Committing high treason using WhatsApp in South Africa — what the law says

Those who incited the recent violence and looting in South Africa could face prison sentences of between six months and thirty years, depending on whether they are found guilty of inciting violations of lockdown regulations or high treason.

One legal professional who spoke to MyBroadband on condition of anonymity, as they are not permitted to speak publicly on political matters, said that the right to freedom of expression in South Africa’s Constitution is not absolute.

“Section 16 of our Constitution guarantees us all the right to freedom of expression,” the lawyer, who works at a major firm, said.

“However, section 16(2) clearly states that such right does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred. Our Constitution is very clear about this.”

Legal opinions on the crimes that insurrectionists may be charged with arrive as President Cyril Ramaphosa announced that last week’s unrest in parts of KwaZulu-Natal and Gauteng were instigated.

“It is clear now that the events of the last week were nothing less than a deliberate, a coordinated, and a well-planned attack on our democracy,” Ramaphosa stated.

“These actions are intended to cripple the economy, cause social instability and severely weaken — or even dislodge — the democratic state.”

While Ramaphosa didn’t say it outright, he described the crimes of incitement to theft and public violence, sedition, and high treason.

Cyril Ramaphosa
President Cyril Ramaphosa

Last week, the Daily Maverick reported that the masterminds behind the insurrection used WhatsApp and Telegram to organise attacks on trucks, highways, and businesses.

According to the report, this was organised by renegade uMkhonto we Sizwe groups who were active in the truck transport sector and have campaigned against foreign truck drivers.

These groups have been blamed for arson attacks on trucks driven by foreigners over the past three years.

Following the truck attacks, the instigators allegedly shifted their attention to institutions regarded to be controlled by “white monopoly capital”.

This phrase was prominent in the Bell Pottinger disinformation campaign, paid for by the Gupta family to paint them as victims of racially-motivated attacks.

On the WhatsApp group, members called for attacks on, among others, Shoprite, Pick ‘n Pay, Woolworths, several banks, and fuel stations.

Screenshots of WhatsApp messages posted to the Ethekwini Shutdown group

“Whether it is incitement or not would depend on the context and the person saying it,” the lawyer told MyBroadband.

A message such as “the army should just shoot all the rioters”, said by an average person, is probably not incitement but merely expressing an opinion.

However, if an army officer or political leader said the same words, it could be considered incitement — besides sending a confusing message to the soldiers and police on the ground.

Messages like, “We should stand together and shoot any rioters” or “we will protect our neighbourhood and shoot anyone that tries to enter“, said by anyone could be seen as inciting their followers and friends.

“If you are a person in a position of power or fame, your words carry a lot more weight than someone with a low following,” the lawyer stated.

Looting
Looting on Monday, 12 July 2021

Ahmore Burger-Smidt and Nyiko Mathebula of Werksmans Attorneys recently wrote that the Cybercrimes Act could provide several offences for incitement using a digital medium.

“The Act creates offences which have a bearing on cybercrime including the distribution or disclosure of data messages which are harmful, and although it has been signed into law, it remains without a commencement date,” the authors stated.

The Cybercrimes Act defines three types of harmful messages that have been criminalised in South Africa. They are messages which:

  • Incite damage to property or violence.
  • Threaten people with damage to property or violence.
  • Unlawfully contain an intimate image.

Most relevant to the current situation in South Africa is the first offence.

Penalties for sending such a message — whether over WhatsApp, Twitter, or another platform — include imprisonment for up to three years and/or a fine.

“Although legislation such as the Cybercrimes Act is not the answer to curing the root cause of the civil unrest, it can still serve to assist our security and policing cluster in effectively intercepting and, where necessary, prosecuting such offences,” stated Burger-Smidt and Mathebula.

However, they said that since the Cybercrimes Act has not been given a commencement date, it remains an unavailable tool in the armoury of our law enforcement.

“Undoubtedly, when social media turns somewhat antisocial, in that it is misused to mobilise to commit acts of violence, we ought to be armoured with a Cybercrimes Act, to deal with it decisively,” the authors said.

Ahmore Burger-Smidt
Ahmore Burger-Smidt, Werksmans Attorney director and head of data privacy practice

Another relatively new law for which no commencement date has been proclaimed is the Critical Infrastructure Protection Act.

Anyone found guilty of sabotaging critical infrastructure in terms of this law faces fines and imprisonment of between ten and twenty years, depending on how the infrastructure is classified.

For causing damage, substantial harm or loss of property to low-risk critical infrastructure, a maximum 10-year sentence applies. Damaging medium-risk infrastructure carries a maximum prison sentence of 15 years. The maximum sentence for damaging high-risk infrastructure is 20 years.

Lesser sentences are stipulated if there was only an intention to cause damage, but the conspirators did no actual harm.

While prosecutors may not be able to use the Cybercrimes Act or the Critical Infrastructure Protection Act, they could still charge insurrectionists with sedition and high treason.

The website of the South African Police Service provides definitions of these crimes, drawing heavily from CR Swart’s textbook on criminal law in South Africa.

Sedition consists of unlawfully and intentionally —

  • taking part in a concourse of people violently or by threats of violence challenging, defying or resisting the authority of the State; or
  • causing such a concourse.

High treason consists of any conduct unlawfully committed by a person owing allegiance to a state with the intention of —

  • overthrowing the government of the Republic;
  • coercing the government by violence into any action or inaction;
  • violating, threatening or endangering the existence, independence or security of the Republic;
  • changing the constitutional structure of the Republic.

The landmark ruling that helped provide this definition was a 1990 case referred to as “State v Banda and Others“.

During his ruling, Judge J Friedman found that:

  • Treason can be committed in times of peace as well as war.
  • The key element is “hostile intent”, which includes unlawfully impairing or endangering the existence, independence or security of the state.
  • Motive of serving an enemy country or seditious group is not required — greed can be the motive.
  • Direct intention to undermine or sabotage the state is not required.

The first case of high treason in post-1994 South Africa was brought against members of the Boeremag who plotted to stage a coup by assassinating former president Nelson Mandela using a bomb.

Those who participated in the plot were handed sentences of between 5 and 30 years, most of which were suspended for some period.

Their trial took the better part of ten years.

Two men who were serving thirty-year sentences that were suspended for ten years were released on parole in 2020, The Herald reported.

They had spent about seven years behind bars.

According to the Department of Correctional Services, the two men had served the minimum required time before becoming eligible for parole.

Now read: Twitter temporarily suspends Julius Malema

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Committing high treason using WhatsApp in South Africa — what the law says