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KAUESA V MINISTER OF HOME AFFAIRS AND OTHERS 1995 (1) SA 51 (NM)

NAMIBIA, HIGH COURT


STRYDOM JP and O'LINN J
B 1994 March 14-16; June 15 Case No A125/94
Flynote : Sleutelwoorde
Constitutional law - Human rights - Fundamental rights and freedoms in terms of
chap 3 of Constitution of Namibia Act 1 of 1990 (Nm) - Protection of - Onus of proof -
Onus on party alleging infringement or threatened C infringement of fundamental
right.
Constitutional law - Legislation - Validity of - Allegation that regulation
unconstitutional - Onus of proof - Onus on person alleging invalidity to prove that
regulation not reasonably justifiable in democratic State.
D Constitutional law - Human rights - Fundamental rights and freedoms in terms of
chap 3 of Constitution of Namibia Act 1 of 1990 (Nm) - Freedom of speech and
expression - Infringement thereof by law relating to defamation, contempt of court
and incitement to commit an offence reasonable and necessary in democratic
society as intended in art 21(2) - Constitution not elevating freedom of speech and
expression above other E fundamental freedoms in art 21(1) - Also not elevating it
above any of fundamental rights provided for in arts 6-20 of Constitution.
Constitutional law - Constitution - Interpretation of - Constitution of Namibia Act 1 of
1990 (Nm) - Preamble to Constitution - Preamble an F important internal aid to
construction of provisions of Constitution - Preamble an 'unqualified part of the text'
and Court to decide what weight to be attached to it.
Constitutional law - Constitution - Interpretation of - Constitution of Namibia Act 1 of
1990 (Nm) - So-called '1982 Constitutional Principles' G and Universal Declaration
of Human Rights - Questionable whether they have become part of law of Namibia -
But their provisions should carry weight in interpretation of Namibian Constitution -
Specific and unequivocal provisions of Constitution overriding provisions of
international agreements which have become part of Namibian law - Where
provisions of H Constitution equivocal or uncertain, provisions of relevant
international agreements to be given considerable weight in interpretation of
Constitution.
Constitutional law - Legislation - Validity of - Section 11(1) (b) read I with s 14 of
Racial Discrimination Prohibition Amendment Act 26 of 1991 (Nm) - Such provision
falling within aims and objectives of Constitution of Namibia Act 1 of 1990 (Nm) -
Also in line with constitutions and/or penal codes of many democratic countries and
with international treaties and conventions - Semble: s 11(1)(b) complying with
criteria contained in J art 21(2) of Constitution in that

1995 (1) SA p52


A it 'imposes reasonable restrictions' necessary in democratic society such as
Namibia - Section 11(1)(b) prima facie constitutional.
Constitutional law - Legislation - Validity of - Regulation 58(32) of Police Regulations
promulgated under Police Act 7 of 1958 (RSA) and in B force by virtue of Police Act
19 of 1990 (Nm) - Regulation complying with art 21(2) and art 22(a) of Constitution
of Namibia Act 1 of 1990 - Also not 'overbroad' or substantially overbroad -
Regulation valid.
Headnote : Kopnota
In legal proceedings in which it is alleged that a fundamental right or C freedom in
terms of the Constitution of Namibia Act 1 of 1990 (Nm) has been infringed or is
threatened, the onus is on the party alleging such infringement or threat of
infringement. Where it is contended that a regulation is unconstitutional, the party so
contending bears the onus of persuading the Court that the said regulation 'is not
reasonably justifiable in a democratic State, and not on the State to show that it is'.
(At 55H/I-I/J.)
Insofar as the law relating to defamation, contempt of court or incitement D to
commit an offence infringes freedom of speech and expression guaranteed by the
Constitution of Namibia, such infringement is reasonable and necessary in a
democratic society (as intended in art 21(2)) and therefore constitutional and
binding. The Constitution of Namibia does not elevate freedom of speech and
expression above the other fundamental freedoms provided for in art 21(1) and even
less so above any of the fundamental rights provided for in arts 6-20, such as arts 8
and 10, providing for the rights of all persons to dignity, equality and
non-discrimination. The contrary is true. (At 68I/J-69B.)
E
The preamble to the Constitution of Namibia Act 1 of 1990 is an important internal
aid to the construction of provisions of the Constitution, particularly where those
articles are ambiguous, but is not restricted to articles which are ambiguous. The
preamble is 'an unqualified part of the text' (of the Constitution) and the Court has to
decide what weight should be attached to it. (At 81H/I-I/J.)
F
It is questionable whether the framework for the Namibian Constitution prescribed
for the Constituent Assembly and the Constitution for an independent Namibia in the
so-called '1982 Constitutional Principles' and the Universal Declaration of Human
Rights have become part of the law of Namibia. But, even if they are not, their
provisions should carry weight when interpreting the provisions of the Namibian
Constitution. The specific provisions of the Constitution of Namibia, where specific
and unequivocal, override provisions of international agreements which have G
become part of Namibian law. However, in all situations where such law is not in
conflict with the provisions of the Namibian Constitution, such law will have to be
given effect to in Namibia. In cases where the provisions of the Namibian
Constitution are equivocal or uncertain as to their scope of application, such
provisions of the international agreements must at least be given considerable
weight in interpreting and defining the scope of a provision contained in the
Namibian Constitution. This approach applies particularly to a provision such as art
23(2) relating to the H various forms of affirmative action. (At 86H/J-87B/C.)
When the provisions of s 11(1)(b) read with s 14 of the Racial Discrimination
Prohibition Amendment Act 26 of 1991 (Nm) are seen in the context of the Namibian
Constitution, the modern constitutions and/or criminal codes of so-called civilised
countries and international treaties and conventions, it can safely be said that s
11(1)(b) clearly falls within the aims and objectives not only of the Namibian
Constitution and people, but is also in line with the constitutions and/or penal codes
of I many other democratic countries and international treaties and conventions.
(At 95F-G/H.)
Semble: Although it was not necessary for the purposes of the present case to
decide whether or not s 11(1)(b) of the Racial Discrimination Prohibition Amendment
Act 26 of 1991 (Nm) is unconstitutional, the Court expressed the prima facie view
that the section as a whole complied with the criteria contained in art 21(2) of the
Constitution of Namibia in that J it 'imposes reasonable restrictions', necessary in a
1995 (1) SA p53
O'LINN J
A democratic society such as Namibia, and that these restrictions were in the
interests of the sovereignty or integrity of Namibia, national security, public order,
decency or morality. Furthermore, s 11(1)(b) complied substantially with the
requirements of art 22 of the Constitution. The Court was therefore of the prima facie
view that the whole of s 11(1)(b) was constitutional. (At 101J-102B and 102B/C.)
Regulation 58(32) of the Police Regulations promulgated pursuant to the Police Act
7 of 1958 (RSA) and which have remained in force by virtue of the Police Act 19 of
1990 (Nm) provides that a member of the Namibian B Police Force 'shall be guilty
of an offence . . . if he - (32) comments unfavourably in public upon the
administration of the Force or any other Government department; . . .'. The
regulation complies with the provisions of art 21(2) of the Namibian Constitution in
that (i) it imposes reasonable restrictions on the exercise of the rights and freedoms
contained in art 21(1), including on the freedom of speech and expression; (ii) the
restrictions are necessary in a democratic society; and (iii) are required in the
interests of sovereignty and integrity of Namibia, C national security and public
order. The regulation complies with art 22(a) of the Constitution in that it (i) is of
general application; (ii) does not negate the essential content of the freedom of
speech and expression; (iii) is not aimed at a particular individual. Alternatively, if the
doctrine of 'overbreadth' is applicable in Namibia, reg 58(32) is neither overbroad,
nor substantially overbroad, nor unconstitutional. (At 119I-120C/D.)
D The Court accordingly dismissed the applicant's application for an order
declaring reg 58(32) of the Police Regulations to be invalid and of no force and
effect.
Case Information
Application for a declaratory order. The facts appear from the reasons for judgment.
D F Smuts for the applicant.
E J D G Maritz for the respondents.
Cur adv vult.
Postea (June 15).
Judgment
F O'Linn J: The applicant, Elvis Kauesa, a warrant officer in the Namibian Police,
applies on notice of motion for a declaratory order against the Minister of Home
Affairs as first respondent, the Inspector-General of the Namibian Police as second
respondent, and the Deputy Commissioner of the Namibian Police as the third
respondent, in the following terms:
1. Declaring reg 58(32), published under Government Notice R203 in G
Government Gazette 719 dated 14 February 1964, to be invalid and without force
and effect.
2. Ordering such respondents as may oppose this application to pay the
costs thereof, jointly and severally.
3. Granting the applicant such further and/or alternative relief as this
honourable Court deems fit.
H Mr Smuts and Mr Maritz, both of the Namibian bar, appeared respectively for the
applicant and the respondents. Each filed extensive heads of argument,
supplemented by a list of authorities, and a file of extracts of authoritative writings
and photostat copies of relevant and comparative constitutional provisions and
precedents in the USA, Canada, India, Great Britain and Europe.
I
Furthermore, both counsel dealt with the relevant issues in thorough and interesting
viva voce argument.
Counsels' contribution to the consideration and adjudication of all the novel issues
raised in this case is greatly appreciated by this Court.
J This judgment is divided into the following sections:
1995 (1) SA p54
O'LINN J
A Section A: Jurisdiction - a general approach and onus.
Section B: The issues of fact, findings thereon and some legal implications.
Section C: The distinction between fundamental rights and fundamental freedoms
in the Namibian Constitution and the significance thereof when considering a conflict
between fundamental B freedoms and fundamental rights.
Section D: The main similarities and distinctions between the Namibian
Constitution and that of the USA, Canada, the European Union, the Federal
Republic of Germany and India.
Section E: Relevant provisions of the Namibian Constitution relating to C dignity,
equality and non-discrimination and similar and/or relevant provisions in the
Constitutions and/or criminal codes of other countries, as well as in relevant
international conventions and treaties.
Section F: Is s 11(1)(b) of the Racial Discrimination Prohibition Amendment Act 26
of 1991 (Nm) unconstitutional.
D
Section G: Is the speech relied on by applicant protected speech in terms of the
Namibian Constitution.
Section H: Is reg 58(32) of the Police Regulations constitutional.
Section A: Jurisdiction - a general approach and onus
E It is necessary at the outset to bear in mind the nature and extent of this Court's
jurisdiction to consider and adjudicate on the aforesaid application and to set out the
Court's approach to its task.
First, we must look at the basic law, the Constitution of Namibia Act 1 of 1990 (Nm).
Article 5 of chap 3 provides:
F 'The fundamental rights and freedoms enshrined in this chapter shall be
respected and upheld by the Executive, Legislative and Judiciary and all organs of
government and its agencies and, where applicable to them, by all natural and legal
persons in Namibia, and shall be enforceable by the Courts in the manner
hereinafter prescribed.'
G (My emphasis.) The relevant parts of art 25 of chap 3, dealing with the
enforcement of fundamental human rights and freedoms, read as follows:
'(1) Save in so far as it may be authorised to do so by this Constitution,
Parliament or any subordinate legislative authority shall not make any law, and the
Executive and the agencies of Government shall not take any action which
abolishes or abridges the fundamental rights H and freedoms conferred by this
chapter, and any law or action in contravention thereof shall to the extent of the
contravention be invalid: provided that:
(a) a competent Court, instead of declaring such law or action to be
invalid, shall have the power and the discretion in an appropriate case to allow
Parliament, any subordinate legislative authority, or the Executive and the agencies
of Government, as the case may be, to correct any defect in the I impugned law or
action within a specified period, subject to such conditions as may be specified by it.
In such event and until such correction, or until the expiry of the time limit set by the
Court, whichever be the shorter, such impugned law or action shall be deemed valid;
(b) any law which was in force immediately before the date of J
independence shall remain in force until amended, repealed or declared
unconstitutional.

1995 (1) SA p55


O'LINN J
A If a competent Court is of the opinion that such law is
unconstitutional, it may either set aside the law, or allow Parliament to correct any
defect in such law, in which event the provisions of sub-art (a) hereof shall apply.
(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed
by this Constitution has been infringed or threatened shall be entitled to approach a
competent Court to enforce or protect B such a right or freedom, and may
approach the Ombudsman to provide them with such legal assistance or advice as
they require, and the Ombudsman shall have the discretion in response thereto to
provide such legal or other assistance as he or she may consider expedient.
(3) Subject to the provisions of this Constitution, the Court referred to in subart
(2) hereof shall have the power to make all such orders as shall be necessary and
appropriate to secure such applicants the C enjoyment of the rights and freedoms
conferred on them under the provisions of this Constitution, should the Court come
to the conclusion that such rights or freedoms have been unlawfully denied or
violated, or that grounds exist for the protection of such rights or freedoms by
interdict.'
Subarticle (2) of art 80 of the Constitution of Namibia makes the High D Court of
Namibia a competent Court for the purposes of art 25. The relevant part of subart (2)
reads as follows:
'The High Court shall have original jurisdiction to hear and adjudicate upon all civil
disputes and criminal prosecutions, including cases which involve the interpretation,
implementation and upholding of this Constitution and the fundamental rights and
freedoms guaranteed thereunder. . . .'
E
The relevant part of the High Court Act 16 of 1990 (Nm) supplements the aforesaid
jurisdiction where in para (d) it provides that the High Court has power
'in its discretion, and at the instance of any interested person, to enquire into and
determine any existing, future or contingent right or F obligation, notwithstanding
that such person cannot claim any relief consequential upon the determination'.
However, before the applicant can succeed, he must persuade this Court on a
balance of probabilities that:
1. He is an aggrieved person as contemplated by subart (2) of art 25 of
G the Constitution of the Republic of Namibia.
2. A fundamental right or freedom, guaranteed by this Constitution, has
been infringed or threatened.
3. The pending prosecution for a contravention of reg 58(32) is an
infringement of his fundamental freedom to have made the speech aforesaid or
because it is a threat to his fundamental right to a H fair trial, in that the regulation
on which the charge is based is unconstitutional.
The onus is on the applicant to prove that a fundamental right or freedom has been
infringed or is threatened.
Insofar as the applicant contends that the regulation in question is unconstitutional,
the applicant in my view bears the onus of persuading I the Court that the said
regulation 'is not reasonably justifiable in a democratic State and not on the State to
show that it is'.
See Devenish Interpretation of Statutes at 210-12 and the cases there cited. See
also Seervai Constitutional Law of India 3rd ed vol 1 at 490, J where the learned
author says:
1995 (1) SA p56
O'LINN J
A 'However, a law made in respect of the matters referred to in art 19(2) must prima
facie be presumed to be constitutionally valid.'
When considering the constitutionality of provisions of statute law, our Courts must
in the first place rely on the Namibian Constitution, and not on that of other countries
with constitutions fundamentally different. After all, art 1(6) provides:
B
'This Constitution shall be the Supreme Law of Namibia.'
See, further, S v Minnies and Another 1991 (1) SACR 355 (Nm) at 370g-h; Ex parte
Attorney-General: Namibia: In re Corporal Punishment by Organs of State 1991 (3)
SA 76 (NmS) at 86I-J, 96H-97A; S v Tcoeib 1993 (1) SACR 274 C (Nm) at
281f-282a; S v Acheson 1991 (2) SA 805 (Nm) at 813A-C; Minister of Defence,
Namibia v Mwandinghi 1992 (2) SA 355 (NmS) at 362F.
In Freedom of Speech by Eric Barendt, the learned author has the following to say
about the Basic Law of the Federal Republic of Germany in contrast to that in the
USA:
D
'The Basic Law (Grundgesetz) is a much more complicated constitutional document
than the United States Constitution and Bill of Rights. There is therefore more room
in construing fundamental rights provisions in conjunction with one another and with
other basic principles of the Federal Republic's legal order. For example, freedom of
expression must be interpreted subject to the fundamental right to the dignity of
man.'
E
(My emphasis.) These words are mutatis mutandis applicable to the interpretation of
the provisions of the Namibian Constitution.
The words of Seervai in Constitutional Law of India 3rd ed vol 1 at 491 para 10-28
are also mutatis mutandis applicable to the Namibian situation where the learned
author says:
F
'It has become necessary to point out the radical difference between the provisions
as to freedom of speech in the US constitution and our own, because the
observations in the Express Newspapers case would otherwise lead to the
application of tests in India which are wholly inconsistent with art 19(1) and 19(2). It
is submitted that in Santokh Singh v Delhi Administration the Supreme Court has, in
substance, overruled the G observations of Bagwhati J set out above when it
observed: "In our opinion it is hardly fruitful to refer to the American decisions,
particularly when this Court has more than once enunciated the scope and effect of
art 19(1)(a) and 19(2). . . ." Our Constitution provides reasonably precise, general
guidance on this matter. It would thus be misleading to construe it in the light of
American decisions given in a different context.'
H Even in Canada, the importance of these differences has been emphasised.
See, for example, R v Keegstra et al (1990) 3 SCR 697 (SCC), 61 CCC (3rd) 30
(SCC), the majority judgment of Dickson CJC at 30-5.
Insofar as there is a dispute of fact, it is agreed between Mr Smuts and Mr Maritz
that the approach is as stated by Mr Maritz in his heads of I argument. I agree that
this is the correct approach and repeat it for the purposes hereof:
'It is trite law that any dispute of fact in application proceedings should be
adjudicated on the basis of the facts averred in the applicant's founding affidavits
which have been admitted by the respondent, together with the facts alleged by the
respondent, whether or not the latter has been admitted by the applicant, unless a
denial by the respondent is not J such as to raise a real, genuine or bona fide
dispute

1995 (1) SA p57


O'LINN J
A of fact or a statement in the respondent's affidavits is so far-fetched or clearly
untenable that the Court is justified in rejecting it merely on the papers. See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
634E-635C; Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957
(4) SA 234 (C) at 235E-G; Associated South African Bakeries (Pty) Ltd v Oryx &
Vereinigte Bäckereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G-924D. This
approach remains the same B irrespective of the question which party bears the
onus of proof in any particular case.
See Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v
Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A)
at 260I-263D.'
It seems to me furthermore that when an applicant applies for an order C
protecting, inter alia, or in effect the freedom of speech relating to a particular
speech and that speech violates the fundamental rights and freedoms of others, for
example where it grossly violates the dignity of other persons or their right to
equality and non-discrimination and/or defames them, such parties have a direct and
substantial interest in the issue and should be joined.
D
The applicant in this matter has failed to join the officers of the command structure
attacked by him, except for the Inspector-General of the Namibian Police, who is
cited as second respondent. I will assume for the purposes hereof that the
Inspector-General can, to some extent, speak on behalf of all the officers in the
so-called 'command structure' attacked E by applicant in his speech.
The point of non-joinder was not taken by the respondents and the Court hearing the
application did not raise the issue at any stage of the proceedings.
F In these circumstances, it will be wrong for this Court to reject the application on
the ground of non-joinder.
It is furthermore unnecessary for the Court to decide this issue, because the
application can be decided on other grounds.
It is clear from the founding affidavit of applicant that he relies for his attack on the
validity of the regulation on the ground that the regulation is now in conflict with his
'fundamental right' to freedom of G speech and expression expressed in art
21(1)(a) of the Constitution.
Applicant contends that:
'I submit that I and other members of the police have the constitutionally protected
right to engage in discussion or debate in a public sense on issues of such
legitimate public concern about the administration of the H force, conditions of
service and other issues of public importance such as corruption or irregularities,
even if such comment can be construed as unfavourable. In participating in the
televised discussion aforesaid, I respectfully submit that I was lawfully exercising this
right.'
(My emphasis.)
I The version of applicant's speech for which he claims protection is set forth in
annexure B to applicant's founding affidavit and is not in dispute. The relevant part
reads as follows:
'Narrator: Meanwhile, the chairman of the Namibian police promotions committee,
warrant officer Elvis Kauesa, expressed his views on behalf of J the majority of
black police members.

