MAHOMED CJ, DUMBUTSHENA AJA and HANNAH J
1995 April 5-7; October 11 Case No SA 5/94
Flynote : Sleutelwoorde
H decisions on matters not put before them by litigants - Judge coming across point not argued before him but which he thinks material to case under duty in such circumstances to inform counsel on both sides and invite them to submit arguments either for or against such point - Undesirable for Court to deliver II judgment with substantial portion containing issues never canvassed or relied on by counsel.
Constitutional practice - Courts - Decisions of - Court to decide no more than absolutely necessary for decision of case - Such rule particularly applicable in constitutional issues - Constitutional law to be developed cautiously, judicially and pragmatically.
Constitutional law - Constitution - Interpretation of - Constitution of the Republic of Namibia Act 1 of 1990 (Nm) - When construing provision in Constitution words to carry their ordinary meaning and content - Reading into such words extraneous meanings through comparing their meaning to words
Constitutional law - Human rights - Fundamental rights and freedoms in terms of chap 3 of Constitution of the Republic of Namibia Act 1 of 1990 (Nm) - Protection of - In assessing extent of limitations to rights and freedoms Court to C be guided by values and principles essential to free and democratic society respecting inherent dignity of human person, equality, non-discrimination, social justice and other such values.
Constitutional law - Legislation - Validity of - Regulation 58(32) deemed to have been made under Police Act 19 of 1990 (Nm) prohibiting member of police force D from commenting unfavourably in public upon administration of force or other government department - In terms of art 22 of Constitution of the Republic of Namibia Act 1 of 1990 (Nm) legislation providing for limitations not to be aimed at particular individual and to specify ascertainable extent of such limitation and
E identify article or articles on which authority to enact such limitation resting - Regulation 58(32) not specifying ascertainable extent of limitations it was imposing - All comments unfavourable to administration of force and any comment in public unfavourable about any government department restricting exercise of right or freedom - In terms of art 21(2) of Constitution limitations to
F right of free speech to be both reasonable and necessary - Stricter interpretation of restrictions with respect to such limitation required - Courts to be strict in interpreting limitations to rights so that individuals not unnecessarily deprived of enjoyment of their rights - Regulation 58(32) arbitrary and unfair and its objective obscured by its overbreadth and not easily identifiable - G Limitation not proportional to objective - Regulation 58(32) not designed to infringe freedom of speech and expression as little as reasonably possible in order to achieve its purpose - Regulation 58(32) over-inclusive in range of unfavourable comments prohibited - Regulation 58(32) invalid and without force H and effect.
Constitutional law - Human rights - Fundamental rights and freedoms in terms of chap 3 of Constitution of the Republic of Namibia Act 1 of 1990 (Nm) - Protection of - Onus of proof - Onus of proving limit or restriction on right or freedom guaranteed by Bill of Rights on party alleging such limitation or restriction.
Constitutional law - Human rights - Right to freedom of speech and expression in terms of art 21(1)(a) of Constitution of the Republic of Namibia Act 1 of 1990 (Nm) - Police officer participating in panel discussion on television commenting on affirmative action in police force - Police officer charged with contravention of reg 58(32) deemed to have been made under Police Act 19 of 1990 (Nm),
prohibiting member of police force from commenting unfavourably in public upon administration of force or other government department - Court to be satisfied interference with such right necessary having regard to facts and circumstances prevailing in specific case before it - In determining police officer's right to free speech Court to arrive at balance between his interest as B citizen in commenting on lack of affirmative action in force and interest of force in maintenance of discipline, efficiency and obedience - In assessing whether appellant's comments addressing matter of public concern Court to consider form, context and content of comments to find out whether comments C made on matter of public concern - In casu content of debate or exchange of ideas matter of public concern - Unfortunate remarks of police officer not at issue - Importance of subject-matter overwhelming - Wrong for Court to deprive police officer of right of free speech and protection under art 21(1)(a).
The appellant, a warrant officer in the Namibian Police Force, had been a member of a discussion panel under the aegis of the Namibian Broadcasting Corporation in which the subject of discussion was affirmative action and the restructuring of the police force, the public service and other such institutions. As a result of comments that had E been made by the appellant during the panel discussion he had been charged with contravening reg 58(32) published under Government Notice R203 in Government Gazette 791, dated 14 February 1964 and deemed to have been made under the Police Act 19 of 1990 (Nm). Regulation 58(32) provided that '(a) member shall be guilty of an offence . . . if he . . . comments unfavourably in public upon the F administration of the force or any other Government department'. The appellant had filed an application in the High Court challenging the constitutionality of reg 58(32) vis-\u00e0-vis art 21 of the Constitution of the Republic of Namibia Act 1 of 1990 (Nm). Article 21(1)(a) of the Constitution provided that all persons had the right to freedom of speech and expression, whilst subart (2) provided that '(t)he fundamental freedoms referred to in subart (1) hereof shall be exercised subject to the law of Namibia, G insofar as such law imposes reasonable restrictions on the exercise of
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