CASE NO. A 159/96

THE
HIGH COURT OF NAMIBIA

In
the matter between:

and

and

CASE NO. A 158/96

in
the matter between:

and

CORAM: HANNAH,J.,
GIBSON, J. AND MARITZ, A.J.

Heard
on: 1996-11-27

Delivered
on: 1998-04-

JUDGMENT

MARITZ, A.J.
: The applicants are dealers in a variety of “adult videos,
toys, magazines and novelties”. Advertising the nature of their
business by using trade names such as “Hustler The Shop”, “Adult
Entertainment Centre” and “Passion House II” at Windhoek,
Walvis Bay and Swakopmund, they not only drew the attention of the
public but also aroused the unwanted interest of the Namibian Police.
The police, claiming that most of the videos and magazines being
offered for sale by the applicants were “indecent or obscene
photographic matter” defined in section 1 of the Indecent and
Obscene Photographic Matter Act, 1967 (Act 37 of 1967) and that some
of the “adult toys and novelties” were intended for use “to
perform unnatural sexual acts” proscribed by section 17(1) of the
Combating of Immoral Practices Act, 1980 (Act 21 of 1980), seized and
removed most of the applicants’ stock. Criminal charges for having
contravened s. 2(1) of Act 37 of 1967 and s. 17(1) of Act 21 of 1980
were either preferred against some of the applicants or were being
contemplated against the others. Aggrieved by the actions of the
police and facing prosecution on those charges, the applicants
brought these applications.

Their primary
object is to obtain orders declaring section 2(1) of Act 37 of 1967
and section 17(1) of Act 21 of 1980 unconstitutional and, for that
reason, to be of no force and effect. Ancillary to that relief, the
applicants are also seeking orders setting aside the search warrants,
the seizure of their stock (with or without such warrants) and for
the return of the seized articles. The respondents did not oppose
any of the applications. Reluctant to pronounce on the
constitutionality of statutory provisions without the benefit of the
Government’s submissions, the court requested the Government
Attorney to present us with his views amicus curiae. Like
counsel for the applicants, he presented the court with extensive
heads of argument evidencing thorough research and substantial
effort. The court recognises their industry and is grateful for their
assistance.

The
applicants challenge the constitutionality of section 2(1) of Act 37
of 1967 on the grounds that it imposes an unreasonable and
unjustifiable restriction on their right to freedom of speech,
expression and to carry on any trade as guaranteed by paragraphs (a)
and (j) of Article 21(1) of the Constitution and, in addition; that
it infringes their right to privacy entrenched in Article 13(1) of
the Constitution.

Promulgated
by the South African Parliament prior to Namibia’s independence and
retained as part of the body of Namibia’s statutory law by the
transitional provisions in our Constitution, the legislative purpose
that Act is reflected in the provisions of s. 2(1) thereof. It reads
as follows:

“Any person
who has in his possession any indecent or obscene photographic matter
shall be guilty of an offence and liable on conviction to a fine not
exceeding one thousand Rand or imprisonment for a period not
exceeding one year or to both such fine and such imprisonment.”

Not
satisfied with the ordinary import and meaning of the expression
”indecent or obscene photographic matter”, the South
African Legislature by definition extended the scope and ambit
thereof to include –

“photographic
matter or any part thereof depicting, displaying, exhibiting,
manifesting, portraying or representing sexual intercourse,
licentiousness, lust, homosexuality, Lesbianism, masturbation, sexual
assault, rape, sodomy, masochism, sadism, sexual bestiality or
anything of a like nature”.

Furthermore,
s.1 of the Act extended the meaning of “photographic matter”
to include “any photograph, photogravure and cinematograph film,
and any pictorial representation intended for exhibition through the
medium of a mechanical device” and defined “cinematograph
film” to include “any magnetic tape or other object
consisting of material of whatever nature, on which any image or
images have been recorded in such a manner that such image or images
will be capable of being exhibited as a moving picture or otherwise
through any mechanical, electronic or other device”.