1995 (1) SA p58


O'LINN J
A Kauesa: In fact, the Ministry or at least the Government should not only
consider the positions of or challenge police officers with foreign
nationalities, but it should also reconsider the appointment of General Piet Fouche
as the Inspector-General of the police and other white senior officers in the
command structure. The appointment of the current Inspector-General, General Piet
Fouche, has always been B an obstacle to achieving the goals and aims of the
national police force of Namibia, namely to create opportunities for all Namibians in
development, to serve as Government's instrument for the implementation of policy
of national reconciliation and the compliance of the constitutional instructions,
instructions of affirmative action to redress the existing imbalances.
Narrator: According to the police spokesman, Inspector Sean Geyser, all C
policemen who are not Namibians have applied for citizenship and are still waiting
for a response from the Government.
Geyser: At this point in time we have no foreigners in the police force.
We have members whose applications are still pending and we are
awaiting the decision of the Ministry on that. Foreigners are to be contracted to a
force. We have no contracted people to the police D force as such. Circulars were
sent out, directives from Head Office telling all members of the police that weren't,
that didn't qualify for citizenship by birth or marriage to make sure that their
applications were submitted to become Namibian citizens.
Narrator: Kauesa said that the police had been ineffective to maintain
security, law and order in the country because of the white dominated
structure.
Kauesa: As you are asking my opinion, which I believe is also the opinion E of the
majority of the black members of the Namibian police, the command structure of the
Namibian police force is determined to undermine the government's policy of
national reconciliation and if possible to cripple the Government through corruption
and other irregularities. We have only one group of people, the whites, who are
occupying the positions of command and this seniority and the F seniority facilitate
corruption and abuse of power. If I may recall the high treason case of Kleynhans
and his group of white terrorists, then I mean police sort of supplied them with
weapons and ammunition, because no one of the commanding officers or the
commanders of the unit that suffered the loss of armoury were held responsible or at
least charged with acts of negligence or collaboration. The circumstances
surrounding the case were very suspicious and that is G the hangover of the
Namibian Police executive I referred to. We are sitting with wrong people in wrong
positions.'
The applicant did not contend that he can shield behind freedom of speech and
expression when his speech infringes the fundamental rights of others to dignity,
equality and non-discrimination or when his speech constitutes H lies and/or
defamation and/or injuria, whether delictual or criminal, or constitutes a serious
criminal offence such as a contravention of s 11(1)(b) of the Racial Discrimination
Prohibition Act of 1991.
If the applicant's case can be construed as being based solely on the premise that
his aforesaid speech was lawful, in that it is protected by his fundamental freedom of
speech and expression, then his application I would fail should the Court find that
the said speech is not protected speech in that it is not covered by the fundamental
freedom of speech and expression.
I will assume for the purposes of this application, even though there is no express
reliance on the fundamental right to a fair trial, that the J applicant relies by
implication, also on a threatened infringement of the
1995 (1) SA p59
O'LINN J
A fundamental right to a fair trial on the basis that a trial is pending wherein he is
charged under a regulation which is unconstitutional, in that it infringes his freedom
of speech.
Nevertheless, it remains relevant for various purposes to decide whether, as the
applicant alleges, his speech in the instant case is protected by the fundamental
freedom of speech.
B
Section B: The issues of fact, findings thereon and some legal
implications
The whole cause of action of the applicant is set out in paras 1 and 6-17 of the
founding affidavit.
The respondents, however, oppose the application and deny that applicant C is
entitled to the relief claimed.
Paragraphs 1, 16 and 17 of applicant's founding affidavit are, however, admitted.
The rest of the applicant's averments in his paras 9-15 are denied as a whole or in
part in the affidavit of second respondent, supplemented by the affidavit of M A Pool,
a Deputy Inspector-General of the Namibian D Police, and H J Snyman, a member
of the Police Public Relations Advisory Council and chief executive of the Namibian
Agricultural Union.
Respondents in para 2.1-2.6 of first respondent's affidavit set out the legal basis of
the Namibian Police Force, being the Police Act of 1990, the functions of the force in
accordance with s 13 of the said Act, the powers and duties of policemen,
prerequisites for its proper functioning E and the regulations issued under the
Police Act pursuant to the Act and its predecessor.
Respondents in para 2.6 of second respondent's answering affidavit allege that, at
the time of the applicant being employed as a policeman, the applicant contractually
agreed to abide by the aforesaid regulations. If F he had refused to do so, he would
not have been enrolled.
In para 2.7 of second respondent's affidavit, respondents allege that the applicant
had in the same manner and at the same time bound himself to the provisions of the
Police Act applicable at the time, including the provisions relating to its functions and
was aware of what was expected of G him as a police officer in general and as
stated in para 2.3 of second respondent's affidavit.
Applicant in reply, in his para 4, admits all the aforesaid allegations of respondents in
the said para 2.1-2.6.
In para 5 of applicant's reply, he admits para 2.6-2.7, but contends that he was only
obliged
H
'to abide by such regulations and legislative dictates insofar as they are lawfully
enacted and consonant with the provisions of the Constitution of the Republic of
Namibia'.
The applicant further replied in his paras 6-11 to the rest of the answers of the
respondents.
I At the outset of his viva voce argument, Mr Smuts, on behalf of the applicant, also
placed on record that the applicant abandons the second leg of the attack on the
regulation contained in para 14 of the applicant's founding affidavit and answered in
para 12 of first respondent's answering affidavit.
J This attack can be summed up as follows:
1995 (1) SA p60
O'LINN J
A Regulation 58(32) constitutes subordinate legislation and is invalid because:
(a) it is unreasonable in its ambit and its operation;
(b) it is prompted by improper or extraneous considerations;
(c) the lawgiver failed to duly apply its mind in the framing of the provisions
thereof.
B
The aforesaid ground of alleged invalidity will therefore not be dealt with in this
judgment.
When the agreed test aforesaid is applied to the issues of fact, the result is as
follows:
(a) When the applicant was first employed as a policeman, he C
contracted to abide by the provisions of the Police Act and the regulations, including
those pertaining to the discipline in the police force, such as reg 58(32).
(b) The applicant has failed to prove that a committee existed by the name
of the Namibian Police Promotions Committee and that he was the chairman of this
Committee.
D
(c) The applicant has failed to prove that, when he spoke in the aforesaid
televised programme of the Namibian Broadcasting Corporation on 22 December
1991, the views that he expressed in the programme were expressed in his 'capacity
as chairman of the Namibian Police Promotions Committee and on behalf of black
E members of the police' as was stated by him in para 9 of his founding affidavit.
When this claim was strongly and specifically denied by first
respondent in his answering affidavit, the applicant evaded the issue and watered
down his original statement and now claimed that F when the debate took place he
'was regarded as the spokesperson on behalf of a number of black police members'.
Whether he was regarded as such by himself, or by the presenter or by the number
of black policemen he does not say. He now further explains:
'I further point out that it was the presenter who referred to me
G as expressing the views "on behalf of the majority of black police members" and
not myself. I further state that the views I expressed in the course of the interview
were done so in exercising my constitutional right to do so.'
(The emphasis is mine.)
It is also significant that the applicant did not support his H
original claim with the name or affidavit of any other member of the Namibian Police.
I regard the version and contention of the second respondent as
supported by the affidavit of Deputy Inspector-General Pool as the more probable
where he states:
I 'To the best of my knowledge and belief the applicant is, at
most, the spokesperson for the few police officers who wanted to expedite their
promotions under the affirmative action policies and programmes of the
Government.'
For the purposes of the application, this Court must accept that
the applicant spoke only for himself at the aforesaid televised J debate and
misrepresented this position in his speech.
1995 (1) SA p61
O'LINN J
A (d) The respondents allege and contend in para 9.2(c) and (d) of the
answering affidavit of the second respondent that the applicant in his televised
speech made untrue and/or false statements pertaining to Inspector-General
Fouche, insofar as applicant had stated that 'the police had been ineffective to
maintain security, law and order because of the white dominated structure' whereby
B the applicant created the impression in public that the police force was ineffective
and that such ineffectiveness had to be blamed on a 'white dominated structure';
insofar as applicant had said 'the command structure of the Namibian Police' was
determined to undermine the Government's policy of national reconciliation and that
the command structure of the Namibian Police was intent C 'to cripple the
Government through corruption and other irregularities'.
The second respondent also alleges that the latter statement
was defamatory of the individual officers forming part of that structure and severely
prejudiced the Namibian Police not only in D the eyes of the public, but also in the
execution of its functions and the maintenance of discipline.
In para 9(2)(e), second respondent contends that the applicant
had suggested that 'only whites were occupying positions of command and seniority
and through that facilitate corruption and abuse of E power' and that this statement
is also untrue, highly inflammatory and, in his experience, destructive of discipline in
the force.
In reply, the applicant described what he had said in the
aforesaid speech as 'his views'. As in the televised speech, he did not indicate
whether his statement was a statement of fact or F comment, or comment based
on fact or comment not based on fact. Nowhere did applicant identify facts or
indicate whether evidence was available to substantiate his allegations and, if so,
what evidence. He did not refer to any investigation either by him as a policeman or
by any other person, commission or committee and no Court case where such
allegations were made and proved, except G that in his televised speech he
illustrated his allegations of corruption and irregularities by the white command
structure with a reference to the 'treason case of Kleynhans and his group of white
terrorists', and said that the
'police sort of supplied them with weapons and ammunition,
because H no one of the commanding officers or the commander of the unit that
suffered the loss of armoury were held responsible or at least charged with acts of
negligence or collaboration'.
Suffice to say that, in the so-called 'treason case', no member of
the command structure of the police was charged or convicted for I any crime, and
no allegations against them of irregularities and/or corruption were made or proved.
In his reply the applicant generally denies that his televised speech was untrue,
highly inflammatory or destructive of discipline.
The applicant, however, does not deny that his statement was defamatory of J the
individual officers forming part of the command structure. At no

1995 (1) SA p62


O'LINN J
A stage does he raise the defence of truth and public benefit and/or fair comment
on a matter of public interest in regard to the defamation. Similarly, there is no
semblance of a defence to the injuria inflicted on the so-called white command
structure.
He now says in his replying affidavit that he 'reiterates' his view that B 'senior
elements of the command structure were determined to undermine the Government
policy of national reconciliation'.
This 'reiteration' is, however, a transparent evasion and a climb-down because in the
televised speech he referred to the 'command structure' and not merely 'senior
elements of the command structure'.
The applicant now states that he 'reiterates' his view 'that corruption C and
irregularities occurred in the police force'. Again this so-called 'reiteration' is a
transparent evasion of the issue raised by respondents and, again, a complete
retreat from the televised speech in which he had claimed that it was the 'command
structure' only made up of one group, namely whites, and that they, ie those whites
in this group, are not only D determined to undermine the Government's policy of
reconciliation, but that this white command structure facilitates corruption and abuse
of power and even collaborates with white traitors and terrorists by, inter alia,
collaborating in the supply of police weapons to white terrorists.
The view which the applicant now allegedly 'reiterates' is a relatively E harmless
view, which is not highly inflammatory or defamatory or undermining discipline,
namely that 'corruption and irregularities occurred in the police'. No reasonable
person will complain about such a statement. The problem is that his speech went
far beyond what he now contends in his affidavit.
The applicant's denial of untruths, highly inflammatory speech and of F
undermining discipline cannot carry any weight because it relates to the alleged
views as 'reiterated', which are not the views contained in the televised speech. The
applicant must therefore be taken not to allege in his present application that the
allegations in his televised speech are the truth, except for the allegation that the
said whites are determined G to undermine the policy of reconciliation and that
corruption occurs in the police force.
Furthermore, no facts are stated or evidence provided in support of the allegations in
the speech.
The applicant's allegation in particular that the white command structure H is solely
responsible for the corruption and irregularities in the police force is highly
improbable. The Courts in Namibia have certainly not to date encountered in the
cases before them any proof or indication that a so-called white command structure
is solely responsible for corruption and irregularities in the police force.
On the papers before the Court, the second respondent's averment that the I
allegations in the speech were untrue and/or false and defamatory must be
accepted on a balance of probability. Owing to the gravity of the defamation and
injuria, it also constitutes criminal defamation and injuria. The respondents also aver
that the speech was 'highly inflammatory', undermined discipline and undermined
mutual confidence J amongst members and the confidence of the public in the
police force.

1995 (1) SA p63


A That it is a highly inflammatory speech is patent from the contents of the speech
which was televised. The speech was of a racist nature. It contained untrue and
far-fetched allegations which certainly gravely injured the dignity and good name of
the so-called command structure of the police and particularly of the white senior
officers in that command structure.
B If the white officers also responded in the same manner on television and in the
media, and if all policemen have the right under the pretext of freedom of speech to
make such allegations and counter-allegations, the morale of the police force would
be destroyed, as well as the confidence of the public in such a force, with disastrous
results for law, order and the security of the State. In the latter connection, the
supporting C affidavit of Snyman clearly indicates such lack of confidence.
Applicant's reply, to the effect that Snyman's views are not shared by the 'community
from which applicant is drawn', again demonstrates the divisive racist and
confrontational attitude of the applicant.
When I further consider the functions of the police force set out by the D
respondents and not denied by the applicant, I am convinced that the respondents
have shown on a balance of probability, if not beyond all reasonable doubt, that the
applicant's speech was highly inflammatory and undermined discipline in the force
and the confidence of the public in the police force.
Although not expressly raised by the respondents, it follows from the E above
findings of fact that, prima facie, the applicant's speech also violates the
fundamental right to dignity of his white colleagues in the police force, provided for in
art 8, as well as their fundamental right to equality and non-discrimination, provided
for in art 10 of the Namibian Constitution.
Applicant's speech is also prima facie a contravention of s 11(1)(b) read F with s 14
of the Racial Discrimination Prohibition Amendment Act 26 of 1991, which reads as
follows:
'No person shall publicly use any language or publish or distribute any written matter
or display any article or do any act or thing with intent to -
(a) ...
G (b) cause, encourage or incite disharmony or feelings of hostility, hatred or
ill-will between different racial groups or persons belonging to different racial groups.
. . .'
This Court was informed by both counsel that in another case pending before this
Court, namely S v Gorelick NO and Others, the hearing of which H has been
postponed sine die, the point was raised in the heads of argument of the State and
defence, but not adjudicated on, that s 11(1)(b) of the said Act is unconstitutional
because it infringes on the fundamental freedom of speech and expression, which
includes freedom of the press and other media, contained in art 21(1)(a) of the
Namibian Constitution.
This matter has not been argued before us. However, the heads of argument I
were in the Court file and available to this Court. Files on relevant constitutional
provisions, writings and precedents have been made available to this Court by
counsel at the request of the Court. Furthermore, if it is relevant for the purposes of
the present application to refer to and rely on the existence and legality of s 11(1)(b)
of the Racial Discrimination Act, then the mere fact that the matter of the J section's
1995 (1) SA p64
O'LINN J
A alleged illegality has been raised but not decided in another Court proceeding
does not debar this Court in this application to refer to and rely on the existence and
legality of s 11(1)(b) read with s 14 of the said Act.
Furthermore, even if s 11(1)(b) of the said Act is unconstitutional, the fact remains
that the fundamental right of the inviolability of human B dignity (art 8(1)) and the
concomitant provisions of our common law relating to injuria and defamation, and
the fundamental right to equality before the law and non-discrimination on the
grounds of race and colour contained in art 10, will remain and effectively limit
freedom of speech insofar as it conflicts with these fundamental rights.
Although it is not necessary for the purpose of this judgment to decide C whether s
11(1)(b) of the said Act is unconstitutional as a whole or in part, some remarks on
the issue are appropriate in view of the nature, content and limits it places on the
freedom of speech. This issue will be dealt with in the course of my analysis of the
relevant provisions of the Namibian Constitution, the interrelationship or conjunction
between fundamental rights such as those in arts 8 and 10 relating to freedom, D
equality and non-discrimination with the fundamental freedom in art 20(1) relating to
freedom of speech, the status of affirmative action in this hierarchy of rights and
freedoms, the comparison with other constitutions and conventions and some case
law pertaining to these issues.
This analysis is also necessitated by the many misconceptions about the E nature
and effect of the provisions of the Constitution of Namibia.
Section C: The distinction between fundamental rights and fundamental freedoms
in the Namibian Constitution and the significance thereof when considering a conflict
between fundamental freedoms and fundamental rights
F
The separation of fundamental rights and freedoms into fundamental rights as set
out in arts 6-20 on the one hand and fundamental freedoms as set out in art 21(1)
on the other is of some significance.
A perusal of arts 6-20 indicates that where an exception or limitation of G a
fundamental right is allowed, such exception or limitation is provided for in the same
article which provides for the fundamental right, except in the case of art 10, read
with art 23(2) and possibly arts 116(2), 119(2) and 122(2). See, for example, subart
(3) of art 9; subarts (4) and (5) of art 11; subart (1)(b) and the proviso to subart (2) of
art 12; the H saving clause in subarts (1) and (2) of art 13; the proviso in subart (1)
and (2), the saving clause in subart (3), the age limit in subart (5) of art 15; the
proviso in subart (1) of art 16; the proviso in subart (1), the age limit and proviso in
subart (2), the qualification stated in subart (3) of art 17; the proviso in art 19; the
saving clause in subart (3) and the proviso in subart (4) of art 20.
By contrast, art 21(2) provides that the fundamental freedoms provided for in art
21(1), including freedom of speech and expression,
I
'shall be exercised subject to the law of Namibia, in so far as such law imposes
reasonable restrictions on the exercise of the rights and freedoms conferred by the
said subarticle, which are necessary in a democratic society and are required in the
interests of the sovereignty and integrity of Namibia, national security, public order,
decency or morality, or in J relation to contempt of court, defamation or incitement
to an offence'.

1995 (1) SA p65


O'LINN J
A Insofar as the limitations authorised in chap 3 are concerned, any law providing
for such limitations shall comply with the provisions of art 22.
The words 'subject to the law of Namibia' in subart (2) of art 21, read in context,
probably include the common law, so-called customary law or native law, as well as
statute law. Compare the terms 'the laws in force' in art 138(2)(a), 'all laws which
were in force immediately before the B date of independence' in art 140(1),
'established by law' in art 12(1)(a) and the definition of 'law' in the Interpretation of
Laws Proclamation 37 of 1920.
Whether or not the term 'the law of Namibia' in art 21(2) includes the Constitution of
Namibia itself is a difficult question. If the term 'the C law of Namibia' is used in a
statute other than the Constitution, the Constitution itself would certainly be included
in the term 'the law of Namibia'. Inclusion of the Constitution would mean that
unqualified fundamental rights, such as those contained in art 8 and 10, are by
necessary implication made subject to the restrictions stated in art 21(2),
notwithstanding the fact that art 21(2) itself expressly provides that it is applicable to
the fundamental freedoms contained in art 21(1).
D
In my view, the Constitution is not included in the term 'subject to the law of Namibia'
read in context.
Where the term 'any law' appears in art 22, those words, read in context, clearly
refer only to statutes. See the definition of 'law' as defined in the Interpretation of
Laws Proclamation 37 of 1920, where in s 2 'law' is defined as follows:
E
"'Law" shall mean and include any law, proclamation or other enactment having the
force of law.'
This definition appears to exclude the common law.
Surely the common law of Namibia cannot comply with the provisions of art 22. The
Constitution itself, insofar as it limits fundamental rights and F freedoms, including
the freedom of speech, clearly need not comply with art 22.
Furthermore, the statutes contemplated in art 22(b) can only be statutes enacted
subsequent to the coming into operation of the Namibian Constitution on 21 March
1990.
G There is, however, no good reason why art 22(a) cannot be applicable to
pre-independence statutes, other than that it is contained in the same article as
subpara (b) and that is an indication that the whole article was intended to apply to
post-independence statutes. However, when I interpret the Constitution 'broadly,
liberally and purposively', as laid down by the Supreme Court, it follows that art 22(a)
must be applied also H to pre-independence statutes. See Government of the
Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407
(NmS) at 418F-G.
It is necessary at this early stage of the discussion to point out that art 22 is unique
in that neither such a provision, nor anything resembling it, is to be found in the
constitution of any other country.
I The division in chap 3 of the Constitution between fundamental rights and
fundamental freedoms is important, even though fundamental freedoms are also
expressed in the introductory part of s 21(1) as 'the right to . . .'.
There are 15 fundamental rights contained in arts 6-20 and 10 fundamental J
freedoms contained in art 21(1).
1995 (1) SA p66
O'LINN J
A As shown before, art 24 provides that, where a state of national defence and/or
emergency and/or martial law is declared in terms of art 26, fundamental rights and
freedoms can be derogated from, but not the provisions of art 5 and those
fundamental rights contained in arts 6, 8, 9, 10, 12, 14, 15, 18, 19 and the
fundamental freedoms contained in art 21(1)(a), (b), (c) and (e) or the right of any
person to access to legal B practitioners or a court of law.
It is useful to refer to the Canadian Charter of Rights and case law on the point.
The aforesaid Charter of Rights in arts 1 and 2 of Part 1 does not draw as C clear a
distinction between fundamental rights and fundamental freedoms as is the case in
the Namibian Constitution.
The Namibian Constitution shows a greater resemblance in this respect to the
Constitution of India.
However, the Court of Appeal in Ontario, Canada, expressed itself in R v Zundel
(1987) 31 CCC (3d) 97 (35 DLR 4th 338 at 359-60) where it stated.
D
'When determining the limits of freedom of expression, a distinction must be drawn
between rights and freedoms. While a right is defined positively as what a person
can do, a freedom is defined by determining first the area which is regulated.
Freedom is then what exists in the unregulated area - a sphere of activity within
which all acts are permissible. It is a E residual area in which all acts are free of
specific legal regulation and the individual is free to choose. The regulated area will
include restrictions for purposes of decency and public order, and specifically with
respect to the freedom of expression, prohibitions concerning criminal libel and
sedition.'
The purpose of the division between fundamental rights and fundamental F
freedoms in the Namibian Constitution appears to be to provide that, in the case of
fundamental rights, the provision for exceptions and/or limitations are fundamentally
different than in the case of fundamental freedoms.
It is significant that the limitations and/or restrictions stated in art G 21(2) do not
apply to fundamental rights, but only to fundamental freedoms. When dealing with
the applicability of fundamental rights there is therefore no general restriction similar
to that contained in art 21(2).
Insofar as fundamental rights contained in arts 5-20 are part of 'the law of Namibia',
fundamental freedoms provided for in art 21(1) are, in terms of art 21(2), subject to
or limited by the fundamental rights provided for H in arts 5-20 of the Namibian
Constitution insofar as there may be a conflict. Freedom of speech and expression,
including that of the press and the media, are therefore also subject to or limited by,
inter alia, fundamental rights such as those provided, for example, in arts 8(1) and
10 relating respectively to the inviolability of the dignity of persons, the guarantee of
equality before the law and non-discrimination. It is I important to note here that
equality before the law also includes equal protection by the law.
The converse, however, is not true. Fundamental rights, such as those aforesaid,
are not subject to or limited by the fundamental freedom of speech and expression.
The restrictions contained in art 21(2) are J expressly applicable to the
fundamental freedoms contained in art 21(1).
1995 (1) SA p67
O'LINN J
A Freedom of speech cannot therefore be used to violate the dignity of a person.
The definition of 'inviolate' is
'not to be violated; not liable or allowed to suffer violence; to be kept sacredly free
from profanation, infraction or assault'.
'Dignity' is defined as (t)he quality of being worthy or honourable'. See The Shorter
Oxford English Dictionary. However, it may be debatable in a B particular case
when dignity can be said to be violated. It seems to me that when the speech or
expression complies with the requirements of the defences in the Namibian common
law relating to defamation and injuria, such speech or expression will not be
regarded by a Court as an infringement of art 8(1) of the Namibian Constitution.
C The next question is whether in the case of contempt of court, defamation or
incitement to commit an offence, the law of Namibia providing for it, insofar as it
imposes restrictions on fundamental freedoms, is required to pass the test of
'reasonable restrictions on the exercise of the rights and freedoms', 'necessary in a
democratic society' and
D 'required in the interests of the sovereignty and integrity of Namibia, national
security, public order, decency or morality'.
It is clear from a careful reading of art 21(2) that at least the words
'and are required in the interests of sovereignty and integrity of Namibia, national
security, public order, decency or morality'
E
do not apply to contempt of court, defamation or incitement to an offence.
It is a more difficult question whether the first part of the requirement namely 'insofar
as such law imposes reasonable restrictions . . . which are necessary in a
democratic society' is applicable to contempt of court, defamation or incitement to an
offence.
F From the wording it seems that the words 'or in relation to contempt of court,
defamation or incitement to an offence' are used as the alternative to the words 'in
the interests of the sovereignty and integrity of Namibia, national security, public
order, decency or morality' and not as an alternative to the words 'insofar as such
law imposes reasonable restrictions . . . which are necessary in a democratic
society'.
G
On the other hand, it seems futile to test 'incitement to an offence' against
reasonableness and necessity in a democratic society because it must be obvious
that, when speech constitutes incitement to an offence, the prohibition of such
speech is reasonable and necessary in a democratic State and such speech can
never be regarded as protected speech. The H principle that the freedom of speech
cannot be used to incite crimes and offences is recognised by all civilised countries.
Again, to interpret art 21(2) in a manner that makes incitement to commit an offence
subject to the limitations contained in art 21(2) results in an absurdity.
The law of defamation contains its own reasonable limitations. Although I
defamation in our law is generally regarded as an infringement of fama or reputation,
it is in substance also a violation of a person's dignity, the protection of which is one
of the most pronounced and important fundamental rights. Such a fundamental right
must surely be regarded without question as imposing a reasonable limitation
necessary in a J democratic society, without the need for the test of
reasonableness and
1995 (1) SA p68
O'LINN J
A necessity contained in art 21(2). Again this limitation is regarded in all civilised
countries as a reasonable and necessary restriction on freedom of speech.
Furthermore, our law of defamation is strengthened by the fundamental right to the
'inviolability' of a person's dignity contained in art 8(1).
B The law relating to contempt of court is reasonable and necessary in a
democratic society without more and is recognised as such in all civilised countries.
The need for this restriction on freedom of speech is underlined by its specific
mention in art 21(2) and art 78(3).
The latter subarticle provides as follows:
C '(3) No member of the Cabinet or the Legislature or any other person shall
interfere with Judges or judicial officers in the exercise of their judicial functions, and
all organs of the State shall accord such assistance as the Courts may require to
protect their independence, dignity and effectiveness, subject to the terms of this
Constitution or any other law.'
See also S v Heita and Another 1992 (3) SA 785 (Nm) at 789B/C-791G (1992 D (2)
SACR 285 (Nm) at 289e-291f).
The law relating to contempt of court in itself allows reasonable and bona fide
criticism at the appropriate time. When the matter is still under consideration by the
court, ie is 'sub judice', criticism is not appropriate. In this respect it corresponds to
the law in all countries based on the rule of law.
E
The duty to protect the independence, dignity and effectiveness of Judges is aimed
at ensuring that Courts will be able to play the decisive rôle which the Namibian
Constitution provides for them. Without such dignity, independence and
effectiveness there can be no rule of law; no fair trial; no protection of the
fundamental rights and freedoms of the citizen. F Without the law relating to
contempt, there will be trial by the media and/or even mob justice - destructive of a
true democracy.
The restrictions inherent in the law of contempt of court are intrinsically reasonable
and necessary in a democratic society, without the need for the requirement of art
21(2) being imposed on it.
G Our law relating to the limitations placed on freedom of speech and expression
by defamation, contempt of court or incitement to commit an offence is part of the
Roman-Dutch common law inherited by Namibia in the same way as the USA has
inherited the concept of freedom of speech as well as the limitation aforesaid from
their English ancestors. Compare Robertson v Baldwin 165 US 275 (1897) at 281
(41 L ed 715 at 717).
H
It is not necessary for the purpose of this application to decide whether the
requirements of art 21(2) must be complied with also in the case of defamation,
contempt of court or incitement to commit an offence. Suffice to say that when the
provisions of the Constitution are read in context, a strong case can be made out for
the view that incitement to commit an I offence, defamation and contempt of court
are not subject to the requirements of art 21(2).
I am satisfied however that, insofar as the law relating to defamation, contempt of
court or incitement to commit an offence infringes freedom of speech and
expression, such infringement is reasonable and necessary in a J democratic
society and therefore constitutional and binding.
1995 (1) SA p69
O'LINN J
A The Constitution of Namibia does not elevate freedom of speech and expression
above the other fundamental freedoms provided for in art 21(1) and even less so
above any of the fundamental rights provided for in arts 6-20, such as arts 8 and 10,
providing for the rights of all persons to dignity, equality and non-discrimination.
The contrary is true.
B
Section D: The main similarities and distinctions between the Namibian
Constitution and those of the USA, Canada, the European Union, the Federal
Republic of Germany and India
D1 - the USA Constitution
C It must be pointed out that, in contrast to Great Britain and the USA, Namibia, the
Federal Republic of Germany and India have rigid constitutions with a Bill of Rights
or Charter of Rights included.
The American Bill of Rights differs fundamentally from the Constitution of Namibia.
The First Amendment, for example, provides as follows:
D 'Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.'
(The emphasis is mine.)
E In the USA, the first amendment prohibits the highest legislative organ, namely
Congress, from making laws abridging, inter alia, the freedom of speech.
The Supreme Court is left with the task of identifying, defining and developing the
limitations to the fundamental freedoms.
In Namibia, the highest legislative body, namely the National Assembly, as F well
as other legislatures may make laws in terms of art 21(2) to abridge freedom of
speech; furthermore, this and other freedoms are subject to the common law and
customary law, provided certain criteria are met. Freedom of speech, as well as
other freedoms, is subject to fundamental rights where in conflict with it, for example
it is subject to arts 8 and 10.
G As to the fundamental right to non-discrimination contained in art 10, art 23(1)
provides for legislation by Act of Parliament, by the National Assembly, to give
further effect to it. The US Bill of Rights provides for equality before the law, but not
for a fundamental right to non-discrimination.
H The US Supreme Court notwithstanding the aforesaid differences in our
respective Constitutions, has over decades defined and developed limitations on the
freedom of speech and expression, which demonstrates that the freedom of speech
and expression is not absolute and its true content needs definition.
I The US Supreme Court already in 1897 in the case Robertson v Baldwin 165 US
275 (1897) at 281 (41 L ed 715 at 717) held:
'The law is perfectly well settled that the first two amendments to the Constitution,
commonly known as the Bill of Rights, were not intended to lay down any novel
principles of Government, but simply to embody certain guarantees and immunities
which we had inherited from our English J ancestors and which had from

