Researching Namibian Law and the Namibian Legal System

By Geraldine Mwanza Geraldo and Isabella Skeffers

Geraldine Mwanza Geraldo is an LL.M candidate at the University of Pretoria in Human Rights and Democratisation. She was previously a conference organiser with the Human Rights and Documentation Centre at the University of Namibia. Geraldine holds a B. Juris and an LL.B from the University of Namibia.

Isabella Skeffers is a researcher at the Human Rights and Documentation Centre at the University of Namibia. She is an LL.M candidate at the University of Namibia. Isabella holds the B. Juris and the LL.B degrees from the University of Namibia.

Published December 2007

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INTRODUCTION

The Namibian legal system is characterized by legal pluralism. It is an amalgamation of Westminster-style Constitutional law, Roman-Dutch common law, customary law and international law. Most of what constitutes the corpus of Namibian law is not codified and must be distilled from the evolving body of jurisprudence.

HISTORICAL NOTE

Pre-colonialism, customary law was applicable to the various communities. Namibia was colonised twice; first by the Germans from 1884 to 1915 and then by the South Africans from 1915 to 1989. The period of German colonial rule did not leave significant traces in the legal system. The territory was mostly administered by means of regulations which were the prerogative of the Governor duly advised by the Landesrat, the Governor’s advisory council. The country was divided by an imaginary line, the police zone. North of the police zone was not heavily administered by the Germans in comparison to the South.

The legal transition from German to South African administration was bridged by Martial law. By virtue of Proclamation Martial Law 15 of 1915 and its successive amendments, German law remained enforced unless specifically repealed. Proclamation 1 of 1921 confirmed this.

The legitimacy of South African occupation can be traced to article 22 of the Covenant of the League of Nations. South Africa was mandated to promote to the utmost the material and moral well being, and the social progress of the inhabitants of the territory. South West Africa (pre-independence Namibia) as a class C mandate was subject to consummate legislative, administrative and judicial regulation by the Union of South Africa. An important feature of the South African administration was the creation of a stable legislative framework. An important milestone in the history of South African colonial rule is the Administration of Justice Proclamation (SWA) 21 of 1919. It made Roman Dutch law, as existing and applied in the Cape Province as at 1 January 1920, the common law of South West Africa. Therefore, jurisprudence in South Africa was authoritative in South West Africa. This is still applicable to date as decisions of the Cape Provincial Division and the Appellate Court of South Africa before 1990 are applicable in Namibia. Roman Dutch law in the Cape, which is known as common law, was based on the Roman-Dutch law of the original Dutch settlers, in other words the interpretations of Roman law by authors such as Hugo Grotius and Johannes Voet. In addition, the legislative authority of South West Africa was the South African administration. Legislation which was applicable to South West Africa explicitly made mention of this extension. South African procedural law was also extended to South West Africa. An adversarial system of litigation still subsists. English law which later took hold in the Cape Province was also transferred to South West Africa. An area of law where there are traces of English law is maritime law. At this juncture it should be noted that three areas; the Eastern Caprivi Zipfel, Walvis Bay and the Rehoboth Gebiet had pecurliar legal developments because of their somewhat obscure history. Therefore, if South African laws were to be applicable to these territories, this was expressly stated.

In 1989 after a liberation war and international pressure South Africa withdrew its administration from Namibia. A Constituent Assembly was formed. This body was tasked with drawing up a Constitution and organising an election to select a Namibian administration. The Constituent Assembly was given a set of principles by the international community, the 1982 principles, to include in the Constitution. Most of these principles are contained in the Bill of Rights. On the 9 February 1990 the Namibian Constitution was adopted. The Constitution has become the template against which the validity of all laws is tested. The constitutional order eradicated the era of Parliamentary supremacy and substituted it with constitutional supremacy and the rule of law. Chapter three of the Constitution imports a human rights culture into the Namibian legal order. Civil and political rights are expressed as positive rights which give rise to obligations for the State, whilst the socio-economic rights are obligations which are progressive, meaning that the obligation of the State is not immediate but conditional.