Whilst
admitting the video tapes and the magazines found in their possession
contain “indecent or obscene photographic matter” as
defined by the Act and acknowledging (correctly so in my view) that
it is constitutionally permissible to limit the right to freedom of
speech and expression, the freedom to carry on any trade and the
right to privacy by regulating and restricting the possession, sale
or exhibition of certain categories of sexually explicit material,
the applicants content that s. 2(1) is doing so in an overly broad
and impermissible manner.

It
is clear from the facts in all the applications that the applicants
possessed the material in question for the purpose of wholesale or
retail, rather than for private use. Although the applicants also
rely on legislative overbreadth infringing their constitutional right
to privacy guaranteed by Article 13 of the Constitution (and I
express no opinion on their standing to do so or the validity of the
contentions advanced by them in that regard), it seems to me that in
the context of these applications, the constitutionality of s. 2(1)
more appropriately falls to be decided on the basis of whether that
section infringes or derogates from the applicants’ right to
freedom of speech and expression or their freedom to carry on any
trade or business and, if so, whether it was done in a
constitutionally permissible manner.

Article
21(1)(a), (j) and (2) of the Constitution entrenching those freedoms
and prescribing the permissible limitations thereof reads:

“(1) All
persons shall have the right to:

1. freedom
   of speech and expression, which shall include freedom of the press
   and other media;…

   
   

(j) practise
any profession, or carry on any occupation, trade or business.

(2) The
fundamental freedoms referred to in subarticle (1) hereof shall be
exercised subject to the law of Namibia, insofar 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 relation to contempt of court, defamation or
incitement to an offence.

The
need to jealously protect the right to freedom of speech and
expression and the value thereof in a democratic society has been
stated and restated over many decades in many jurisdictions all over
the world. Those values have recently been echoed by the Supreme
Court in Kauesa v Minister of Home Affairs and Others 1996 (4)
SA 965 (NmS), when it quoted the moving speech of Justice Brandeis
reported in Whitney v California 274 US 375-6 (1927) and
applied it to the democratic and social values which Namibians
cherish and have died for. To that, I would like to add the
exposition of one of the leading commentators on the First Amendment
of the Constitution of the United States, Prof. T Emerson in The
System of Freedom of Expression (at 6-7):

“First,
freedom of expression is essential as a means of assuring individual
self-fulfilment. The proper end of man is the realisation for his
character and potentialities as a human being. For the achievement
of this self-realisation the mind must be free. Hence suppression of
belief, opinion, or other expression is an affront to the dignity of
man, a negation of man’s essential nature. Moreover, man in his
capacity as a member of society has a right to share in the common
decisions that affect him. To cut of his search for truth, or his
expression of it, is to elevate society and the State to a despotic
command over him and to place him under the arbitrary control of
others.

Second,
freedom of expression is an essential process for advancing knowledge
and discovering truth. An individual who seeks knowledge and truth
must hear all sides of the question, consider all alternatives, test
his judgement by exposing it to opposition, and make full use of
different minds. Discussion must be kept open no matter how
certainly true and accepted opinion may seem to be; many of the most
widely acknowledged truths turned out to be erroneous. Conversely,
the same principal applies no matter how false or pernicious the new
opinion appears to be; for the unaccepted opinion may be true or
partially true and, even if wholly false, its presentation and open
discussion compel a re-thinking and re-testing of the accepted
opinion. The reasons which make open discussion essential for an
intelligent individual judgement likewise make it imperative for
rational social judgement.

Third, freedom
of expression is essential to provide for participation in decision
making by all members of society. This is particularly significant
for political decisions. Once one accepts the premises of the
Declaration of Independence – that Government ‘derive their just
power from the consent of the governed’ – it follows that the
governed must, in order to exercise their right of consent, have full
freedom of expression both in forming individual judgement and by
informing the common judgement. The principle also carries beyond
the realm. It embraces the right to participate in the building of
the whole culture, and includes freedom of expression in religion,
literature, art, science, and all areas of human learning and
knowledge.

