Berning Robertson – Director and Taarish Ramesar - CA

Although social media allows for users to have a platform to share their thoughts and opinions, there are aspects that all users should be wary of.

The trial of alleged the South African July riots instigator, Ngise Mchunu, a former Ukhozi FM radio personality started in the Randburg Magistrates Court on Wednesday, 12 October 2022.  He stands accused of inciting public violence and breaching the Disaster Management Act.  The charges expose the dangers of social media coupled incitement. Social media can be weaponized with disastrous results for the public.

Ultimately, everyone has the right to freedom of speech under section 16 of the Constitution. However, according to clause 16(2) of the Constitution, the instigation of violence is not protected  under free speech. Therefore, it is irrational to argue that one must find a compromise between the freedom of speech and the dangers relating to the provocation of violence. The irrationality of such a proposed compromise is amplified in a modern day and age where one can reach several people with a click of a button, as in the case of the public incitement of the July riots.

Section 17 of the Riotous Assemblies Act, deems that a person has committed the common law crime of incitement to public violence if he acted in such a way that  makes it likely that others would engage in public violence.

This applies to a situation where a person publishes a post on social media that involves language, behaviour, or other elements that could influence others to engage in violent acts in public.

The case of Hotz and Others v University of Cape Town (“the Hotz case”) dealt with protest action that was intensified by social media posts inciting public violence.

The court held that the university's allegation cantered more on an earlier incident, where a person in the dining hall was spotted wearing a T-shirt with the message "KILL ALL WHITES" inscribed on the back of it.

Even if text contains racial connotations, a court shouldn't leap to the immediate conclusion that because it is angry in tone or conveys malice, it should be classified as hate speech. Anyone who was more than a few meters away would clearly see the message, which called for the murder of all “white people”, however it was purportedly intended to be a chance for discussion and/or debate about marginalised groups' living conditions and the fear of black people.

In the Hotz case the court evaluated the matter on an objective test basis without taking into account the intentions of the "poster" but rather what a reasonable person reading or viewing the post may be prompted to do as a result of the post.  

Incitement such as making content accessible via social media with the intention to gather support and inspire the masses to engage in violent acts is prohibited, should it meet the objective test.  It may also not be protected under the Constitution. This potentially includes posts received from other social media users that one reposts onto their own social media accounts, which then makes the post public and available to others.

The July riots were a clear example of public violence.  The Riotous Assemblies Act does not require the commission of actual public violence by the persons hearing or seeing the incitement in order for the person committing the incitement to be found guilty of incitement, only that it is reasonable to expect that public violence would follow upon the incitement.  It therefore remains to seen whether the Ngise Mchunu’s utterings meet this threshold.

Since most people get their news and information from social media platforms, it is important to use caution while expressing ideas and opinions online, both for the benefit of your "following" and for any potential legal repercussions that your activities may have.

The mixture of reality, personal experience, and pure fiction that appears on these digital platforms hourly, has fueled suspicion and hatred as well as caused public worry. The result, as in the July unrest, puts South Africa's already vulnerable social contract in jeopardy and demonstrates the dangers of social media and incitement.

Contact info@thomsonwilks.co.za  for further assistance if you find yourself in need of legal representation. We have solid experience in these sorts of matters.

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