CASES / VONNISSE

THE NATURE AND AMBIT OF THE

INTIMIDATION OFFENCE

S v White 2022 (2) SACR 511 (FB)

1 Introduction
The offence of intimidation has been associated with controversy, particularly
because of the historical link between the Intimidation Act (72 of 1982) and
the legislative machinations of the apartheid regime. In the words of Gamble
J, the Act may be regarded as “a piece of apartheid order legislation
introduced at a time of increasingly repressive internal security legislation
designed to criminalise conduct, largely in the field of resistance politics”
(Sandlana v Minister of Police 2023 (2) SACR 84 (WCC) par 34). The nature
and ambit of the intimidation offence has once again come under scrutiny in
the recent case of S v White (2022 (2) SACR 511 (FB)). The decision in this
case is examined here in the context of a general assessment of the offence.
The offence can now only be committed by contravening section 1(1)(a) of
the Act, as the Constitutional Court has struck down the section 1(1)(b)
provision (as well as section 1(2)) as unconstitutional in Moyo v Minister of
Police (2020 (1) SACR 373 (CC)), a development confirmed by the
amendment of the Act by the Protection of Constitutional Democracy Against
Terrorist and Related Activities Amendment Act (23 of 2022). (Some are of
the view that the Constitutional Court could have gone further (Burchell
Principles of Criminal Law 5ed (2016) 593–594).) However, for the purposes
of the discussion that follows, it is useful to cite the full section 1(1) provision
prior to amendment. (For ease of reference, the excised wording of section
1(1)(b) is italicised, to distinguish from the wording that remains part of the
provision). Section 1(1) of the Act provides for the “prohibition of and
penalties for certain forms of intimidation” as follows:
“(1) Any person who–
(a) without lawful reason and with intent to compel or induce any person or
persons of a particular nature, class or kind or persons in general to do
or to abstain from doing any act or to assume or to abandon a particular
standpoint–
(i) assaults, injures or causes damage to any person; or
(ii) in any manner threatens to kill, assault, injure or cause damage to
any person or persons of a particular nature, class or kind,
(b) acts or conducts himself in such a manner or utters or publishes such
words that it has or they have the effect, or that it might reasonably be

598
CASES / VONNISSE 599

expected that the natural and probable consequences thereof would be,
that a person perceiving the act, conduct, utterance or publication–
(i) fears for his own safety or the safety of his property or the security
of his livelihood, or for the safety of any other person or the safety of
the property of any other person or the security of the livelihood of
any other person; and
(ii) ......
shall be guilty of an offence and liable on conviction to a fine not exceeding
R40 000 or to imprisonment for a period not exceeding ten years or to both
such fine and such imprisonment.”

It is noteworthy that the Indian Penal Code of 1860 (Act 45 of 1860) also
contains an intimidation offence. Section 503 of the Code provides as
follows:
“Whoever threatens another with any injury to his person, reputation or
property, or to the person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to cause that person to
do any act which he is not legally bound to do, or to omit to do any act which
that person is legally entitled to do, as the means of avoiding the execution of
such threat, commits criminal intimidation.”

It may further be noted that the draft bill to replace the colonial-era 1860
Code, the Bharatiya Nyaya Sanhita 2023 (Bill 121 of 2023), also includes
this offence at clause 349. The only proposed alteration to the current
wording of section 503 is the inclusion of the words “by any means” to
include any mode of delivery or causing of the threat (i.e., “Whoever
threatens by any means, another”), which would clearly include, inter alia,
threats transmitted electronically or via social media.
The significance of the Indian provision is that it may be concluded that
the criminalisation of intimidation is not only a colonial project or an
instrument of political oppression. Moreover, South Africa is not the only
modern constitutional democracy making use of such a provision. But what
ought to be the ambit of this offence?

2 Facts of S v White
After pleading guilty in the Hertzogville magistrates’ court to contravening
section 1(1)(a) of the Intimidation Act, the accused was duly found guilty. The
factual basis for this conviction was that, in the course of an argument, the
accused threatened to kill the complainant if he (the complainant) were to
date one Palesa, a woman that the accused considered to be his girlfriend
(par 5–7).
The senior magistrate of Welkom sent the matter on special review to the
High Court in terms of section 304(4) of the Criminal Procedure Act 51 of
1977, despite having no concerns regarding the proper legal representation
of the accused, or regarding the validity of his plea, or whether the accused’s
section 112 statement was properly handed in (par 2). Citing S v Motshari
(2001 (1) SACR 550 (NC)), where it was held that the erstwhile section
1(1)(b) offence under the Intimidation Act should not be used in the context
of private quarrels, the senior magistrate indicated misgivings whether the
600 OBITER 2023

conviction in this case should be upheld on review, and if it were so upheld,

whether the sentence was appropriate (par 3).