Finally,
freedom of expression is a method of achieving a more adaptable and
hence a more stable community, of maintaining the precarious balance
between healthy cleavage and necessary consensus. This follows
because suppression of discussion makes a rational judgement
impossible, submitting force for reason; because suppression promotes
inflexibility and stultification, preventing society from adjusting
to changing circumstances or developing new ideas; and because
suppression conceals the real problems confronting a society,
diverting public attention from the critical issues. At the same
time the process of open discussion promotes greater cohesion in a
society because people are more ready to accept decisions that go
against them if they have a part in the decision-making process.
Moreover, the State at all times retains adequate powers to promote
unity and to suppress resort to force. Freedom of expression thus
provides a framework in which the conflict necessary to the progress
of a society can take place without destroying society. It is an
essential mechanism for maintaining the balance between stability and
change.”

I
am convinced that, in general, the right to an important freedom,
such as the freedom of speech and expression guaranteed by Article
21(1)(a) of the Constitution, should be construed purposefully. On
that premise, I hold that the concept of “speech and expression”
extends also to “non-political” discourse; includes graphic
expressions; contemplates not only the act of imparting but also of
receiving information and ideas and is not limited in content to that
which can be regarded as pleasing, inoffensive or indifferent, but
extends also to that which disturb, offend or shock (The Sunday
Times v The United Kingdom (no 2) (1992) 14 EHRR 229 at
241 par 50; Martin v City of Struthers 319 US 141 at 143;
Stanley v Georgia 394 US 357 at 364; Case and Another v
Minister of Safety and Security and Others; Curtis v Minister of
Safety and Security and Others 1996 (3) SA 617 (CC) at 629A). It
follows that s. 2(1) of the 1967 Act in so far as it proscribes
possession of certain defined categories of photographic matter,
detracts from the general right to freedom of speech and expression.

I
do not suggest that all categories of speech or expression have the
same value. However, unlike the judicial exclusion of certain
categories of speech from the First Amendment’s protection in the
United States on the basis that “such utterances are no
essential part of the exposition of ideas and are of such slight
social value as a step to truth that any benefit derived from them is
clearly outweighed by the social interest in order and morality”
(per Brennan J in Roth v United States (1957) 354 US 476 at
484-5), our Constitution only authorises legislative and common law
limitations of that freedom which falls squarely within the corners
of the authorised restrictions contemplated in Article 21(2). That
Article “creates a restriction purposely enacted to soothe the
relationships between those exercising their constitutionally
protected rights and those who also have their own rights to enjoy”
(Kauesa case, supra at 980J).

Based
on the analysis of Article 21(2) by Dumbhutshena J in the Kauesa
case, I am satisfied that any legislative provision which derogates
from a person’s right to freedom of speech and expression
guaranteed in Article 21(1)(a) will, if challenged in a competent
court, only be allowed to stand: (a) if that law imposes a reasonable
restriction on the exercise of that freedom; (b) if that restriction
is necessary in a democratic society and (c) if that restriction is
required in the interests of the sovereignty and integrity of
Namibia, national security, public order, decency or morality or
required in relation to contempt of court, defamation or incitement
to an offence (Kauesa p. 976B-C). Moreover, the “clawback”
provisions of Article 21(2) are to be restrictively interpreted “to
ensure that the exceptions are not unnecessarily used to suppress the
right to freedom guaranteed in Article 21(1)(a)” (Kauesa
p 981A) and the onus to prove that a legislative restriction falls
squarely within the enabling provisions of Article 21(2) is on the
Government which relies on the enforceability of the provision
(Kauesa p 890A). In determining whether the Government has
discharged that onus in any particular case, the court will be
mindful that the law in question has been enacted by a body of
democratically elected representatives of the people and allow a
margin of appreciation in favour of Parliament’s views.

In determining
whether a legislative provision passes the constitutional muster of
Article 21(2), the court needs to identify the legislative objective
of the Act; examine the means employed by the Legislature to achieve
that end and satisfy itself that the one is rationally and reasonably
connected to the other by applying the values and principles of a
democratic society.

