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Constitution
The Namibian independence constitution came into force on the eve of independence as the
supreme law of the land and therefore the ultimate source of law in Namibia. Article 140 of the
Constitution provides that all laws that 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independence shall remain in force until repealed or amended by Act of Parliament or until they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.
By virtue of the above provision therefore the sources of laws of Namibia comprise the laws that
were in force in Namibia on the eve of Independence and after independence.
The Constitution contains the Bill of Rights of fundamental human and rights and freedoms. In
the case of Kauesa v. Minister of Home Affairs, a police officer appeared on NBC for a
discussion of affirmative action. He stated the white officers in the command structure of the
police force were determined to undermine the government’s policy of reconciliation, facilitated
corruption and abused their power. The Namibian Police started disciplinary proceedings against
Mr Kauesa due to his remarks. He applied to the Full Bench of the High Court for an order
declaring the regulation unconstitutional. The application was dismissed by the High Court and
he appealed to the Supreme Court. The central issue was whether regulation 58 (32) constituted a
permissible restriction on the right to freedom of speech of a serving member of the Namibian
Police force. The Namibian Constitution provides that “all persons shall have the right to
freedom of speech and expression”. It was contended on behalf of Mr Kauesa that regulation 58
(32) imposed an impermissible restriction on the freedom of speech.
An underlying principle of the Constitution implicit from the Preamble and Article 1 is the
doctrine of Constitutionalism, which simply means government according to law rather than
according to the whims and caprices of individuals in government. In the context of the
Namibian political order, there are mechanisms in the Constitution that are meant to impose
checks and balances and restraints on the exercise of powers of government and achieve the
objectives of constitutionalism.
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Roman Dutch Law (Chapter 2)
1. Introduction of RDL
2. The definition of common law – court’s decision are the sources of law
3. Methodology of the common law (Chapter 6, pg 284)
4. Advantages of common law.
Article 66(1) –Common law and customary law practiced before independence shall remain
enforced until repealed or amended by an Act of Parliament or by a competent court. Common
law as a source of law confirmed by our Constitution, by virtue of Article 66
In 1959, the precedents of the Supreme Court in SA were also binding in Namibia together with
the Proclamation Act 21 of 1919.
Binding Precedents – principles emanating from our Constitution and Supreme Court.
Persuasive Precedents – principles from outside jurisdictions (serve as guidance for judges)
Common Law
1. Historical and geographical concept: a. law of England
b. colonies
2. Substantive and procedural rules of law
3. Method of law of dispute settlement and adjudication
In historical concept, the common law may be defined as the body of laws that were common to
the realm of England after the Norman Conquest in 1066. And in its geographical and historical
concept it is also used to refer to the laws in the legal systems that were introduced into the
colonies by the English.
Jurisdictions/countries that use the English system are known to belong to the common traditions
as opposed to the Civil Code tradition (Napoleon Law)
Substantive and procedural rules of law: common law does not just only use legislation, it uses
case law as well. In this context common law are the rules laid down in the decisions of the
court, also known as judicial precedent/case law. Stare decisis (to stand by previous decisions
and not to disturb them) is associated with case law.
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What is common law?
The definition of Common law is also related to the methodology of the problem solving
adjudication employed by the courts. By virtue of this methodology the courts refer to previous
cases as precedents in the process of adjudication (negotiation/settlement) by means of the
technique of reasoning by analogy. The courts compare the facts of the case at hand with those of
a previous decision and depending on the level of similarities of the facts will extract the ratio
decidendi of the precedent of the previous case and apply it to the case at hand. This is the
methodology of judicial precedent. If the facts of the case are not on all fours, the court will
distinguish the two cases and may decline from applying the ratio decidendi of the previous case.
The authority of the judges is usually severely constrained – they must stay within the confines
of those cases, unless the legislature changes the rule involved. The court must interpret the law
which is already in existence. (Declaratory Theory)
Common law tradition: courts have the jurisdiction to make laws but it must follow past
precedents and must be within the constraints of the law (one cannot go outside the law and
make their own laws).