1995 (1) SA p70


O'LINN J
A time immemorial been subject to certain well-recognised exceptions arising from
the necessities of the case. Incorporating these principles into fundamental law,
there was no intention to disregard the exceptions, which continued to be
recognised as if they had been formally expressed. Thus the freedom of the speech
and the press (art 1) does not permit the publication of libels, blasphemous or
indecent articles or other publications injurious to the public morals or private
reputation.'
B (My emphasis.)
In Chaplinsky v New Hampshire 315 US 568 (1941) at 574, the learned Judge of the
Supreme Court said the following:
'Allowing the broadest scope to the language and purpose of the 14th Amendment, it
is well understood that the right to free speech is not C absolute at all times and
under all circumstances. There are certain well-defined and narrowly limited classes
of speech, the prevention and punishment of which have never been thought to
raise any constitutional problem. These include the lewd and obscene, the profane,
the libelous and the insulting or "fighting" words, these which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are not essential parts of any D exposition of ideas
and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in the order and
morality. Resort to epithets of personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.'
E In Choudry v Jenkins 559 F 2d 1085 (1977) the majority of the United States
Court of Appeals quoted without criticism the following dictum of Judge Grant in the
Court a quo:
'Open comment by a public employee which is false and made with knowledge of its
falsity or with reckless disregard of its truth, constitutes an unpermissible form of
expression.'
F
The majority differed from the Court a quo mainly on the procedure applied in
granting summary judgment. Judge Pell, the dissenting Judge, also dealt with
incendiary language when he said that the plaintiff
'showed such a blatant disregard for his responsibilities that the patent incendiary
nature of his remarks properly deprived him of the speech freedom mantle'.
G In the case of Thornhill v State of Alabama 310 US 88 (1940) it was again clearly
implied that there is no unlimited right to discuss an issue in public and that
truthfulness is a key element of the protection.
The Court held that freedom of speech
H 'embraces at least the liberty to discuss publicly and truthfully all matters of
public concern without previous restraint or fear of subsequent punishment'.
(My emphasis.)
A fundamental difference that needs emphasis is that in the Namibian Constitution
arts 8(1) and 10 provides for fundamental rights respectively for the inviolability of a
person's dignity, the right of equality before I the law and the right to
non-discrimination.
Freedom of speech is one of the various fundamental freedoms which, by the
clearest implication, may not infringe the aforesaid fundamental rights.
In the USA, the First Amendment provides that Congress may not make laws J
which, inter alia, abridge freedom of speech. However, the
1995 (1) SA p71
O'LINN J
A American Bill of Rights does not provide at all for the protection of fundamental
rights such as dignity and non-discrimination.
Amendment (ix) of the American Bill, however, provides that
'The enumeration in the Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.'
B This provision is another justification for the US Courts to identify and develop
other limitations on freedom of speech.
Although the US Supreme Court has laid down that the freedom of speech does not
allow the publication of untruths and the 'publication of libels', there is nothing
comparable to the aforesaid fundamental rights protected in the Namibian
Constitution.
C As will be seen from the discussion in Section E infra, the US doctrine of 'fighting
words' as a limitation to free speech is fundamentally different from the limitations
placed by the Namibian Constitution and criminal law on freedom of speech and it is
clear that this doctrine is similarly fundamentally different from the constitutions
and/or criminal law of many D countries referred to in this section as well as in
Section E infra. Obviously, the doctrine of 'fighting words' is not inconsistent with
laws in the various countries prohibiting or attempting to prohibit breaches of the
peace and threats to public order, but it falls far short of provisions in the
constitutions and criminal laws in the aforesaid other countries prohibiting or
curtailing freedom of speech where it infringes on the fundamental rights to dignity,
equality and non-discrimination.
E
The further requirement in the USA is that of the so-called 'clear and present
danger'.
The learned author, Eric Barendt, has this to say about the nature and place of this
requirement in his book Freedom of Speech at 32:
F '. . . (T)he Court has never taken literally the injunction "shall make no law . . .
abridging the freedom of speech . . .". The objection to the absolutist position, . . . is
not only that it is difficult to sustain in the real world, when courts are necessarily
conscious of the vital interests that may be threatened by unrestricted speech. . . .
What is left is the process of balancing, a technique developed by the United States
Supreme Court over the last fifty years without constitutional guidance. Other
interests, such as public order, national security . . . G are weighed in the scales
with free speech, and if found "compelling" or perhaps "substantial" may justify the
restriction. One form of balancing test is the famous "clear and present danger"
formula. . . .'
(My emphasis.) This limitation has been placed in perspective in the judgment in
Pennekamp v Florida 328 US 331 (1946) at 353 (90 L ed 1295) H where it is
stated:
"'Clear and present danger" was never used by Mr Justice Holmes to express a
technical legal doctrine or to convey a formula for adjudicating cases. It was a
literary phrase not to be distorted by being taken from its context. In its setting it
served to indicate the importance of freedom of speech to a free society, but also to
emphasise that its exercise must be I compatible with the preservation of other
freedoms essential to a democracy and guaranteed by our Constitution. When those
other attributes of a democracy are threatened by speech the Constitution does not
deny power of the States to curb it.'
(My emphasis.) Article 21(2) of the Constitution of Namibia certainly J contemplates
that when competent Courts in Namibia consider whether

1995 (1) SA p72


O'LINN J
A laws infringe the freedoms set out in art 21(1), it shall consider the constitutional
law and precedents of other democratic societies, such as the USA, Canada, Great
Britain, Germany, France, the European Union, India and others.
The test of 'clear and present danger' is certainly a concept which should B be
considered when a Namibian Court considers the constitutionality of limitations
placed on freedoms enumerated in art 21(1) by laws provided for in art 21(2).
The principle that there must be a balancing of interests, those that the law aims to
protect with the freedoms aforesaid, is inevitable.
The test is inappropriate when considering the infringement by speech and C
expression of fundamental rights to dignity, equality and non-discrimination.
In my respectful view, the test of clear and present danger built into the fighting
words doctrine is neither necessary nor useful in the Namibian situation. See
Section A supra and the further comparison with the Indian D Constitution in D5 of
this Section.
In view of the differences with our Constitution, the frustration of some Judges in the
USA, particularly of some dissenting Judges, can be better understood in Namibia.
An example is the following:
Jackson J said in a dissenting judgment in Terminiello v Chicago 337 US 1 (1949):
E
'This Court has gone far toward accepting the doctrine that civil liberty means the
removal of all restraints from these crowds and that all local attempts to maintain
order are impairments of the liberty of the citizen. The choice is not between order
and liberty. It is between liberty with order and anarchy without either. There is
danger that, if the Court does F not temper its doctrinaire logic with a little practical
wisdom, it will convert the constitutional Bill of Rights into a suicide pact.'
Referring to the majority opinion of the Court, the same Judge said:
'. . . (M)ost far-reaching constitutional questions . . . can confront a people who value
both liberty and order. This Court seems to regard these G as enemies of each
other and to be of the view that we must forego order to achieve liberty. So it fixes its
eyes on a conception of freedom of speech so rigid as to tolerate no concession to
society's need for public order. An old proverb warns us to take heed lest we "walk
into a well from looking at the stars ". . . . I think the Court is in some danger of doing
just that. . . .'
H (My emphasis.)
D2 - the Canadian Constitution
The Namibian Constitution relating to fundamental rights and freedoms differs also
from the Canadian Charter of Rights and Freedoms in that the Namibian
Constitution clearly distinguishes between fundamental rights and I freedoms and
the type of restrictions applicable to fundamental rights and that applicable to
fundamental freedoms, whereas the Canadian Charter and the European
conventions do not have a similar distinction.
In the Namibian Constitution the aforesaid distinction results in a J fundamental
freedom, such as freedom of speech, being subject to the
1995 (1) SA p73
O'LINN J
A fundamental rights, such as those relating to dignity, equality and
non-discrimination, in addition to general restrictions contained in art 21(2).
Sections 1 and 2(b) of the Canadian Charter of Rights and Freedoms enacted by the
Constitution Act of 1982 read as follows:
'1. The Canadian Charter of Rights and Freedoms guarantees the rights and B
freedoms set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) ...
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication; . . .'
C
The Canadian Bill of Rights and Charter of Rights set out certain fundamental rights
and freedoms without any clear distinction between rights and freedoms.
The fundamental freedoms such as of thought, belief and expression in the
Canadian Charter of Rights and Freedoms enacted in the Constitution Act of D
1982 provide only for a general limitation in art 1, namely '. . . subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society'.
Freedom of thought and expression clearly enjoys much greater protection in the
Canadian Charter than in the Namibian Constitution.
There is no provision, express or implied, that the aforesaid freedom is E subject to
fundamental rights such as rights to dignity, equality and non-discrimination.
No wonder that the Courts in Canada have laid down criteria which even place an
onus on the party relying on a limitation to prove that 'the means chosen are
reasonable and demonstrably justified'.
F Laskin et al The Canadian Charter of Rights annotated vol 1 summarised the
approach of the Canadian Courts as stated in R v Oakes (1986) 26 DLR 4th 200
(SCC) (24 CCC (3d) 321) as follows (at 1-6):
'To establish that a limit is justified under this section two central criteria must be
satisfied. First, the objective which the measures responsible for a limit on a charter
right or freedom are designed to G serve, must be of sufficient importance to
warrant overriding a constitutionally protected right or freedom, and secondly, the
party invoking this section must show that the means chosen are reasonable and
demonstrably justified. The first criterion requires at a minimum that an objective
relate to concerns which are pressing and substantial in a free and democratic
society. The second requirement involves a form of proportionality test and, while the
nature of this test will vary, H depending on the circumstances, in each case the
Courts will be required to balance the interests of society with those of individuals
and groups. There are three important components of the proportionality test. First,
the measures adopted must be carefully designed to achieve the objective in
question. The measures must not be arbitrary, unfair or based on irrational
considerations but rather must be rationally connected to the objective. Second, the
means, even if rationally connected to the I objective, should impair as little as
possible the right or freedom in question, and, finally, there must be a proportionality
between the effects of the measures which are responsible for limiting the charter
right or freedom and the objective which has been identified as of sufficient
importance. The more severe the deleterious effects of the measure, the more
important the objective must be if the measure is to be J reasonable and
demonstrably justified in a free and democratic society.'

1995 (1) SA p74


O'LINN J
A I have already held in Section A supra that, in my respectful view, in Namibian
law
'the onus lies on the challenger to prove that the legislation is not justifiable in a
democratic State and not on the State to prove that it is'.
This is also the position in India.
B The wording of the Canadian Charter in regard to limitations relevant to onus
differs in important respects from the Namibian provisions.
The words 'subject only to such reasonable limits as can be demonstrably justified in
a free and democratic society' are not contained in the Namibian Constitution.
C It would appear that the only party who can demonstrably justify is the one who
alleges that the limitations are justified. It seems that it was intended to place the
onus on such a person.
Surely, where one deals with the limitations imposed by the fundamental rights
provided for in the Namibian Constitution, the approach aforesaid cannot be
applicable. The approach also seems inappropriate when the D limitations are
imposed by the highest legislative organ in the country, namely the National
Assembly, in pursuance of a mandate by the Constitution itself, aimed at the greater
protection of fundamental rights such as the rights to dignity, equality and
non-discrimination.
The Canadian approach as to onus is similar to that developed in the USA, but in
India the position is different.
E There a law made in accordance with art 19(2) must prima facie be presumed to
be constitutionally valid and due weight must be given to the legislative judgment on
the question of reasonableness, though that judgment is subject to judicial review.
See Seervai The Constitutional Law of India (op cit at 490). See also the further
discussion of the Indian Constitution infra in Section D5.
F
The rest of the aforesaid Canadian approach contained in the quotation from Laskin
(op cit) can at most be relevant to the requirements for limitations imposed by our art
21(2), provided it is understood that the wording of the Canadian provision justifies
more stringent requirements for limitations imposed than our art 21(2).
G The Canadian Supreme Court in R v Keegstra (1990) 3 SCR 697 has ruled that
s 319(2) of the Canadian Criminal Code infringes on s 2(b) of the Canadian Charter
which provides for freedom of speech insofar as it aims to restrict hate speech or
racist speech on the basis of its content, but that the said penal s 319(2) is
nevertheless constitutional because it complies with the criteria set out in art 1 of the
Charter.
H
Article 1 of the Charter guarantees the aforesaid right
'subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society'.
The majority of the Court held that the Government objective in enacting s I 319(2)
was of substantial and pressing concern and was proportionate to the legislative
objective to address that concern. It then concluded that the section was
constitutional.
This amounts to a rejection by the Canadian Supreme Court of the fighting words
doctrine and the 'clear and present danger' test and the decisions J in the USA
declaring unconstitutional statutes which hit at
1995 (1) SA p75
O'LINN J
A the contents of hate or racist speech. See R v Keegstra (supra at 30-5). It also
emphasised the difference between the Constitution of Canada and that of the
United States.
It needs to be mentioned that the position in Canada is the same as that in the USA
relating to the spreading of falsehoods. In R v Zundel 35 DLR 4th 338 (Canada) it
was said in connection with a statute forbidding the B deliberate spreading of
falsehoods:
'(It) is the antithesis of seeking truth through the free exchange of ideas. It has no
social or moral value which would merit constitutional protection and would not aid
the working of parliamentary democracy.'
C D3 - the European Convention
The European Convention deals with every right or freedom separately with
restrictions, if any, provided for each and every individual right or freedom
separately.
There is no provision for a fundamental right to dignity as provided in D art 8(1) of
the Namibian Constitution. There is also no provision for non-discrimination such as
that contained in art 10 of the Namibian Constitution.
Article 14 does, however, provide for the enjoyment of the enumerated rights and
freedoms without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or E social origin, association with a
national minority, property, birth or other status.
The Namibian art 10 is, in contrast, not restricted to non-discrimination in regard to
enumerated rights and freedoms, but to non-discrimination generally. Furthermore,
the protection is for all persons against F discrimination by any persons as well as
by the government. In Namibia art 10(2) provides:

'No persons may be discriminated against on the grounds of sex, race, colour, ethnic
origin, religion, creed or social or economic status.'
There is provision, however, in the European Convention for the securing of the
enumerated rights and freedoms without discrimination.
G
This means, when applied to freedom of speech, that this freedom should apply
without discrimination on grounds of sex, race, colour, language, etc. This again is a
far cry from art 10 of the Namibian Constitution, which provides for a fundamental
right to equality and non-discrimination, to which freedoms such as freedom of
speech are subject.
H
Freedom of speech is therefore only subject to general restrictions contained in art
10(2) of the Convention, which subarticle is similar to, but more extensive than, the
Namibian art 21(2).
Article 10 of the Council of Europe Convention for the Protection of Human Rights
and Fundamental Freedoms (to which almost all the 'West-European' States are
contracting parties) provides as follows:
I
'(1) Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema J
enterprises.