3 Judgment
On review, the High Court pointed out that it was clear that there were a few
procedural issues to deal with. First, the trial magistrate had incorrectly
made the suspension order in terms of sections 2 and 3 of the Intimidation
Act, instead of section 1(1)(a), which the review court was asked to address
by the senior magistrate (par 3–4). Moreover, the High Court noted that the
charge sheet was deficient in its formulation, as it included words that did not
apply to the charge, including opposites (to “do” and to “abstain from doing”)
(par 6). The accused’s statement in terms of section 112(2) more or less
repeated the unfortunate phrasing of the charge sheet (par 7). In this regard,
the court later reviewed these discrepancies and stated that if the
prosecution wished to rely on statutory offences, it should “ensure proper
compliance with the particular statute” (par 21). The court also voiced its
concern that the accused had not properly understood the nature of the
charge of intimidation, given that English was not his mother tongue (or
indeed, the mother tongue of any of the role players in the court
proceedings). However, leaving these issues aside, the primary focus of the
High Court on review was on the issue implicit in the senior magistrate’s
comments: whether the court should interfere with the conviction (par 4), in
order “to consider the applicability of s 1(1)(a) [of the Intimidation Act] in
somewhat trivial matters and/or where a common law offence is applicable”
(par 8).
Ultimately the reviewing court decided that the conviction was very clearly
not in accordance with justice (so much so that the trial magistrate need not
be consulted as provided for in section 304(2)(a) of the Criminal Procedure
Act) (par 23), and set the conviction (and sentence) aside on review (par
24). The court reached this conclusion after citing section 1 of the
Intimidation Act by evaluating some cases in which offences under the
Intimidation Act were examined – specifically, S v Motshari (supra), Moyo v
Minister of Justice and Constitutional Development (2018 (2) SACR 313
(SCA)), S v Holbrook ([1998] 3 All SA 597 (E)), and S v Ipeleng (1993 (2)
SACR 185 (T)). In addition, the court referred to the chapter on intimidation
in Milton, Cowling and Hoctor South African Criminal Law and Procedure Vol
III: Statutory Offences (1988) HA1, as well as the discussion on the
intimidation offences in Snyman Criminal Law 6ed (2014) 455.
Having considered these sources, the court reasoned that the offence
contained in section 1(1)(a) “was never intended to be applicable to the
usual threats that appear every day between members of the public, but with
no real consequences or harm” (par 17). The court therefore sought to
distinguish between “serious issues” and “normal run-of-the-mill threats” (par
17). Furthermore, the court reasoned, the paucity of reported cases relating
to section 1(1)(a) is indicative of justifiable prosecutorial reluctance to use
this section where it could use common-law offences such as assault,
extortion or malicious injury to property – “[o]ne does not need a 10-kilogram
sledgehammer to kill a fly” (par 18). The court continued (par 18):
CASES / VONNISSE 601

“If the prosecution is allowed to charge all persons in terms of the Intimidation
Act instead of with appropriate common-law offences, these common-law
offences may just as well be done away with. There is no reason at all for
this.”

Therefore, it was concluded by the court, the subsection “should be used in

deservingly serious matters only” (par 21), which it was held were not
present in the current case.

4 Discussion

41 The history of the intimidation offence

The history of the criminalisation of intimidation mirrors the turbulent history
of South Africa (for a detailed history, see Hoctor “Intimidation” in Milton,
Cowling and Hoctor South African Criminal Law and Procedure HA1-1). It
was first established as part of the legislative armoury to counter unlawful
labour-related practices (in the following pre-Union statutes: Act 15 of 1856
(C); Ordinance 2 of 1850 (N); Law 13 of 1880 (T) and Ordinance 7 of 1904
(O)), before being taken up into national legislation shortly after Union (in
section 8 of the Riotous Assemblies and Criminal Law Amendment Act of
1914). After a further iteration of the legislation, repealing the 1914 Act, and
repeating this offence, which principally continued to target workers
aggressively seeking to enforce their demands (s 10 of the Riotous
Assemblies Act 17 of 1956), the offence was considerably expanded by
section 8 of the General Law Amendment Act (39 of 1961). This provision
deleted the words “in respect of employment” from section 10 of the 1956
Act, which enabled the offence to be used in all contexts, not simply that of
employment. Finally, the Intimidation Act was passed in 1982, at the same
time that a number of security offences were created by legislation (found
mainly in the Internal Security Act 72 of 1982, which in itself criminalised a
broad form of intimidation in s 54(1)(d)). Further amendments to the Act (via
the Internal Security and Intimidation Amendment Act 138 of 1991, followed
by the Criminal Law Second Amendment Act 126 of 1992), inter alia
broadened the definition of intimidation, introduced a new form of
intimidation (set out in s 1(1)(b) of the Act), and switched the broad
intimidation offence in the Internal Security Act to the Intimidation Act (s 1A).
After this development, the offences set out in section 1 of the Intimidation
Act were as set out above (under heading 1 of this note).
Two provisions of the Intimidation Act were subject to compelling criticism.
The first of these was the reverse-onus provision contained in section 1(2) of
the Act (see, e.g., Snyman Criminal Law 456). The Constitutional Court has
been resolute in striking down any provisions that incorporate a reverse-
onus provision as posing an unjustifiable infringement on the right to be
presumed innocent contained in section 35(3)(h) of the Constitution (see,
e.g., S v Zuma 1995 (2) SA 642 (CC); S v Coetzee 1997 (3) SA 527 (CC)).
The second provision to attract criticism was the offence contained in section
1(1)(b). This provision has been the object of vigorous judicial and academic
criticism. Its formulation has been described as “tortuous” (S v Holbrook
supra 600i), and the offence has been variously described as
602 OBITER 2023

