September 27, 2021

Forwarding or sharing these types of messages could get you into legal trouble in South Africa

With the current public unrest and public violence outbreaks in the nation president Cyril Ramaposa has vowed to prosecute the perpetrators, together with the inciters on social media.

Inciting public violence is a common-law felony offence, nevertheless, the necessities for the general public incitement have been codified in part 17 of the Riotous Assemblies Act, say legal specialists at Werksmans Attorneys.

“In keeping with part 17 of the act, an individual is deemed to have dedicated the common-law offence of incitement to public violence if an individual has performed him/herself in a fashion, which the cheap consequence could be the fee 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 agency stated.

Social media posts and forwarding

Werksmans stated that for there to be incitement of public violence, the act requires that there’s offending:

  • Conduct by the accused;
  • Phrases spoken by the accused; or
  • Phrases printed 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 stated.

The agency cited the case of Hotz and Others v the College of Cape City which has set precedent on this situation on the subject of 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” however quite what the cheap particular person studying or watching the publish could also be provoked to do by advantage of the publish.

“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 stated.

Nevertheless, if you obtain offending posts and don’t share the posts, as you wouldn’t have made the posts publicly out there, you could, arguably, fall outdoors the ambit of the act, the agency stated.

“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 additionally the legal penalties your conduct, speech or phrases could connect.”

  • Commentary by Bafana Ntuli and Zamathiyane Mthiyane at regulation agency Werksmans Attorneys.

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