1995 (1) SA p76


O'LINN J
A (2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the B disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.'
The approach to the interpretation of art 10 of the said convention is generally that
subart (1) protects the freedom and that subart (2) constitutes a restriction which
must be narrowly interpreted and no criteria other than those mentioned in that
subarticle itself may be the C basis of any restriction on the protected right. In this
respect it corresponds with the Canadian position. See Sieghart The International
Law of Human Rights (1983) at 91 para 8.04.
Eric Barendt, at 35 of his aforesaid book, comments as follows:
'The most obvious feature is the extensive list of circumstances in which D
limitations to freedom of expression may be upheld. On a superficial view it might
appear that art 10(2) virtually removes the right purportedly guaranteed by the first
paragraph. But this is not the European Court's approach. In addition to the
requirement that any permissible restriction must be "prescribed by law", which
excludes arbitrary restraints lacking in legal certainty, the limit must be "necessary in
a democratic society" E to further the stated onus and goals. The balancing
therefore starts with a presumption in favour of freedom of expression, the
exceptions to which must be narrowly construed. Moreover, in terms similar to those
employed by the American Supreme Court, the European Court has ruled that an
interference with speech will only be upheld if there is a "pressing social need" for it
in the particular circumstances.'
F Again it must be pointed out, as in the case of the Constitution of the Federal
Republic of Germany, that the requirements for restrictions in art 10(2) do not deal
with and do not seem to be applicable to limitations imposed by the other provisions
of the Convention relating to other fundamental rights and freedoms.
The approach that no other criteria for limitation than those in art 10(2) G are
allowed is not justified in the Namibian situation because of important differences
relating to the distinction between fundamental rights and freedoms in the Namibian
Constitution.
The requirement of 'narrow interpretation' makes no sense where, in the Namibian
Constitution, the fundamental freedom is subject to a fundamental H right provided
for in the Constitution itself.
The 'narrow interpretation' may, however, be relevant in the Namibian situation
insofar as it is restricted to the requirements of art 21(2) for limitations placed on the
freedoms stated in art 21(1) of the Namibian Constitution, particularly limitations by
subordinate legislatures.
I However, I sincerely doubt whether this approach is necessary when interpreting
the provisions of the Namibian Constitution.
D4 - the Constitution of the Federal Republic of Germany
In the Federal Republic of Germany, art 1 of the Basic Law put the inviolability of a
person's dignity first and separate from the basic J rights enumerated after art 1(3).

1995 (1) SA p77


A Article 1 reads:
'The dignity of man shall be inviolable. To respect and protect it shall be the duty of
all State authority.'
The first sentence corresponds to art 8(1) of the Namibian Constitution, although in
the Namibian Constitution art 8(1) is one of a number of B fundamental rights
enumerated in arts 6-19.
The specific duty placed on all State authority to respect and protect the 'inviolability
of the dignity of man' by the second sentence of art 1 is similar to art 5 of the
Namibian Constitution, except that in the case of the Namibian art 5 this duty is
placed on the Executive, the Legislature and the Judiciary and all organs of the
Government and its agents, and on all natural and legal persons in Namibia, where
applicable to them, to C respect and uphold all the fundamental rights and
freedoms contained in chap 3.
In the German Basic Law art 1(3) provides:
'The following basic rights shall bind the Legislature, the Executive and the
Judiciary.'
D Article 3(1) provides:
'All persons shall be equal before the law.'
Article 3(3) provides:
'No one may be prejudiced or favoured because of his sex, his parentage, his race,
his language, his homeland and origin, his faith or his E religious or political
opinions.'
Article 5(1) provides:
'Everyone shall have the right freely to express and disseminate his opinion by
speech, writing and pictures and freely to inform himself from generally accessible
sources. Freedom of the press and freedom of reporting by means of broadcasting
and film are guaranteed. There shall be no censorship.'
F Article 5(2), however, provides:
'These rights are limited by the provisions of the general laws, the provisions of law
for the protection of youth and by the right to the inviolability of personal honour.'
Article 9(1) provides:
G 'All Germans shall have the right to form associations and societies.'
But art 9(2) provides:
'Associations, the purposes or activities of which conflict with criminal laws or which
are directed against a constitutional order or the concept of international
understanding, are prohibited.'
Article 18 provides:
H 'Whoever abuses freedom of expression of opinion, in particular freedom of the
press (art 5(1)), freedom of teaching (art 5(3)), freedom of assembly (art 8), freedom
of association (art 9), privacy of posts and telecommunications (art 10), property (art
14) or the right of asylum (art 16(2)) in order to combat the free democratic basic
order, shall forfeit these basic rights. Such forfeiture and the extent thereof shall be
pronounced by the Federal Constitutional Court.'
I
From the above and the other provisions of the Basic Law, the following differences
and similarities are apparent:
1. The inviolability of the person's dignity is placed in an even stronger position
than in the Namibian Constitution. Freedom of J speech is obviously subject to this
basic provision.
1995 (1) SA p78
O'LINN J
A 2. Other than in the Namibian Constitution, there is no express distinction
between fundamental or 'basic' rights and fundamental or 'basic' freedoms.
3. Every basic right is, however, subject to its own express exceptions or
limitations, if any, similar to our fundamental rights, except in B the case of art 18,
which provides for forfeiture of any or all basic rights enumerated in art 18 in the
case of the abuse of articles providing for freedom of the expression of opinion and
of the press and others.
4. The limitations on freedom of speech, opinion and the press in art 5(2) as well
as art 18 are much more extensive than those imposed by C art 21(2) in Namibia
and are not subject to the requirements of art 21(2) relating to 'necessary in a
democratic society . . .' etc.
5. In both countries, however, the rights to the non-violability of dignity, to
equality and to non-discrimination are fundamental rights and none of these rights
are made subject to any express D qualifications or limitations.
It is clear from the above that the German Constitution, like that of Namibia and
India, differs fundamentally from that of the USA.
Barendt, in Freedom of Speech (op cit at 34-5), points out that art 5(2) of the
German Constitution makes it plain
E 'that the absolutist view of the freedom (of speech) is precluded. From the text it
would have been open to hold that freedom of expression was confined to the area
unaffected by the general laws - a position analogous to that of Great Britain.
However, in its leading case decision in the Luth case (1985) it held that these laws
must themselves be interpreted in F the light of the fundamental values enshrined
in art 5. The result in effect is that the Constitutional Court balances or weighs the
interests of free expression and of the particular law (whether public or civil) in a
manner resembling the usual approach of the American Supreme Court. It is in this
process that the German Court is able to place differing weights on the values of
political, literary and commercial speech in the light of the article's purposes.'
G This comment does not deal with the case where speech consists of so-called
hate or racist speech which infringes the basic rights to dignity, equality and
non-discrimination and legislation enacted to combat such infringement of the
aforesaid basic rights. Surely, in these cases, the approach of the Courts in the USA
is not in point.
H
D5 - the Constitution of India
It seems that the provisions of the Indian Constitution bear the greatest resemblance
to that of the Namibian Constitution with regard to fundamental rights and freedoms.
I Article 19(1) is almost identical to our art 21(1). The general restrictions in art
19(2) are almost identical to those in our art 21(2), except that the restrictions to
each fundamental freedom are stated separately in respect of each freedom.
Furthermore, instead of the provisions in our art 21(2) that the freedoms J 'shall be
exercised subject to the law of Namibia', insofar as such
1995 (1) SA p79
O'LINN J
A imposes reasonable restrictions etc, the Indian Constitution provides in art
19(2)-(6) in the case of each freedom that it
'shall not affect the operation of any existing law or prevent the State from making
any law, which imposes reasonable restrictions, etc . . .'.
It is clear from art 19(2)-(6) that the limitations imposed by art 19(2)-(6) on the
freedoms are limitations imposed by existing law, B excluding the Constitution
itself, and by future statutes, which existing and future law must comply with the
requirements such as reasonableness, etc.
By virtue of the definition of existing law and the plain meaning of future law, the
Constitution itself and the restrictions imposed by other articles on the freedoms,
such as freedom of speech, are not qualified by C art 19(2) of the Indian
Constitution. Thus the fundamental right of equality before the law and to
non-discrimination, insofar as these rights limit freedom of speech, are not subject to
the requirements of art 19(2).
Although the Indian Constitution also distinguishes between fundamental rights and
freedoms, the distinction is not always clear-cut. Furthermore, D the list of
fundamental rights does not include the non-violability of the dignity of the person.
The fundamental right to non-discrimination is restricted to the right to
non-discrimination by the State, whereas the Namibian Constitution prohibits
discrimination on grounds of race, etc, by all concerned, ie by the State as well as by
any other person or entity.
E
Because of the latter differences, a conflict between fundamental freedoms and
fundamental rights under the Indian Constitution will probably be less frequent than
in the Namibian situation.
It is safe to conclude that in art 19(2) of the Indian Constitution, just as in art 21(2) of
the Namibian Constitution, the limitations contemplated F 'protect the claims of
other individuals and the claims of society or the State'. As such the exercise of the
right within an orderly society is balanced and the totality thereof (ie the right and the
permissible restrictions) constitute the protected freedom. See H M Seervai
Constitutional Law of India 3rd ed vol 1 at 481 para 10.16.
Seervai (loc cit) comments as follows on the relationship between freedom G of
speech provided for in art 19(1)(a) and the restrictions imposed by art 19(2):
'Whereas the right to freedom embodied in art 19(1)(a) is said to represent the
claims of the individual, the limitations contemplated in art 19(2) protect the claims of
other individuals and the claims of H society and the State. As such the exercise of
the right within an orderly society is balanced and the totality thereof (ie the right and
the permissible restrictions) constitute the protected freedom.'
The Indian Supreme Court has expressed itself as follows in regard to the test of
reasonableness as contained in art 19(2) of the Indian Constitution:
I 'It is important . . . to bear in mind that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned, and no abstract
standard, or general pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, J the disproportion of the imposition, the prevailing

1995 (1) SA p80


O'LINN J
A conditions at the time, should all enter into the judicial verdict. In evaluating such
elusive factors and forming their own conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that that social philosophy and the
scale of values of the Judges participating in the decision should play an important
part, and the limit to their interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-restraint and the B
sobering reflection that the Constitution is meant not only for people of their way of
thinking but for all, and that the majority of the elected representatives of the people
have, in authorising the imposition of the restrictions, considered them to be
reasonable.'
(My emphasis.) See Madras v V G Row (1952) SCR 597 at 607; Seervai (op cit at
483) and the authorities referred to by him as having cited the aforesaid text with
approval. It seems to me that the aforesaid dicta C provide valuable guidelines for
the Namibian situation.

In my respectful view, these Courts have correctly indicated as a relevant


consideration the fact that the majority of the elected representatives of the people
have, in authorising the imposition of the restrictions, considered them to be
reasonable, when that is the case with the D particular legislation limiting the
freedom.
As Seervai has pointed out correctly, the provisions of the US Constitution and that
of India relating to freedom of speech, the limitations thereon, the general approach,
including the question of onus, are entirely different from that in India. The same can
be said for Namibia because the Namibian constitutional provisions bear the
greatest E resemblance to those of India.
The following comment of Seervai is apposite:
'. . . (T)he First Amendment to the US Constitution enacts an absolute prohibition, so
that a heavy burden lies on anyone transgressing it to justify such transgression.
Again, since the Amendment contains no F exceptions, it is not surprising that
exceptions have had to be evolved by judicial decisions which have limited the
scope of such exceptions with increasing stringency. The position in India is
different. The right to freedom of speech and expression, and the limitations of that
right, are contained in art 19(1)(a) read with subart (2). Laws which fall under subart
(2) are expressly permitted by our Constitution and the problem in India is to
determine whether an impugned law falls within art 19(2), and G that is essentially
a problem of construction. No doubt art 19(2) authorises the imposition of
"reasonable restrictions", and, in the end, the question of reasonableness is a
question for the Court to decide. However, a law made in respect of the matters
referred to in art 19(2) must prima facie be presumed to be constitutionally valid and
due weight must be given to the legislative judgment on the question of
reasonableness, though that judgment is subject to judicial review. It is H difficult, if
not impossible, to read into the words "reasonable restrictions" the test of "clear and
present danger" evolved by the US Supreme Court in dealing with the freedom of
speech and the press.'
(My emphasis.) See Constitutional Law of India (op cit at 490).
This difference between the constitutional law on freedom of speech and expression
in India and the United States of America was recognised in an I American decision
where it was stated as follows:
'If we had a provision in our Constitution for "reasonable" regulation of the press
such as India has included in hers there would be room for argument that
censorship in the interests of morality would be permissible.'
See Kingsley Corporation v Regents of the University of New York 360 US J 684 at
689 (3 L ed 1512 at 1522).
1995 (1) SA p81
O'LINN J
A Section E: Relevant provisions of the Namibian Constitution relating to
dignity, equality and non-discrimination and similar and/or relevant provisions in the
constitutions, and/or criminal codes of other countries as well as in relevant
international conventions and treaties
B E1: The relevant provisions in the Namibian Constitution, statute and common
law
The importance of the prohibition of discrimination on the grounds of race, colour,
ethnic origin, sex, religion, creed or social or economic status and of the prohibition
of the violation of a person's human dignity and for the need to strive to achieve
national reconciliation and to C foster peace, unity and a common loyalty are
selected for special emphasis in the preamble to the Namibian Constitution.
Freedom of speech is not mentioned.
The preamble reads as follows:
'Whereas recognition of the inherent dignity and of the equal and D inalienable
rights of all members of the human family is indispensable for freedom, justice and
peace;
Whereas the said rights include the right of the individual to life, liberty and the
pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or
social or economic status;
Whereas the said rights are most effectively maintained and protected in a E
democratic society, where the Government is responsible to freely elected
representatives of the people, operating under a sovereign constitution and a free
and independent judiciary;
Whereas these rights have for so long been denied to the people of Namibia by
colonialism, racism and apartheid;
Whereas we the people of Namibia - F have finally emerged victorious in our
struggle against colonialism, racism and apartheid;
are determined to adopt a constitution which expresses for ourselves and our
children our resolve to cherish and to protect the gains of our long struggle;
desire to promote amongst all of us the dignity of the individual and G the
unity and integrity of the Namibian nation among and in association with the nations
of the world;
will strive to achieve reconciliation and to foster peace, unity and a common
loyalty to a single State;
committed to these principles, have resolved to constitute the Republic of
Namibia as a sovereign, secular, democratic and unitary State H securing to all our
citizens justice, liberty, equality and fraternity,
Now therefore, we the people of Namibia accept and adopt this Constitution
as the fundamental law of our Sovereign and Independent Republic.'
I have no doubt that the preamble to the Constitution of Namibia is an important
internal aid to the construction of provisions of the Constitution, particularly where
those articles are ambiguous, but not restricted to articles which are ambiguous.
I
I share the view that the preamble is 'an unqualified part of the text' and that the
Court has to decide what weight should be attached to it. See Devenish
Interpretation of Statutes at 102-5; Steyn Die Uitleg van Wette 5th ed at 145-6 and
the authorities referred to therein. Compare Government of the Republic of Namibia
v Cultura 2000 and Another 1994 (1) J SA 407
1995 (1) SA p82
O'LINN J
A (NmS) at 411C-412D; S v Van Wyk 1992 (1) SACR 147 (NmS) at 172-3; Ex parte
Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3)
SA 76 (NmS) at 78A-C; Katofa v Administrator-General for South West Africa and
Another 1985 (4) SA 211 (SWA) at 217F; R v Keegstra 19 CCC (3d) 254 (Alberta
QB), the judgment of Quigly J, where the learned Judge said:
B
'The preamble to the Bill of Rights is a clear proclamation and affirmation by the
Canadian people of the source principles upon which our concept of freedom is
founded.'
Article 8(1) declares that the dignity of all persons shall be inviolable and art 10
provides:
C '(1)All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race, colour,
ethnic origin, religion, creed or social or economic status.'
Article 8 of the Namibian Constitution is based on art 1 of the Universal Declaration
of Human Rights of 1948, which in turn was contained in para D B5 of the
framework for the Namibian Constitution prescribed for the Constituent Assembly
and the Constitution for an independent Namibia in the so-called '1982 constitutional
principles'.
The '1982 constitutional principles' was the internationally validated framework for
the election of the Constituent Assembly and the drafting of E the Constitution for
an independent Namibia. See S v Heita and Another 1992 (3) SA 785 (Nm) (1992
(2) SACR 285 (Nm)) at 787E-788C (SA), 287i-288g (SACR).
Article 10 is similarly in accordance with para B5 of the aforesaid '1982 constitutional
principles'. It is furthermore based on arts 2 and 7 of the aforesaid Universal
Declaration of Human Rights.
F
Articles 8(1) and 10 go hand in hand. Discrimination in most cases also violates
dignity.
The provision in art 8(1) to the effect that '(t)he dignity of all persons shall be
inviolate' is underpinned by the Namibian common law relating to delict as well as to
the crimes of injuria and defamation.
G Article 23(1) is specific constitutional authority for legislation by Act of Parliament
to render criminally punishable and to provide for punishment which will express the
revulsion of the Namibian people at practices of racial discrimination and the
practice and ideology of apartheid, from which, in terms of the subarticle, 'the
majority of the people of Namibia have suffered for so long'. Compare Ex parte H
Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3)
SA 76 at 86D where Mahomed AJA stated in regard to art 8:
'Although the Namibian Constitution expressly directs itself to permissible
derogations from the fundamental rights and freedoms entrenched in chap 3 of the
Constitution, no derogation from the rights I entrenched by art 8 is permitted. This
is clear from art 24(3) of the Constitution. The State's obligation is absolute and
unqualified.'
It must be pointed out, however, that art 24(3) deals with derogation in terms of art
24, which provides for the derogation of certain rights and freedoms during a state of
national defence and/or emergency or martial J law proclaimed in terms of art 26 of
the Constitution.
1995 (1) SA p83
O'LINN J
A The State can limit a fundamental right if it acts in accordance with the provisions
of the individual articles providing for fundamental rights where and when there is
provision for limitations and/or exceptions in the wording of the particular article
providing for the fundamental right. It can further limit the fundamental right to
equality and non-discrimination provided for in art 10, if it acts in terms of art 23(2)
read with art 22 B and, possibly, if it acts in terms of arts 116(2), 119(2) or 122(2).
Insofar as fundamental freedoms are concerned, the State can limit those freedoms
if it acts in terms of art 21(2) read with art 22.
So, for example, the fundamental freedom of speech provided for in art 21(1) can be
similarly limited by the State by acting in terms of s 21(2) C read with art 22.
The Racial Discrimination Prohibition Amendment Act 26 of 1991 (Nm) was enacted
by the Namibian Parliament to give effect to the letter and spirit of the preamble of
the Namibian Constitution, arts 5, 44, 45, 63(1), 63(2)(c) and, in particular, to art 23,
read with arts 8 and 10 of the Namibian Constitution.
D
The Racial Discrimination Prohibition Amendment Act 1991 states, inter alia, in its
preamble that it envisages
'to render criminally punishable in pursuance of the provisions of art 23 of the
Namibian Constitution certain acts and practices of racial discrimination and
apartheid in relation to public amenities, the provision of goods and services,
immovable property, educational and E medical institutions, employment,
associations and religious services and involving the incitement of racial disharmony
and victimisation . . .'.
(My emphasis.)
Section 11 of the said Act creates a serious criminal offence where it F provides
inter alia as follows:
'No person shall publicly use any language or distribute any written matter or display
any article or do any act with intent to -
(a) ...
(b) cause, encourage, or incite disharmony, or feelings of hostility, hatred or ill-will
between different racial groups or persons belonging to different racial groups.'
G
(See also s 14 providing for the penalty.)
It is noteworthy that this Act gives further effect to arts 8(1) and 10 of the Namibian
Constitution by providing that it is a crime to discriminate in employment on the
grounds of race, colour or ethnic origin. Section 7 of the said Act, dealing with this
issue, reads as follows:
H
'7(1) No employer, or any person acting on behalf of an employer, shall, when
seeking to employ a person on work of any description -
(a) refuse or fail to appoint a person who has applied for such work and has the
required skills or qualifications;
I (b) appoint or offer to appoint a person with the required skills or qualifications on
terms and conditions, including conditions in relation to access to benefits, facilities
or services, which differ from those which apply to other employees of the employer
with the same or substantially similar skills or qualifications and who perform the
same or substantially similar duties, on the ground of that person's race, colour or
ethnic origin.
(2) No employer, or any person acting on behalf of an employer, shall dismiss any
employee or subject him or her to any other detriment in J circumstances in

1995 (1) SA p84


O'LINN J
A which other employees of that employer performing similar work are not or would
not be dismissed or are not or would not be subjected to such detriment, on the
ground of that employee's race, colour or ethnic origin.'
Section 7 above is an important corrective of pre-independence discrimination and
in itself a valuable and constructive form of affirmative action.
The only express provision in the Constitution for an exception or B qualification to
art 10 is art 23(2), which provides as follows:
'Nothing contained in art 10 hereof shall prevent Parliament from enacting legislation
providing directly or indirectly for the advancement of persons within Namibia who
have been socially, economically or educationally disadvantaged by past
discriminatory laws or practices, or for the implementation of policies and
programmes aimed at redressing C social, economic or educational imbalances in
the Namibian society arising out of past discriminatory laws or practices, or for
achieving a balanced structuring of the public service, the police force, the defence
force, and the prison service.'
(My emphasis.)
D It is apparent from the wording, even when such legislation is enacted by
Parliament, that it must comply not only with art 23(2), but with art 22, which reads
as follows:
'Whenever or wherever in terms of this Constitution the limitation of any fundamental
rights or freedoms contemplated by this chapter is authorised, any law providing for
such limitation shall:
E (a) be of general application, shall not negate the essential content
thereof, and shall not be aimed at a particular individual;
(b) specify the ascertainable extent of such limitation and identify the article or
articles hereof on which authority to enact such limitation is claimed to rest.'
It must be noted, however, that art 23(2) does not authorise a violation of the dignity
of a person provided for as an unqualified fundamental F right in art 8(1). Measures
for affirmative action and restructuring must therefore be of such a nature and
degree that they do not violate the dignity of persons.
The only Act of Parliament which has been enacted thus far and which purports to
provide for measures which aim at a restructuring of the civil G service is Act 24 of
1990 where a new ss (5) is added to s 8 of the principal Act, viz Act 2 of 1980.
Subsection (5) provides as follows:
'Nothing contained in this section shall prevent the appointment or promotion of a
person who would otherwise not be eligible for such appointment or promotion by
virtue of any provision of this section, if such appointment or promotion is
recommended by the Commission (ie the H Public Service Commission) in
pursuance of the aim to achieve a balanced structuring of the public service.'
The aforesaid amendment, however, may be unconstitutional, in that it is in conflict
with the fundamental rights to dignity, equality and non-discrimination and is not
brought within the protective provisions of art 23(2), read with art 22, insofar as it
does not, in accordance with I art 22(b),
'specify the ascertainable extent of such limitation and identify the article or articles
hereof on which authority to enact such limitation, is claimed to rest'.
Whether or not the aforesaid ss (5) of Act 24 of 1990 is unconstitutional depends,
inter alia, on whether or not subart (b) of art 22 of the J Namibian Constitution is
mandatory or merely directory.
1995 (1) SA p85
O'LINN J
A It is not necessary, however, for the purpose of this judgment to decide this issue.
The provision in art 113(a) (aa) of the Namibian Constitution that it is one of the
functions of the Public Service Commission
'to advise the President and the Government on . . . the appointment of suitable
persons to specified categories of employment in the public B service, with special
regard to the balanced structuring thereof'
is no authority for infringing art 10 of the Namibian Constitution read with art 23(2)
and art 22 of the Namibian Constitution.
Although arts 116(2), 119(2) and 122(2), which place a duty respectively on the
Inspector-General of the Police, the Chief of the Defence Force and C the
Commissioner of the Prison Services to 'make provision for a balanced structuring . .
.' respectively in the Police Force, the Defence Force and the Prison Service, also
empowers the said Inspector-General, Chief of Defence Force and Commissioner of
Prisons to make suitable appointments, it appears that this duty and power must be
exercised subject to arts 8(1), 10 and 141(1) of the Namibian Constitution.
D
Furthermore, any attempt at a balanced structuring which amounts to a violation of
the dignity of persons and/or the right to equality before the law and/or discrimination
in terms of arts 8 and 10 will also be in conflict with s 7(1)(a) of the Race Prohibition
Discrimination Amendment Act of 1991 dealt with supra.
E
Affirmative action legislation or legislation for the balanced structuring can be
repealed or amended at any time. Similarly, arts 22, 23, 116(2), 119(2) and 122(2) of
the Namibian Constitution can be derogated from in accordance with art 24(3) read
with art 26 and can be repealed or amended in accordance with arts 131 and 132 of
the Constitution.
F
The exception to the fundamental right to equality and non-discrimination provided
for in art 23(2) must be interpreted and applied in a form and to a degree which
takes into consideration the following:
(i) The only exception to the fundamental right to equality before
the law, the equal protection by the law and non-discrimination provided for in the
1982 international agreement referred to G supra is contained in art 7 of Section B
of the said agreement which reads as follows:
'Provision will be made for the balanced structuring of the
public service, the police service and defence services and for equal access by all to
recruitment to these services.'
H (My emphasis.) It was further provided that the
declaration of rights will be consistent with the provisions of the Universal
Declaration of Human Rights.
The Universal Declaration of Human Rights in turn does
not provide at all for exceptions to the fundamental right to I non-discrimination and
provides as follows:
Article 2:
'Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other J status.'