Sources:

  • P.H. Katjivivi A History of Resistance in Namibia 1988 James Curry Publishers, London
  • K. Derks Chronology of Namibian History – From Pre-Historical Times to Independent Namibia 1999 Namibia Scientific Society, Windhoek
  • Hayes et al (Eds) Namibia under South African Rule – Mobility and Containment 1915 -46 1998 James Currey & Ohio University Press, Athens

CONSTITUTION OF THE REPUBLIC OF NAMIBIA

The Constitution of the Republic of Namibia enjoys hierarchical primacy amongst the sources of law by virtue of its article 1(6). It is thematically organized into chapters which contain articles that relate to the chapter title. It has 21 chapters and 148 articles which mainly organize the state and outline the rights and freedoms of people in Namibia.

According to article 1(3) of the Constitution, there are three main organs of state, namely the Executive, the Legislature and the Judiciary. The relationship between these three organs is directed by the doctrines of the separation of powers and the rule of law. Another important feature of the Constitution is the Bill of Rights which is embodied in chapter 3 of the Constitution. The Bill of rights outlines the 16 fundamental rights and freedoms which voice the carpet values and spirit of the independent Namibian nation. Most jurisprudence post-independence revolves around the application and interpretation of chapter 3 of the Constitution. The Bill of Rights, it is understood, has occasioned a paradigm shift in the legal landscape from a culture of Parliamentary sovereignty to a rights-based philosophy. Its importance is evidenced by the fact that the rights and freedoms in Chapter 3 are entrenched.

Sources:

The Constitution of the Republic of Namibia

The Namibian Constitution

GRN Portal

Library of Congress

Other sources:

  • Amoo SK & Hinz MO 10 Years of Namibian Nationhood 2002, VerLoren van Themaat Centre, Pretoria
  • Diescho J The Namibian Constitution in Perspective 1994 Gamsberg Macmillan, Windhoek
  • Naldi GJ Constitutional Rights in Namibia 1995 Juta & Co., Kenwyn

Citation:

The constitution is cited as the Namibian Constitution. It is usually cited with reference to its articles, paragraphs and sub-paragraphs. A common abbreviation for article is art.

ORGANS OF STATE

The Executive, Legislature and the Judiciary all execute law-making functions. Their mandates as sources of law are set out in the Constitution.

The Executive

Chapters 5 and 6 of the Constitution indicate that the Executive comprises of the President and Cabinet. Their working relationship is consultative and their paramount function is policy-making. Cabinet members are required to attend sessions of the National Assembly to answer questions pertaining to the legitimacy, wisdom, effectiveness and direction of Government policies. Government policies are published in Government Gazettes which are distributed by the Ministry of Justice at a fee. Government Gazettes are referred to according to their number and dates, for example Gazette number 32 of 1996. In this particular example, this gazette is the 32nd of the year 1996. This is the same for all other gazettes when one considers the number and the year in its title.

Besides policy, the Executive is responsible for negotiating and signing international agreements, which according to art 144 of the Constitution form part of the law of Namibia. Namibia is a signatory to several international treaties and a member of various international organisations. It has submitted several reports to several treaty bodies and there have been five cases before three international tribunals against it. These are:

  • the two South West Africa opinions (International Court of Justice – ICJ); Preliminary Observations in 1962 ICJ Reports 318 and Second Phase in 1966 ICJ Reports 6;
  • Muller v President of the Republic of Namibia (Human Rights Committee) (2002) AHRLR (African Human Rights Law Report) 8 (HRC 2002);
  • the Kasikili/Sedudu Island communication (International Court of Justice) available on www.icj-cij.org/docket/index;
  • Diergaardt of Rehoboth Baster Community et al. v. Namibia; (Human Rights Committee), Communication No 760/1997, views of 25 July 2000, and;
  • Sikunda v President of the Republic of Namibia (African Commission on Human and Peoples’ Rights) 2002 AHRLR 21 (ACHPR 2002).

By virtue of art 144 Namibia is monist, therefore with the exception of treaties that are in conflict with the Constitution, legislation and those that enter into force through mere signature, all treaties duly ratified are automatically incorporated.

Other legislative functions of the Executive include the president’s power to declare martial law by means of a Proclamation. Since independence a state of emergency was only declared once, in two separate occasions, in 1999 when there was an uprising in the north-eastern part of the country. The incident is commonly referred to as the Caprivi secession. The martial law is gazetted as the Proclamation No. 27 of 10 September 1999, which repealed Proclamations No. 23 of 2 August 1999 and No. 24 of 3 August 1999. In addition, the president has the power to promulgate Proclamations (in addition to those relating to martial law) and to initiate bills for consideration by the National Assembly. These functions are all subject to review, reversal or correction by the National Assembly. The presidential signature and publication in a gazette certify a bill and authenticate its validity. The President is compelled to assent to a bill if it is passed by a two-thirds majority of the National Assembly and confirmed by the National Council.

An example of government policy is the National Policy on HIV/AIDS – Approved by the National Assembly on the 14th March 2007.

This particular policy addresses the issue of HIV/AIDS in Namibia. The foreword is undersigned by the President of the Republic. The national policy aims to provide an overall reference framework for all HIV/AIDS related policies and to guide the national HIV/AIDS responses of al sectors in society. The policy contains its strategies, goals and objectives. In addition, the policy lays out the different areas of interest which should be concentrated on by the different role players in the implementation of HIV/AIDS policies and programmes. Finally, government undertakes certain obligations in terms of the policy, known as ‘policy statements’, which are included under each chapter of the policy.

Source:

GRN Portal

The Legislature

The National Assembly

The Legislature as outline in chapter 7 and 8 of the Constitution is made up of the National Assembly and the National Council. In Namibia Parliament refers to the National Assembly acting in terms of the Constitution and subject to review by the National Council. The Legislative power of Namibia is vested in the National Assembly subject to assent of the President or the National Council where applicable. As the principal legislative authority in Namibia the National Assembly has the power to make and repeal laws. Laws passed by the National Assembly are referred to as Acts of Parliaments and published in the Government Gazette with reference to their numbers and year of promulgation. Unless the Constitution provides otherwise, a simple majority of votes cast in the National Assembly shall be sufficient for the passage of any bill or resolution of the National Assembly.

The sessions of the National Assembly are open to the public unless a two-thirds majority decides otherwise. The Assembly also has to agree to the treaties negotiated and signed by the Executive. The National Assembly after independence was taxed with the task of deciding which laws and international treaties, promulgated and entered into prior to independence, would be retained or succeeded to. In addition to the Acts of Parliament and international treaties, the debates of the National Assembly are available to the public in publications known as the Hansards. Hard copies of the Hansards are available at the National Assembly resource centre.

The National Council

National Council buttresses the work of the National Assembly. Its functions include amongst others; considering bills passed by the National Assembly, considering subordinate legislation and recommending legislation on matters of regional concern.

Source:

Namlex – The Namlex is a compilation of the Legal Assistance Centre and the Ministry of Justice. It serves as an index to all Acts of Parliament, international treaties and cases.

Other sources:

Parliament of Namibia

The World Law Guide

World LII

Common LII

Law Library of Congress

Ministry of Environment and Tourism

Parliament of Namibia

Citations:

Acts of Parliament are cited as follows: Criminal Procedure Act, no 25 of 2004. The name of the Act (which is usually the subject matter of the Act) precedes the number of the Act and the year it was published.

The Judiciary

The Administration of Justice as the Constitution refers to it comprises of the Supreme Court, the High Court and the Lower Courts. The administration of justice is independent from the other organs of state. The sacrosanct nature of this value was expressed by the Supreme Court in Ex-Parte Attorney General, Namibia: In re the Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC).

The Supreme Court

The Supreme Court is the highest national forum of appeal. It has inherent jurisdiction over all legal matters in Namibia. It adjudicates, according to art 79 of the Constitution, appeals emanating from the High Court, including appeals which involve the interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms guaranteed therein. It also hears matters referred to it by the Attorney General or authorised by an Act of Parliament. To date, only two cases have been referred to the Supreme Court by the Attorney General, namely; Ex-Parte Attorney General: In Re Corporal Punishment by Organs of State 1991 (3) SA 76 and Ex-Parte Attorney General, Namibia: In re the Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC). As Namibia has a system of stare decisis, all decisions emanating from the Supreme Court are binding on all other courts unless they are reversed by an Act of Parliament or the Supreme Court itself.

Decisions of the Supreme are all recorded in the Namibian Law reports and some in South African law reports. The Namibian law reports is a series of reports published according to years. They record the decisions of the Supreme Court and High Court. For every ten year period there is an index to the reports, which has both a thematic and alphabetical listing. Each report has an introductory index guiding readers. In addition each case is summarised on the first page of the case record. The flynote or headnote as the summary is called indicates the theme and key words of the case. Generally cases are summarised using the following key points:

  • Name: if it is a civil dispute the plaintiff is cited first and then the respondent’s name. Criminal matters are cited as State versus the accused. This is commonly abbreviated as S v The Accused.
  • Issue: it is also referred to as the legal question.
  • Judgment: this pertains to the findings of the Court and the Court order.
  • Ratio Decidendi: this refers to the reasoning of the court in reaching the conclusion it came to.

Other publications that record cases of the Supreme Court are the criminal justice compilation, known as the Republic of Namibia Criminal Law Precedents and the Butterworths Constitutional Law Reports, which is a South African publication but includes noteworthy Namibian decisions from the Supreme Court. Decisions of Namibian courts which have human rights content are also reported in the African Human Rights Law Review. These publications are available from the website of the Centre for Human Rights at the University of Pretoria.

The High Court

Unlike the Supreme Court, the High Court exercises original jurisdiction. The High Court can act both as a court of appeal and a court of first instance over civil and criminal prosecutions and in cases concerning the interpretation, implementation and preservation of the Constitution. The High Court is presided over by the Judge-President. A full sitting of the High Court consists of the Judge-President and 6 other judges. The jurisdiction of the High Court with regard to appeals shall be determined by Acts of Parliament.

Decisions of the High Court, which bind lower courts, are recorded both in Namibian and South African law reports. The decisions are recorded and summarised in the same way as Supreme Court decisions. In order to distinguish a Supreme Court decision from a High Court decision the abbreviation SC is placed at the end of the citation as opposed to HC. An example of a High Court citation would read as follows: S v Mushwena and twelve others 20004 (11) NCLP 24 (HC).

The Lower Courts

There are several lower courts in Namibia. They are the magistrate courts, the labour courts and the customary courts. The lower courts are creatures of statute, in other words, they are created by Acts of Parliament and are bound by the four corners of legislation.

Magistrate courts deal with the most cases in the entire legal system. They are manned by magistrates who are employed by the Ministry of Justice. The decisions of magistrate courts are written down; however, they are not recorded in any law report. The decisions have to be written in case either party to the proceedings feel prejudiced by the outcome and wants to go on appeal or review to the High Court. They are created by the Magistrates Court Act no. 32 of 1944. The magistrates are governed by the Magistrates Act 3 of 2003.

The Labour courts have gained prominence over the past few years. They too are manned by magistrates. They deal with labour disputes, mainly arising from alleged contraventions of the Labour Act No. 6 of 1992. The courts are still applying the 1992 Act, although the 2004(no.15) labour act has already been gazetted. There is already an amendment to the 2004 act, the Labour Bill of 2007. Decisions of the labour courts are recorded. They are recorded in the Namibian Labour Court Reports. An example of a case reported in these reports is Municipality of Walvis Bay v Du Preez NLLP (Namibia Labour Law Publication) 2002 (1) 14 NLC. In terms of the Labour Act, ‘competent court’ means the Labour Court or any magistrates’ court established in terms of the Magistrates’ Courts Act No. 32 of 1944. In addition, Labour Courts are established by section 15 of the Labour Act No. 6 of 1992.

Community courts, which apply customary law, were created by the Community Courts Act 10 of 2003. Prior to this date these courts operated without recognition as part of legal system. These developments are extension of art 66 of the Constitution which holds that both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law. The courts have no reporting system, as the laws that they apply are very dynamic and may not be applied the same in any number of cases heard before them.

The regional courts are the least used lower courts. They are actually in a phase of extinction.

Decisions prior to independence

Art 140 of the Constitution is dedicated to laws in force at the date of independence. The Namibian administration at independence was guarding against creating a lacuna in the law when it decided that all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court. This applied to both legislation and case law prior to independence. Case law prior to independence captured Roman-Dutch common law. This is the written source of this form of law. Common law in Namibia is not written and is only as recorded in case law and writing of jurists such as Hugo de Groot.

Researching the Namibian legal system prior to independence overlaps with researching the South African legal system before 1989. The only way to tell which cases have been overturned is by reference to the case in which it is overturned, unless it directly affects (by amendment or repeal) a particular piece of legislation. In addition, laws which were not repealed at independence by the Constitution, as outlined in the constitutional schedule, are repealed in Government Gazettes. In the absence of an official method of legal citation for both cases and legislation, citations are according to the preference of the publisher.

Sources:

SAFLII

The Namibian Connection (Records recent unreported judgments)

Southern Africa Litigation Centre

JUTA (Available on CD-Rom and online)

Centre for Human Rights

Other sources:

Superior Courts (Records judgments of the High Court and Supreme Court, as well as all applicable legislation relevant to the respective courts)

The different law reports:

  • The Republic of Namibia Criminal Law Precedents
  • The Namibian Law Reports
  • Labour Court Reports (Namibian Labour Law Publications)
  • Butterworths Constitutional Law Reports

Citations:

S v Forbes and Others 2005 NR 384 (HC) is an example of how cases are cited in the Namibian law reports. The common abbreviation for the Namibian Law reports is NR.

Cases are usually cited by reference to: Names of the Parties; the year the report was published; the volume number of the report (if the report uses volumes, which is not the case with Namibian Law Reports); the page number on which the case begins; and an abbreviation indicating the court which delivered the judgment.

Legal Practitioners are defined and governed by the Legal Practitioner’s Act no 15 of 1995. Before the promulgation of the Act, the profession was divided into advocates and attorneys, with advocates being specialists at law. The situation has changed to a certain degree.

Attorneys

An attorney is a general legal practitioner, with which a person has his/her first interaction when he/she has a legal problem. An attorney is the most accessible legal practitioner, as he/she deals with a wide spectrum of the legal field. Attorneys are expected, in terms of the Legal Practitioner’s Act, to practice with a Fidelity Fund Certificate, without which they cannot represent clients in a court of law.

Advocates

An advocate is a person which specializes in a specific field of law. Although the division between attorneys and advocates is not recognized anymore as it was before, the Legal Practitioners Act makes provision for legal practitioners who practice without a Fidelity Fund Certificate (advocates). Advocates in Namibia belong to what is known as the ‘Society of Advocates of Namibia’, which serves as a membership and disciplinary body.

Sources:

The Law Society of Namibia

The Namibian Connection

Attorney-General

This political appointment is the government’s legal adviser. He has final responsibility over the office of the Prosecutor General. The meaning of final responsibility was settled by the Supreme Court in Ex Parte Attorney General: In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC). It means that the Prosecutor-General has to keep the Attorney-General informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

Prosecutor General

The chief of staff of the prosecutorial team is the Prosecutor General, an individual of integrity, conscientiousness and experience according to the Constitution. The powers and functions of the Prosecutor-General are to prosecute and defend appeals in criminal proceedings in the High Court and the Supreme Court.