The
permissible legislative objects expressly contemplated in Article
21(2) are those “required in the interests of the
sovereignty and integrity of Namibia, national security, public
order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence”.
If one is to consider the legislative history of the 1967 Act
summarised by Mokgoro J. in paragraphs [6] to [12] of her judgement
in Case and Another v Minister of Safety and Security and Others;
Curtis v Minister of Safety and Security and Others, supra,
at 622B to 625B) and he provisions of the Act itself, the objective
is to introduce measures to uphold standards of decency and morality
in society. That is a permissible objective of sufficient importance
to justify a limitation of the right to freedom of speech and
expression. The indignity and outrage suffered by women as a class
of persons when senseless sexually explicit scenes of rape and other
forms of sexual violence are depicted as normal in pornographic
material and the social and moral dangers of exploiting children in
such material for the sexual gratification of certain adults, are but
two of the reasons why it is imperative for any responsible
Legislature to promulgate adequate measures to address those evils
in the interest of decency and morality.

In
assessing the reasonableness of the measures employed to achieve a
permissible statutory objective, this Court and the Supreme Court
have adopted the now well known “rationality”, “proportionality”
and “minimum impairment” requirements of reasonableness referred
to by Dickson CJC in R v Oakes (1986) 26 DLR (4^th)
200 at 227. I do not intend to repeat it for purposes of this
judgement. Somewhat differently stated and emphasising the
importance of democratic values in the process of assessing the
reasonableness of the limitation, is the approach of Chaskalson P in
S v Makwanyane 6 BCLR 665 at 708 [104]:

“The
limitation of constitutional rights for a purpose that is reasonable
and necessary in a democratic society involves the weighing up of
competing values, and ultimately an assessment based on
proportionality. This is implicit in the provisions of section
33(1). The fact that different rights have different implications
for democracy, and in the case of our Constitution, for ‘an open
and democratic society based on freedom and equality’, means that
there is no absolute standard which can be laid down for determining
reasonableness and necessity. Principles can be established, but the
application of those principles to particular circumstances can only
be done on a case by case basis. This is inherent in the requirement
of proportionality, which calls for the balancing of different
interests. In the balancing process, the relevant considerations
will include the nature of the right that is limited, and its
importance to an open and democratic society based on freedom and
equality; the purpose for which the right is limited and the
importance of that purpose to such a society; the extent of the
limitation, its efficacy, and particularity where the limitation has
to be necessary, whether the desired ends could reasonably be
achieved through other means less damaging to the right in question.
In the process regard must be had to the provisions of section 33(1),
and the underlying values of the constitution, bearing in mind that,
as a Canadian judge has said, ‘the roll of the court is not to
second-guess the wisdom of policy choices made by legislatures.’”

With
the principles I have referred to above and by applying these
criteria, I now turn to assess the rationality and reasonableness of
the limitation brought about by s. 2(1) of the 1967 Act.

The
nature of the right limited in the present case is the right of
freedom of speech and expression. That freedom is, as I have
remarked above, one of the more (if not the most) important freedoms
in open and democratic societies all over the world. “Freedom
of thought and speech... is the matrix, the indispensable condition
of nearly every other form of freedom" (per Cardozo J in
Palko v Connecticut, 302 US 319 (1937) quoted with approval by
Levy J in The Free Press of Namibia (Pty) Ltd v Cabinet for the
Interim Government of South West Africa 1987 (1) SA 614 (SWA) at
623H. Compare also: Mandela v Falati 1995 (1) SA 251 (W) at
259F).