1995 (1) SA p86


O'LINN J
A Article 7:
'All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and against any incitement
to such discrimination.'
B (ii) The African Charter of Human and People's Rights provides as
follows:
Article 2:
'Every individual shall be entitled to the enjoyment of the
rights and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic C group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth or other status.'
Article 3:
'1. Every individual shall be equal before the law.
'2. Every individual shall be entitled to equal
protection of the law.'
D Article 13.2
'Every citizen shall have the right to equal access to the
public service of his country.'
There is no exception allowed in the African Charter to
the above provisions relating to non-discrimination, equal E protection before the
law, or equal access of citizens to the civil service. Exceptions such as those
contained in art 23(2) of the Namibian Constitution are in conflict with the African
Charter and with the aforesaid 1982 agreement and the Universal Declaration of
Human Rights.
(iii) Article 143 of the Constitution of Namibia provides:
'All existing international agreements binding upon
Namibia F shall remain in force, unless and until the National Assembly acting
under art 63(2)(d) hereof otherwise decides.'
Article 144 of the Namibian Constitution provides as
follows:
'Unless otherwise provided by this Constitution or Act of
Parliament, the general rules of public international law and G international
agreements binding upon Namibia under this Constitution shall form part of the law
of Namibia.'
The Namibian Government has, as far as can be established, formally recognised
the African Charter in accordance with art 143 read with art 63(2)(d) of the Namibian
Constitution.
H The provisions of the Charter have therefore become binding on Namibia and
form part of the law of Namibia in accordance with art 143, read with art 144 of the
Namibian Constitution.
It is questionable, however, whether the aforesaid 1982 agreement and the
Universal Declaration of Human Rights have become part of the law of Namibia.
But, even if they are not, their provisions should carry weight I when interpreting
provisions of the Namibian Constitution, such as those which are relevant to the
issues in this case and which are discussed or interpreted in the course of this
judgment.
The specific provisions of the Constitution of Namibia, where specific and
unequivocal, override provisions of international agreements which have J become
part of Namibian law.
1995 (1) SA p87
O'LINN J
A However, in all situations where such law is not in conflict with the provisions of
the Namibian Constitution, such law will have to be given effect to in Namibia. In
cases where the provisions of the Namibian Constitution are equivocal or uncertain
as to the scope of their application, such provisions of the international agreements
must at least be given considerable weight in interpreting and defining the scope of
the B provisions contained in the Namibian Constitution. This approach applies
particularly to a provision such as art 23(2) relating to the various forms of affirmative
action.
The aforesaid international agreements recognise that the protection of the dignity of
all persons, equality before the law, including the equal protection by the law, and
non-discrimination are and should be the main C components of corrective action
in societies emerging from oppression to democracy as well as those intending to
maintain democracy.
It is clear from the preceding analysis that the Namibian Constitution does not
elevate 'affirmative action' and/or 'a balanced structuring of the civil service' to the
status of fundamental right provided for in arts D 6-20 or even to the status of a
fundamental freedom provided for in art 21(1) of the Constitution.
It is also important to note that the provision for affirmative action and the
restructuring of the various services in art 23(2) of the Constitution E of Namibia is
by the clearest implication intended to apply to 'persons within Namibia' who have
been disadvantaged by past discriminatory practices and not to aliens or citizens of
other countries. When a Namibian is discriminated against on the grounds of race,
colour or ethnicity in favour of aliens, such discrimination is clearly in conflict with the
provisions of the Namibian Constitution.
F Furthermore, the beneficiaries under art 23(2) are not restricted to persons
discriminated against on the grounds of race, colour or ethnicity, but also to those
discriminated against on the ground of their political beliefs, irrespective of their
race, colour or ethnicity. The Namibian Courts have expressed themselves very
strongly on the importance of the G fundamental rights to equality and
non-discrimination in the Namibian Constitution.
So, for example, in S v Van Wyk (supra at 169h) Ackermann AJA had this to say:
H 'I have alluded to the above provisions in the Constitution because they
demonstrated how deep and irrevocable the constitutional commitment is to, inter
alia, equality before the law and non-discrimination and to the proscription and
eradication of the practice of racial discrimination and apartheid and its
consequences. These objectives may rightly be said to be fundamental aspects of
public policy.'
I All the Judges of Appeal concurring in the aforesaid judgment, namely Berker
(former CJ) and Mohamed AJA, as they then were, emphasised this aspect of the
Constitution of Namibia.
In Government of Republic of Namibia v Cultura 2000 (supra at 411C-412D)
Mohamed CJ agreed with and reiterated what was said in S v Van Wyk and J
commented as follows:
1995 (1) SA p88
O'LINN J
A 'The Constitution of Namibia articulates a jurisprudential philosophy which, in
express and ringing tones, repudiates legislative policies based on the criteria of
race and ethnicity, often followed by previous administrations prior to the
independence of Namibia.
"Throughout the preamble and substantive structures of the Namibian B
Constitution there is one golden and unbroken thread - an abiding 'revulsion' of
racism and apartheid. It articulates a vigorous consciousness of the suffering and
the wounds which racism has inflicted on the Namibian people 'for so long' and a
commitment to build a new nation 'to cherish and protect the gains of our long
struggle' against the pathology of apartheid. I know of no other Constitution in the
world which seeks to identify a legal ethos against apartheid with greater vigour and
intensity."
C S v Van Wyk 1992 (1) SACR 147 (NmS) at 172-3.
This basic temper of the Constitution appears throughout from the terms of the
preamble itself which provide, inter alia, that:
"Whereas recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is indispensable for freedom, justice and peace;
D Whereas the said rights include the right of the individual to life, liberty and the
pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or
social or economic status;
...
Whereas these rights have for so long been denied to the people of Namibia by
colonialism, racism and apartheid;
E Whereas we the people of Namibia
have finally emerged victorious in our struggle against colonialism, racism
and apartheid;
are determined to adopt a Constitution which expresses for ourselves and our
children our resolve to cherish and to protect the gains of our long struggle;
...
F Now, therefore, we the people of Namibia accept and adopt this Constitution
as the fundamental law of our sovereign and independent Republic."
The same temper is manifest in art 10(2) which provides that no persons may be
discriminated against on the grounds of sex, race, colour, ethnic origin, religion,
creed or social or economic status and in the pungent terminology of art 23(1),
which provides:
G
"The practice of racial discrimination and the practice and ideology of
apartheid from which the majority of the people of Namibia have suffered for so long
shall be prohibited and by Act of Parliamant such practices, and the propagation of
such practices, may be rendered criminally punishable by the ordinary courts by
means of such punishment as H Parliament deems necessary for the purposes of
expressing the revulsion of the Namibian people at such practices."
Similarly art 63(2)(i) gives the National Assembly the power
"to remain vigilant and vigorous for the purposes of ensuring that the
scourges of apartheid, tribalism and colonialism do not again manifest themselves in
any form in a free and independent Namibia and to protect I and assist
disadvantaged citizens of Namibia who have historically been the victims of these
pathologies".
It is manifest from these and other provisions that the constitutional jurisprudence of
a free and independent Namibia is premised on the values of the broad and
universalist human rights culture which has begun to emerge in substantial areas of
the world in recent times and that it is based on a total repudiation of the policies of
apartheid which had for so long dominated lawmaking and practice during the
administration of Namibia J by the Republic of South Africa.'

1995 (1) SA p89


O'LINN J
A It is perhaps fitting to repeat here that the Namibian Constitution was the
culmination of internationally sponsored negotiations over a long period involving all
interested parties and this negotiation culminated in an agreement, which was a
settlement of the dispute over Namibia and which laid down the parameters for the
Constitution to be adopted by the future Namibian Constitutional Assembly. See S v
Heita and Another (supra at B 787E-788C (SA) and at 287i-288g (SACR).
It must be clear that, although the Namibian experience was mainly derived from the
oppressive and discriminatory system and ideology of apartheid, the representatives
of the Namibian people who finally agreed on the exact content of the Namibian
Constitution did not only take cognisance of the aforesaid settlement agreement and
their own experience, but of the evil C of discrimination all over the world.
The settlement was in essence a compromise wherein the parties concerned agreed
on what was wrong in the previous dispensation and what was not to be repeated in
the new dispensation.
D The letter and spirit of this compromise agreement was reconciliation. It
envisaged necessary corrective measures, but not revenge; not discrimination in
reverse; not the mere changing of rôles of perpetrator and victim. The parties to the
settlement relied for its implementation on the honour and integrity of the
participants.
E If no agreement as set out above had been entered into, the confrontation and
the war, with all its destructive effects, would probably have dragged on for many
more years. Furthermore, if the letter and spirit of the above agreement is not
adhered to, then the aim of building a nation, reconciled, united, progressive and at
peace, cannot be realised.
One basic aim of the Namibian Constitution was therefore to identify F
discrimination as an evil which must be eliminated in all its forms by appropriate
action, inter alia by legislation by the National Assembly making discrimination and
its propagation a crime.
E2: A comparison with provisions of treaties and conventions and the
corresponding provisions in other legal systems
G
The right to non-discrimination is also contained in the constitutions of a small
number of countries in addition to Namibia, for example, India, the Federal Republic
of Germany, Canada, Poland, Portugal, the United Arab Emirates and the
Netherlands, but in most cases, as will be seen later, these provisions are much
more limited than in the case of Namibia.
H
Discrimination on the basis of race, colour, creed, religion, ethnic origin or sex are
also prohibited in the penal codes of several countries which have no rigid
constitution with a Bill of Rights.
Furthermore, many countries prohibit in their laws speech and conduct which stirs
up prejudice or hatred against any group or persons on grounds I of race, colour,
ethnic origin, creed or religion. Examples are Australia, United Kingdom, Canada,
France, Federal Republic of Germany, Norway, Portugal, Denmark, Israel, Pakistan,
Cyprus, Finland.
Discrimination as aforesaid is also in conflict with international treaties and
conventions such as:
J (i) The Universal Declaration of Human Rights (UDHR), ss 2 and
7.
1995 (1) SA p90
O'LINN J
A (ii) The International Covenant on Civil and Political Rights (ICPR),
s 2(1).
(iii) The European Convention on Human Rights and Fundamental
Freedoms (EHR), s 14.
(iv) The American Convention on Human Rights (AMR), s 1.
B (v) The African Charter on Human and People's Rights (AFR), s 2.
The latter charter in s 28 also places a duty on every
individual to respect and consider his fellow human beings without discrimination,
and to maintain relations aimed at promoting, safeguarding and reinforcing mutual
respect and tolerance.
(vi) The Convention on the Elimination of all Forms of Racial
Discrimination (CD).
C
Some of the aforesaid international treaties and conventions also contain provisions
to outlaw such hate speech and actions. So, for example, the Considerans to the
International Convention on the Elimination of all Forms of Racial Discrimination
reads as follows:
D 'Considering that the Charter of the United Nations is based on the principles of
the dignity and equality inherent in all human beings, . . . to promote and encourage
universal respect for and observance of human rights and fundamental freedoms for
all, without distinction as to race, . . . all human beings are born free and equal in
dignity and rights . . ., without distinction of any kind, in particular as to race, colour
or national origin, . . . all human beings are . . . entitled to equal E protection of the
law against any discrimination . . . the United Nations has condemned colonialism
and all practices of segregation and discrimination associated therewith, in whatever
form . . . proclaimed the necessity of bringing them to a speedy and unconditional
end, . . .
Reaffirming that discrimination between human beings on the grounds of race,
colour or ethnic origin is an obstacle to friendly and peaceful F relations among
nations and is capable of disturbing peace and security among peoples and the
harmony of persons living side by side even within one and the same State, . . .
Convinced that the existence of racial barriers is repugnant to the ideals of human
society, alarmed by manifestations of racial discrimination. . . .
Resolved to adopt all necessary measures for speedily eliminating racial
discrimination in all its forms and manifestations, and to prevent and G combat
racist doctrines and practices. . . .'
(My emphasis.) Article 4 of the said convention reads as follows:
'States parties condemn all propaganda and all organisations which are based on
ideas or theories of superiority of one race or group of persons of one colour or
ethnic origin, or which attempt to justify or promote H racial hatred and
discrimination in any form, and undertake to adopt immediate and positive measures
designated to eradicate all incitement to, or acts of, such discrimination . . .:
(a) Shall declare an offence punishable by law all dissemination of ideas based
on racial superiority or hatred, incitement to racial discrimination, as well as all acts
of violence or incitement to such acts against any race or group of persons of
another colour or ethnic origin . . .;
I (b) Shall declare illegal and prohibit organisations, and also organised and all
other propaganda activities, which promote and incite racial discrimination, and shall
recognise participation in such organisations or activities as an offence punishable
by law;
(c) Shall not permit public authorities or public institutions, national or local, to
promote or incite racial discrimination.'
J (My emphasis.)
1995 (1) SA p91
O'LINN J
A Section 20(2) of the International Covenant on Civil and Political Rights provides:
'Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.'
The American Convention on Human Rights in s 13(5) provides:
'Any propaganda for war and any advocacy of national, racial or religious B hatred
that constitutes incitement to lawless violence or to any similar illegal action against
any person or group of persons on any grounds including these of race, colour,
religion, language or national origin, shall be considered as offences punishable by
law.'
The Universal Declaration of Human Rights in s 7 states, inter alia:
'All are entitled to equal protection against any discrimination in C violation of this
Declaration and against any incitement to such discrimination.'
No wonder that the learned commentator, Sieghart, in his book The Lawful rights of
Mankind at 60, concluded that
'. . . there are only four human rights which one can say with some confidence are
now already protected by customary international law: D freedom from slavery,
freedom from genocide, freedom from racial discrimination and freedom from
torture.'
(My emphasis.)
Speech inciting hatred and prejudice on the grounds of race, colour, ethnic origin,
creed or religion is often referred to as hate speech.
The reason why 'hate speech' and/or 'racist' speech is not protected E speech
under the mantle of the fundamental freedom of speech and expression appears
clearly from the following comments of commentators:
'Group libel laws however, such as the British Race Relations legislation, typically
prohibit speech, even though there is no suggestion that it is likely to lead
immediately to violence and disorder.
The argument is instead that to tolerate speech abusing racial, ethnic or F religious
groups is to lend respectability to racist attitudes, which in their turn may foster an
eventual breakdown of public order.
But the proponent of free expression may reply that such speech is met by more
speech advocating the moral and cultural superiority of a multi-racial society;
moreover, the suppression of propaganda is in the long run more likely to expose
society to the risk of violence than is its G dissemination.'
See Eric Barendt Freedom of Speech at 161.
I pause here to remark that the last-mentioned view of the proponents of free
speech appears to be naïve in the light of the experiences in Nazi Germany, South
Africa, Namibia and many other countries in the world.
H The problem is that when you have a dominant, powerful, oppressive and
governing minority, who perceive it to be in their interests to encourage race hatred,
freedom of speech and expression will normally not be available to the suppressed
majority. When, on the other hand, you have a dominant, powerful majority, whether
in government or not, who perceive it to be in their interests to encourage race
hatred, then mere freedom of I speech and expression which protects racist and
hate speech will probably perpetuate racist discrimination whether in the traditional
form or in the form of discrimination in reverse, where the rôles of perpetrator and
victim are merely reversed.
Furthermore, the said view may be interesting and a useful academic J exercise in
a society without the Namibian experience and without a

1995 (1) SA p92


A constitution such as that of Namibia, but in Namibia the Namibian and world
experience of the evil of racist or other forms of hate speech has been recognised
and crystallised in provisions which expressly or implicitly forbid such speech.
The following further quotations are apposite:
B 'To attack another because of his or her racial, ethnic, religious, or sexual identity,
however, is not to engage in mere dissent against the whole. Such an attack is
rather to separate out certain members of the whole and make them targets,
degrade them, strip them of their humanity and set others against them.'
See Rodney A Smolla Free Speech in an Open Society (1992) at 151.
C 'The tragic experience of this century teaches that racist opinions can lead to an
atmosphere of race hate and insensitivity, fostering acts of palpable violence and
discrimination.'
See Free Speech in an Open Society (op cit at 158).
It needs to be emphasised that the Namibian and South African experience certainly
supports the above-mentioned view.
D 'The repercussion of the vicious abuse of the Jews (and other ethnic groups)
encouraged by the Nazi regime suggested, to put it mildly, that there are worse evils
than suppression of free speech.'
See Eric Barendt Freedom of Speech (op cit). Again, the Namibian and South
African experience is in line with the above view.
E 'Hate speech is often used as evidence of illegal discriminatory behaviour.'
See Free Speech in an Open Society (op cit at 163).
The Courts in Canada have characterised racist hate speech, in my view correctly,
as follows:
'The purpose and effect of racist hate speech, above all else, is to diminish or deny
equality and dignity to the target of vilification. . . .'
F According to the Supreme Court of Canada, the concern of a democratic society
with racist speech is not simply the product of its offensiveness, but stems from the
very real harm that it causes. The harm is twofold, and extends both to members of
a target group and to society as a whole.
'Essentially, there are two sorts of injury caused by hate propaganda. G First there
is harm done to members of the target group. It is indisputable that the emotional
damage caused by words may be of grave psychological and social consequence. .
. . The derision, hostility and abuse encouraged by hate propaganda have a severely
negative impact on the individual's sense of self-worth and acceptance. . . . A
second harmful effect of hate propaganda, which is of pressing and substantial
concern, is its influence upon society at large. . . . The threat to the H self-dignity of
target group members is thus matched by the possibility that prejudicial messages
will gain some credence, with the attendant result of discrimination, and perhaps
even violence, against minority groups.'
See Sandra Collver (ed) Striking a Balance - Hate Speech, Freedom of Expression
and Non-discrimination at 127 (article by Irwin Collver). The following comment is
also apposite:
I
'The object of legislation is obviously to control hatemongers from spreading their
hatred to others and to give some protection to the target groups that the law
heretofore did not protect. . . . The object of the law is to give "the group" the same
protection as the individual in view of the harm that such hatemongering is capable
of causing. . . . The purpose of criminal law is not only to establish sanctions against
criminal behaviour but is also to create a public conscience or minimum J standard

1995 (1) SA p93


O'LINN J
A for expected behaviour in Canadian society. This legislation manifests such a
purpose and has as its objective the protection of certain segments of society from
the wilful promotion of hatred and the injurious consequences thereof. . . . In my
view, such kind of expression must be modified and any bias in favour of the
maximum rhetoric must give way to the serious injury to the community itself and to
individual members of identifiable groups innocently caught by such prejudice. . . . In
my view, B the Canadian Charter does not guarantee anyone the right to promote
the degradation of others because of their race, religion or ethnic origin.'
(My emphasis.) See K J Partsch The International Bill of Rights (The Covenant on
Civil and Political Rights) (L Henkin (editor)) at 304.
In the article by Roger Errera at 155-6 in Striking a Balance (op cit), C dealing with
the experience in France, the learned writer has this to say about the need for laws
against racial incitement and group libel:
'The idea of having laws against racial incitement and group libel is, on the whole, a
rather recent one, and it is by no means universally accepted. In some Western
countries they are often challenged as a matter of principle on the basis of a
quasi-absolutist conception of freedom of expression. In systems which adhere to
such a conception (most notably the D United States) the laws mentioned above
tend to be regarded as unconstitutional. It cannot be denied that the USA has
produced a profound and illuminating literature on the foundations of freedom of
speech and its legal, political and social status; every scholar and practitioner
elsewhere owes a debt to it. But this is not, at any rate, the system that prevails in
most European countries today, for a number of historical, political and legal reasons
that are well known and cannot be developed E here.
Another, less principled, ground for rejecting such laws is scepticism about their
effectiveness. Some critics of the laws say that "racism" and its public expression
have such deep underlying social and psychological roots that the belief that they
can be suppressed by legal means is, at best, illusory. Others use the familiar
argument "Where do we draw the F line
!", and emphasise the fact that such provisions can have a wider or a narrower
interpretation.
I suggest that laws against racial incitement and libel are necessary and that they
are useful for the following reasons. First, such laws are needed to defend the basic
civility of our society. We should not allow attacks against a person or a group of
persons on racial, ethnic, national or religious grounds. The history of our societies
in the 20th Century G fully legitimises the use of legal instruments against what is,
and is meant to be, an aggression.
Such an aggression is twofold. It is directed, first, against certain individuals or
collective reputations. In other words it is an outright attack on the rights of these
people and, ultimately, on their sense of identity and of participation in society on an
equal footing with those belonging to the majority culture.
H Second, such an aggression is directed against the whole body politic and its
social and moral fabric. This element was accepted as early as 1939 by the authors
of the first French law on group libel. The preamble of the 1939 statute declares
explicitly that the creation of group libel as a tort and as an offence is necessary not
only to protect the groups under attack but also "the whole national collectivity". A
great American lawyer, Alexander Bickel, has forcefully expressed this fundamental
idea in a telling way:
I "There is such a thing as verbal violence, a kind of cursing assaulting speech
that amounts to almost physical aggression, bullying that is no less punishing
because it is simulated. This sort of speech constitutes an assault. More, and
equally, important, it may create a climate, an environment in which conduct and
actions that were not possible before become possible. . . . Where nothing is
unspeakable, nothing is J undoable."

