section 3 of the act reads in part:

“3. Establishment, erection and maintenance of schools for Coloured persons —(1) The Minister may after consultation with the Minister of State Expenditure and out of moneys appropriated by Parliament for the purpose (a) establish, erect and maintain colleges of education, secondary schools, primary schools, pre-primary schools, agricultural schools, vocational schools, schools of industries, reform schools, special schools and homes; establish and maintain part-time classes for the education of Coloured persons.”

Yet another particularly egregious example of why there is no place for this act in post-1994 South Africa can be found in section 23 of the act which reads in part:

“23. Compulsory school attendance — (1) (a) If the Minister is satisfied that sufficient and suitable school accommodation is available he may by notice in the Gazette declare that regular attendance at such kind of school as may be specified in such notice shall, to such extent and under such circumstances as may be so specified, be compulsory for every Coloured person belonging to a category or class so specified. (b) Every Coloured person enrolled in a school contemplated in paragraph (a) shall attend that school regularly until the end of the school year for which he is so enrolled or, if he is transferred to any other school during that school year, he shall attend that other school regularly until the end of the said school year.”

All this makes me wonder: what other egregious apartheid-era legislation explicitly passed by the apartheid regime to advance the apartheid project remains on the statute books? DM