The
problem with section 2(1), as I see it, lies not in the objective the
Legislature sought to achieve, but in the manner it went about doing
that. If one is to consider the words of s.2(1) and extended
meanings thereto, it is not surprising that courts recognised long
before the advent of the present human rights-based constitutional
dispensation that the South African Legislature intended the
proscriptive provision to have a wide and sweeping ambit (compare for
example: S v R 1971 (3) SA 798 (T) at 804A-C). This has been
recently been expounded on in the analysis of Mokgoro J. in the Chase
judgement, supra, at 643H to 645A:

“…we must
read the text as a whole, assigning a meaning to every word and
phrase, and not permitting any portion of the text to be rendered
redundant. Thus, the various forms of sexual conduct, appetite, and
inclination (‘sexual intercourse, licentiousness, lust,
homosexuality . . .’), listed in the purported definition in s 1 of
the Act must each be accounted for, and assigned distinct meanings.
That exercise renders a prima facie already very inclusive list much
broader still. The same procedure must be attempted in giving meaning
to each of the various transitive verb forms preceding the list of
forms of sexual conduct, appetite and inclination. Proscribed
material is defined to include photographic matter 'depicting,
displaying, exhibiting, manifesting, portraying or representing
sexual intercourse. . .'. The terms ‘displaying’, ‘portraying’
and ‘exhibiting’ are not immediately problematic, but
‘manifesting’ and ‘representing’ are capable of yielding an
almost unlimited set of potential references.

[58] Thus, for
example, the verb ‘manifest’ is defined in ‘The Oxford English
Dictionary’ as synonymous with 'display'. Seeking an alternative
meaning that will render both terms non-redundant in context forces
us to assign the broader dictionary meanings of ‘display’, such
as ‘evince’, ‘be evidence of’ and ‘attest’. Similarly,
the dictionary gives to the verb ‘represent’ a primary meaning of
‘bring clearly and distinctively to mind, esp. by description or
imagination’. But since that denotation appears already to be
captured in the verbs ‘depict’, ‘display’ and ‘portray’,
we are thrown onto the broader, alternative meanings, such as
‘symbolise’, ‘be an equivalent of’, and ‘correspond to’.
Examples could obviously be multiplied. Consider, to take just one,
the scope of the prohibition if we apply the transitive verb form
‘symbolise’ to the noun ‘lust’.

[59] As the
definition stands, it could thus fairly be read to classify a
virtually limitless range of expressions, from ubiquitous and mundane
manifestations like commercial advertising to the most exalted
artistic expressions, as ‘indecent’ or ‘obscene’, simply
because they contain oblique, isolated or arcane references to
matters sexual, or deal frankly with a variety of social problems.
Thus, a television documentary treating safe-sex and the causes of
Aids may be construed as a ‘manifestation’ of ‘licentiousness’.
Cinematic versions of the work of South Africa's most acclaimed
playwrights and novelists may be labelled exhibitions or portrayals
of ‘lust’, ‘masochism’ or ‘sadism’. An illustrated
public-service brochure dealing with incidents of sexual assault upon
women could potentially be outlawed as a ‘depiction’ of ‘rape’.
A photograph of persons of the same gender in tender embrace could
fairly be construed as ‘manifesting homosexuality’ or
‘lesbianism’.

[60] As if the
already sweeping implications of the purported definition are not
enough, the phrase ‘or anything of the like’ appended thereto
seems calculated to invest prosecutors and courts with unlimited
discretionary power over photographic and cinematic expression.
“

In
addition, it is evident that the section criminalises unsolicited and
innocently acquired possession for a short duration (S v Brick
1973 (2) SA 571 (A) at 580B to 581A); that no distinction is made as
to the maturity, personality or profession of persons who might come
into possession of such matter (historians, medical practitioners or
psychiatrists are treated with the same sweeping brush as juveniles
or children); that the proscription is one in principle rather than
designed by degree or purpose (treating the sexual abuse of children
for pornographic purposes on the same basis as sexual intercourse by
consenting adults for educational purposes); that no distinction is
made between possession for private purposes and for purposes of
commercial exploitation and, in general, that the prohibition by
definition covers much which is intrinsic and commonplace in daily
life (remarked on by Joubert AJ in S v R, supra, at
804A and commented on by Nicolas J within the context of the
Publication and Entertainment Act, 1963 in Mame Enterprises (Pty)
Ltd v Publications Control Board 1974 (4) SA 217 (W) at 222A-G).

