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'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.
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.