“disconcertingly widely formulated” (Snyman Criminal Law 456), even as

assuming “absurd proportions” (Plasket and Spoor “The New Offence of
Intimidation” 1991 12(4) Industrial Law Journal 747 750).
Neither of these provisions subsists in South African law. The
unconstitutionality of the section 1(2) reverse-onus provision was confirmed
by the Constitutional Court (Moyo v Minister of Police supra) after being
declared as such by the Supreme Court of Appeal (Moyo v Minister of
Justice and Constitutional Development supra); and section 1(1)(b) was
struck down as unconstitutional by the Constitutional Court in Moyo v
Minister of Police (supra), despite the majority of the Supreme Court of
Appeal having a different view (Moyo v Minister of Justice and Constitutional
Development supra). The basis for the finding of unconstitutionality in
respect of section 1(1)(b) was its unjustifiable infringement on the right to
freedom of expression. As indicated above, this provision was subsequently
deleted by section 24 of the Protection of Constitutional Democracy Against
Terrorist and Related Activities Amendment Act (23 of 2022). (For a
discussion of the intimidation offence and the judgments in Moyo, see
Watney “Freedom of Expression and Intimidation: Uneasy Relationship or
Matter of Interpretation?” 2020 TSAR 377.)

42 The approach of the court in White

It is noteworthy that the reviewing court in White starts its analysis of the
appropriateness of the intimidation conviction by citing the full text of section
1 of the Intimidation Act, quoting both the extant and repealed offences. This
approach is perhaps understandable in light of the court proceeding to
discuss the Motshari and Holbrook cases, which dealt specifically with the
offence declared unconstitutional in section 1(1)(b), but whether such
sources are indeed pertinent to the case at hand requires closer attention.
The context of the Motshari case was a domestic quarrel, between
partners who had lived together in a somewhat fractious relationship for
seven years, where the accused had threatened to kill the complainant, and
had employed very insulting language towards her. Despite the threat and
verbally abusive behaviour, the complainant was not sufficiently alarmed to
leave their mutual home. On review, the court set aside the conviction for
contravening section 1(1)(b), holding that the provisions of this section did
not apply to the case at hand. The court in Motshari (which judgment was
inter alia praised in Sandlana v Minister of Police supra par 42) stated that
the “draconian penal provisions [of the Act] … strongly militate against trivial
and ordinary run-of-the-mill cases having been within the contemplation of
the Legislature” (supra 554a–b), and approved of the approach of the earlier
decision in S v Holbrook (supra), where the court similarly held that the
appellant’s actions did not amount to a contravention of section 1(1)(b). In
this case, there had been a heated argument between the appellant and the
complainant after the appellant had thrown the complainant’s cat into the
swimming pool on the property on which they both resided. When the
complainant insisted on reporting the matter to the estate agent responsible
for the property, with a view to getting the appellant evicted, he threatened to
kill her. The complainant was however undeterred, and had to be restrained
CASES / VONNISSE 603

when she emerged from her dwelling with a firearm, to confront the
appellant.
While the purpose of the court in White in citing these decisions is clear –
namely that the decisions indicate the disjuncture that the courts in these
cases found between the conduct on which these cases were based, and
the conduct targeted in the section – it simply bears noting, once again, that
the cases in question relate to section 1(1)(b) (although the ultimate
conviction in the court a quo in Holbrook was a contravention of section 1(1)
of the Criminal Law Amendment Act 1 of 1988). The court in White notes that
the Constitutional Court in Moyo overruled the majority judgment in the SCA
decision to strike down section 1(1)(b) as unconstitutional, although section
1(1)(a) did not face a constitutional challenge, and thus remains valid (supra
par 12–13). However, notably, the court in White returns to the Holbrook
decision, and its critique of the breadth of the section 1(1)(b) provision, and
its statement that “the section is an unnecessary burden on our statute
books” (Holbrook supra 603, cited in White supra par 14).
Why the focus on the Holbrook decision? Because, for the court in White,
the “general tenor” of the dicta from Holbrook is valid (supra par 15):
“It is not necessary to completely do away with sub-section 1(1)(a), but it
should be utilised in line with the purpose of the Legislature, bearing in mind
the long title of the Intimidation Act, that is to prohibit certain forms of
intimidation, the extreme sentences that may be imposed, the context in which
the Act was promulgated, and the language used. There is certainly a place
for it, but to use it in trivial matters as in casu is unimaginable.”

