Former president Jacob Zuma may have been released on medical parole this week, but some of his most fervent supporters are still to stand trial for inciting public violence on his behalf.
The National Prosecuting Authority (NPA) confirmed this week that 14 people have been charged under the Riotous Assemblies Act with incitement to commit public violence in the unrest that followed Zuma’s incarceration in July.
One was the woman behind the anonymous Twitter account @_AfricanSoil, or Sphithiphithi Evaluator, revealed to belong to 36-year-old Zamaswazi Majozi from Gauteng. Incitement to public violence is a specific form of incitement regulated by section 17 of the Riotous Assemblies Act.
It says a person shall be “deemed” to have committed incitement to public violence if, “in any place whatever”, he has acted in a way, or spoken in a way, or published words such that “it might reasonably be expected that the natural and probable consequences” would be public violence.
Tweets from @_AfricanSoil’s account up to August 16 have now apparently been deleted. However, the account was well known for supporting Zuma and for calling for the unsealing of the CR17 bank accounts, for attacking the state capture commission and for maligning the judiciary, particularly the Pretoria high court and the Constitutional Court.
When Zuma was taken into custody and Twitter was being used to mobilise people to gather at his Nkandla homestead in KwaZulu-Natal, the Sphithiphithi Evaluator account was one of those at the centre of it all.
However, details of the charges for all 14 accused are sketchy. In an August presentation to parliament on its “plan to ensure effective and evidence-led prosecution” for the unrest, the NPA referred to law enforcement’s “levels of operational action”, with the level 1 category referring to those who looted and level 3 being those who initiated the unrest and induced and instigated the public violence.
Politicians have spoken of “insurrection,” but prosecutors work on the basis of evidence. Asked whether any of the 14 accused had also been charged with conspiracy — a separate offence under the Riotous Assemblies Act involving people agreeing and planning to do something — the NPA’s Mthunzi Mhaga said: “We have not finalised the charges as the matters are still being investigated”.
The NPA did not respond to questions on how many of those charged were physically present during the unrest and how many confined their role to social media alone. From the publicly available information, it seems many were at home, doing their alleged incitement from devices.
The NPA’s public reticence on this score may be due to a desire to preserve evidence. A challenge associated with cyber law enforcement is that as soon as one arrest becomes known, other suspects instantly begin to erase evidence.
Law enforcement must then use cumbersome mutual legal assistance requests through the Electronic Communication and Transactions Act to obtain the necessary evidence from WhatsApp, Twitter or Facebook. Criminal prosecution for incitement via social media is new territory in SA.
Social media law expert Emma Sadleir said she is not aware of a criminal prosecution for incitement, though there have been criminal charges laid against anonymous accounts and protection orders taken out against such accounts.
The hardest part of a prosecution may be the attribution of meaning to a person’s tweets
She said “technical resources” have been used to unmask those behind anonymous accounts for the purpose of civil lawsuits, such as the hate speech case now under way against EFF councillor Anthony Matumba, allegedly the holder of the account “@TracyZille”. Law enforcement agencies have additional powers, she said.
When it comes to incitement specifically, Sadleir said she has in the past few months been an expert witness in cases where people have been fired from their jobs for inciting public violence for Zuma in their WhatsApp stories — which is “dealt with legally as published content”.
That was in the context of employment law, however. In a criminal case the state would have to prove incitement beyond a reasonable doubt. Prosecutors would not have to show that the incitement in fact led to violence — the incitement is in itself a crime.
But the state would have to show that the natural or probable consequences of the tweets would, “under the circumstances”, be public violence. Sadleir said this being new legal ground, the law is “always going to play catch-up”.
The Cybercrimes Act, which has yet to come into force, has a specific criminal prohibition on the incitement of violence and damage to property. But it is not applicable at the moment.
For now, the old laws have been flexible enough to accommodate the changing environment, said Sadleir.
What may turn out to be the hardest part of a prosecution will be the attribution of meaning to a person’s tweets.
Words that make up a single individual tweet may not on their face constitute incitement. But when seen in context — as part of a series of tweets, tweeted at a certain time within a political context, associated with certain hashtags like #WeSeeYou, tweets take on different meanings.
Certain tweets also have specific meanings to specific groupings. In the US case of Swalwell v Trump, Democratic congressman Eric Swalwell built a civil suit against former US president Donald Trump and others over the storming of the Capitol in Washington DC on January 6 by going back to the beginning of a misinformation campaign that began with false allegations of vote-rigging.
It may be that a successful prosecution would, in order to prove that “the natural and probable consequences” of certain tweets would be public violence, also have to stretch back to the deluge of tweets that condemned the Constitutional Court for Zuma’s “detention without trial”.Incitement under section 17 of the Riotous Assemblies Act — apartheid-era legislation — also bumps up against the right to freedom of expression.
The “incitement of imminent violence” is expressly excluded from constitutionally protected speech, but media law expert Dario Milo said that section 17 may nevertheless be constitutionally suspect.
This is because it seems that, for a conviction, a person need not have intended to incite public violence. Instead, they only need to have acted in a way in which the reasonably expected consequence might be public violence.
“If that is the correct interpretation, that would mean that one could be found guilty based not on intent to incite, but on the basis of mere negligent speech. This would undermine the right to freedom of expression,” said Milo.
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