Hendricks and Others v Attorney General of Namibia and Others (PA 140 of 2000) [2002] NAHC 4 (20 August 2002)

Hendricks and Others v Attorney General of Namibia and Others (PA 140 of 2000) [2002] NAHC 4 (20 August 2002)

Section 1(i) of the Act is unconstitutional to the extent it defines 'brothel' to include places used for 'unlawful carnal intercourse' or 'any other lewd or immoral purpose' as this is overbroad and not rationally connected to the Act's objectives. Sections 2(3) and 12(1) and (2) are unconstitutional as they impose reverse onus provisions that violate the presumption of innocence. The remainder of section 2(1) (brothel-keeping for prostitution) and section 10(a) (living on earnings of prostitution) are constitutional as they are reasonable restrictions on economic freedom and not overly broad. Applicants lacked standing to challenge sections 2(2), 10(b), and 12(3).

Citation
[2002] NAHC 4
Parties
Applicant: Shamielah Hendricks; Applicant: Wilhelmina Elizabeth Robertson; Applicant: Charmaine Du Plooy; Applicant: Theodora Bekova; Applicant: Dimitar Dimov Kouzidimov; Respondent: Attorney General of Namibia; Respondent: Prosecutor-General of Namibia; Respondent: Minister of Home Affairs
Court
High Court
Jurisdiction
Namibia
Judgment Date
20 August 2002
Case Number
PA 140 of 2000
Procedural Posture
Constitutional Petition / Judgment
Outcome
Partially allowed; partially dismissed
Legal Topics
Vagueness and Overbreadth, Economic Freedom, Presumption of Innocence, Reverse Onus, Severability, Standing (locus Standi), Prostitution Law, Brothel Keeping, Freedom of Occupation
Source Language
English
Constitutional Law Criminal Law Vagueness and Overbreadth Economic Freedom Presumption of Innocence Reverse Onus Severability Standing (locus Standi) +3 more

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Parties

Shamielah Hendricks

Applicant

Wilhelmina Elizabeth Robertson

Applicant

Charmaine Du Plooy

Applicant

Theodora Bekova

Applicant

Dimitar Dimov Kouzidimov

Applicant

Attorney General of Namibia

Respondent

Prosecutor-General of Namibia

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether sections 1(i), 2, 10 and 12 of the Combating of Immoral Practices Act, 1980 are unconstitutional for vagueness, overbreadth, or violation of fundamental rights including economic freedom, equality, privacy, freedom of association, and presumption of innocence.
  2. 2 Whether the applicants have standing to challenge sections 2(2), 10(b), and 12(3) of the Act.
  3. 3 Whether the statutory presumptions in sections 2(3) and 12(1) and (2) constitute an impermissible derogation of the presumption of innocence.

Ratio Decidendi

Section 1(i) of the Act is unconstitutional to the extent it defines 'brothel' to include places used for 'unlawful carnal intercourse' or 'any other lewd or immoral purpose' as this is overbroad and not rationally connected to the Act's objectives. Sections 2(3) and 12(1) and (2) are unconstitutional as they impose reverse onus provisions that violate the presumption of innocence. The remainder of section 2(1) (brothel-keeping for prostitution) and section 10(a) (living on earnings of prostitution) are constitutional as they are reasonable restrictions on economic freedom and not overly broad. Applicants lacked standing to challenge sections 2(2), 10(b), and 12(3).

Court Disposition

Partially allowed; partially dismissed

Orders

  • Section 1(i) of the Combating of Immoral Practices Act, 1980 declared unconstitutional only to the extent of the words '...or for persons to visit for the purpose of having unlawful carnal intercourse or for any other lewd or immoral purpose', which are struck from the definition of 'brothel'.
  • Sections 2(3) and 12(1) and (2) of the Act declared unconstitutional and of no force or effect.