As discussed above, the Intimidation Act has been subjected to some

penetrating, and justified, criticism. The scope of the Act has in particular
been a matter for concern, being described by Mathews as a “dragnet law”
(Freedom, State Security and the Rule of Law (1986) 59), but is the
approach of the court in White to this offence correct?

43 The scope of the section 1(1)(a) offence

In assessing the scope of the offence, it is necessary to return to its
rationale. The long title of the Act is not particularly revealing in this regard,
simply stating that the purpose of the Act is to prohibit certain forms of
intimidation. In short, the text of section 1(1)(a) merely describes certain
conduct that the legislature wished to prohibit. Although the judgments in
Moyo were naturally focused on the constitutionality of the challenged
provisions of sections 1(1)(b) and 1(2), both the SCA and the Constitutional
Court made more general observations about the intimidation offence, which
are referred to in the discussion below. Wallis JA points out in Moyo v
Minister of Justice and Constitutional Development (supra par 94), that the
nature of the offence may be derived from its name, being directed at
“behaviour constituting intimidation” and that the statutory purpose should be
understood as having deterrence of such behaviour as its goal. On the face
of it, the wording of this provision, though wide-ranging, is hardly vague or
obscure. In fact, in the minority judgment of the SCA in Moyo v Minister of
Justice and Constitutional Development (supra par 49), the offence
contained in section 1(1)(a) is described as “narrowly tailored”.
604 OBITER 2023

While the rationale of the offence has altered over the period of its
development through various legislative amendments (see above
discussion), it is clear that it is not merely protecting against bodily harm or
damage, although this is indeed incorporated in section 1(1)(a) (Moyo v
Minister of Police supra par 68). As pointed out by Ledwaba AJ, writing for a
unanimous bench of the Constitutional Court, “[t]he mischief that the Act
seeks to correct is intimidatory conduct” (Moyo v Minister of Police supra par
67; see also Hoctor Snyman’s Criminal Law 7ed (2020) 401). Proof of such
intimidatory conduct (i.e., conduct that falls within section 1(1)(a)), such as
assault, causing injury or damage, or a threat to kill or assault or cause injury
or damage, “will almost always constitute prima facie proof of unlawfulness”
(Moyo v Minister of Justice and Constitutional Development supra par 77). It
follows then that the intent to intimidate is central to the proof of the
commission of this offence, and that liability would typically turn on the
question of whether such intent accompanies the prohibited conduct.
Mathews has criticised the intent component of the offence as “all-
encompassing” and “unfocused” (Freedom, State Security and the Rule of
Law 58). However, it is clear that the intent component significantly narrows
the offence. Whilst intimidation can be committed in a variety of ways, “by
acts or conduct, or through the spoken or published word” (Moyo v Minister
of Justice and Constitutional Development supra par 95 – for examples of
such conduct see supra par 96), it can only be committed where such
conduct is performed with a particular intimidatory purpose. Thus, an
analogy can be drawn between the mens rea component of the common-law
crime of housebreaking with intent to commit a crime, and the mens rea
component of the intimidation offence. In respect of the housebreaking
crime, the accused is required to have intent in respect of the unlawful
breaking and entry into the premises or structure in question, but there can
be no liability without a further intent to commit a crime on the premises (see
Hoctor Snyman’s Criminal Law 484). With regard to the intimidation offence,
the conduct specified in section 1(1)(a) (i.e., assault, injury, causing of
damage, or threat to kill or assault, injure or cause damage) must be
intentional, but the offence is not committed unless the accused further
intends to by such conduct compel or induce a person to do or refrain from
doing something, or to assume or abandon a particular standpoint.
The presence of such purpose must, as with all elements of an offence,
be established beyond reasonable doubt, and thus the evidence for such
intimidatory intent should be properly tested (see S v Ipeleng supra, where
the evidence of whispered intimidation that was not heard or confirmed by
any other person did not suffice for a conviction). Furthermore, the
prosecution can no longer rely on the erstwhile reverse-onus provision in
section 1(2) to require that the accused prove that he had a lawful reason for
his conduct. Instead, the prosecutor is required to prove the absence of a
lawful reason for the conduct.
It should further be noted that, with the demise of section 1(1)(b), the
offence of intimidation can no longer be committed on the basis that the
accused’s conduct has the effect of, or even “might reasonably be expected
that the natural and probable consequences thereof would be” that a person
perceiving the conduct would be put in fear. The test for intimidation is
CASES / VONNISSE 605