1995 (1) SA p94


O'LINN J
A To understand the growth of racist violence in any society it is necessary to
understand the social and political climate in which it occurs. Racist violence is an
expression of racism and flourishes in societies where racism has become
respectable or at least is not widely and consistently condemned.'
(My emphasis.) See Paul Gordon 'Racist Violence: The Expression of Hate in
Europe' in the publication Striking a Balance (op cit at 15).
B
The analysis of Dickson CJC in R v Keegstra (supra at 35-46) setting out
authoritatively the position in Canada is illuminating and in point.
The position in the USA is entirely different, as is also pointed out in the quotations
aforesaid.
In the USA, racist speech as such is not forbidden and is tolerated by the C
Constitution, the criminal code and the Supreme Court of the USA, except insofar as
it amounts to the so-called 'fighting words' or libels, or publications injurious to
private reputation.
The 'fighting words' limitation is set out in, inter alia, the following decisions:
D In RAV v City of St Paul, Minnesota 505 US 305 (1992) Scalia J stated at 324:
'. . . (T)he reason why fighting words are categorically excluded from the protection
of the first amendment is not that their content communicates any particular idea,
but their content embodies a particularly intolerable (and socially unnecessary)
mode of expressing whatever idea the speaker E wishes to convey. Rather St Paul
. . . has proscribed fighting words of whatever manner that communicate messages
of racial, gender or religious intolerance. Selectivity of this sort creates the possibility
that the City is seeking to handicap the expression of particular ideas. That
possibility would alone be enough to render the ordinance presumptively invalid. . . .'
F (My emphasis.) See, also, John Doe v University of Michigan 729 T Supp 852,
where certain regulations of the University of Michigan adopted as part of a 'policy
on discrimination and discriminatory harassment of students in the University
environment' to cope with what was perceived as a rising tide of racial intolerance
and harassment on the campus. The policy, as summarised by Cohn J,
G 'prohibited individuals under the penalty of sanctions, from "stigmatising or
victimising" individuals or groups on the basis of race, ethnicity, religion, sex, sexual
orientation, creed, national original ancestry, age, marital status, handicap or
Vietnam-era veteran status'.
After discussion of the University's power to regulate free speech and certain
categories of non-protected speech, Cohn J said at 863:
H
'What the University could not do, however, was establish an anti-discrimination
policy which had the effect of prohibiting certain speech, because it disagreed with
the ideas or messages sought to be conveyed . . . nor could the University proscribe
speech simply because it found it to be offensive, even gravely so, by large numbers
of people. . . .'
I The 'fighting words' doctrine is aimed at the mode of speech, rather than the
content. As a matter of fact, it is regarded as unconstitutional to ban or limit speech
because of the ideas contained in it.
This approach is in total conflict with that of those countries enumerated above,
where racist speech is prohibited and where the content, the J spreading of the
idea, is certainly the main object of the attack
1995 (1) SA p95
O'LINN J
A by the constitutional provisions as well as the penal codes of the said countries.
Obviously the mode of speech is always relevant, also in the aforesaid countries.
The aforesaid approach of the US Courts has also expressly been rejected by the
Supreme Court of Canada in 1990. See R v Keegstra et al 61 CCC (3d) at 33 (2nd
para)-35 (1st para).
B The further limitation in the doctrine that acts which will merely disturb the
serenity of others or 'causes only hurt feelings, offence or resentment' will not qualify
as impending breaches of the peace, as is stated or suggested in the case RAV v
City of St Paul (supra), is also in conflict with Namibian law where injuria is a delict
and, in cases of gravity, a crime.
C Injuria is the intentional violation of the dignity of a person. Dignity includes both
'self-respect' and 'mental tranquillity'. Dignity or self-respect is violated when a
person is degraded or humiliated. See Snyman Criminal law 2nd ed at 450-2. Injuria,
like defamation, is not curtailed but rather strengthened by art 8(1) of the
Constitution of Namibia, which provides that a person's dignity is inviolable.
D A further distinction is that in the aforesaid decisions the Court dealt with the
legislation of subordinate legislative bodies, such as an ordinance by the City of St
Paul and a regulation by the University of Michigan.
In Namibia, the authority is that of the Constitution of the Republic of Namibia and
legislation enacted in accordance with it. Furthermore, in the E case of legislation
such as the Racial Discrimination Act, the legislation is enacted by the highest
legislative organ, the National Assembly, elected by the people of Namibia, and not
by municipal councils, university authorities and similar subordinate legislative
organs.
In view of the aforesaid distinctions, the USA precedents, insofar as they relate to
racist speech, are not in point in Namibia.
F
When the provisions of s 11(1)(b) read with s 14 of the Racial Discrimination
Prohibition Amendment Act 26 of 1991 (Nm) are seen in the context of the Namibian
Constitution, the modern constitutions and/or criminal codes of so-called civilised
countries and international treaties and conventions, it can safely be said that this
provision clearly falls G within the aims and objectives not only of the Namibian
Constitution and people, but is also in line with constitutions and/or penal codes of
many other democratic countries and international treaties and conventions.
Section F: Is s 11(1)(b) of the Racial Discrimination Prohibition H Amendment
Act 26 of 1991 unconstitutional
!
1. I have already indicated in the preceding sections, particularly Sections D and
E, that the 'fighting words' exception measured by the 'clear and present danger' test
is neither useful nor necessary nor appropriate in the Namibian situation.
I 2. The argument that the ambit of intent is uncertain and that that makes the
provision vague appears to be without substance. The provision is contained in an
Act of the highest legislative body in the country, not in subordinate legislation. See
Section D5 supra, discussion of the constitutional dispensation in India. See, further,
J R v Keegstra et al (1990) 61 CCC (3d) at 45 point (iv).
1995 (1) SA p96
O'LINN J
A The words 'with intent to' or similar words appear in the penal codes
the world over and is a concept well known in Namibian common law.
Whether or not the words in the context of s 11(1)(b) must be
interpreted as 'aim, object or motive', and a 'principal aim, object or motive' at that, or
'ideas' in the usual sense of our criminal law, is a matter for the Court to decide when
interpreting the Act.
B
The fact that there are two possible interpretations does not make the
provision fatally vague. If the approach suggested is followed, a mass of legislation
will be unconstitutional merely because there are two possible interpretations of
certain words contained in the statute. This will be absurd.
C There are no other aspects of vagueness in the provision which makes
the provision 'totally vague'. I am confident that the Courts will be competent to
interpret the words used in the section when the time arrives.
The requirement of 'intent' clearly includes the requirement of mens D
rea, a subjective element, which necessitates proving beyond reasonable doubt also
this element in the case of a prosecution. Mens rea includes 'knowledge of
unlawfulness'. In our law, 'ignorance of the law' is an excuse and this fact
distinguishes our law from Anglo-American and modern Continental legal systems.
See Snyman Criminal law 2nd ed at 221-3. This element therefore also limits E
prejudice which an accused can suffer because a provision of a statute is not
narrowly drawn.
The requirement of this form of intention is a severe limitation on the
ambit of the prohibition.
When the requirement of intent is used in conjunction with the words F
italicised in the paragraph 'cause, encourage, or incite disharmony or feelings of
hostility, hatred or ill will between different racial groups or persons belonging to
different racial groups', the ambit of the offence is further drastically restricted to a
sufficiently defined type of racist conduct which the Namibian Constitution seeks to
prohibit or discourage.
G 3. The prohibition lists only public speech and action and not that in private.
Again this limits the scope of the limitation imposed by the prohibition
on speech and expression. Compare R v Keegstra (supra at 56 and 58) relating to
the requirements of mens rea and public speech or activity.
H 4. The Courts will also apply the restrictive approach to the penal provisions of
this statute and this will further limit the wide words in the section.
The argument that the provision
I 'sweeps within its range of expressive activity from satire to history to
contemplating social, economic and political analysis of sectarian political activity'
is grossly exaggerated.
To take the example of the historian. Surely, if an historian worth the
title objectively and bona fide establishes the truth of historical events, or attempts to
do so, and objectively and bona J fide analyses or
1995 (1) SA p97
O'LINN J
A discusses such events, it will be difficult to find that such person
intends to cause, encourage or incite disharmony or feelings of hostility, hatred, or ill
will, between racial groups, or between persons belonging to different racial groups.
If, on the other hand, the 'historian' or his works are of the other type, and it is
proved beyond reasonable doubt that he intends to cause, encourage or incite B
disharmony or feelings of hostility, hatred or ill will between racial groups or between
persons belonging to different race groups, then he is a hatemonger and not an
historian. Such a person then does not deserve protection under the Namibian
Constitution for such activity in view of the aim of reconciliation and building a united
nation, progressive and at peace, on the pillars of the fundamental C rights of the
inviolability of the dignity of persons, equality before the law and non-discrimination.
Many other examples of the alleged unreasonableness and/or
overbreadth of the prohibition will not fall foul of the prohibition, because of the mens
rea required for a contravention and the D restrictive interpretation of the terms
used.
5. Although even true statements may be hit by the prohibition, it would be more
difficult to prove the requisite intention if the statement is true than in the case where
it is false.
In Canada, art 319(3)(a) of the Code provides for a defence of truth, E
which is not a complete defence in Namibia. Dickson CJC, as he was at the time of
the judgment in R v Keegstra, in his majority judgment states at 62:
'The way in which I have defined the 319(2) offence, in the context of
the objective sought by society and the value of the prohibited expression, gives me
some doubt as to whether the Charter mandates that truthful statements
communicated with an intention to provoke F hatred need be excepted from
criminal condemnation. Truth may be used for widely disparate ends, and I find it
difficult to accept that circumstances exist where factually accurate statements can
be used for no other purpose than to stir up hatred against a racial or religious
group. It would seem to follow that there is no reason why the individual who
intentionally employs such statements to achieve harmful ends must under the
Charter be protected from criminal G censure.
Nevertheless, it is open to Parliament to make a concession to free
expression values, whether or not such is required by the Charter.'
These comments are even more apt in the Namibian society.
It also follows from the above that the fact that the Canadian
Constitution provides for a defence of truth does not make the H Namibian
provision defective and more liable to be struck down, because it does not provide
for a defence of truth.
6. It appears to me that the type of argument referred to supra is based on a
misconception of the Namibian Constitution, its history and its aim, objectives and
provisions.
I It is a misconception to state that the limitations on freedom of speech
and its criteria provided for in art 21(2) are exhaustive, as I have attempted to
demonstrate in all the preceding sections of this judgment.
The freedoms provided for in our art 21(1) are clearly subject to J
fundamental rights such as that contained in arts 8 and 10 relating to
1995 (1) SA p98
O'LINN J
A dignity, equality and non-discrimination. This important limitation on
freedoms is in addition to the limitations imposed by art 21(2).
The restrictions contained in s 11(1)(b) of the Race Discrimination
Prohibition Amendment Act are in the first place enacted by the National Assembly
against the background of a long struggle, B including an armed struggle, against a
dispensation where the violation of the dignity of the person and where
discrimination on the basis of race, colour, ethnic origin, sex and creed, were
endemic in the system of oppression and were root causes of the struggle for
liberation.
Against this background the people of Namibia committed themselves
in the preamble of the Constitution of Namibia to eradicate the said C evils of the
previous dispensation and set out their values and aims in the preamble to the
Constitution of Namibia.
In that preamble the values of dignity, equality and non-discrimination
are prominent as well as the aim to protect those values. The preamble crystallised
the resolve and the commitment of D the Namibian people as a principle 'to strive
to achieve national reconciliation and to foster peace, unity and a common loyalty to
a single State'.
Fraternity (brotherhood, the relation of a brother or brothers) is also
stated to be a principle and an aim to be secured, together with justice, liberty and
equality.
E
To give effect to these aims and values, the right to dignity, equality
and non-discrimination were entrenched as fundamental rights in arts 8 and 10. The
prohibition contained in s 11(1)(b) of the Prohibition against Discrimination
Amendment Act of 1991 is an attempt to give further effect to the aforesaid values
and aims.
F It is obvious that the recent Namibian experience is different from that
in most other countries compared with that of Namibia in this judgment. There are
also fundamental differences between their respective constitutions and that of
Namibia. The Constitution of Namibia is much more explicit and gives much more
emphasis to fundamental rights such as the rights to dignity, equality and G
non-discrimination than in any other country.
Section 11(1)(b) of the Race Discrimination Prohibition Amendment Act
therefore casts its net wider than that in similar legislation in some other countries.
So, for example, the Namibian provision is generally wider and not as narrowly
drawn as s 319 of the Canadian H Criminal Code. Section 319(2), for instance,
only prohibits the communication of statements by a person who wilfully 'promotes
hatred', whereas the Namibian provision outlaws also 'disharmony, feelings of
hostility, or ill-will' in addition to hatred. But these words are related and aim at the
same evil. It is useful to look at their meaning as defined in The Shorter Oxford
Dictionary:
I
'"hostility" - (1) the state or fact of being hostile; hostile action
esp such as involves war, acts of warfare; war. (2) opposition or antagonism.
'ill-will' - evil feeling or intention towards another, malevolence,
enmity, dislike.
"enmity" - the disposition of feelings of an enemy, ill-will, hatred.
The condition of being an enemy, a state of mutual J hostility.
1995 (1) SA p99
O'LINN J
A "malevolence" - the attribute of being malevolent, ill-will.
"malevolent" - of persons desirous of evil to others, indicative of
ill-will, disposed of or addicted to ill-will.
"disharmony" - want of harmony or agreement, discord or
dissonance, disharmonious, not in harmony or agreement.'
See The Shorter Oxford Dictionary (1987) vol 1 at 1022, 660, 1266 and
B 567.
The difference between the Canadian and Namibian provisions can be
justified in Namibia by the principle and aim of reconciliation, fraternity and national
unity, the greater definition of and emphasis on the fundamental rights to dignity,
equality and non-discrimination, the recent history of the Namibian people and the
provisions of the Namibian Constitution. Compare R v Keegstra C (supra), the
whole of the majority judgment, at 1-73.
7. The doctrine of 'overbreadth', relied on by applicant also in this application,
needs some brief discussion.
D The doctrine of 'overbreadth' is a concept developed in the USA and it
is doubtful whether this doctrine, as developed and applied in the USA in their
constitutional dispensation, is applicable in Namibia when considering the
constitutionality of a certain statute.
This doctrine was referred to in the pre-independence era in the
decision of Namibian National Students' Organisation and Others v Speaker of the
National Assembly for South West Africa and Others E 1990 (1) SA 617 (SWA).
The decision was based on the so-called Bill of Fundamental Rights contained in
annexure 1 to Proc 101 of 1985. The Constitution of Namibia differs fundamentally
from the aforesaid legislation.
F The then Supreme Court of South West Africa did not consider all the
relevant decisions in the USA and in its application of the principle made it clear that
it was not applying the doctrine as a whole by stating (at 630B-D):
'(W)e are not asked nor is it required of us to go nearly as far as the
American Supreme Court has in deciding if s 2 is "ultra vires" or "overbroad"
vis-à-vis our Bill of Fundamental Rights. In s 2 of our G Act we have no qualification
of force, violence, intimidation or "fighting talk". Section 2 makes it a criminal offence
to express peacefully one's thoughts in a manner which may induce others to agree
with you and take peaceful action as a result thereof. I find this to be unacceptable,
there being no qualification that it would lead to wholesale disruption or chaos; the
qualification of "lawful H reason" is so nebulous that it merely leads to total
confusion.'
It seems that the doctrine of 'overbreadth' was mentioned in the
alternative to the ultra vires doctrine.
Nowhere in the decision of the majority was it stated that the I
doctrine of 'overbreadth' must be applied in Namibia in considering the
unconstitutionality of a statute. The Judge in the minority clearly did not even refer to
the aforesaid doctrine.
In my respectful view, therefore, the majority decision of Namibian
National Students' Organisation v Speaker of the National Assembly J for South
West Africa is no authority for the incorporation of the
1995 (1) SA p100
O'LINN J
A overbreadth doctrine into Namibian law in the pre-independence
period and less so in the post-independence era.
In my view, the limitation of freedom of speech by the fundamental
rights relating to dignity, equality and non-discrimination and the qualifications to and
the limitations as contained in art 21(2), B supplemented in the case of
post-independence statutes by the requirements and criteria of art 22, were intended
by the writers of the Namibian Constitution to contain not only the limitations to
freedoms such as freedom of speech, but the criteria by which the unconstitutionality
of legislation infringing that speech should be measured.
C The provisions in art 22 that any limitation by a law must be authorised
by chap 3 of the Constitution, must not negate the essential content of the right or
freedom and must specify the ascertainable extent of the limitation, in addition to
some formal requirements, are very important limiting requirements and criteria,
supplementing those contained in art 21(2).
D It is very important to keep in mind that none of the other constitutions
discussed in the course of this judgment has a provision similar to art 22.
See also Section C supra, where I expressed the view that art 22(a) is
applicable also to pre-independence statutes but art 22(b) is not.
E Taken together, arts 21(2) and 22 contain a formidable array of
qualifications and criteria which in some respects cover the same field as the
'overbreadth' doctrine of the USA.
In my view, the criteria contained in the aforesaid provisions of the
Namibian Constitution were intended by the makers of the Constitution to be
exhaustive.
F I will nevertheless in this judgment also apply the 'overbreadth' doctrine
in the alternative.
Section 11(1)(b) is in line with similar provisions of the constitutions of
countries with a modern constitution and bill or charter of fundamental rights and
with similar provisions in the G penal codes of many countries, such as, for
example, s 281.2 of the revised Criminal Code of Canada; art 2 of the Amended
Penal Code of Ecuador; s 5, chap 13 of the Penal Code of Finland; art 1 of Act 5 of
10 January 1936 and arts 1, 2, 3, and 4 of Act 72-546 of 1 July 1972 of France; s
130 of the Penal Code of the Federal Republic of Germany; s 9A of the Race
Relations Act of 1971 in New Zealand; s H 153A of the Penal Code of Pakistan; s
135(a) of the Penal Code of Norway; arts 272 and 273 of the Penal Code of Poland;
art 189(2) of the Criminal Code of Portugal; art 173(4) of the Penal Code of Spain;
ss 17 and 18 of the Public Order Act of 1986 in Great Britain.
Similar or even wider words than those in s 11(1)(b) have been used I
in the penal codes of several countries. This appears from the following quotations:
Cyprus :
'. . . publicise any words . . . to promote feelings of ill-will and hostility
between different communities or classes of the population J . . .'.
1995 (1) SA p101
O'LINN J
A Denmark :
'Any person who, publicly or with intent to propagate them in a wider
circle, makes statements or any other communication by which a group of persons is
threatened, insulted or exposed to indignities on grounds of race, colour, national
extraction, ethnic origin. . . .'
Finland :
B 'Whosoever spreads statements or other notices among the public
where a certain race or national or ethnic or religious group is threatened slandered
or insulted. . . .'
Netherlands :
C 'Any person who by means of the spoken or written word . . . gives
deliberate public expression to views insulting to other persons or groups on account
of their race, . . .'
New Zealand :
'It shall be unlawful for any person: to use in any public place . . .
words which are threatening, abusive, or insulting, being matter or words likely to
excite hostility or ill-will against, or bringing