The common law methodology works within a judicial structure/hierarchy, whereby the
decisions of the higher court bind the inferior courts. In Namibia, the decision of the Supreme
Court binds the inferior courts. The decision of the High Court also binds the inferior courts, but
not the Supreme Court. However, if the Supreme court adopts the decision of a High court, then
in principle it becomes binding on the Supreme Court.
Retroactivity
Precedents do not cover all the areas of law (cases of 1st impression)
The power must be performed within limitation of the Constitution. The constitution gives law-
making power (legislative power) to the Parliament, the Parliament has got the jurisdiction to
legislate in any matter. Parliament has got the means and resources to determine public opinion
on certain policies and which can be translated to law. The court can only adjudicate on matters
which have been brought before them by the State or litigants, and to that extent, judicial
activism is limited. Unlike Parliament that has jurisdiction to legislate on any policy. Common
law principles do not override the Statute, in other words, the powers of the court to lay down
principles of law are constraint by provisions of a Statute. Therefore the courts cannot lay down
principles of law which are inconsistent with the provisions of the Statue, and furthermore,
Parliament has the power to repeal by legislation a principle of law laid down by the court.
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The doctrine of stare decisis works within a judicial structure and within this structure it is only
the superior courts that can lay down principles of law and the interior courts are bound by the
decisions of the superior courts.
The general principle relating to the common law methodology is that even though the courts
have the jurisdiction to refer to previous decisions, they are not making any new principles of
law, but merely discovering/declaring existent principles of law based on the customs and usage
of the society, known as the Blackstonian/Declaratory Theory.
Even in cases of 1st impression, the ability of the court to lay down a new principle pf law is
limited in the sense that the new principle of law must be based on general principles of justice
and the customs of the society and not based on his own opinion.
1. The first stage is known as the first reading. The minister is responsible for the Bill, he
will have to present it in the National Assembly. Debate on that Bill will be adjourned till
the next stage.
2. The second stage is known as the second reading. The member of Parliament give their
opinion on the Bill, they contribute or argue towards the Bill. After they have exhausted
the arguments, the Bill is refereed to the committee.
3. Committee state makes sure that all recommendations made have been incorporated in
the Bill. The committee will present the Bill back to the Parliament during the third
reading.
4. After the third reading, the speaker will ask the members to vote, if it gets a specific
number of votes, the Bill will be referred to the National Council.
5. The National Council will then make its debate on the Bill and recommendation, and
send it back to the National Assembly through the speaker. Namibia has got a bi-camera
system. The function of NC is not binding ( it is recommendation), it is only advisory, so
the National Assembly can reject it. The Bill is then sent to the president for his assent.
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6. The president, if he does not have any objections, he will give his assent, it therefore
becomes law and it is gazetted.
If he feels it will be unconstitutional with the Constitution, he will refer it to the Attorney
General for his opinion. The Attorney General can refer the matter to the Supreme Court
for its opinion.
Judicial Precedents
Judicial legislation:
The common law uses stare decisis or judicial precedents, whereby the judges use principles of
law laid down in previous decisions (cases) as binding precedents to judge future subsequent
cases. And the methodology of reasoning by analogy is used. There are 2 schools of law as to
whether the methodology of stare decisis /judicial precedent gives the court law-making
functions.
The first school of thought takes the position that the functions of the court is to declare the law
and not to make the law, this is stated in the Latin phrase “ius dicere non dare”. (declaratory
theory)
In the case of Willis v Baddaly, it states that “there is in fact no such thing as judgment law, for
the judges do not make the law, though they frequently have to apply existing law to
circumstances as to which it has not previously been authoritatively laid down that such law is
applicable”.
“Judges are simply living oracles of law, they are nearly the speaking law, this function is purely
passive, they are but the mouth which pronounce the law. They no more make/invent new laws
that Columbia made/invented America.
Judges just apply or discover the principles of law from existing rules/customs, in that the
principles of law that they apply are already in existence.
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Is this true in practice?
In jurisdictions where case law is a source of law, the doctrine of judicial precedents is invariably
a sine quo non of the judicial methodology and system, and therefore, it can been that the view
expressed above in its strictest sense does not accord with reality. The doctrine of judicial
precedent becomes an integral part of the judicial process and the legal system and therefore
cracks are created into the pedestal foundation s of the Blackstonian Theory embedded in the
doctrine of legislative sovereignty. The declaratory theory is based on general principle but the
realities of the methodology employed by the courts operating in the common law tradition allow
for the exercise of the residual (remaining) law making powers of the courts as part of their
inherent jurisdiction.
Bentham, Dias, Lord Devlin, Austin: Common law tradition: Judges have a creative role as
opposed to the Blackstonian theory.
The doctrine of judicial precedent is based on the principle that a previous decision can be used
as a guide or a binding rule of law for similar cases to be heard in future. The doctrine therefore
simply means that a rule of law in a judicial precedent is reflected in the rule of law for the
future. Latin maxim “stare decisis et no quieta movere”
The very system (methodology/stare decisis) of judicial precedent implied that the application of
principles of law laid down in previous decisions, especially decisions laid down in superior
courts, and not all these principles of law are statutory rules, these are principles of law laid
down by judges themselves. Therefore the conclusion is that judges do make law that are
followed.
In cases of first impression, judges are obliges to lay down principles of law to apply to the case
before them and arrive at a judgment. (R v. Dudley and Stevenson).
The courts have the jurisdiction to interpret statutes to ascertain the meaning of a provision in a
statute and more specifically the intent of the Parliament. The first rule of interpretation based on
the application of the Doctrine of Separation of Powers: the judges take the position that it is the
function of the court to interpret the law and not to make the law. Latin word “Ius dicere non
dare”. And therefore the first rule of interpretation which is known as the Literal Rule states that
if the words of a statute are unclear and ambiguous, it is the function of the court to declare the
law as it is provided in the Statute. However, the other rules of interpretation that gives the courts
the discretion to depart from the application of the literal rule of interpretation such as the
Golden Rule. This states that if the words in a Statute are ambiguous or are capable of more than
one meaning and the one meaning would lead to absurdity, the court should apply/adopt the
meaning which is reasonable and that does not lead to absurdity.
Definition:
Customary law is the law of a particular indigenous or tribal group. It is unwritten and not
codified, so it is not a form of Statute.
Admissibility of customary law: before independence, there was the received law, the law of
different tribes. There was a test for admissibility, if it was not repugnant on principles of
morality, justice and equity.
Customary law in terms of hierarchy was not at the same level as received law. Before
independence, the test used for admissibility of customary law was whether it is inconsistent
with the Constitution or any other written law.
Customary law is dynamic, it changes over time and test number (2) has this demerit. How to
determine that customary law is reasonable proof of customary law.
Currently, the authority to administer customary law is the community courts. Since the
community courts is established as a judicial structure of Namibian courts. It is therefore also a
principle that one can appeal from the decision of a community court to the Supreme Court.
International Law
1. Article 144 (definition of International law)
2. The binding nature of International law (whether International law is true?)
3. Methods of incorporating International law into municipal law.
- Monist Theory
- Dualist/Pluralist Theory
Article 144 states that international law is part of the law of Namibia. It is recognized as binding
by the Parliament of Namibia.
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It may be defined as that body of law that is composed for its greater part of the principle rules of
conduct, which States themselves are bound to observe, therefore do commonly observe in their
relations with each other, and which includes also (a) the rules of law relating to the functions of
international institutions/organizations, their relation with each other and the relations with States
and individuals; (b) certain rules of law relating to individuals and non-State entities of such are
the concern of the international community. Therefore, international law relates to the
relationship between the States. International law is also related to the relationship between
States and individuals, non-State entities, state and state, state and international institutions.
Other schools believe that international law is enforceable (it has the mechanism/structure). It is
true law. That there exists in international law the structure/mechanism to enforce the
international conventions and rules.
Eg: under UN Charter, there are 2 ways resolving the violation of international security and
peace. 1st ~ under Chapter 6 of the Charter, the Security Council can use specific means to
maintain the security and peace in international dispute. Under Chapter 7, the UN can use either
the economic sanctions or even deploy troops.
Apart from this, there are other international tribunals established under international
conventions that have quasi-judicial/judicial functions and whose decisions are to be enforced by
the state party.
Two Theories
Theory of Mouism: international law and national law (municipal law) are simply two
components of law and that law is a single entity and national and international laws are versions
of the same law.
Theory of Dualism (is opposed to the theory of Mouism): this states that international law and
national laws operate on different levels and therefore are two different and separate systems of
law
In Namibia, the executive is responsible for conducting Namibia’s international affairs including
entering into international agreement. The National Assembly needs to agree and/or ratify the
agreement.
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Concept of Constitutionalism
The law recognizes that for government or any government to function effectively, powers must
be vested in various organs of the state and to prevent the over concentration of power in an
organ of state, or in one individual, and to prevent the abuse of power. The principle of
Constitutionalism states that the powers granted to the government should be used according to
law and not according to the whims and caprices of individuals.
Separation of Power
Executive
Legislative
Judiciary
Exponents of the doctrine states that in order to prevent the concentration of power on one organ
of state, each organ of state in the exercise of the functions granted by the Constitution should be
independent of each other and that one organ of state should not usurp the functions of the other
organs of state. Simply put, this doctrine recognizes that necessary powers should be subject to
the Constitution and one organ of state should not usurp the power of he other organ of state.
Legislature
1. Look at the general functions of Legislature
2. Look at the limitations imposed on the functions of the Legislature
Judicial Review of the Legislature: a. Concept of supremacy of Constitution
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b. Concept of legislative sovereignty
Judicial Review of administrative action
General Functions
Article 44 of the Constitution vests legislative function in the National Assembly with the assent
of the President, subject to the powers and functions of the National Council. The Parliament in
Namibia consists of 2 chambers:
National Assembly
National Council
These two chambers are known as bi-cameral system. England operates under bi-cameral system
as well: House of Lords and the House of Commons
To the extent that the Constitution vests legislative functions in Parliament, the Parliament of
Namibia has legislative sovereignty, meaning the Parliament of Namibia has got the power to
legislate on any matter that is allowed by the constitution.
Limitations: In the famous case of Malbury v Madison, it was held that the Supreme Court of
the United State has the jurisdiction to review Acts/Legislation by congress. This principle has
been adopted by many jurisdictions that operate under the written constitution. The principle is
that the courts have the power to review Acts of Parliament which are inconsistent with the
Constitution. In Namibia, this principle is incorporated in Article 25 of the Constitution.
Article 25(1)(a)
“The superior courts in Namibia have the jurisdiction to declare an Act of Parliament that seeks
to abolish or abridge the fundamental rights and freedoms invalid.”
Article 25 does not specify and address the jurisdiction of the court to declare an Act of
Parliament invalid on grounds of procedural defect. However, there is cases law precedents to
this effect. In the case of the Bribary Commissioner v Ranasighe, the Privy Council held that
under a written constitution that prescribes a procedure for law making, the courts are not only
entitled to go outside the official copy of the Act of Parliament in order to enquire into the
question of procedures but have a duty to declare the Act invalid if in fact it is passed without
due form.
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Judicial Review of Administrative Action
This can be discussed under the administration of justice and the reference point is Article 18.
The principle of judicial review of administrative action are common law principles that have
been developed by the courts but in certain instances it is possible to have a specific provision in
an Act of Parliament given specific jurisdiction to the court to review the exercise of
administrative discretion. In Namibia, judicial review of administrative action is vested in the
court by virtue of the provisions of Article 18 of the Constitution.
Article 18:
Administrative bodies and administrative officials shall act fairly and reasonably and comply
with the requirements imposed upon such bodies and officials by common law and any relevant
legislation. And persons aggrieved by the exercise of such acts and decisions shall have the right
to seek redress before a competent court or tribunal.”
Administrative bodies
In context of Namibia, the office of the President, various ministers, administrative bodies of the
speaker, central bank, various commissions and local government…etc.
Administrative Officials
President, ministers, members of the cabinet, directors of parastatals, various commissioners,
governors and local government institutions.
“To act fairly” (as stated in the article) means that the administrative bodies/officials, while
exercising the powers given to them by law (and in most cases by Statute), must comply with the
principles of natural justice. (Must cite case after stating this.)
1. Elizabeth Frank case
2. Sikunda v Government of the Republic of Namibia
Natural Justice
In the context of Article 18, the court discussed the principles of Natural Justice. There are two
elements:
1. Audi alteram partem right of hearing
2. Nemo index causa No one should be a judge in his own cause.
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Audi alteram partem: The right of hearing means that an administrative body while exercising
the power of discretion, they must give the other party the right of hearing, this includes
representation (oral/writing), it also means that the administrator must give reasons for his/her
decision, and the reason must be detailed enough to give the party consent sufficient grounds for
appeal. (Elizabeth Frank case)
Nemo index causa: No one should be a judge in his own cause: if the administrator/admin body
has some interest in the case, the administrator should declare his intent or should not serve as a
member of the Panel deciding the case. This is a rule against bias(Sikunda, Elizabeth case)
Acting reasonably means that the administrator should not be influenced by extraneous factors or
irrelevant factors (Chilufya case)
What are the common law principles? Natural Justice
Relevant legislation: in addition to acting fairly and reasonably, the administrators are also
required to comply with any requirement in a Statute/Legislation that grants them that authority.
These powers are granted by Parliament. Eg: Sikunda case, it was held that the Minister did not
comply with the necessary requirement i.e there was no recommendation from the Security
Commission and therefore the deportation order was irregular. And the court accordingly
declared the deportation order non and void.
In addition to the above, the court can also make such orders
a. Certiorari
b. Prohibition/Interdict
c. Mandamus
d. Habeas Corpus
e. Damages
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Habeas Corpus is an order issued by the court to an organ of state, institution or individual, or a
detaining official to release a person held unlawfully
In addition to these remedies, an individual whose rights have been adversely affected by the
decision/act of the administrator, can apply for damages if this can be established and quantified.
A.V Dicey:
1st ~ No man is punished or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the land.
Lack of compliance with the principles of natural justice will justify the intervention of the
courts by nullifying and setting aside the decision. But as stated in the Frank case, as a general
principle the Courts are not permitted to substitute their decisions for the decisions of the
administrator because the discretion is granted to the administrator and to do otherwise will
amount to usurpation of the power of the administrator and a breach of the principles of
separation of powers.
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relevant only with respect to that particular case, because once the material facts are extracted,
they will be of general application, so that other cases can use it as a precedent.
In order to apply RD, one has to look at the levels of similarities, if the facts are the same/similar,
then they courts will be bound to apply the RD in that case, OR distinguish between the two
cases. If the facts are different from the case, the court will not be bound by the precedents in that
case.
Obiter Dicta
A principle of law laid down by the court which is based on hypothetical facts (facts which have
not been proved by the court), and are made in passim, to the extent that these principles of law
are not based on facts that are proved, they are not binding. However, OD might be approved by
a superior court in a later case, in this case it will become a binding precedent.
OD is not binding due to the fact that it is based on hypothetical facts. The court may deviate
from current position to illustrate something based on hypothetical fact. Eg: “If X occurs, then Y
would happen”
Rules of Interpretation
*Exam question on interpretation
Literal Rule
The interpretation of the words of a statute by giving them the ‘literal’ meaning AKA dictionary
meaning. *Words that are reasonably capable of only one meaning must be given that meaning
whatever the result. Ordinary words must be given their ordinary meaning and technical words
must be given their technical meaning.
Golden Rule
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Golden rule says that if the words of the Statute are ambiguous or are capable of having more
than one meaning, then the court will have to adopt an interpretation which will not lead to an
absurdity or unreasonable result.
Cases:
Setrak Avakian
Riggs v Palmer
Bedford v Bedford
Mischief Rule
In interpreting the provisions of a Statute in order to ascertain the intent of Parliament, the court
will have to look at the mischief that the Parliament wanted to correct. Heydon’s case, the rule
was laid down as follows: “four things are to be discussed and considered”
1. What was common law before making the Act?
2. What was the Mischief and defect for which the Common law did not provide?
3. What remedy had the Parliament resolved and appointed to cure the disease of the
common law?
4. The true reason of the remedy
And then the office of all judges is to always make such construction as shall suppress the
mischief and advance the remedy.
Case:
Holy Trinity
US v Keller (mail delivery)
Purposive Approach
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This is a type of constitutional interpretation, whereby the court takes into consideration the
values and norms of the people of Namibia.
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