Instead
of addressing the legislative object with precision, caution and
sensitivity to the fundamental rights of those who would be affected
by the law, it was written with the bold and sweeping strokes of a
legislative pen unconcerned with constitutional censure by the
Courts. The section was written into the law books by a Legislature
foreign to the Namibian people at a time in history when they were
denied the right of self-determination in their own State under their
own Constitution. I am mindful that when Independence was gained
many years later, all the laws in force at that time, continued to be
in force - except those repealed by the Constitution itself. That,
however was mainly done for the sake of order, good government and
continuity. By providing that their continued application would only
be until “repealed or amended by Act of Parliament or until they
are declared unconstitutional”, the founding fathers of our
Constitution expressly foresaw that those laws would be subject to
legislative and judicial review.

In
reviewing the constitutionality of Acts promulgated by the South
African Parliament prior to Independence, this Court is entitled to
have regard to those historical facts in evaluating the
reasonableness of provisions in those laws which detracts from the
constitutional rights entrenched and democratic values expressed in
our Constitution. In relation to such provisions, there is little or
no reason to allow a margin of parliamentary appreciation when
considering the reasonableness of the measures adopted by that
lawgiver at that time to restrict a particular fundamental right and
I do not fell myself constrained by such a consideration.

I
do not think that s. 3 of the 1967 Act which provides that no
prosecution for an offence shall be instituted except on the written
authority of the Prosecutor-General limits the wide and sweeping
scope of s. 2(1) or that it constitutes a reasonable limitation
within the contemplation of Article 21(2) of the Constitution. That
section affords cold comfort to person found in possession of
photographic material which falls within the ambit of the definition
and who faces prosecution, not to mention the “chilling effect”
such a provision must have on the exercise of the freedom in
question. It is no safeguard at all and renders constitutional
guarantees vulnerable to the personal attitudes and disposition of a
particular incumbent of that office. I am reminded by Mr Mouton in
his heads of argument of the remarks by Lord Edmund-Davies in
Attorney-General v British Broadcasting Corporation [1980] 3
All ER 161 (HL) when he commented on the requirement of the
Attorney-General’s consent before a prosecution for contempt of
court can be instituted (at 171 J to 172 A):

“My Lords
insofar as the Attorney-General invites the courts to rely on his
ipse dixit in the confidence that all holders of that office
will always be both wise and just about instituting proceedings for
contempt, acceptance of this invitation would involve a denial of
justice to those who on occasion are bold enough to challenge that a
particular holder has been either wise or just.”

Nor
do I regard s. 2(2) of the Act, which excludes the application of s.
2(1) in respect of certain categories of material (approved, exempted
or declared not to be undesirable under the Publications Act, 1974 by
a committee or other competent body), to be a proper restriction. I
find it unnecessary to express any opinion on the constitutionality
of the provisions of that Act, but must within the context of this
case refer to some concerns I have in that regard. Firstly, the
committees which have to determine whether certain material is
indecent or obscene or is offensive or harmful to the public morals
under that Act are bound by the strictures of section 1 of that Act
which provides:

”In the
application of this Act the constant endeavour of the population of
the Republic of South Africa to uphold a Christian view of life shall
be recognised.”

I
doubt whether such a consideration in a secular constitutional
dispensation, provided for in Article 1(1) of the Namibian
Constitution, is permissible. Secondly, in a society as
heterogeneous as Namibian society with a variety of religions,
cultures, languages, traditions it is difficult to imagine that
bodies constituted under the Publications Act can adequately reflect
those values and whether in those circumstances it is permissible for
Parliament under Article 21(2) to leave it entirely to administrative
bodies to determine the parameters of a person’s freedom. The
decision of the Ontario High Court of Justice in Re Ontario Film
and Video Appreciation Society and Ontario Board of Censors
(1983) 147 DLR (3d) 58 is particularly instructive on this issue.
That decision concerned the validity of the Theatres Act which gave
the Board of Censors the power to censor any film and to approve,
prohibit or regulate the exhibition of any film in Ontario. The
court observed at 67:

