With the recent public unrest and public violence outbreaks in the country president Cyril Ramaposa has vowed to prosecute the perpetrators, including the inciters on social media.
Inciting public violence is a common-law criminal offence, however, the requirements for the public incitement have been codified in section 17 of the Riotous Assemblies Act, say legal experts at Werksmans Attorneys.
“According to section 17 of the act, a person is deemed to have committed the common-law offence of incitement to public violence if a person has conducted him/herself in a manner, which the reasonable consequence would be the commission of public violence by others.
“Noteworthy is the fact that the intention of the accused is irrelevant, what is relevant is whether or not a reasonable person would expect that the consequences of the accused’s conduct to be the incitement of public violence,” the legal firm said.
Social media posts and forwarding
Werksmans said that for there to be incitement of public violence, the act requires that there is offending:
- Conduct by the accused;
- Words spoken by the accused; or
- Words published by the accused.
“In applying the above to instances of social media posts, when one makes a post available to the public and where the post contains words, speech or conduct that may have the effect of causing others to commit public violence, arguably, the aforementioned post may make one guilty of the offence of inciting public violence,” Werksmans said.
The firm cited the case of Hotz and Others v the University of Cape Town which has set precedent on this issue with regards to protest.
“It is on the precedent set by the Hotz case that the recent surge of social media posts inciting violence will be assessed and prosecuted, namely, on an objective basis without considering the intention of the “poster” but rather what the reasonable person reading or watching the post may be provoked to do by virtue of the post.
“In so far as our view is that making content available on social media that may have the effect of inciting others to commit public violence, may fall within the ambit of the act, this arguably, also include posts that you receive from other social media users and then share on your own social media platform,” it said.
However, if you receive offending posts and do not share the posts, as you would not have made the posts publicly available, you may, arguably, fall outside the ambit of the act, the firm said.
“With a vast majority of people obtaining information from news media and social media platforms, due care must be taken when sharing thoughts and opinions not only for the impact they may have on your “followers” but also the legal consequences your conduct, speech or words may attach.”
- Commentary by Bafana Ntuli and Zamathiyane Mthiyane at law firm Werksmans Attorneys.