Pakistan :
'By words, either spoken or written, . . . promotes or incites, or
attempts to promote or incite, on grounds of . . ., race, . . . E caste, disharmony or
feelings of enmity, hatred or ill-will between different . . . racial groups. . . .'
Poland :
'Whoever makes, publishes or circulates any statement . . . with intent
to create, promote or which is likely to create or promote, on grounds of . . . race . . .,
feelings of enmity, hatred or ill-will F between different . . . racial groups. . . .'
See Second Decade to Combat Racism and Racial Discrimination
(Global Compilation of National Legislation against Racial Discrimination) (1991)
United Nations, New York at 17, 68, 72, 88, 116, 121-2, 129 and 130.
G When considering the evil aimed at by the Namibian Constitution and
the consequent legislation, a good case can be made out that these words do not
make the section 'overbroad'.
But even if overbroad, it is not substantially overbroad and need not
lead to a declaration that the section is unconstitutional as a whole or in part. See
New York v Ferber 458 US 73 (1982) (L Ed 2d 1113) at H 1138; Broadrick v
Oklahoma 413 US 601 (1973), particularly at 609-18; Tribe American Constitutional
Law 2nd ed at 1024-5 para 12.8, and at 1026-8.
In the further alternative, it seems to me that the offending words are
clearly severable from the words 'feelings of hostility or I hatred'. The section
should then remain constitutional with the retention of the words 'feelings of hostility
or hatred' and the deletion of the words 'disharmony or ill will'. See Johannesburg
City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 (A) at 821.
8. Although it is not necessary for the purposes of this judgment to decide
whether or not s 11(1)(b) of the Racial Discrimination J Prohibition
1995 (1) SA p102
O'LINN J
A Amendment Act 26 of 1991 is unconstitutional, my prima facie view is
that the section as a whole complies with the criteria contained in art 21(2) in that it
'imposes reasonable restrictions', necessary in a democratic society such as
Namibia, and that these restrictions are in Namibia in the interests of the sovereignty
or integrity of Namibia, national security, public order, decency or morality.
Furthermore, it complies substantially with the requirements of art 22.
B
There are many more points that may be raised and discussed but that
would unduly extend this judgment.
Suffice to say that it is my prima facie view that the whole of s 11(1)(b)
is constitutional, alternatively that only the words C 'disharmony or ill will' be struck
out as ultra vires or overbroad and thus unconstitutional.
Section G: Is the speech relied on by applicant protected speech, in terms of the
Namibian Constitution
!
D In my view, on the papers before us in this application, on a balance of
probabilities, the applicant's speech constitutes delictual as well as criminal
defamation and injuria and is in breach of the fundamental rights to dignity, equality
and non-discrimination of senior white officers in the Namibian Police.
Furthermore, if my prima facie view on the constitutionality of s 11(1)(b) E of the
Race Discrimination Act is correct, it follows that the said speech is also prima facie
a breach of that section, at least to the extent that it can be inferred that applicant
had the intent to foment feelings of hostility.
In the result, the applicant's claim that his speech was 'protected' F speech, and
that he was legally entitled to make that speech, must be rejected.
Section H: Is reg 58(32) of the Police Regulations constitutional
!
1. It is common cause that:
G 1.1 Regulation 58(32) embodies one of several offences against
duty and discipline applicable to members of the Police Force. It provides as follows:
'Offences against duty and discipline
58. A member shall be guilty of an offence and may be
dealt with in accordance with the provisions of chap 2 of the Act in these regulations
if he -
H
...
(32) comments unfavourably in public upon the
administration of the Force or any other Government department;
. . . .'
I 1.2 These regulations were promulgated pursuant to the former
(repealed) Police Act 7 of 1958 (RSA), then applicable in Namibia. They have
remained in force by virtue of the provisions of the Police Act 19 of 1990 (Nm).
1.3 The applicant is presently facing charges in an internal hearing
for an alleged contravention of reg 58(32). The proposed hearing has been
postponed pending the outcome of this J application.
1995 (1) SA p103
O'LINN J
A 1.4 There is a dispute between the parties concerning the validity of
reg 58(32) in that the respondents consider it to be valid and enforceable whilst the
applicant challenges its constitutionality.
2. Mr Smuts impressed on the Court the importance of freedom of speech and
has referred to several decisions of the Courts in Namibia, in South Africa and in
many of the highly developed democracies.
B The great importance of freedom of speech and expression in a
democracy is not in doubt.
However, I have shown in the preceding sections that freedom of
speech and expression in Namibia cannot be placed on a pedestal above all the
other fundamental freedoms and fundamental rights entrenched C in the Namibian
Constitution. So the fundamental right to dignity is described in the Constitution as
'inviolate', not so the fundamental freedom of speech and expression.
2.1 Mr Smuts impressed on the Court the need to interpret the
Constitution broadly, liberally and purposively
D 'so as to avoid the "austerity of tabulated legalism" and
so as to enable it to continue to play a creative and dynamic role in the expression
and the achievement of the ideals and aspirations of the nation, in the articulation of
the values bonding its people and in disciplining its Government'.
E See Government of the Republic of Namibia and Another
v Cultura 2000 and Another (supra at 418F-J).
I have kept this approach in mind and have applied it
wherever relevant in the course of the preceding analysis and will do so in the
remaining part of this judgment.
In doing so, a Court cannot be selective and apply this F
approach only when dealing with limitations on freedom of speech. The approach
must also be applied when considering the limitations on fundamental rights,
including the case where a fundamental freedom is in conflict with a fundamental
right. Furthermore, provisions of the Constitution relating to the function and
responsibilities of the police must also be G interpreted broadly, liberally and
purposively.
2.2 Similarly, Mr Smuts has placed 'affirmative action' very high on
the ladder of public interest matters. Again, affirmative action is accorded its rightful
place in the Namibian Constitution and its discussion is certainly a matter of public
interest, but not one the discussion of which under the banner H of free speech
justifies untruths, defamation, injuria, breaches of the fundamental rights to dignity,
equality and non-discrimination and which constitutes 'hate' or 'racist' speech in
contravention of s 11(1)(b) of the Race Discrimination Prohibition Amendment Act of
1991.
2.3 Mr Smuts repeatedly referred to the inroads made by the I
regulation on the speech by Mr Kauesa on television. If I understood him correctly,
he also puts forward this speech as an example of speech which deserves
protection and which is threatened by reg 58(32).
I have already shown that the speech in question is not J
protected speech. It is an abuse of freedom of speech and
1995 (1) SA p104
O'LINN J
A certainly not entitled to protection under the free speech
mantle.
The examples used by Mr Smuts are in main
hypothetical. Surely debates on affirmative action and its application are legitimate
issues for public discussion. The point is, however, that virulent racist attacks are not
legitimate or protected speech.
B 3. Before any further hypothetical examples of speech which may be hit by the
regulation are discussed, it is necessary to examine the scope of reg 58(3).
3.1 At the outset it must be kept in mind that any Court interpreting
the scope of the regulation when determining whether particular conduct is a
contravention of the regulation C will have to apply a restrictive interpretation.
Furthermore, the State must prove the offence beyond reasonable doubt.
Mens rea is one of the elements of the offence to be
proved beyond reasonable doubt, whether in the form of dolus or culpa. D As
pointed out in Section F2 supra, mens rea includes the element of knowledge of
wrongfulness. Ignorance of the law is a defence in Namibian law in contrast to the
Anglo-American and Continental legal systems. This fact is also in the case of this
regulation a distinguishing feature as well as a restricting factor.
3.2 Mr Maritz makes the following submissions regarding the scope
E of the regulation.
(i) 'It is submitted that on a proper interpretation of reg
58(32) it is clear that it is limited in its operation and effect. It is only applicable to
members of the Namibian Police and not to any other person in public or private
employ. See ss 2 and 7 of the Police Act, 1990.'
F (ii) 'The regulation relates only to comments and not to the
disclosure of facts.
(a) Whereas in their ordinary meanings "facts"
are things certainly known to have occurred or to be true, "comments" relate to
remarks or opinions which may or may not be based on facts. See The Concise
Oxford Dictionary 6th ed, 3rd impression (1976) at 202 and 371.
G
(b) The distinction between comments and
facts has consistently been recognised and applied in our law. See Johnson v
Beckett and Another 1992 (1) SA 762 (A) at 774.
(c) It is with respect submitted that the said H
subregulation has no application to cases where members of the police would
publicly state facts which are or may be unfavourable to the police, a Government
department or the Government in general. To suggest that disclosure of facts
relating to corruption in the police force, bribery of police officers and the like falls
within the prohibition contemplated by the said subregulation is, with respect,
incorrect.'
I
(iii) 'For any comment to fall within the prohibitive ambit of the said
subregulation, it must furthermore be clear that it had been made in "public".
(a) It is not disputed by applicant that
unfavourable comments may be raised within the Namibian Police either through the
chain of command or directly with J the Inspector-General or
1995 (1) SA p105
O'LINN J
A submitted to the Ombudsman or any
elected representative to Parliament (including the first respondent). See Record p
34 line 15-35 line 2, p 59 para 9.7.
(b) It is submitted that the prohibition contained
in the subregulation does not relate to comments made at meetings of members of
the police force and the like.'
B (iv) 'The subregulation furthermore prohibits unfavourable
comment in public only if it relates to the "administration of the Force or any
Government department".
(a) It is submitted that the word "administration"
in its context refers to acts done as part of the lawful administration of the Force or
Government departments. See S v Le Grange 1962 (3) SA 498 (A) at C 502-3; De
Kock v Helderberg Ko-op Wijnmakerij Bpk 1962 (2) SA 419 (A) at 426 in fine.
(b) Unfavourable comment on unlawful acts
such as corruption, bribery and the like will therefore clearly fall outside the scope of
the prohibition.
D (c) Similarly, public comment on acts which do
not relate to the administration of the Force or any Government department will also
fall outside the scope of the prohibition.'
3.3 The propositions of Mr Maritz numbered (i) and (iii) supra are
self-evident and need no further discussion.
E 3.3.1 Submissions (ii)(a) and (ii)(b) supra are also
correct as far as they go. I agree that when a statement is made which is clearly
identifiable as a statement of fact, such statement does not constitute a
contravention of the regulation.
F A problem would arise when facts are set
out, in the statement, but the statement includes comment on those facts.
In my view, particularly in view of the
requirement of mens rea, such comment will not be a contravention of the
regulation, provided such comment is clearly G based on the facts set out, is
justified by those facts and does not become the dominant element of the statement.
3.3.2 The examples given by Mr Maritz in subpara (c) of
para (ii) supra will in any event not constitute a contravention of the regulation, not
only when the allegations are set out as facts, but because such H allegations are
not comment 'upon the administration of the force or any Government department'.
Statements about corruption committed by
some members in the police force, bribery of some police officers I and the like do
not constitute comment on the administration as such, unless of course it goes so
far as the statement of Mr Kauesa, who commented on the whole so-called
'command structure'. The same remarks are applicable, mutatis mutandis, to the J
administration of a Government department.
1995 (1) SA p106
O'LINN J
A The command structure of the police force
may be equated with the administration of the force, depending on a careful analysis
of the context of the statement.
3.3.3 I am not convinced that Mr Maritz is correct when
he makes the submission in (iv)(a) supra that the word B 'administration' in the
context of this regulation refers only to acts done as part of the 'lawful'
administration. It seems to me that even unlawful acts done by the administration,
such as bribery and corruption, do not per se make the 'administration' unlawful,
although the said acts are unlawful. The C administration remains the
'administration' for the purposes of the regulation, bribery or corruption by individuals
in the force notwithstanding. And, of course, as pointed out supra, allegations of
individual acts of bribery and corruption by individuals in the force or a Government
department D do not constitute comment on the 'administration' as such and for
that reason do not constitute contraventions.
Unfavourable comment in the form of mere
allegations of corruption, bribery and the like by the 'administration' as such will
constitute a E contravention of the regulation, provided all the elements of the
offence are proved beyond reasonable doubt.
3.4 It follows from the above that only comment unfavourable to the
'administration' as such can constitute a contravention of the regulation.
F The 'administration' of the police is the 'management' of
the police or the function of managing or management. Similarly, the administration
of a Government department is the 'management' or the function of managing or
management of such department.
Although the latter interpretation regarding 'Government
G department' is not based on express words, it is justified from the context of the
whole regulation and the need for a restrictive interpretation. See The Oxford
Advanced Dictionary of Correct English by A S Hornsby.
3.5 In my view, a bona fide and truthful discussion of the problem of
corruption and bribery in the police force and/or any H Government department
with a view to combating it does not in itself constitute unfavourable comment.
Similarly, a bona fide and truthful discussion of discrimination and/or affirmative
action in the police force and/or a Government department does not in itself
constitute 'unfavourable' comment of the administration of the force or a Government
department.
I
3.6 It must be apparent from the aforesaid discussion that the scope
of the regulation is indeed very limited.
Most, if not all, of the hypothetical examples put forward
by Mr Smuts will not constitute contraventions. There is therefore J no 'breathtaking
sweep' as argued by Mr Smuts.
1995 (1) SA p107
O'LINN J
A 4. Mr Smuts contends that a restrictive approach is required. To avoid confusion
about what precisely should be subjected to a 'restrictive approach', the submission
of Mr Smuts as contained in his written heads of argument must be quoted. It is as
follows:
'These restrictions upon the exercise of the fundamental rights referred
to in art 21(1) follow a similar formulation to the B restrictions upon the right to
freedom of expression contained in art 10(2) of the European Convention of Human
Rights. In applying these restrictions in Europe, the European Court of Human
Rights has adopted an approach of restrictively interpreting these exceptions to the
fundamental right of freedom of expression, to ensure that the exceptions are not
applied to suppress the freedom but only insofar as it is necessary for the specific
purpose contemplated by the C expressly worded restriction. See Sieghart The
International Law of Human Rights (1983) at 329 et seq and the authorities collected
there.'
Mr Maritz appears to agree with Mr Smuts.
I have already pointed out in preceding Sections that a restrictive
approach is not justified when testing the limitations placed by a D fundamental
right on a fundamental freedom. It appears that the converse is rather true - namely
that, when a fundamental freedom infringes on or conflicts with a fundamental right,
the freedom must be restrictively interpreted.
There is no doubt that, when interpreting the limitations placed by a E
statute on a fundamental right or freedom, such statute should be restrictively
interpreted.
The more difficult question is whether the requirements contained in art
21(2) and art 22 for limitations to fundamental rights or freedoms must be
restrictively interpreted.
F The problem is complicated by the unique provisions of art 22.
It does not appear to me that any further discussion of the ambit of the
so-called restrictive approach will be helpful in this case.
5. I accept that the applicable criteria in art 21(2) require that the limiting statute
in this particular case must:
G (a) impose a reasonable restriction on the exercise of the freedom
of speech and expression;
(b) which is necessary in a democratic society; and
(c) is required in the interest of:
(i) sovereignty or integrity of Namibia;
(ii) national security;
H (iii) public order and/or
(iv) decency or morality.
Neither Mr Smuts nor Mr Maritz contends that reg 58(32)
must also satisfy the requirements of art 22. Both accepted that reg 58(32) must be
regarded in effect as pre-independence legislation.
I This argument is premised on the fact that reg 58(32)
was part of the pre-independence set of regulations enacted in terms of s 33(1)(f) of
the pre-independence Police Act 7 of 1958, notwithstanding the fact that the said set
of regulations is deemed to have been made by first respondent in terms of s J
42(1)(g) of the Police Act of 1990.

1995 (1) SA p108


A The Police Act of 1990 repealed the 1958 Act, except for
the aforesaid regulations passed under that Act. The deeming provision was the
mechanism used to ensure the continued validity of the regulations. It means in
effect that although the Police Act of 1958 was repealed, the regulations passed
under it were never repealed. The said regulations can B therefore be regarded as
pre-independence legislation.
However, as I have already pointed out in preceding
Sections, the criteria in art 22(a) are applicable also in the case of pre-independence
legislation. On the other hand, subpara (b) of art 22 cannot be and is not applicable
to pre-independence legislation.
C
6. It is now necessary to deal shortly with the origin and purpose of the
regulation.
6.1 Articles 116(2), 119(2), 122(2) give the power to and impose the
duty on, respectively, the Inspector-General of the Police, D the Chief of the
Defence Force and the Commissioner of Prisons 'to cause charges of indiscipline
amongst members of the respective services to be investigated and prosecuted' and
to ensure the 'efficient administration' of those services. The Constitution itself
therefore contemplates legislation and actions in terms thereof which will of
necessity infringe on E freedoms such as freedom of speech and expression of
policemen.
6.2 The Constitution itself in art 115 provides:
'There shall be established by Act of Parliament a
Namibian police force with prescribed powers, duties and procedures in order to
secure the internal security of Namibia and to maintain law and order.'
F 6.3 The Police Act of 1990, in s 45(2) read with s 42(1)(g), gave its
sanction to the particular set of regulations, of which reg 58(32) is one. Regulation
58 as a whole defines 41 offences against duty and discipline - all of them clearly
intended to discipline the police force.
G 6.4 The discipline is necessary in the light of the duties and
responsibilities placed on the police force by the Constitution as well as the Police
Act. The duties set out in s 13 of the Police Act of 1990, pursuant to the Constitution,
are the following:
'(a) the preservation of the internal security of Namibia;
(b) the maintenance of law and order;
H (c) the investigation of any offence or alleged offence; and
(d) the prevention of crime.'
7. I accept the following contentions of second respondent regarding 'discipline'
set out in para 11.4 in his answering affidavit and accept his factual allegations on a
balance of probabilities insofar as such allegations may be in dispute:
I
'Discipline :
(a) Discipline is the golden thread running through all the activities
of the Namibian Police and binding it together as a coherent and effective force.
(b) The deterioration of the discipline in the Namibian Police will
severely affect its effectiveness and hamper the State in the J maintenance of its

1995 (1) SA p109


O'LINN J
A security, integrity and law and order. Without discipline
there will be chaos in the force and police officers with substantive powers entrusted
to them by statute may act arbitrarily or prompted by improper motives or irregularity.
This in turn will lead to a total breakdown in security, law and order.
(c) The Namibian Police, however, recognises the need that
negative B comments on its administration (including the behaviour of senior
officers, the incompetence of other members of the force and the like) should be
raised and investigated. For that purpose it recognises and prescribes a complaints
procedure through the chain of command. In addition, I receive complaints directly
and make myself available to deal with complaints on all levels from all members. All
complaints are properly investigated and, if they are found to have merit, they are C
acted on in accordance with the law. If a member is still not satisfied after exhausting
the internal channels of complaint (and I must stress that a member is not restricted
in his freedom of speech or in the extent to which he is entitled to raise complaints
internally), such member is entitled to, according to the prescribed procedure,
approach the office of the Ombudsman, and/or bring the complainant to the attention
of D the first respondent and/or duly elected representatives in the National
Assembly or National Council.
(d) It is, however, I respectfully submit, necessary to limit the right
of a police officer to negatively comment upon the administration of the force of
which he is a member or any government department of the State he or she serves
(and the E freedom of speech and expression is only to that extent restrained).'
I similarly accept the following averments of the second respondent in
regard to the 'confidence and trust of the public' in para 11.2(a)-(f); his averments
relating to 'confidentiality and trust' in para 11.3(a)-(c); his averments relating to
'loyalty' in para F 11.5(a)-(b) and his averments relating to 'objectivity' in para
11.6(a)-(d):
'Confidence and trust of the public :
(a) It is my experience that the effectiveness with which the
Namibian Police can perform their functions depends to a large extent on goodwill
amongst members of the public generated by G the police and the perceptions of
the public of the Namibian Police as a respectable and authoritative instrument of
government which they can trust and depend on.
(b) Without such goodwill, confidence and trust, it is almost
impossible for the Namibian Police to properly perform its functions and to effectively
protect and maintain the H sovereignty and integrity of Namibia, its national
security and public order.
(c) The Namibian Police has, especially since the date of
independence, gone to great lengths and incurred substantial expenses to improve
its image amongst members of the public generally. It has done so not only by
urging police officers to execute their duties in a professional and effective manner, I
but also (in co-operation with the Namibian Broadcasting Corporation) presented a
series on the Namibian Police on television and on the radio regarding the functions
and operations of the Namibian Police, maintained a Police Public Relations
Advisory Council, established a public relations office in the Namibian Police,
attended many meetings of interest groups assuring them of the co-operation of the
J Namibian Police and in general publicly appealed to