The Charter
requires reasonable limits that are prescribed by law; it is not
enough to authorise a board to censor or prohibit the exhibition of
any film of which it disapproves. That kind of authority is not
legal for it depends on the discretion of an administrative tribunal.
However dedicated, competent and well-meaning the board may be, that
kind of regulation cannot be considered as ‘law’. It is accepted
that law cannot be vague, undefined and totally discretionary; it
must be ascertainable and understandable. Any limits placed on the
freedom of expression cannot be left to the whim of any official;
such limits must be articulated with some precision or they cannot be
considered to be law. There are no reasonable limits contained in
the statute or the regulations.”

In
view of my finding that the provisions of s. 2(1) of the 1967 Act has
been formulated in an overly broad manner not intended or carefully
designed to prohibit possession only of such sexually explicit
material as may be proscribed under Article 21(2), but that it also
prohibits the possession of graphic material which may be acquired or
distributed in the exercise of a person’s right to freedom of
expression under Article 21(1)(a), that section unreasonably
restricts the legitimate exercise of that constitutional right in a
manner not authorised by Article 21(2) of the Constitution. For that
reason it is unconstitutional.

The
constitutionality of s.17(1) of the 1980 Act is being challenged on
essentially the same grounds as the attack on s. 2(1) of the 1967 Act
– except that the emphasis has shifted slightly from applicants’
primary reliance on paragraph (a) of Article 21(1) to their reliance
on the right to the freedom to carry on any trade or business
entrenched in paragraph (j) thereof. That subsection reads as
follows:

“17(1) Any
person who manufacturers, sells or supplies any article which is
intended to be used to perform an unnatural sexual act, shall be
guilty of an offence and liable on conviction to a fine not exceeding
R2 000,00 or imprisonment for a period not exceeding two years
or to both such fine and imprisonment.”

The
difficulty with the section is twofold: Firstly, in ascertaining the
meaning of “an unnatural sexual act” (for only if and when such
meaning is clear may the manufacturer, seller or supplier determine
what he or she may manufacture, sell or supply) and, secondly, in
determining whose “intention” the court should have regard to
when considering whether the manufacture, sale or supply of a
particular article falls within or outside the scope of the
prohibition.

Precisely
what is an “unnatural sexual act”? Is a “natural” sexual act
limited to only those sexual acts performed between two consenting
human beings of the opposite gender in a manner suitable for
procreation? Is everything else “unnatural”? If that has been
intended, the result would be absurd. The manufacture, sale and
supply of a number of devices employed during sexual intercourse for
birth control and to prevent infection by certain sexual
transmittable diseases would fall squarely within the prohibition.
Even the free supply of condoms as one of the important means to
combat the transmission of the still-incurable AIDS virus during
sexual intercourse would be an offence if the word “unnatural” is
being used in that context. The sale of sexual aids prescribed or
recommended by qualified therapists to married couples for clinical
reasons could result in convictions. Many more examples of such
absurdities which could never have been intended by the Legislature
can be mentioned.

If it is intended
by the Legislature to refer to the same acts which have in common law
been referred to as “unnatural offences” or “unnatural
assaults”, one would have expected it to have referred to it in
those terms. But even if that is what has been intended, the
expression remains vague. Precisely what is meant by “an
unnatural assault” within that context received some attention
in S v C, 1988 (2) SA 398 (ZH) when the Zimbabwean High Court
had to deal with the clarity of a condition to a suspended sentence
that the accused should not “commit an unnatural assault”
during the period of suspension. At p 399 the learned Judge held:

Similarly, I am
in considerable doubt whether the accused would have understood the
particular condition that he should not commit an 'unnatural act'
within the period specified…. In fact, the word used in early
Roman-Dutch law was 'sodomy' and this term, at that time, encompassed
virtually any form of aberrant sexual behaviour. The crimes now
known as sodomy and bestiality were included under this term, and
some authorities also included acts such as self-masturbation, oral
intercourse, lesbianism, and many other such practices. Some jurists
even regarded normal coitus between a Jew and a Christian as
'sodomy'.

