Researching Namibian Law and the Namibian Legal System

By Dunia P. Zongwe

Dunia Prince Zongwe is an author, a consultant, and an academic. He currently works in South Africa as an Associate Professor at Walter Sisulu University (WSU). He also heads the Mercantile Law Unit in WSU Department of Legal Studies. From 2015 to 2018, he taught law at the University of Namibia. Zongwe studied at the University of Namibia where he earned two undergraduate degrees in law (B.Juris and LL.B), at the Université de Montréal, and at Cornell University where he obtained a master’s degree and a doctorate.

Published November/December 2020

(Previously updated by Hilya Nandago in April 2o1o and by Isabella Nowases in January 2013)

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1. Introduction

Namibia stands out from other legal systems through its unique history, the formal sources of its law, the doctrine of precedent it inherited from the United Kingdom, its brand of constitutionalism, and the way it classifies the law and organizes its courts and key role-players.

Namibia’s sophisticated legal system displays pluralism. A hybrid legal system, it combines African customary laws and post-Independence state laws with elements of Roman-Dutch common law, English common law, and South African law. Overall, Namibia belongs to the family of common law legal systems. More specifically, it falls under the branch of the common law family known as Roman-Dutch law, which Namibia shares with South Africa, Botswana, Lesotho, Eswatini (formerly Swaziland), Zimbabwe, and to a lesser extent Sri Lanka.

The formal sources of law comprise the Constitution, Acts of Parliament, international law, Roman-Dutch common law, case law, and customary laws. Doctrinal writings play a second-fiddle role as a source of Namibian law. Following South Africa’s administration and occupation of the territory, Namibia inherited the English doctrine of precedent.

Before the Berlin Conference of 1884-1885 led to the carving up of Africa into colonies appropriated by Western powers, customary laws applied in communities on the territory today associated today with Namibia. However, after the Berlin Conference allocated that territory to Germany, the territory became known as ‘German South West Africa’ or simply ‘South West Africa’ – a German protectorate. Germany introduced some changes in the laws that obtained in the territory.

When World War I ended, the League of Nations entrusted the United Kingdom (UK) with the administration of South West Africa, which the UK would exercise for or on behalf of South Africa. Accordingly, South Africa administered Namibia/South West Africa, but later on it forcibly occupied the territory until it achieved political independence from South Africa on March 21st, 1990. Nonetheless, South Africa heavily influenced the laws of Namibia – a rich legacy that endures to this day.

2. Historical Background

2.1. German Colonization

2.1.1. The Laws and Administration of the Territory

In the aftermath of the 1884-1885 Berlin Conference, German settlers implemented German laws in Namibia/South West Africa. These laws comprised imperial statutes that the German Act of Imperial Government made applicable to its protectorate South West Africa. Those German imperial statutes notably included the Civil Code of 1900, the Criminal Code, and statutes that the Imperial Government especially enacted for the local German government of South West Africa. In addition to those German statutes, the local Landesrat (i.e., the advisory council of the Governor) started to pass ordinances 1913 after it acquired legislative powers over the territory of South West Africa.

To govern the territory, Germany mostly employed regulations, which were the prerogative of the Governor duly advised by the Landesrat. Germany divided the territory with an imaginary line, the so-called ‘police zone.’ German colonizers did not administer as heavily the north of the police zone, as compared to the south of that zone.

Most of these German statutes, ordinances, and regulations have been repealed. South Africa promulgated the Administration of Justice Proclamation 21 of 1919, which replaced those statutes, ordinances, and regulations with the laws that applied in the Cape of Good Hope province. In fact, the period of German colonial rule has not left significant impacts on the Namibian legal system.

2.1.2. The Genocide

What did leave an indelible trace on Namibia’s society and polity is the genocide of Ovaherero and Nama communities by the German colonizers – the first genocide of the 20th century. German colonizers brutally exploited, enslaved, and exterminated Ovaherero and Nama indigenous peoples. Between 1884 and 1903, German colonizers arrived in South West Africa. They employed violence and force to occupy and seize land, livestock, natural resources, and other assets owned by Ovaherero and Nama indigenous peoples. The colonizers passed decrees and ordinances to seize tracts of ancestral lands and to force the Ovaherero and Nama peoples to relocate. As a consequence, many Ovaherero and Nama people ended up indebted and enslaved.

In 1904, German troops commanded by Adrien Dietrich Lothar von Trotha began to exterminate Ovaherero and Nama peoples. These indigenous peoples suffered enslavement, relocation to concentration camps, stolen land, rapes of women and children, and lynching and dissection of their bodies.[1] Human skulls lay alongside rib cages and thousands of fallen cattle in the Omaheke desert, retracing the path of those frightened steps that strove to escape German commander Lothar von Trotha, hopelessly in a ‘march of death’ through the desert. It is estimated that between 1904 and 1908, German troops wiped out 80% of the Ovaherero population and 50% of the Nama population.[2]

2.2. South African Administration and Occupation

The legal transition from German to South African administration was bridged by martial law. During World War I, South Africa – which fought on the side of the Allied Powers – invaded South West Africa in 1915. 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.

2.2.1. South Africa’s Mandate to Administer Namibia

The legitimacy of South African administration can be traced to Article 22 of the Covenant of the League of Nations and the terms of the Mandate for South West Africa. The 1919 Treaty of Versailles, which laid out the terms of Germany’s surrender, largely ended the state of war between Germany and the Allied Powers during World War I. The Treaty of Versailles incorporated the Covenant of the League of Nations, which entered into force in 1920.

Using the sort of language that mirrored the racism that spread through the international community in the first half of the 20th century, Article 22 of the Covenant provided for the administration of colonies and mandate territories. Specifically, Article 22 created “a sacred trust of civilisation” in favor of colonies and territories “inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world.” To give effect to this ‘sacred trust of civilisation’, Article 22 entrusted “nations who by reason of their resources, their experience or their geographical position” with “this tutelage” to administer those colonies and territories as mandatories on behalf of the League of Nations. Specifically and expressly referring to Namibia/South West Africa, Article 22 laid down that

“There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.”

Article 22 also stipulated that “[t]he character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.” By virtue of Article 22 of its Covenant, the League of Nations adopted on December 17th, 1920, the Mandate for South West Africa. In terms of that Mandate, the League conferred on “His Britannic Majesty” [the UK] a mandate over the territory of South West Africa that the UK would exercise “for and on behalf of the Government of the Union of South Africa.” The mandate territory comprised the territory “which formerly constituted the German Protectorate of South West Africa.”

The Mandate for South West Africa bestowed on South Africa “full power of administration and legislation” over South West Africa “as an integral portion of the Union of South Africa.” The Mandate empowered South Africa to apply its laws to the territory of South West Africa.

2.2.2. The Extension of South African Law to Namibia

Article 2 of the Mandate for South West Africa imposed a duty on South Africa to “promote to the utmost the material and moral well-being and the social progress” of the inhabitants of Namibia/South West Africa. 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. As of this writing, this is still applicable, 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 peculiar legal developments because of their somewhat obscure history. Therefore, if South African laws were to be applicable to these territories, this was expressly stated.

2.2.3. The English Influence

Pieces of legislation introduced into South West Africa before Independence do not constitute pure and authentic transplants from South African law. Quite a number of the statutes that applied in Namibia then actually stemmed from English law, especially after the passing of Proclamation 21 of 1919. Some core aspects of the South African legal tradition that Namibia inherited belongs to English law, such as the doctrine of precedent. Originating in 19th century England, this doctrine holds that precedents do not only have persuasive authority, but lawyers and judges must follow them when similar circumstances arise.[3]

2.2.4. The Run-Up to Independence

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.

Further Reading

  • S.K. Amoo, An Introduction to Namibian Law: Materials and Cases (2008).
  • P.H. Katjivivi, A History of Resistance in Namibia(1988).
  • K. Derks, Chronology of Namibian History – From Pre-Historical Times to Independent Namibia(1999).
  • Namibia under South African Rule: Mobility and Containment 1915 -46(P. Hayes et al. eds., 1998).
  • Dunia P. Zongwe, International Law in Namibia (2019).

3. Sources of Namibian Law

Namibian law comes from six formal sources, namely the Constitution, Acts of Parliament, international law, case law, common law, and customary laws. In addition, lawyers sometimes consult doctrinal writings to ascertain and interpret those formal sources. This means that, although not binding, doctrinal writings enjoy persuasive authority in the Namibian legal system.

3.1. The Constitution

The Constitution of the Republic of Namibia is the fruit of the long and heroic struggle waged by SWAPO and Namibians for sovereignty and human rights. This quest for sovereignty and dignity appear in the very first provision of the Constitution, which states that Namibia is a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.

The Constitution came into force on the eve of Independence as the supreme law of the land. The Constitution of the Republic of Namibia prevails over all laws and over all the other formal sources of law. Article 1(6) declares that the Constitution is the supreme law of Namibia. The Constitution is thus the ultimate, highest source of law in Namibia. All other laws derive their legitimacy from the Namibian Constitution.

3.1.1. Overall Structure

The Constitution protects individual rights (i.e. the Bill of Rights in Chapter 3), defines the powers of the state (e.g. Article 18), and creates constitutional institutions. The Constitution has 21 chapters, 148 articles, and eight schedules. These chapters, articles, and schedules mainly organize the state and outline the rights and freedoms of people in Namibia. The framers of the Namibian Constitution arranged its chapters and schedules in distinct themes as follows:

  • Preamble
  • Chapter 1: The Republic
  • Chapter 2: Citizenship
  • Chapter 3: Fundamental human rights and freedoms
  • Chapter 4: Public emergency, state of national defence and martial law
  • Chapter 5: The President
  • Chapter 6: The Cabinet
  • Chapter 7: The National Assembly
  • Chapter 8: The National Council
  • Chapter 9: The administration of justice
  • Chapter 10: The Ombudsman
  • Chapter 10A: Anti-corruption measures
  • Chapter 10B: Electoral Commission of Namibia
  • Chapter 11: Principles of state policy
  • Chapter 12: Regional and local government
  • Chapter 13: The Public Service Commission
  • Chapter 14: The Security Commission
  • Chapter 15: The Defence Force, the Police Force, the Intelligence Service and the Correctional Service
  • Chapter 16: Finance
  • Chapter 17: Central bank and National Planning Commission
  • Chapter 18: Coming into force of the Constitution
  • Chapter 19: Amendment of the Constitution
  • Chapter 20: The law in force and transitional provisions
  • Chapter 21: Final provisions
  • Schedule 1: Oath/affirmation of judges
  • Schedule 2: Oath or affirmation of the Vice-President, Prime Minister, Deputy-Prime Minister, Ministers, and Deputy Ministers
  • Schedule 3: Oath or affirmation of members of the National Assembly and the National Council
  • Schedule 4: Election of members of the National Assembly
  • Schedule 5: Property vesting in the government of Namibia
  • Schedule 6: The national flag of the Republic of Namibia
  • Schedule 7: Implementation of this Constitution
  • Schedule 8: Repeal of laws

3.1.2. The Bill of Rights

The Namibian Constitution provides for civil and political rights, and socio-economic rights. It enshrines the Bill of Rights in Chapter 3. The Bill of Rights outlines the fundamental rights and freedoms which voice the cardinal values and spirit of independent Namibia. The Bill of Rights 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 in the Constitution.

Among civil and political rights, the Constitution protects the rights of life (Article 6), liberty (Article 7), human dignity (Article 8), equality (Article 10), fair trials (Article 12), privacy (Article 13), political activity (Article 17), administrative justice (Article 18), and fundamental freedoms such as freedom of speech and expression (Article 21(1)(a)).

The Constitution also protects social, economic, and cultural rights, including those of families (Article 14), children (Article 15), property (Article 16), culture (Article 19), and education (Article 20). The chapter on principles of state policy (Chapter 11) embodies some socio-economic rights, such as health (Article 95(b) and (j)), pensions for senior citizens (Article 95(f)), social benefits (Article 95(g)), nutrition and decent standard of living (Article 95(j)), and protection of the environment on a sustainable basis (Article 95(l)). However, Article 101 of the Constitution provides that the principles of state policy contained in Chapter 11 are not legally enforceable by the courts. Those principles merely “guide the Government in making and applying laws” to give effects to those principles. Similarly, those principles may guide the courts in interpreting any laws based on them.

3.1.3. Constitutional Bodies

The Constitution establishes a host of institutions. First, Article 1(3) separates state power into three organs, 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. Chapters 5 and 6 of the Constitution indicate that the executive comprises of the President and the Cabinet. The President of the Republic heads the executive. The sitting President is Dr. Hage Gottfried Geingob, the third President of Namibia since independence. Sam Nujoma (the founding father) and Hifikepunye Pohamba preceded Geingob as President and Head of State. In March 2020, President Geingob re-appointed Nangolo Mbumba as Vice-President.

In addition to the executive, the legislature, and the judiciary, the Constitution creates the following bodies:

  • The Ombudsman: The Constitution, read with the Ombudsman Act 7 of 1990, mandates the Ombudsman to promote and protect human rights and fair and effective administration, to combat misappropriation or misuse of public resources, and to protect the environment. The Ombudsman fulfills its mandate by investigating and resolving complaints independently and impartially. The current Ombudsman is John R. Walker.
  • The Anti-Corruption Commission: The Namibian Parliament amended the Constitution in 2010 to set up an Anti-Corruption Commission (ACC). Article 94A of the Constitution and the terms of the Anti-Corruption Act 8 of 2003 entrust the ACC with the task of preventing and combating corruption. Paulus Noa serves as Director of the ACC and Erna van der Merwe as Deputy Director.
  • The Electoral Commission of Namibia: Parliament also amended the Constitution in 2010 to establish the Electoral Commission of Namibia (ECN). Article 94B of the Constitution and the provisions of the Electoral Act 5 of 2014 task the ECN with directing, supervising, managing, and controlling the conduct of elections and referenda. Notemba Tjipueja is the Chairperson of the ECN.
  • The Public Service Commission: Chapter 13 of the Constitution provides for the Public Service Commission. Articles 112(1) and 113 of the Constitution, read together with the Public Service Commission Act 2 of 1990, confers on this Commission the mission to advise the President of the Republic on the appointment of suitable persons to be employed in the public service, their disciplinary control and their remuneration. Markus Kampungu serves as the Chairperson of the Commission.

3.2. Acts of Parliament

3.2.1. Legislation and the Power to Make Laws

In the present constitutional dispensation, Acts of Parliament rank as the second source of Namibian law. Article 44 of the Constitution vests the National Assembly with the power to pass those Acts of Parliament. It subjects the power of the Assembly to the assent of the President of the Republic and, where applicable, to the powers and functions of the National Council. The Speaker of the National Assembly is Peter Hitjitevi Katjavivi. Ms. Loide Kasingo assists Katjavivi as Deputy Speaker of the National Assembly.

Parliament has enacted countless wide-ranging laws. Acts of Parliament range from the laws of the German Imperial Government to current legislation enacted by the Namibian Parliament. The official website of Parliament boasts the largest, annotated, and most updated database of legislation in Namibia. The database also contains bills tabled in Parliament.

The National Assembly has also the power to delegate its legislative powers to other bodies and office bearers. Thus, the Assembly routinely passes Acts of Parliament that expressly empowers a specified Minister to make and publish regulations. These regulations and other instances of delegated legislation are often referred to as ‘subordinate legislation’ or ‘secondary legislation’. They trace their validity to the enabling Act of Parliament, also known as ‘primary legislation’. Secondary or subordinate legislation must not conflict with the Constitution or the enabling (primary) legislation.

3.2.2. Continuity Between South African Law and Namibian Law

Article 140 of the Namibian Constitution provides that all the laws that applied in Namibia immediately before independence must remain in force until the Namibian Parliament repeal or amend them or until competent courts declare them unconstitutional. These pre-independence laws include the statutes, ordinances, and regulations passed by German Imperial Government during the German colonial administration and those imposed by the South African regime. Article 140 thus avoided a major legal vacuum in the legal system.

3.3. International law

Article 144 of the Constitution places international law below the Constitution and Acts of Parliament. It reads: “Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.” Article 144 confirms the position in the Roman-Dutch common law that the general rules of public international law are binding upon Namibia and have always been part of national law.[4]

One of the major implications of Article 144 is that international law is one of the sources of Namibian law.[5] Judges have a duty to use Article 144 as a source of Namibian law. This position makes Namibia different from South Africa, where international treaties becomes part of municipal law only after legislative incorporation of those treaties into law.[6] In Mwilima, the Supreme Court held that Article 144 created a “special mechanism” that introduces international treaties into Namibian law.[7]

Article 144 subjects the application of international law to the Constitution and Acts of Parliament. This position differs from countries, such as Germany and the Netherlands, that provide that international law, especially international custom, prevails over domestic rules in cases where the two conflict. However, the text of Article 144 and the case law based on this provision do not say what happens when secondary legislation, as opposed to Acts of Parliament (i.e. primary legislation) clashes with international law.

The weight of authorities leans towards the proposition that Article 144 enables international law to apply directly and automatically, and that it thus makes Namibia a monist country. Nonetheless, Namibian courts have not yet authoritatively settled the issue as to whether ratified treaties apply directly and automatically.[8] In cases such as Carracelas (1)[9]and South African Poultry Association[10], lawyers and judges alike have maintained that international treaties do not apply in Namibia directly and automatically.

On balance, Namibia has largely approached the relationship between Namibian law and international law in a monist fashion. Still, the Namibian legal system does contain some elements of dualism, for example, by subjecting international law to Acts of Parliament.

3.4. Case Law

In Namibia, as in most other common law jurisdictions, a huge emphasis is placed on the opinions of the courts themselves as a major source of law. This emphasis confers on judges immense powers to shape society, the polity, and politics – a power viewed jealously by other centers of power and sometimes with suspicion by the rest of the population. This doctrine of judicial precedent, inherited from British colonization of Southern Africa, manifests in provisions such as Article 81 of the Constitution, which deals with the binding nature of Supreme Court decisions. Article 81 provides that [a] decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.” The judgment in Likanyi[11]marks the first time that the Supreme Court ever reversed one of its earlier precedents.

The principle of stare decisis (which translates as “to stand by things decided”) underpins the doctrine of precedent. This principle holds that it is necessary to abide by former precedents when the same points of law arise again in litigation.[12] Judges have mentioned a number of benefits of the judicial precedent doctrine. First, adherence to the stare decisis promotes legal certainty. The precedent doctrine also serves as a desirable check on the power and prejudices of judges while assuring equality for all before the law.

Furthermore, judicial precedents increase efficiency of justice. Case law serves as a vehicle for preserving the accumulated wisdom of the past. Last but not least, it is logically and even aesthetically pleasing. None of these claimed benefits are above controversy or without their detractors, although there is merit in each of these claims.

3.5. Common Law

The Constitution carried forward the common law that it obtained before independence into the present dispensation. Article 66 of the Constitution lays down that “[b]oth 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.”

Common law may mean several things. In terms of history and geography, the concept of ‘common law’ encompasses the whole of the law of England and its former colonies. Also, the concept can designate any substantive or procedural rules or concepts involving methodology of the law, and strategies for adjudicating on disputes or resolving them. Besides, the phrase ‘common law’ may refer to the body of rules developed over time from court decisions in similar past cases.

3.6. Customary Laws

Before European powers colonized the continent, African societies had their own laws. Namibia is no exception. These laws, known as ‘customary laws’ or ‘indigenous law, covered areas such as criminal and civil liability, marriage, inheritance, succession, and land tenure.

Since they refer to the corpus of laws of a particular tribal community, customary laws are plural, diverse, dynamic and unwritten, as their primary formal source is oral tradition.

In terms of the admissibility of their content, research does not indicate a uniform standard of recognition. The problem that the courts of most African jurisdictions that had repugnancy clauses faced consisted in finding the standard to employ to interpret those preconditions to rule on the admissibility and enforcement of a particular customary norm. The Constitution now recognizes the validity of customary laws. Article 66 ensures the continued validity of customary laws, together with the common law. In addition, Article 19 of the Constitution protects the right to culture.

3.7. Doctrinal Writings

Juristic writings are the writings and teachings of eminent scholars. In the Namibian context, these include the writings of publicists whose works have impacted particularly on the development of Roman-Dutch law. Among these feature eminent jurists of the 17th and 18th century, such as Hugo Grotius, Paulus Voet, and Cornelius van Bynkershoek. The persuasive nature of juristic writings depends on the respect that particular authors enjoy. Namibia has this year blown 30 candles, yet doctrinal writers and writings in the country remains relatively small. Distinguished contemporary jurists include Joseph Diescho, Manfred Hinz, Dianne Hubbard, Samuel Amoo, Nico Horn, Oliver Ruppel, and Sakeus Akweenda.

In 1990, then a judge of the High Court of Namibia, Ismail Mahomed famously said that the constitution is “a mirror reflecting the national soul.”[13] Later, in Ex Parte Attorney-General: In Re Corporal Punishment, Mahomed transformed Namibian law by ruling that, when people read the Constitution, they must interpret it by taking into account the values of Namibians.[14] This ruling took on a sharper relief when in 1994 Joseph Diescho published a book that explained how the Constitution was drafted, revealing that the Namibian constitution actually reflects Western values. Nonetheless, Nico Horn maintained that the mere participation of Western countries in drafting the “compromise Constitution” does not necessarily make it a foreign document.[15]

So, what does the mirror reflecting the soul of Namibia show? Article 66 of the Constitution recognizes the customary laws of the different traditional communities as valid, but the Constitution remains silent as to what those customary laws consist of. Through a method he called ‘self-statement of customary law’, Manfred Hinz asked traditional chiefs to present the laws of their communities, such as the Ovambanderu, the Owambo, and the Bakgalagari.[16] He also examined the role that chiefs played in conserving Namibia’s natural resources. Hinz’s work made the fields of customary law and, to a lesser extent, the natural environment the most influential, as measured by how many times and how many people in Namibia and abroad have cited and relied on his work.

Oliver Ruppel has become the leading expert on environmental law in Namibia. In his magnum opus, co-edited with Katharina Ruppel-Schlichting, he acknowledges that economic activities impact Namibia’s environment. The editors and the contributors to the book show how different sectors interact in managing and protecting the environment. They also present the law and policies that guide the management and protection of the environment in Namibia.

Human rights, especially gender, emerge as the most visible area after traditional cultures. This area is led by Dianne Hubbard’s research on women and girls. Although Article 10 of the Constitution forbids people from discriminating against others and against women particularly, Hubbard points out that guarantees of sexual equality do not govern daily life automatically.[17] She recommended that the government increase the number of women holding key positions in government, policymaking and lawmaking.[18]

When surveying what lawyers have been mulling over the past 30 years, issues of land and territory also bubble up to the surface. On the eve of independence, land was classified as ‘private’, the majority of which was owned by Whites; and ‘communal’, over which the indigenous people only held limited rights. After he observed that the Namibian Constitution recognized the way the settlers had classified land, Sam Amoo argued that the recognition of such colonial classification violates the “spirit” of the Constitution, which aims to redress the injustices of the past.[19] He warned that unless the state resolves the manner in which the text of the Constitution contradicts its spirit, the laws enacted since independence will not succeed in reforming land tenure radically.

Sakeus Akweenda ventured where very few other thinkers treaded: the territory of Namibia. He acknowledges that the task of demarcating the territory of Namibia proved particularly difficult because the colonial settler, Germany, never completed that task and because of the unique status of Namibian territory in international law. Akweenda’s efforts became even more useful after a group of armed secessionists in the Caprivi region challenged in 1999 the geographical boundaries of the country as much as they questioned the psychological contours of Namibian identity.

Overall, the jurists who wrote about doctrines in Namibian law have largely worked like mercury in a thermometer because they often indicate the anxieties and the mood of the times. They concerned themselves with culture when independence entailed forging a collective identity, with human dignity when discrimination and violence against women escalated, with land and property rights when the distribution of wealth exposed a country with one of the world’s greatest income inequalities, and with territory when some sections in society and some neighbors sought to redraw the borders of Namibia.

However, since the closing months of 2016, that mercury has seemingly failed to give correct readings. Lawyers have still not written much on how the state and individuals relate to the market despite the fact that the country has slid into its longest economic recession. Instead, thinking about the law has remained ‘public’ as it primarily focuses on how the state relates to its people and to other states. It has not yet veered into the realm of ‘commercial law’ or ‘economic law’ to keep in sync with the unfolding economic downturn. Perhaps, lawyers do not foray into the models that may reshape and better propel the Namibian economy because they assume – wrongly – that economic policies are better handled by economists only.

Further Reading

  • Sakeus Akweenda, International Law and the Protection of Namibia’s Territorial Integrity: Boundaries and Territorial Claims (1997).
  • M.O. Hinz et al. eds., The Constitution at Work: 10 Years of Namibian Nationhood (2002).
  • Joseph Diescho, The Namibian Constitution in Perspective (1994).
  • 1 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Owambo, Kavango and Caprivi Communities of Namibia (2010).
  • 2 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Bakgalagari, Batswana and Damara Communities of Namibia (2014).
  • 3 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Nama, Ovaherero, Ovambanderu, and San Communities of Namibia (2016).
  • Manfred O. Hinz, Without Chiefs There Would Be No Game: Customary Law and Nature Conservation (2003).
  • G.J. Naldi, Constitutional Rights in Namibia (1995).
  • Oliver C. Ruppel & Katharina Ruppel-Schlichting eds., Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (3d ed. 2016).

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’.

4. Classification of the Law

Lawyers have unique ways of dividing reality into categories. Although they differ in the manner in which they classify the law, lawyers in Namibia tend to classify the law as presented in this section. This classification is generally accepted by law faculties in South Africa and Namibia, which also organize areas of research and their departments according to that classification.

4.1. Substance vs Procedure

Lawyers in Namibia generally divide the law into substantive law and procedural law. Substantive law encompasses all the areas of law that deal with the contents of the law, as opposed to the procedure to realize the rights and obligations emanating from those areas of law. Procedural law, on the other hand, encompasses all the areas of law concerned with the procedure, including court procedures, for realizing the contents, rights and obligations provided for in substantive law.

For instance, criminal law falls under substantive law because it deals with what constitutes a crime, such as rape. Criminal procedure, however, falls under procedural law because it provides for the rules and principles guiding the manner and methods by which law enforcement agents and the criminal justice will prosecute the crimes punished under substantive criminal law. Thus, criminal procedure will guide law enforcement agents and other players in the legal profession on how to proceed against people accused of rape.

4.2. Public Law

Substantive law is in turn divided between public law, private law, and commercial law. Public law refers to the sphere of the legal profession interested in the relationship between the state and other persons, including the state itself. In public law, the state acts with public authority as a sovereign; it thus stands in a dominant position vis-à-vis non-state persons. The specific fields of law that fall under public law include constitutional law, criminal law, tax law, and administrative law.

Constitutional Law: Constitutional law addresses itself to first principles, core values, and issues defining Namibia as a nation. It addresses the history and evolution of the Namibian Constitution, constitutionalism, and human rights. Constitutional law deals with how constitutions evolved, from the first constitution enforced in Namibia during South African administration to the present Constitution.

This field of law examines constitutionalism in Namibia, as practiced by the three organs of state and by actors within each organ. In a similar vein, it examines democracy, constitutional supremacy, and the rule of law. It promotes, protects and entrenches human rights. And it defines and constrains the powers of the state, including its powers after the government declares a state of emergency and when the government seeks to otherwise limit rights or freedoms.

Criminal Law: This core area of Namibian law feature notably the general objectives and values of criminal law, the general principles of criminal liability, general defences, forms of participation, the impact of Independence and the Namibian Constitution on criminal law, incomplete crimes, and specific crimes. The content of criminal law can be conveniently grouped in the following four general conceptual and theoretical categories:

  • theories of criminal law,
  • requirements for criminal liability,
  • participation in criminal conduct,
  • incomplete (or inchoate) crimes, and
  • specific crimes.

The bulk of criminal law deals with the requirements for criminal liability, especially culpability and unlawfulness. Most importantly, the entire field of criminal law boils down to one simple question: Is the accused guilty?[20]Crimes can fall in four broad categories. These are (1) crimes against property (for example, theft, robbery, and arson), (2) crimes against a person (for example murder, assault, and kidnapping), (3) crimes against the community (for example, sexual offenses, corruption, and extortion), and (4) crimes against the state and the administration of justice (for example, high treason and contempt of court).

Tax Law: This area of public law concerns itself with the basis of taxation, the process of taxation, the tax formula, and the basic principles of taxation. Tax law also provides for the different types of taxes, for instance income taxes, capital gains taxes, corporate taxes, and value added taxes.

4.3. Private Law

Private law involves relationships between private individuals. It differs from public law in the sense that the relationship is horizontal, which means that the persons covered by private law interact on the basis of equality. Therefore, in this sphere of the legal system, the law treats even the state as a private person: the state does not enjoy the dominant position that it has in public law. This horizontal relationship, which by the way also characterizes commercial law, differs from the vertical relationship that defines relationships and interactions in public law. The fields of law falling under private law include the law of property, the law of persons, family law, and contracts.

Contracts: Contracts are a distinctive type of agreement. To understand or conceptualize the notion of ‘contract’, one must recognize first that it involves an intention to create enforceable obligations. Not all agreements qualify as contracts. Under private law, contracts and the law of delict both fall under the law of obligations, together with the law of unjustified enrichment.

A contract affects property rights. For instance, a contract of sale transfer ownership from the seller to the buyer. But the effects of contracts on property rights do not imply that contract and property entirely coincide. The law of contract focuses on the scope, nature, basis and essentials of contracts. It also concentrates on the formation of valid contracts and their requirements, such as capacity, and formalities. The law of contract categorizes the content of contracts into express terms, implied terms, and tacit terms.

The law of contract also determines when people or parties breach a contract; or how they may terminate a contract, whether or not the parties breached it. The law of contract provides for remedies for breaches, together with the remedies available in the law of delict for contract breaches.

Delict: A person commits a delict when he performs an act that the law regards as harming a private individual. Unlike a crime, a delict does not constitute a wrong against the state. Legally speaking, a delict harms a private person, not the state. Like contracts, delict gives rise to obligations. However, delict differs from contract in that the obligations created by delict arise from harm caused to a private person whereas the obligations created by contract results from the parties exchanging promises.

Delict deals with the general principles, the nature and basis of delictual liability. It provides for the Aquilian action and the action injuria. It also provides for defences against the Aquilian action. The law of delict covers contributory negligence and specific delicts, for instance, nuisance, trespass, and defamation.

Property: In its broad sense, the law of property applies to “the totality of the individual’s or legal subject’s patrimony or estate.”[21] Ownership forms a central theme in property law.[22] Article 16 of the Constitution protects the right to property. The law of property regulates the land tenure systems of Namibia. It fixes property rights, the obligations of property owners and right holders.

The law of property provides for various forms of property rights, such as co-ownership, joint ownership, rights of use, usufruct, and servitudes. It regulates pledges, mortgage, leases of property rights, statutory leasehold, mineral rights, sectional titles, and time sharing. Last but not least, it limits property rights through mechanisms, such as expropriation and prescription.

4.4. Commercial Law

Commercial law involves profit-driven activities. Like private law, it involves horizontal relationships, whereby the law treats actors on an equal footing. But it differs from private law in the sense that it only covers activities motivated by profit. The fields of law that fall under commercial law include sales, credit, leases, agency, company law, and insurance.

4.5. Procedural Law

As explained earlier in this section, procedural law comprises the rules on how people can give effect to the rights and obligations flowing from substantive fields of law, such as constitutional law, the law of delict, or the law of contract. Statutory interpretation, the law of evidence, and civil procedure provide fine examples of procedural fields of law.

4.5.1. The Interpretation of Statutes

In essence, applying the law entails interpreting legal texts. The interpretation of statutes consists, as this phrase indicates, in making sense of those texts. This field of procedural law concentrates on the purpose of statutory interpretation, the role of judges, theories of interpretation, presumptions, canons, and aids to interpretation. It also pays close attention to the interpretation of the Namibian Constitution.

The literal rule, the golden rule, the mischief rule, and purposivism constitute four major ways of interpreting legal texts. The literal rule seeks to give effect to the plain meaning of the words even if the result would be absurd or contrary to the spirit of the legislation. The golden rule of legislative interpretation differs from the literal rule as it involves considering factors and variables other than the mere language of the legal text in question. The golden rule justifies an interpretation that departs from the literal rule if the words of a legal text admit of two interpretations and the primary meaning of those words after the ordinary and grammatical construction of the words leads to an absurdity.

For its part, the mischief rule attaches a meaning to words in a statute by ascertaining the ‘mischief’ or the ‘disease’ Parliament intended to redress when it passed the statute. The nature of this mischief may have changed with the passage of time, change of policies, and so forth. Therefore, the factors that an interpreter must consider when deciding what constitutes the mischief may vary. The landmark Heydon’s Case enunciated this rule.[23]

The 1990 Constitution afforded judges an opportunity to promote the principles of the rule of law and constitutionalism, and to protect the rights and fundamental freedoms of the individual. Since Independence, judges have interpreted the Constitution by approaching this task in a value-oriented or purposive fashion, thereby developing a jurisprudence based on value judgments, on the values and norms of the Namibian people. In Ex Parte Attorney-General: In Re Corporal Punishment, Mahomed AJA famously framed this purposive approach as follows:[24] “[The interpretation of the Constitution] involves the exercise of a value judgment by the Court… It is however a value judgment which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of values in the civilised international community (of which Namibia is a part) which Namibians share.”

4.5.2. The Law of Evidence

The law of evidence lays down the procedure for presenting both oral and documentary evidence in both civil and criminal proceedings in court. Ultimately stemming from English common law, the law of evidence deals with burdens of proof, the relevancy and admissibility of evidence, the probative value of evidence, viva voce evidence by witnesses, and cross-examination of witnesses. It also covers exclusionary rules, corroboration, cautionary rules, presumptions of law and presumptions of fact, judicial notices, and formal admissions.

Through South Africa, Namibia adopted the adversarial system that typifies common-law jurisdictions. This means that, unlike civil-law countries, Namibia puts the parties in charge of leading or disputing evidence adduced in court while the judge acts like a referee. That said, Namibia has recently introduced changes that give judges a more active role in managing cases dragged before them,[25] thus bringing the Namibian legal system a bit closer to civil-law inquisitorial counterparts.

Further Reading

  • S.K. Amoo, An Introduction to Namibian Law: Materials and Cases (2008).
  • Dunia P. Zongwe, Criminal Law I (2017)(study guide on file with the author and the University of Namibia).
  • University of Namibia, Faculty Prospectus 2020: Faculty of Law (2020).

5. Organs of the State and Namibian Constitutionalism

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

5.1. The Executive

The working relationship of the Executive 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).
  • Diergaardt of Rehoboth Baster Community et al. v. Namibia; (Human Rights Committee), Communication No 760/1997, views of 25 July 2000.
  • 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 has only been declared once, 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 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 all 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

5.2. The Legislature

The National Assembly: The Legislature as outlined in chapters 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.

Sources:

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.

6. The Judiciary

The administration of justice, as the Constitution refers to it, comprises the Supreme Court, the High Court and 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 Swiss-based World Economic Forum (WEF) ranks the judiciary in Namibia as one of the most independent in Southern Africa.[26]

6.1. The Supreme Court

The Supreme Court is the highest national forum of appeal. The Chief Justice heads the Supreme Court. The first Black to hold this position in independent Namibia, Peter Shivute has served as Chief Justice since 2004. Petrus Damaseb works both as Deputy Chief Justice in the Supreme Court and as Judge President of the High Court.

The Supreme Court has inherent jurisdiction over all legal matters in Namibia. It adjudicates, according to Article 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 Court are 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 defendant’s name. Criminal matters are cited as State versus the accused. This is commonly abbreviated as S v The Accused. The Accused’s surname is used rather than his first name. In circumstances where there are more than one plaintiff/defendant or accused persons, the first plaintiff/defendant or accused is cited and the rest is recorded as others. E.g. S v Hamunyela and 2 others.
  • 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.

6.2. The High Court

Unlike the Supreme Court, the High Court exercises inherent (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).

6.3. 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.

As of 1 November 2008, Namibia promulgated the Labour Act No. 11 of 2007 which repealed the 1992 Act. The 2007 Act has brought substantial change to the labour practise in Namibia. Firstly, the 1992 Act is applicable in so far as matter/cases instituted prior to promulgation of 2007 Act. This means all labour matter and cases are now dealt with under the Act of 2007. The biggest change caused by the 2007 Labour Act is the abolishment of the District Labour Courts.

Labour matters are no longer resolved by means of litigation. As a way to curtail the length of these proceedings, all labour matter are dealt with either by conciliation or arbitration (s81 & s84, respectively) and are presided over by an arbitrator or conciliator whose decision shall be regarded as final and binding. Should the matter not be solved, only then will the parties be afforded an opportunity to file a hearing in the High Court-Labour Court. The Labour Court now has the standing of a court of appeal.

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.

6.4. Decisions Prior to Independence

Article 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:

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

How to Cite: 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.

7. The Legal Profession

Legal Practitioners: 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. To practise as an Attorney in Namibia, every person shall be admitted as a legal practitioner by the High Court of Namibia and enrolled with the Law Society of Namibia. In addition, an attorney may only practice under the guise of a firm in possession of a Fidelity Fund Certificate or they personally must obtain a Fidelity Fund Certificate, without which they cannot represent clients in a court of law. The Legal Practitioners Act makes provision for some legal practitioners to practice without a Fidelity Fund Certificate i.e. state attorneys and prosecutors.

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, an advocate may practice without a Fidelity Fund Certificate. The reason for this difference is based on the practice that attorneys accept payment from client in trust accounts, for which they are accountable, and as such they are not in possession of this money. Advocates in Namibia belong to what is known as the ‘Society of Advocates of Namibia’, which serves as a membership and disciplinary body.

Legal Advisors: Legal Advisors are also qualified lawyers. They are usually employed in the private sector and act as legal advisors for the private entities. In Namibia, a legal advisor need not be admitted with the High Court of Namibia. However, in practise most companies prefer legal advisors that have a minimum of two year practising experience.

Sources

Attorney General: This political appointment is the government’s legal adviser. The AG 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). Final responsibility does not mean control over the PG: 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. The PG still has final decision-making power whether to prosecute or not.

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

Conveyance and Notarial Practice: Conveyancers and Notaries are legal practitioners who have written special exams with the Justice Training Centre, allowing them to affect 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.

8. Legal Education

The University of Namibia and Namibia University of Science and Technology are the two main institutions which offer courses on the Namibian legal system. Recently, however, the Namibian branch of the South Africa-based Southern Business School (SBS) has succeeded in having its LL.B program registered with the Namibia Qualifications Authority.

8.1. The University of Namibia

The University of Namibia has a four-year LL.B degree program. Students who successfully complete the Bachelor of Laws (LL.B) are eligible to register at the Justice Training Centre (JTC) for classes and exams that will enable them to sit for the Namibian Bar examinations. If they pass those examinations, the High Court may officially admit them as legal practitioners.

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 on 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.

The LL.B curriculum at the University of Namibia looks like this:

LL.B PROGRAM

1st YEAR

Introduction to Law

Law of Persons

Constitutional Law

Family Law

 

2nd YEAR

Customary Law I

Customary Law II

Labour Law

Law of Contract

Law of Property

Administrative Law

Criminal Law I

Criminal Law II

Legal Interpretation and Drafting

 

3rd YEAR

Human Rights Law

Civil Procedure

Criminal Procedure

Accountancy for Lawyers

Public International Law

Law of Delict

Law of Evidence

Research Methodology

Law of Associations

Commercial Law

 

4th YEAR

Compulsory modules

Elective modules

Law of Succession

Maritime Law

International Economic Law

Environmental Law

Company Law

Private International Law

Jurisprudence

Comparative Law

LL.B Research Project

Competition Law

Legal Aid Clinic and Professional Ethics

Law of Intellectual Property

Tax Law

Mining Law

Negotiable Instruments

Law of Insolvency

International Humanitarian Law

Conveyancing and Notarial Practice

Source: University of Namibia, Faculty Prospectus 2020: Faculty of Law (2020).

8.2. Namibia University of Science and Technology

Namibia University of Science and Technology (NUST) does not have a law program; it only offers law subjects in various fields which may be of relevance to the students.

9. Researching Namibian Law

9.1. How to Start Research on Namibian Law

The best place to start research on any aspect of Namibian law is Namlex. Maintained by the Legal Assistance Centre (LAC), a non-governmental organization, Namlex offers detailed legal frameworks for a diverse and vast array of topics, ranging from ‘agriculture’, ‘customary law’, ‘finance and development’, and ‘national heritage’ to ‘tenders’. For each topic, say ‘financial institutions’, the Namlex database lists the following:

· the applicable Acts of Parliament (for example, Namibia Financial Institutions Supervisory Authority Act 3 of 2001).

· further information about the Acts, notably summaries of the Acts, amendments, notices issued, officers appointed, and the regulations made in terms of those Acts.

· the cases decided by the courts and relying on those Acts (for example, Open Learning Group Namibia Finance CC v Permanent Secretary, Ministry of Finance and Others 2006 (1) NR 275 (HC)),

· commentaries on individual Acts or on the topic generally (for example, Athalia Wallace-McNab & Dunia P Zongwe, Collateral in Namibia: A plea for Umbrella Regulation, in The Law Reform and Development Commission of Namibia at 25: A Quarter Century of Social Carpentry (Dunia P. Zongwe & Yvonne Dausab eds., 2017).

9.2. Law Journals and Law Reports

  • De Rebus Journal: a South African journal that contains comprehensive discussions on the Namibian legal system
  • Namibia Law Journal (NLJ): The Supreme Court of Namibia, the Law Society of Namibia, and the University of Namibia joined forces to set up the NLJ, which publishes and focuses on the legal system, legislation, and case law in Namibia
  • Namibian Law Report
  • Namibia Labour Law Publication
  • Namibia Criminal Law Publication: 2004 and 2005 publications only

9.3. Websites

  • 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)
  • The US Library of Congress (has some information on Namibian law)
  • Superior Courts
    • High Court and Supreme Court Judgments (cases)
    • Legislation and Court Rules
  • Juta Law
    • Namibian Law Reports (cases) and South African Law Reports
    • Namibian Statutes, Regulations, Ordinance
  • Saflii
    • Namibian cases
    • Namibian Statutes and Government Gazette Publication

9.4. Institutions

There are several institutions with a legal component in Namibia. Given that very few academic writings exist on the Namibian legal system, most recent developments appear in journal articles and publications of several institutions. A non-exhaustive list of some of these institutions would include:

 

[1] These facts were recited in Vekuii Rukoro and Others v Federal Republic of Germany, United States District Court, Southern District of New York, Case No. 17 CV 62-LTS. For a brief discussion of that case, see Dunia Zongwe & Bernhard Tjatjara, The Bones of Contention in the Ovaherero-Nama Genocide Case, The Namibian, Mar. 15, 2019, at 10.

[2] See Montreal Holocaust Museum, Herero Genocide in Namibia

[3] Black’s Law Dictionary 1460 (8th ed. 2011) sv ‘doctrine of precedent’.

[4] Dunia P. Zongwe, International Law in Namibia 80 (2019).

[5] Id. at 80.

[6] Id. at 80.

[7] Government of the Republic of Namibia and Others v Mwilima and All Other Accused in the Caprivi Treason Trial 2002 NR 235 (SC) 269.

[8] Zongwe, supra note, at 81.

[9] S v Carrecelas and Others (1) 1992 NR 322 (HC) 327.

[10] South African Poultry Association and Others v Minister of Trade and Industry and Others 2018 (1) NR 1 (SC).

[11] S v Likanyi 2017 (3) NR 771 (SC).

[12] Elizabeth A. Martin (ed.), A Dictionary of Law 475 (5th ed. 2003) sv ‘stare decisis’.

[13] S v Acheson 1991 NR 1 (HC) 10.

[14] Ex Parte Attorney-General: In Re Corporal Punishment by Organs of State 1991 NR 178 (SC) 188.

[15] Nico Horn, The Forerunners of the Namibian Constitution, in Constitutional Democracy in Namibia: A Critical Analysis After Two Decades80 (Anton Bösl et al. eds., 2010).

[16] 1 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Owambo, Kavango and Caprivi Communities of Namibia (2010); 2 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Bakgalagari, Batswana and Damara Communities of Namibia (2014); and 3 Manfred O. Hinz, Customary Law Ascertained: The Customary Law of the Nama, Ovaherero, Ovambanderu, and San Communities of Namibia (2016).

[17] Dianne Hubbard, Gender and Law Reform in Namibia: The First Ten Years (2000).

[18] Id. at 30-32.

[19] S.K. Amoo, Towards Comprehensive Land Tenure Systems and Land Reform in Namibia, 17 SAJHR 87 (2001).

[20] Dunia P. Zongwe, Criminal Law I, 3 (2017) (study guide on file with the author and the University of Namibia).

[21] Samuel K. Amoo, Property Law in Namibia 1 (2014).

[22] Id.

[23] Heydon’s Case (1584) 76 ER 637.

[24] See Ex Parte Attorney-General: In Re Corporal Punishment by Organs of State 1991 NR 178 (SC) 188.

[25] See P.T. Damaseb, Promoting Access to Justice in the High Court of Namibia: First Report: The Case for Judicial Case Management(2010).

[26] See Klaus Schwab ed., The Global Competitiveness Report 2019, 410-413 (2019).