1995 (1) SA p110


O'LINN J
A the public at large for support and co-operation. The
Namibian Police has at all times placed a very high premium on its image and public
co-operation in its war against crime and the realisation of its other functions.
(d) Given the history of this country prior to the date of
independence, which I am advised is notorious and not necessary B to reiterate for
purposes of this application, the Namibian Police requires its members to be
absolutely loyal to the Namibian State, its Constitution and the Government of the
day and, in order to enhance its co-operation with the public, also strive to make that
loyalty perceptible.
(e) Public criticism of the administration of the Namibian Police
carries with it the serious possibility that irresponsible C police officers may
maliciously or unjustly or for their own improper motives launch unjustified attacks
on the Namibian Police. I respectfully submit that the statement made by the
applicant in public is almost a textbook example of such a case.
(f) The consequence of the comments made by the applicant
during the course of the interview conveyed to the public (by one of the most senior
non-commissioned officers of the Namibian D Police who the public expects to be
"informed" by virtue of his position) that the Namibian Police was ineffective to
maintain security, law and order, was corrupt, fraught with irregularities, intent on
crippling the Government and in cahoots with terrorists and high treasonists. This
had a serious negative effect on the image and effective operations of the Namibian
Police. Loyal citizens who are required and E expected to transmit information to
the police, inter alia, of subversive activities against the State, crime and the like,
would be, in my experience, reluctant to part with such information or take the
Namibian Police into their confidence when one of its senior non-commissioned
officers publicly makes statements to the effect that the command structure of the
Namibian Police has the same subversive objects or is aiding F and abetting such
subversive elements. I am advised that this aspect can be dealt with more
appropriately in the course of legal argument, but I nevertheless wish to refer the
honourable Court to the affidavit of Henning Jacobus Snyman annexed hereto and
marked as annexure "C".
Confidentiality and trust :
G (a) Members of the Namibian Police are, by virtue of the office they
hold and the nature of their powers and duties, entrusted by the public with
information relating to the maintenance of law and order, national security, public
safety and the like.
(b) In so disclosing information and entrusting the Namibian Police
with such information, the public, in my experience, expects H the police not to
disclose such information otherwise than in accordance with the law. Members of
the public know that they have a duty to convey relevant facts and information to the
police and that, in certain circumstances, they can be compelled by due process to
disclose such facts and information, but at the same time they expect that the
Namibian Police would use such information responsibly and in accordance with the
provisions of the law.
I
(c) Members of the Namibian Police are therefore in a privileged
position in gathering confidential information and actively, through overt and covert
operations in accordance with law, gather any information necessary to execute its
functions properly. Unless the treatment of such information is properly regulated
there is a serious risk of abuse. Thus, when a police J officer is entrusted with
information relating to the activities of a
1995 (1) SA p111
O'LINN J
A particular government department and is entrusted with
such information by employees working in such department, it would be a serious
breach of confidentiality and secrecy if such officer is to use it to criticise other
departments of government for political or whatever other purposes. This, in turn, will
deter members of the public to really part with information.
B Loyalty :
(a) The loyalty of members of the Namibian Police to the Namibian
State, its Constitution and to the Government of the day should be beyond question.
As employees of the Government, members of the Namibian Police occupy a
position of trust, and a special position of trust at that.
(b) Such loyalty and mutual trust is the basis on which the C
relationship between employer and employee came into being. The Government
regards comments, positive and negative, of its employees about its administration
as necessary and therefore created internal channels of communication and
grievance procedures (as stated above). It does, however, expect its employees to
preserve that relationship of loyalty and trust and not to publicly comment negatively
on its administration.
D
Objectivity :
(a) Police officers in the Namibian Police are expected to exercise
their powers and perform their duties in a fair, unbiased, responsible and objective
manner. It is necessary for the realisation of the functions of the Namibian Police
that the E public should perceive police officers to be unbiased and objective and
for that purpose be assured that investigations would be carried out in a similar
fashion.
(b) Without such confidence on the part of the public, the
enforcement of law and order by police officers may fall in disrepute.
(c) When a police officer negatively comments in public on certain
government departments or the Namibian Police, such comments F are bound to
be construed by members of the public as indicative of the personal views of the
police officer concerned, which may in turn lead to distrust, disassociation and
suspicion.
(d) Similarly, if a police officer is permitted to comment negatively in
public on the administration of the police force or other departments of government,
such comments may be based G on inadequate facts, untrue or misleading facts
(which the police officer bona fide believed) and, in order to rectify the damage
caused by such comments, the Namibian Police or the Government may be forced
to disclose security-sensitive particulars.'
H 8. Mr Smuts relies strongly on the American doctrine of 'overbreadth'. His
threshold submission is:
'It is respectfully submitted that reg 58(32) is in clear conflict with the
applicant's right to freedom of speech and expression embodied in art 21(2)(a) of the
Constitution of the Republic of Namibia and that the regulation constitutes an
impermissible I derogation from that right. It is respectfully submitted that the
wording of the regulation is over-broad on its face and has been cast in terms so
wide and over-broad that it far exceeds the limitations which may be placed upon
the right to free speech embodied in art 21(2) of the Constitution and accordingly
falls to be struck down.'
9. Mr Maritz in turn makes the following submissions in regard to the J doctrine
of overbreadth.
1995 (1) SA p112
O'LINN J
A '(i) If the requirement relating to the reasonability of the
restrictions on the protected freedom is properly interpreted and applied, there is no
room, it is submitted, in Namibian law for the concept of overbreadth.
(ii) If a restriction on such a right "does not aim specifically at
the evils within the allowable area of (government) control, but . . . sweeps within its
ambit other activities that constitute an exercise" of protected rights, it cannot B be
argued that the restriction contained is reasonable.
(iii) It is conceded that the doctrine of overbreadth was argued and
accepted in certain decisions of this honourable Court (mostly notably before the
date of independence when such doctrine was applied in relation to the Bill of Rights
annexed as a schedule to Proc R101 of 1985). It is submitted that, having regard to
the substantial differences between C the Namibian Constitution and the
development of criteria around the limitation of free speech under the American Bill
of Rights, this honourable Court should be careful to introduce a doctrine which is
essentially foreign and which need not be introduced if the provisions of art 21(2) are
properly applied.
D (iv) In the alternative, and in the event of this honourable
Court finding that the said doctrine is of application, it is submitted that an
over-broad statute or provision does not per se result in the facial invalidation
thereof.
"Implicit in the overbreadth analysis is the
notion that a law should not be voided on its face unless deterrents of protected
activities is substantial. Thus the Court has not struck down on their face trespass,
breach of peace, E or other ordinary criminal laws in which the numbers of
instances in which these laws may be applied to protected expression is small in
comparison to the number of instances of unprotected behaviour which are the laws'
legitimate targets. A statute drafted narrowly to reflect a close nexus between the
means chosen by the Legislature and the permissible ends of government is thus
not vulnerable on its face simply because occasional F applications that go beyond
constitutional bounds can be imagined."
See Tribe American Constitutional Law 2nd ed at
1024-5 para 12-8.
(v) Recognition of the "substantiality requirement" to
freedom of speech was given in Broadrick v Oklahoma (1973) 413 US 601,
particularly at 609-18. As Tribe indicates the trend in G America is rather, unless
the law is rotten at its very root or clearly substantially over-broad, to retain the law
and chisel its application in practice by the application thereof in individual cases.
See Tribe at 1026-8.
(vi) This was, for instance, done in New York v Ferber (1982)
458 US 747 where the Court, notwithstanding a law having the effect or potential to
deter protected expression and, H indeed, on the wide meaning of certain words
therein also affected protected speech, refused to invalidate the statute, inter alia,
because it was "unconvinced that the identified overbreadth is incurable and would
taint all possible applications of the statute".
(vii) It is submitted that, at worst, reg 58(32), even if it may sweep
within its ambit protected speech, should nevertheless I not be invalidated but
rather, in the application thereof to any particular case, it should be interpreted with
due regard to the Constitutional bounds thereof.'
10. I agree in substance with the aforesaid submissions of Mr Maritz. I have
already indicated in Section F supra, read with the analysis in preceding sections,
that in my view, the incorporation of the J doctrine of overbreadth in Namibian law
is neither justified by the
1995 (1) SA p113
O'LINN J
A pre-independence judgment in Namibian National Students'
Organisation v Speaker of the National Assembly for SWA and Others (supra) nor by
any other provisions of the Constitution of Namibia and that the criteria contained in
art 21(2), supplemented by those in art 22, are those to be applied when testing a
limitation placed by statute on a freedom enumerated in art 21(2), with the proviso,
however, that B subpara (b) of art 22 is not applicable to pre-independence
statutes.
11. Mr Smuts relies heavily on decisions of the US Supreme Court dealing with
the 'overbreadth' doctrine and the striking down of speech or expressive conduct
'because of disapproval of the ideas expressed'. These cases are RAV v City of
Saint Paul, Minnesota 505 US 305 (1992) C at 317; Terminello v Chicago 337 US 1
(1949); and Houston v Hill 482 US 451 at 459.
I have discussed, distinguished and rejected these decisions as
inapplicable in Namibia, insofar as they strike down legislation because the
legislation proscribes speech or expressive conduct where it aims at the ideas
expressed, ie because of the content. I have D similarly rejected the 'clear and
present danger' test as inapplicable and nothing more need be said here. See
Sections D and E supra, read with Section C.
It is apparent from the above that the Namibian Police Force, in
relation to its origin, duties and responsibilities, and the regulations it requires to
discipline its force, cannot be compared E to municipal police forces, city police
forces or even provincial police forces in other countries, particularly in the USA. In
the available decisions of US Courts on the constitutionality of regulations applicable
to discipline in such state or municipal police forces in the USA, the powers and
duties of these police forces are not set out.
F
It is important to draw a distinction between the particular force in
question in the USA and the Namibian Police Force and to distinguish the decisions
of the Courts also on that ground. Even more important is the need to distinguish
between the Government and city administrations in the various countries controlling
the various G police forces and the Government of Namibia which controls the
Namibian Police Force.
Obviously it is futile to use a regulation applicable in a State, municipal
or university administration and use it, and the decisions relating to it, as precedents
for the Namibian Government and the Namibian Police Force.
H
11.1 The case of Thornhill v State of Alabama sets out the nature of
the doctrine of overbreadth but is not in point in Namibia except where it reiterates
the requirement that the liberty is to discuss publicly and truthfully all matter of public
concern. (The italicising is mine.)
I 11.2 The case of Muller v Conlisk (1970) 429 F 2d 901 can be
distinguished on at least two grounds:
(i) The case is about a detective of the city police
who was convicted of transgressing 'a rule' of the department. This cannot be a
precedent for the Namibian National J police as has been shown supra.
1995 (1) SA p114
O'LINN J
A (ii) The rule was much wider than reg 58(32) in that it
was not restricted to public speech. The rule prohibited policemen from engaging in
any activity, conversation, deliberation or discussion which is derogatory to a
department, or any member or policy of the department.
B It was held that the regulation was overbroad because it
prohibited all speech, including private conversation.
I have no quarrel with this decision.
11.3 Gasparinetti v Kerr (1977) 568 F 2d 311 cert den 436 US 903
can be distinguished, inter alia, on the following grounds:
C (i) It is a city police department regulation. Nowhere
are the authority, powers and function of such police stated. It cannot be compared
to the Namibian National Police Force in respect to origin, powers, duties and
responsibilities.
(ii) The first regulation held to be overbroad by the
majority of two to one included private communications and included D also
comment on other individual members of the force.
The second regulation declared overbroad
by the majority included in its prohibition 'public disparagement or unfavourable
comment' on an individual officer, or on the E rules, regulations, procedures or
orders of the police department.
Although there are some similarities with
reg 58(32), particularly in regard to the words 'unfavourable comment' in regard to
the second regulation declared F unconstitutional, the Namibian regulation differs
in important respects and is much more restricted, particularly so far as the
Namibian regulation is restricted to unfavourable comment on the 'administration' of
the Police Force and a Government department. The Namibian regulation does not
prohibit such comment on G individual officers, whether senior or not.
(iii) (a) One of the main reasons for holding the chap 6:7
'public disparagement' regulation invalid was that the words 'comment unfavourably'
is not a 'term susceptible to objective' measurement.
H The majority continued:
'It is precisely this kind of broad,
over-inclusive restriction on speech which deprives First Amendment freedoms of
the breathing space these liberties need to survive, since the person regulated can
never be certain that he will not be penalised for speech which is indeed protected.
That avoidance of this I chilling effect is at the heart of the overbreadth doctrine.'
(My emphasis.)
(b) The majority of the Court also held:
'In this case we can recognise a
significant Government interest in regulating some speech of J police officers in
order

1995 (1) SA p115


O'LINN J
A to promote efficiency, foster loyalty
and obedience to superior officers, maintain morale, and instill public confidence in
the law enforcement institution. To achieve these ends regulations may be
promulgated, but their restrictive effect may extend only as far as is necessary to
accomplish a legitimate Government interest. As the Supreme Court said in a
related B context, policemen, like teachers and lawyers, are not relegated to a
watered down version of constitutional rights.'
The italicised words in the preceding
paragraph are confusing. The said words seem to conflict with the preceding words
to the effect that a significant C Government interest to regulate some speech of
police officers is recognised in order to promote efficiency, foster loyalty and
obedience to superior officers, maintain morale and instil public confidence in the
law enforcement institution.
D (c) Rosenn J, in his dissenting judgment, held
that the aforesaid two regulations were constitutional and agreed with the District
Court's judgment in this regard.
Rosenn J referred to the rôle of the
municipal police E force and held that, regardless of their historical origin,
'the police generally resemble the
military - a closed isolated sector with its own customs and needs, . . . rather than
other employees in the public sector.'
He went on to say:
F 'This structure need not necessarily
be imposed, but as the Supreme Court indicated in Kelley v Johnson 425 US 288,
96 SC 1440, 47 L Ed 2d 708 (1976), the choice of the local Government to organise
along para-military lines must be respected by the Court in cases in which the
conduct of police regulations is challenged rather than the structure of the force
itself.'
G Here it must be pointed out that in
Namibia, there is no doubt that the police, in terms of the Constitution of Namibia, as
well as the Police Act, is organised on 'para-military lines' and is analogous to a
'military society' to be differentiated from a civilian society.
H This distinction also exists in the
Indian constitution where in art 33 the police and the military forces are equated.
Article 33 reads as follows:
'Parliament may, by law, determine
to what extent any of the rights conferred by this Part shall, in their I application to,
-
(a) members of the Armed Forces; or
(b) the Forces charged with the maintenance of
public order . . .
be restricted or abrogated so as to ensure the
proper discharge of their duties and the maintenance of discipline among them.'
J (The emphasis is mine.)
1995 (1) SA p116
O'LINN J
A Although the police force is not expressly
mentioned in the article, it is clear that 'the forces charged with the maintenance of
public order' clearly implies the police force. This is also recognised in the following
decision of the Indian Supreme Court: B Kameshivor Brasad and Others v The
State of Bihar and Another (1962) 3 SCR 369 at 374.
In Namibia, as pointed out supra, s 13(b) of the
Police Act of 1990 read with art 115 of the Constitution, entrusts to the Police Force
'the maintenance of law and order' and s 13(a), 'the C preservation of the internal
security of Namibia', in addition to its functions to 'investigate any offence or alleged
offence' and 'the prevention of crime'.
In arts 115-123 of the Namibian Constitution, the
Police Force is equated with the Defence Force and Prison Service in some
respects.
D
The majority of the Court in the Gasparinetti case
did not equate the police force with the military as Rosenn J has done.
The approach of Rosenn J is thus more
appropriate to E the Namibian situation. It is therefore apposite to quote more
extensively from the judgment of Rosenn J. The learned Judge approved of the
following quotation from the majority judgment in Kelley v Johnson (supra):
F 'For the reasons which differentiate military society
from civilian society, we think Congress is permitted to legislate both with greater
breadth and greater flexibility when prescribing the rules by which the former shall
be governed than when prescribing rules for the latter. Parker v Levy 417 US 733,
756, 94 SCt 2547, 2561, 41 L Ed 2d 439 (1974). Similarly, states G must be given
considerable leeway in legislation regulating the local equivalent of the military, the
police. In today's highly complex and mobile society, in which crime is assisted by
enormous advances in technology, transportation and instant communication, the
policeman is more than ever a trained officer entrusted with responsible and serious
assignments as H a public servant. His work habits on active duty require
disciplined conduct, regimentation and frequent strict adherence to regulation and
authorised detail. . . . It is essential that a policeman's training be such that he be
taught to obey strict discipline, procedure and rules in order to lend practical
assurance that he will follow I command and not abuse his awesome authority.
Stradley v Anderson 478 F 2d 188, 190 (8th Cir 1973). The State, therefore, has a
significant governmental interest, succinctly expressed by the majority, "in regulating
some speech of police officers in order to promote efficiency, foster loyalty and
obedience to superior officers, maintain morale, and instill public confidence in the
law enforcement J institution".'

1995 (1) SA p117


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A Rosenn J commented on the majority approach as
follows:
'The majority have drawn a bright line between
chap 6:7's prohibition against public disparagement and public disrespect and its
prohibition against public unfavourable comment. It seems that the distinction is
really trivial, for the three provisions read B together attempt to serve an identical
purpose, the deterrence of public statements which tend to destroy morale and unity
within the ranks of the police force and public confidence in the police department.
There is a powerful need within a police department for unity and obedience; there is
an equally strong C necessity for public confidence. It is of great importance that
subordinates show proper respect to superior officers. Without some rules limiting
public criticism, morale and public confidence in the police would likely be
undermined.
Chapter 6:7 does not prevent criticism absolutely.
A reasonable latitude for criticism is permitted. D Police officers are free to criticise
among themselves or to level criticism at their superiors. Only criticism which
publicly disparages police policy and superiors is restricted. Private channels of
communication are left open. The majority ignore this freedom of the police to
exercise an extensive range of speech, speech which may be highly critical, E
derogatory, or inflammatory. Any private communication is permissible; any public
communication which is not disparaging is also permissible. The fear of chilling the
exercise of free speech expressed by the majority is overdrawn. Even the cases
which the majority cite support my view that the line for constitutional purposes is not
between commenting and disparaging but is between F public and private speech.'
11.4 The majority decision in the US Supreme Court case of Parker v
Levy 417 US 733 (41 L Ed 2d 439, 94 SCt 2547 (1974)) in substance followed the
same approach as Rosenn J in the case of Gasparinetti insofar as it distinguishes
between the military G society and the civilian society and the approach to be
applied when testing a military rule or regulation against fundamental freedoms to
decide its constitutionality.
In this case the Supreme Court upheld the
constitutionality of arts 133 and 134 of the military code which provided for
punishment of the following offences:
H
'133: conduct unbecoming to an officer and gentlemen;
'134: all disorders and neglects to the prejudice of good
order and discipline in the armed forces, not otherwise specifically mentioned in the
Code'.
Rehnquist J, expressing the view of five members of the
Court, held that:
I
'(1) (B)ecause of the differentiations between military
society and civilian society, Congress was permitted to legislate with greater breadth
and flexibility when prescribing rules governing the military, (2) neither art 133 nor art
134 was void for vagueness under the due process clause of the Fifth J
Amendment, since each article had been

1995 (1) SA p118


O'LINN J
A construed by military authorities in such a manner as to
at least partially narrow its otherwise broad scope and to supply considerable
specificity by way of examples of covered conduct, (3) the officer in the case at bar
could not successfully attack the articles for vagueness, since under construction of
the articles by military authorities, he could have had no B reasonable doubt that
his public statements urging Negro enlisted men not to go to Vietnam if ordered to
do so were punishable under the articles, and (4) arts 133 and 134 were not facially
invalid because of overbreadth under the First Amendment - the fundamental
necessity for obedience and discipline rendering permissible within the military that
which would be constitutionally impermissible outside it, and the C articles, as
construed by military authorities, prohibiting a wide range of easily identifiable and
constitutionally prescribable conduct, including that involved in the instant case.'
11.5 The decision of the European Court of Human Rights in the
case of Engel and Others, judgment of 8 June 1976, Series A No 22 at D 17, is
also in point insofar as it distinguishes between military and civilian society. There art
147 of the Military Penal Code of Holland, under which the applicants were charged
and convicted, provided as follows:
'Any person who, by means of a signal, sign, dumb show,
speech, song, writing or picture, endeavours to undermine discipline in E the
armed forces and who, knowing the tenor of the writing or picture, disseminates or
exhibits it, posts it up or holds stocks of it for dissemination, shall be liable to a term
of imprisonment not exceeding three years.'
In para 100 of the judgment, the Court said the following
when F answering whether the interference with the freedom of expression was
'necessary in a democratic society for the prevention of disorder'.
'Of course, the freedom of expression guaranteed by art
10 applies to servicemen just as it does to other persons within the jurisdiction of the
contracting States. However, the proper G functioning of an army is hardly
imaginable without legal rules designed to prevent servicemen from undermining
military discipline, for example by writings. Article 147 of the Netherlands Military
Code (para 43 above) is based on this legitimate requirement and does not in itself
run counter to art 10 of the Convention.'
H It must be remembered that art 10 referred to is the
equivalent of our art 21.
The majority decision continued in para 101:
'The Court notes that the applicants contributed, at a time
when the atmosphere in the barracks was somewhat strained, to the publication and
distribution of a writing the relevant I extracts from which are reproduced above
(paras 43 and 57 above). In these circumstances the Supreme Military Court may
have had well-founded reasons for considering that they had attempted to
undermine discipline and that it was necessary for the prevention of disorder to
impose the penalty inflicted. There was no question of depriving them of their
freedom of expression but only of punishing the abusive exercise of that freedom on
their part. Consequently, it does not appear that J its decision infringed art 10.2.'

1995 (1) SA p119


O'LINN J
A (Article 10.2 is the equivalent of our art 21(2).)
The Court dealt as follows with the argument that art 10
relating to freedom of speech was breached:
'. . . The Court emphasises that the distinction at issue is
explicable by the differences between the conditions of military and of civil life and,
more specifically, by the "duties" and "responsibilities" peculiar to members of the B
armed forces in the field of freedom of expression.'
In the result, the Court held unanimously that the
provisions of the Code aforesaid did not infringe art 10 (relating to freedom of
speech).
It is interesting to note that art 11 of the convention C
exempted lawful restriction on the exercise of the right to peaceful assembly,
association and freedom to strike from the prohibition of restrictions on such rights in
the case of the armed forces, the police or the administration of the State.
11.6 It is also useful to compare the approach discussed supra with
those in the prison 'society' and prison environment discussed D in Choudry v
Jenkins 559 F 2d 1085 (United States Court of Appeals), where a distinction was
drawn between the situation relating to prisons as compared with civilian life, other
Government departments, public schools, etc. The majority and minority did not
differ on the merits, but only on whether or not the District Court was correct in
granting summary judgment.
E
Pell J, dissenting, said inter alia:
'One of the primary functions of Government is the
preservation of societal order through enforcement of the criminal law, and the
maintenance of penal institutions is an essential part of that task. . . .
In so balancing the respective interest of the individual to
F exercise his freedom of speech without regard to possible deleterious
consequences to the governmental interest and still retain his employment, I think
the public interest is entitled to very heavy weight in the measuring scales. . . .
I also hold no brief for prison conditions as they exist
generally throughout the country; but I would be ignoring G reality if I did not also
recognise that prison administrators are facing almost insuperable problems, which
certainly were not bettered by the irresponsible mouthing of this plaintiff, not at a
corner bar "gabfest" but at a press conference called by him.'
12. In the circumstances, and for the reasons herein set out supra, the H
majority decision in Gasparinetti does not apply to the Namibian situation and should
not be followed.
The minority decision of Rosenn J, the majority decision in Parker v
Levy and the unanimous decision of the European Court of Human Rights in the
case of Engel and Others can and should be applied to the Namibian situation
mutatis mutandis.
I 13. When I apply the aforegoing analysis and reasoning to reg 58(32), I find:
(a) that the regulation complies with the provisions of art 21(2) of
the Namibian Constitution in that it:
(i) imposes reasonable restrictions on the exercise of
the rights and freedoms contained in subart (1) of art 21, including on the freedom of
speech and J expression;
1995 (1) SA p120
O'LINN J
A (ii) the restrictions are necessary in a democratic
society; and
(iii) is required in the interests of sovereignty and integrity of
Namibia, national security and public order.
(b) The regulation complies with art 22(a) of the said
Constitution in that:
B (i) it is of general application;
(ii) does not negate the essential content of the
freedom of speech and expression;
(iii) is not aimed at a particular individual.
(c) In the alternative, in the light of my conditional assumption of
the applicability of the doctrine of 'overbreadth' as set C out supra, I find:
(i) the regulation is not overbroad; alternatively,
(ii) it is not substantially overbroad;
(iii) it is not unconstitutional.
In the result:
The application for a declaratory order is dismissed with costs.
D
Strydom JP concurred.
Applicant's Attorneys: Legal Assistance Centre. Respondents' Attorney:
Government Attorney.
1995 (1) SA p120