therefore now entirely subjective in nature. It can no longer be premised

upon criteria of objective reasonableness. The crucial consideration is
whether the accused by his conduct intended to intimidate. The intention to
assault or the intention to commit public violence, to take two examples
where potentially intimidatory conduct may be in issue, would not suffice for
liability for the intimidation offence.
The importance of this consideration is evident if one takes into account
that in Holbrook (supra) the court applied the test whether “objectively
viewed” a reasonable man would have regarded the conduct and words
used by the appellant to be threatening to the safety of the complainant
(supra 597). The approach and reasoning applied in Holbrook was adopted
as “sound” in Motshari (supra 558). In S v Gabatlhole (2004 (2) SACR 270
(NC)), the court held, following Motshari, that the threat of the housebreaker
caught in the complainant’s house, that he would return along with his
“bandiet tjommies” (gangster friends), should be regarded as a less serious
case (par 8), such that the conviction for the intimidation offence set out in
section 1(1)(b) should be set aside. Whatever the correctness of the
assessment of reasonableness, the approach is indeed sound, but only in
relation to section 1(1)(b), where an objective assessment of the natural and
probable consequences of the accused’s conduct is the test to be applied.
However, in cases dealing with section 1(1)(a), where no such
reasonableness criterion forms part of the provision, it is important that the
courts not adopt this mode of thinking. It seems that this occurred in S v
Mramba ([2008] JOL 21713 (E)), where the court (par 14) cites the passage
from Motshari (554a–b), doubting that “trivial and ordinary run-of-the-mill
cases” fall within the ambit of section 1(1)(b) of the Act, and then states that
“[t]here is no reason why this remark should not also apply to section 1(1)(a)
of that Act in the circumstances on which the charge was aimed against the
accused”. After noting (par 18) that the magistrate in the court a quo did not
have regard to the Motshari and Gabatlhole cases (which both dealt with
section 1(1)(b), not section 1(1)(a), the basis for the conviction in casu), the
court held that the conviction should be overturned and replaced with an
assault conviction. It seems that the court in White, having cited cases such
as Holbrook and Motshari, falls into the same error when it excludes threats
“with no real consequences of harm” and “run-of-the-mill threats” (supra par
17) from the ambit of section 1(1)(a), in favour of “deservingly serious
matters only” (supra par 21), having earlier stated that the use of section
1(1)(a) “in trivial matters as in casu is unimaginable”. Given that the court is
not describing a threat to kill another as being de minimis non curat lex, the
basis for assessing whether a threat has a “real consequence of harm” or is
“run-of-the-mill” or “deservingly serious” can only be an objective,
reasonableness assessment.
The approach of the court in S v Cele (2009 (1) SACR 59 (N)) is better.
The court held that the conviction of the appellants for contravening section
1(1)(a)(ii) should be overturned after the court’s analysis of the words “we
will crucify you” yielded the conclusion that the words did not constitute a
threat (par 31). Whether this is so may be doubted but is a matter for the
court to ascertain on the facts. However, it is notable that the court specifies
that it made this finding, “notwithstanding how Govender [the complainant]
interpreted them”. This approach immediately divorces liability from an
606 OBITER 2023

objective assessment of the seriousness of the threat, and focuses on the

proper criterion: whether the accused acted in an intimidatory manner with
the necessary intent to do so. Such an approach is admirably demonstrated
in the case of Van Zyl v S ([2010] ZAWCHC 595), where the appellant was
convicted inter alia on four counts of intimidation, as a result of telephonic
threats that he had issued to the various complainants. On appeal, the
conviction on the third count was overturned, as the court found that the
State had failed to prove that there was indeed a threat intended to induce
the complainant “to take up a particular view or to take up a particular course
of conduct” (par 47). However, on the remaining counts (four, six and seven),
the convictions for contravention of section 1(1)(a) were confirmed (see par
49–64). The court held in respect of each of these matters that although the
respective complainants were not threatened or alarmed by the telephonic
threats to burn down their shops (or alternatively, home, in the case of count
seven), in each case the threat intentionally sought to intimidate the
complainants to refrain from certain conduct (specifically, to not pay their
fees to the corporation of which they were franchisees). The intimidation
offence was thus established in each case, not on the basis of whether it
was likely to effect real consequences (it did not, in any of the convictions for
intimidation) or whether the complainant was actually intimidated, but rather
whether the appellant had acted in an intimidatory manner, with the
necessary intent to intimidate, as set out in section 1(1)(a).

44 The need for the existence of the intimidation

offence
Snyman points out that intimidation is rife in South Africa (Criminal Law 455,
cited in White supra par 17); given that it is necessary to protect against
cruel, inhumane or degrading treatment, it is entirely appropriate that the
criminal law provide a suitable and specific remedy for intimidatory conduct.
Even those who have criticised the Intimidation Act acknowledge a role for
the offence of intimidation in appropriate circumstances (see Mathews
Freedom, State Security and the Rule of Law 57). Furthermore, the
Constitutional Court (in Moyo v Minister of Police supra par 25) has stated:
“Intimidatory conduct that negates these rights [to dignity, personal freedom
and security] has no place in an open and democratic society that promotes
democratic values, social justice and fundamental human rights.”