This very broad
base was later narrowed so that any sexual act 'contrary to the order
of nature' fell into one of three categories. These were sodomy,
bestiality, and a third category into which fell certain residual,
sexually abnormal acts which were classified generally as 'unnatural
offences'. (See R v Gough and Narroway 1926 CPD 159; R v K and F 1932
EDL 71.) These classifications are still operative today, but the
nature and number of acts presently accepted as 'unnatural offences'
are far more limited than they were. It is in respect of this third
category that difficulties arise in modern practice, for it is not
possible to define with precision what types of sexually deviant acts
constitute this crime. Hunt, South African Criminal Law and
Procedure, 2nd ed, includes a definition of an 'unnatural
offence', but the learned author appreciates the problems of
interpretation that arise. As he says (at 276)

‘the
adjective 'unnatural" involves a value judgment varying from
country to country, race to race, and age to age: it has little if
any objective content'.

In seeking
clarification of the term it does not help to contrast an 'unnatural
act' with a 'natural' act. Many acts have been held not to constitute
an unnatural offence although the act in question could hardly be
described as 'natural'. (For example, sodomy on a female R v M G
1969 (1) SA 328 (R); oral intercourse R v K and F (supra); one male
fondling the private parts of another male - R v S 1950 (2) SA 350
(SR).) I have been unable to locate any cases which concern allegedly
unlawful sexual acts between two or more females. The question is
still open, therefore, as to whether such acts would constitute
'unnatural offences' in our law.

From the
foregoing it is evident that the limits of the crime called 'an
unnatural offence' are by no means clear.”

I
agree with those remarks. Whilst it is accepted that absolute
certainty in the formulation of statutes cannot always be achieved
and that some scope should be allowed for judicial interpretation in
certain instances, the words employed in a penal provision which
limits the exercise of a fundamental freedom must at least provide an
intelligible standard from which to gain an understanding of the act
enjoined or prohibited so that those to whom the law apply know
whether they act lawfully or not. A law which does not comply with
that standard, is vague and the danger of tolerating such penal laws
within the sphere of Article 21 freedoms is all too evident: Those to
whom the law apply does not know whether a particular act is legal or
not; it has a chilling effect on the exercise of those freedoms;
enforcement of such a law may criminalise conduct which the
Legislature did not contemplate or intend; it lacks the required
standard of intelligibility to allow a considered enquiry into the
constitutional reasonableness of the limitations therein.

Vagueness
of any law which limits a right to exercise of any freedom guaranteed
by Article 21(1) of the Constitution can be raised under Article
21(2) within the context that such a law does not impose “reasonable
restrictions” on the exercise of those rights and freedoms. The
element of “proportionality” implicit in the requirement of
reasonableness requires that the limitation of a fundamental freedom
should be structured in such a manner that it impairs that freedom
“as little as possible” (R v Oakes, supra¸ at
227). The effect of vagueness as it relates to the “minimum
impairment” consideration, is essentially the same as and “merges
with the related concept of overbreadth” (R v Novia Scotia
Pharmaseutical Society 10 CRR (2d) 34 at 47-48).

In
the premises I find that s.17(1) of the 1980 Act is so vague in its
scope and application that it does not constitute a reasonable
limitation of the Applicants’ freedom to carry on any trade or
business required by Article 21(2) and that it is for that reason
unconstitutional.

Counsel
submitted that in relation to s.2(1) of the 1967 Act it is not
practical to separate the good from the bad and that in relation to
s.17(1) of the 1980 Act the question of severance does not arise at
all. I agree with those contentions and also with the proposition
that it is not appropriate in the circumstances of this case to refer
those Acts back to Parliament for the purpose contemplated in Article
25(1)(a) of the Constitution.

In
the result, the rule nisi issued in the application of Fantasy
Enterprises CC is confirmed and, in the application of Nasilowski and
two others, I make the following order: