- Zuma-Sambudla admitted posting the disputed messages and statements on her public Twitter account.
- Some State witnesses conceded that individual posts did not, on their own, amount to incitement.
- The judge found that the different interpretations of the posts, their context and the accused’s intention required a holistic assessment of the evidence.
The meaning of Duduzile Zuma-Sambudla’s social media posts, the context in which they were published and her intention are among the questions that must be resolved at trial after the State presented evidence linking her posts to alleged incitement during the July 2021 unrest.
The charges arise from posts made between 7 and 17 July 2021, when widespread unrest unfolded in KwaZulu-Natal and Gauteng. Zuma-Sambudla faces one count of incitement to commit terrorism under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 and two counts of incitement to commit public violence under the Riotous Assemblies Act 17 of 1956.
The disputed social media publications
Among the statements at the centre of the case were “We see you”, “I see you, Amandla”, “your struggle continues from the outside and we must intensify Amandla” and “take the day off from being the bigger person and choose violence, you deserve it”.
The State also relied on a call for a total shutdown in KwaZulu-Natal, as well as images and videos showing burning infrastructure, people firing guns, barricaded roads and AmaZulu regiments in traditional attire with traditional weapons. One video showed a person shooting at images of the president wearing an African National Congress T-shirt.
Zuma-Sambudla admitted posting the messages and statements under Section 220 of the Criminal Procedure Act 51 of 1977. The prosecution also presented comments from her followers, some of whom warned that she was inciting violence, while others voiced their support.
Why the defence sought a discharge
The State called seven witnesses, including investigators and translators who helped with statements in English and isiZulu. Their evidence supported the prosecution’s claim that the posts amounted to incitement to terrorism or violence.
However, some witnesses admitted during cross-examination that certain posts, considered on their own, did not amount to incitement. The defence argued that these concessions showed the State had not made a prima facie case and that Zuma-Sambudla should be discharged without having to present a defence.
The State opposed the application, saying it had presented enough evidence for the proceedings to continue.
Why the judge found a holistic assessment necessary
In considering the application, Judge M Mathenjwa explained that Section 174 of the Criminal Procedure Act allows a court to discharge an accused person at the end of the State’s case if there is no evidence that the accused committed the offence or any other offence on which they could be convicted.
The judge clarified that the words no evidence do not mean there is nothing at all. “The question is whether there is any evidence on which a reasonable court, acting carefully, might convict. The State must have presented evidence on each part of the charges which, if left unanswered, could lead to a conviction,” Judge Mathenjwa ruled.
The judge also stressed that an accused should be discharged where there is no possibility of conviction unless they give evidence against themselves. At this stage, the court does not make final findings on witness credibility or decide whether guilt is proved beyond reasonable doubt.
Judge Mathenjwa said the central difficulty was the completely different interpretations given by the State and defence about the meaning of the posts, the accompanying statements, whether the conduct was lawful and Zuma-Samdula’s intention.
The judge found that the concessions made by some witnesses about individual posts did not resolve these broader disputes. Given the nature of the evidence and the different interpretations, the interests of justice required a holistic look at everything at the end of the trial.
This would allow the court to assess the credibility of the witnesses, decide how strong the evidence is and determine whether the prosecution had proved its case beyond reasonable doubt.
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