It has, however, been stated on a number of occasions that the intimidation

offence is not required, since existing common-law offences can cover the
same ground (S v Holbrook supra 603b; Motshari supra par 11–13): in the
White case, the court applauds (supra par 18) the use of “common-law
offences such as assault, extortion or malicious injury to property” rather
than resorting to section 1(1)(a). While there could be some overlap between
the intimidation offence and other offences, it is by no means clear that
common-law crimes present a viable alternative to the intimidation offence.
Brief reference can first be made to the crimes listed in White.
First to be assessed is assault, which may be defined as “unlawfully and
intentionally (1) applying force to the person of another, or (2) inspiring a
belief in that other person that force is immediately to be applied to him or
CASES / VONNISSE 607

her” (Burchell Principles of Criminal Law 591). There is a clear overlap

between section 1(1)(a)(i) of the Act and assault in terms of the conduct
requirement. However, while there may be such an overlap in terms of the
second form of the intimidation offence (i.e., s 1(1)(a)(ii), see e.g., the Cele
case supra), on the facts of White, there would be no overlap as the
definition indicates that the threat of harm must be immediate, which is not
the case in White, where the threat of harm was conditional on the
complainant dating Palesa. In Sandlana v Minister of Police (supra par 44),
the court’s understanding of the content of section 1(1)(a) is that it involves
an “imminent threat” of violence. This is simply not consistent with the
wording of the provision.
More needs to be said here. A conditional threat could in fact constitute
assault “where the accused is lawfully entitled to act in the way that she is
threatening to act … [but] could amount to assault if, on account of the
threat, [the complainant] is prevented from doing what she is lawfully entitled
to do” (Hoctor Snyman’s Criminal Law 397–398, where the case of R v
Dhlamini 1931 (1) PH H57 is cited in this regard). Since there were no lawful
impediments to the complainant dating Palesa, could the accused in White
then not be charged with assault after all? No, he could not, since even the
unlawful conditional harm threatened would be required to be immediate,
rather than related to some future aggression (Milton South African Criminal
Law and Procedure Vol II: Common-Law Crimes 3ed (1996) 427, referring
inter alia to R v Sibanyone 1940 JS § 40 (T); S v Miya 1966 (4) SA 274 (N)
276 277). It is also clear that assault differs from intimidation with regard to
the respective intent requirements: in intimidation, the intent of the conduct is
to “compel or induce … to do or abstain … or to assume or abandon a
particular standpoint” (s 1(1)), whereas, in assault, the intent is simply to
apply force to the person of another or to threaten such person with
immediate personal violence (Burchell Principles of Criminal Law 599), and
no further intended purpose is required.
The next offence mentioned in White is extortion, which may be defined
as “when a person unlawfully and intentionally obtains some advantage,
which may be of either a patrimonial or a non-patrimonial nature, from
another by subjecting the latter to pressure which induces her to hand over
the advantage” (Hoctor Snyman’s Criminal Law 369). The intimidation
offence can be contrasted with the crime of extortion in that, in the case of
intimidation, the intimidatory conduct or threat need not successfully produce
the effect aimed at; whereas for there to be liability for extortion, the
advantage must indeed be induced by the pressure. It seems that the
pressure placed on the complainant in the extortion crime may take the form
of a threat of physical harm (although this is not actually stated in the
sources cited in support of this proposition in Milton South African Criminal
Law and Procedure 690 n83, which are Voet Commentarius ad Pandectas
47.13.1; Matthaeus De Criminibus 47.7.1; R v Kandasamy 1912 NLR 146),
on the strength of the obiter dictum in R v Mhlongwa (1928 PH H60 (N)), and
the acceptance that extortion and robbery could overlap in Ex parte Minister
of Justice: R v Gesa; R v De Jongh (1959 (1) SA 234 (A) 240). However, it is
clear that, on the facts in White, there could only be liability for attempted
extortion at best, since the advantage (the abandonment of a relationship
with Palesa) had not yet been obtained. Although extortion could apply to
608 OBITER 2023

such non-patrimonial advantage since the legislative widening of the crime in

this regard by section 1 of the General Law Amendment Act (139 of 1992), it
is at least questionable whether the breadth of such an extortion charge
would be appropriate in casu (see the comments in S v Von Molendorff 1987
(1) SA 135 (T) 168J–169A). Could it be said, according to the principle of fair
labelling, that the stigma attaching to an (attempted) extortion verdict on
these facts would be “an accurate and fair reflection of … [the accused’s]
guilt, and hence neither more nor less than he deserves” (Walker, Palmer,
Baqwa, Gevers, Leslie and Steynberg Criminal Law in South Africa 4ed
(2022) 25)?
Malicious injury to property may be defined as where a person “unlawfully
and intentionally damages property belonging to another” (Hoctor Snyman’s
Criminal Law 475). Given the facts in White, where the accused threatened
that he would kill the complainant if the complainant did not desist from
romancing Palesa, this crime would not apply. However, even if the threat
had been to damage property, it is clear that this crime would not have
application.
Similar considerations would apply to the crime of public violence (which
consists in “the unlawful and intentional commission, by a number of people
acting in concert, of acts of sufficiently serious dimensions which are
intended violently to disturb the public peace or security or to invade the
rights of others” (Milton South African Criminal Law and Procedure 74)) and
the crime of crimen iniuria (the unlawful and intentional “impairing the dignity
or privacy of another person” (Burchell Principles of Criminal Law 648)).
Both these crimes are mentioned by Mbha JA in Moyo v Minister of Justice
and Constitutional Development (supra par 49) as part of the group of
“narrowly tailored offences” that exist to protect the individual against threats.
However, Wallis JA (supra par 103), writing for the majority in the same
case, points out that while there may be overlaps between these crimes
(along with assault) and the intimidation offence, there are a wide variety of
examples where this would not be the case. Indeed, neither public violence
nor crimen iniuria would be applicable to the facts of the case in White.
It may therefore be concluded that there cannot be a facile replacement of
liability for intimidation with any common-law crimes, as has been
suggested. While there may be instances of overlap, taking into account
either the facts of the White case or a host of other examples (such as those
suggested by Wallis JA in Moyo v Minister of Justice and Constitutional
Development supra par 97–102), it is clear that the section 1(1)(a) offence
plays a unique role in combating intimidatory conduct.

45 How limited should the role of the intimidation

offence be?
Given the concerns regarding the historical breadth of the intimidation crime
(and, no doubt, the taint regarding its use as a controlling mechanism in
response to conduct associated with political unrest and opposition before
the advent of democracy in South Africa), there have been arguments in
favour of limiting the offence to serious harm or threats of serious harm
(Mathews Freedom, State Security and the Rule of Law 59). Such thinking
CASES / VONNISSE 609

apparently animates the decision in White, where, as noted above, the court
states that though it does not believe that section 1(1)(a) should be done
away with in its entirety, for it to be employed “in trivial matters as in casu is
unimaginable” (supra par 15).
There are a number of difficulties with this approach, however. First, it
may be inquired what “serious” means in this context. While the majority of
the Constitutional Court in Economic Freedom Fighters v Minister of Justice
and Constitutional Development ([2020] ZACC 25) has held that this ought
to be a question well within the capacity of the courts to assess (par 70), the
inherent vagaries of the majority judgment itself give the lie to such
confidence. Secondly, is intimidatory conduct not in itself sufficiently serious
to merit being criminalised? Notwithstanding that there are circumstances in
which a prosecution for intimidation is not appropriate, despite the conduct
falling within the definition of the offence (as is the case with assault, for
example – see S v Visagie 2009 (2) SACR 70 (W)), can it be gainsaid that,
in the words of Wallis JA (in Moyo v Minister of Justice and Constitutional
Development supra par 84), intimidatory conduct is “abhorrent in any
democratic society”? Furthermore, the mere fact that intimidatory conduct
took place in a domestic setting (as in Motshari supra) does not, in the
context of the scourge of gender-based violence render such conduct
inappropriate for the application of the offence (see Moyo v Minister of
Justice and Constitutional Development supra par 97). After all, threats of
violence are explicitly criminalised in section 1(1)(a) of the Act (Moyo v
Minister of Justice and Constitutional Development supra par 28).
The question also arises in the present case, where the conduct is
categorised by the court in White as “trivial”, despite it consisting of a death
threat. While the court in Ipeleng (supra, cited in White supra par 19)
overturned a conviction for contravening section 1(1)(a) on the evidence, it
was held in White that “there can be little doubt that the action taken, but not
proven, was sufficiently serious to warrant prosecution in terms of s 1(1)(a)”.
The alleged conduct was that the appellant had approached the
complainants at work during a strike, asked them what they were doing at
work, and told them that they would be killed for coming to work. In S v
Phungwayo (2005 JDR 0496 (T)), the context for the conviction for
contravention of section 1(1)(a) was a heated argument between the
accused and his superior, as a result of which the accused uttered threats,
including a threat to kill the complainant. On review, the court upheld the
conviction, holding that “[a] threat to kill anyone is a serious matter and
cannot be dismissed lightly”.
The point may be made that intimidation in section 1(1)(a) encompasses a
threat “in any manner” to “kill, assault, injure or cause damage to any
person”. While a threat to cause physical harm of any sort, with killing being
the most serious manifestation of such harm, is clearly included in the ambit
of the offence, even the threat of causing “damage” to a person suffices. In
this regard, and in light of the approach of the court in White to the Ipeleng
case, it is difficult to understand the rationale of the court in White in
excluding the conduct that gave rise to this case from the ambit of the
intimidation offence. It may be noted that in the context of the analogous
offence in the Indian Code (s 503), the conduct in the White case would also
610 OBITER 2023

fall within the ambit of criminal liability (see the case of Anna Kamu Chettiar
1959 Cr LJ 1084). The only exception to liability would be where the threat
was vague or ambiguous (BM Ghandi Indian Penal Code (1996) 578).
It may further be argued that the intimidation offence performs a function
in South African law similar to the housebreaking crime. Holmes has argued
in the US context that the object of punishing breaking and entering (like
burglary, analogous to the South African housebreaking crime) is not to
prevent trespasses, but “only such trespasses as are the first step to wrongs
of a greater magnitude, like robbery or murder” (The Common Law (1881)
74). In the same vein, Wright argues that burglary is a legislative endeavour
to apprehend criminal personalities at the earliest possible moment
(“Statutory Burglary: The Magic of Four Walls and a Roof” 1951 100
University of Pennsylvania Law Review 411 444). If the housebreaking crime
operates as a form of inchoate offence, creating criminal liability at a stage
earlier in the passage of events than when the harm threatened is actually
carried out, then can the same not be said of the intimidation offence? Is it
not preferable to hold someone liable for a threat to kill than for the actual
death of another?
Even if the accused did not intend ultimately to kill or physically harm the
victim or damage their interests, but provided that the accused intended to
intimidate the victim into acting (or not acting) in a particular way, this is
entirely consistent with the principles of subjective criminality upon which the
South African criminal law is based. Whatever the reaction of the victim, the
accused’s intentional intimidatory conduct by way of a threat should give rise
to criminal liability just as it would do in the case of assault. Intimidation in
section 1(1)(a) of the Act is not limited to where actual physical assault,
injury or damage is perpetrated upon a person to intimidate them, but
crucially includes intimidation by way of threat.
Given the significant maximum penalties set out in the Intimidation Act for
a contravention of section 1(1)(a) – imprisonment for a period not exceeding
10 years or a fine of R40 000 (which in terms of section 1(2) of the
Adjustment of Fines Act 101 of 1991 would translate into a maximum fine of
R400 000), or both – concerns about excessive sentences underlie the
critique of the intimidation offence. However, these concerns should not be
overemphasised. Just because a heavy sentence can be handed down upon
conviction does not mean that this will necessarily transpire. The court will
have to weigh all the factors relating to sentence and take a reasoned
decision on this basis. This is no less the case in respect of the intimidation
offence than in any other.
The flexibility available to judicial officers in crafting sentences can be
seen in the cases of Phungwayo, Van Zyl and White itself. The court in
Phungwayo (supra) acknowledged the gravity of a threat to kill, holding that
the imposition of a direct sentence of imprisonment is justified. Nevertheless,
the court took into account that the accused was a first offender, that the
words were uttered in the heat of argument, and that the magistrate in the
trial court over-emphasised the seriousness of the offence. The accused had
at the time of review already served three months of a sentence of 18
months’ imprisonment. The court on review proceeded to suspend the
balance of the sentence. In the Van Zyl case, the court, having examined the
CASES / VONNISSE 611

offender’s personal circumstances and the nature of the offence, took the
view that direct imprisonment was not required, and that a suspended
sentence would suffice (supra par 74). The trial court in White handed down
a sentence of R1 000 or six months’ imprisonment, which was wholly
suspended (supra par 1). It may further be noted, by way of comparison, that
the punishment for criminal intimidation in the Indian Penal Code is a period
of up to two years’ imprisonment, or a fine, or both (s 506). If the threat is to
cause death or serious hurt, or destruction of property by fire, or to cause an
offence punishable with death or imprisonment for life, or with a prison term
that may extend to seven years, or to impute unchastity to a woman, the
punishment is imprisonment for a period up to seven years or a fine, or both
(s 506). Where criminal intimidation is committed by way of anonymous
communication, the punishment may be extended by two years’
imprisonment (s 507). It is noteworthy that the punishment provisions
relating to the intimidation offence in the new draft Code are identical
(cl 349(2)–(4)).

5 Concluding remarks
The court in White envisages a very limited role for the intimidation offence,
seeking to apply it only in “deservingly serious” matters, which the court
would categorise by adopting an objective criterion. For this reason, the
threat to kill the complainant if he did not desist from exploring his romantic
interest in Palesa was regarded as “trivial”. The court further advocates that
the intimidation offence not be used if there is an alternative option among
the common-law crimes.
It has been argued above that despite the problematic history of the
offence, the intimidation offence still has a significant role to play. In this
regard, the discussion of the proper use of the offence in White is a useful
point of departure to examine the nature of the current offence, after the
unconstitutional aspects of the offence have been repealed. It is submitted
that the role of the offence should simply be to fulfil the legislative intent such
that where a person acts in an intimidatory manner with the intent to
intimidate, there should be criminal liability. There may be some overlap
between the intimidation offence and common-law crimes. However, other
grounds for liability do not cover all aspects of intimidatory conduct. Even
where there is some overlap, other crimes do not sufficiently highlight the
specific purposive role that the offence serves in protecting both rights and
public policy.
As noted, intimidation can be profoundly harmful, and violates the rights to
dignity, personal freedom and security (see Moyo v Minister of Police supra
par 25). It follows that criminalising intimidatory conduct is legitimate in a
constitutional democracy such as South Africa. While the section 1(1)(a)
offence is broadly framed, the offence can only be committed where the
accused intended to inflict harm (or threatened to do so) with the purpose of
intimidation. This significantly narrows and focuses the ambit of the offence.
In any event, where the offence is committed in circumstances where the
court concludes that the offender is less blameworthy or is unlikely to
reoffend, this can be reflected in the sentence handed down by the court.
The concerns of the court in White should be seen in light of these
612 OBITER 2023

safeguards, and the need for the offence to combat the scourge of
intimidatory behaviour in South African society.

Shannon Hoctor
Stellenbosch University