Ombudsman

The Ombudsman is the public protector. The Ombudsman protects the public in, inter alia, matters concerning violations of fundamental rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous treatment, manifest injustice, or corruption by an official in the employ of any organ of Government. Other issues within its jurisdiction include the functioning of the Public Service Commission, administrative organs of the State, the defence force, the police force and the prison service in so far as such complaints relate to the failure to achieve a balanced structuring of such services or equal access by all to the recruitment of such services or fair administration in relation to such services, as well as issues pertaining to the over-utilization of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia.

Source:

Office of the Ombudsman

Conveyancing and Notarial Practice

Conveyancers and Notaries are legal practitioners who have written special exams with the Justice Training Centre, allowing them to effect the legal transfer of immovable property. The primary legislation which conveyancers use is the Deeds Registries Act 47 of 1937, which deals with the registration of title deeds for immovable property.

Sundry Acts which are also of application include the Administration of Estates Act 66 of 1965, Stamp Duties Act 15 of 1993 and the Transfer Duties Act 14 of 1993.

Source:

L@W (Provides an electronic link between banks and conveyancers in Namibia; go to Around the Globe and Namibia.)

The University of Namibia and the Polytechnic of Namibia are the two major institutions which offer courses on the Namibian legal system.

The University of Namibia

The University of Namibia has a degree program. It offers a Baccalaureus Juris (B.Juris) which compromises of 45 modules over a period of three full-time or 4 years part-time. The B.Juris is a prerequisite for enrolling for the Bachelor of Laws (LL.B). The LL.B compromises of 24 modules over a period of two years full-time or three years part-time. Students who successfully complete the Bachelor of Laws are eligible to register at the Justice Training Centre (JTC) for classes and exams that will enable them to sit for the Namibian Bar examination.

The University of Namibia also has a master’s program. The program is styled in such a way that candidates are allowed to write a Thesis of any relevant legal subject. The thesis may be completed within a maximum period of three years, after which the thesis is scrutinized by the Post Graduate Committee of the University for approval.

B.JURIS

1st YEAR 2nd YEAR 3rd YEAR
Introduction to law Statutory interpretation Criminal procedure
Criminal law Customary law I Law of evidence
Law of contract Human rights law Administrative law I
Sociology Roman law Law of delict
Communication and study skills Constitutional law Law of associations
Commercial law Civil procedure
Law of property Labour law
Law of persons and family law Practical legal studies I
Gender law
Customary law II

LL.B

1st YEAR 2nd YEAR
Credit agreement Comparative law
Customary law III Accountancy for lawyers
Insurance law Criminology and crime prevention
Maritime law LL.B dissertation
Administrative law II International economic law
Company law Jurisprudence
Environmental law Practical legal studies II/Legal aid studies
Private international law Law of succession
Public international law Tax law
Conveyancing and notarial practice
Law of insolvency
Negotiable instruments

Source:

The University of Namibia

Polytechnic of Namibia

The Polytechnic does not have a law program; it only offers law subjects in various fields which may be of relevance to the students.

Source:

Polytechnic of Namibia

REFERENCES

Law Journals

The only journal which includes comprehensive discussions on the Namibian legal system is the De Rebus Journal.

Websites

De Rebus

Centre for Human Rights (Provides a bibliography of written material on the Namibian legal system).

University of Pretoria (Has a collection of Namibian law reports and legislation).

University of Namibia Library (Provides an online search engine for all publications available at the University of Namibia)

Superior Courts of Namibia (Provides both reported and unreported cases, as well as schedule for pending cases and legislation applicable to the High Court and Supreme Court of Namibia)

Institutions

There are several institutions with a legal component in Namibia. Given the fact that there are very few academic writings on the Namibian legal system, most recent developments are recorded in journal articles and publications of various institutions. The following is a non-exhaustive list of some of these institutions: