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Sources of Law in Namibia

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independence shall remain in force until repealed or amended by Act of Parliament or until they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.

 Roman Dutch Law


 Legislation containing German, SA, English, SWA and Namibian legislation
 Case Law
 Customary Law
 International Law
 Juristic Writings

Features of the Namibian Constitution:


The first provision 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. It creates 3 organs
of State:
a. Executive
b. Judiciary
c. Legislative

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.

Historical development of RDL


Article 2 of the League of Nations Mandate.
South Africa was given the mandatory to develop Namibia (known as SWA at the time). South
Africa was given administrative and legislative power over SWA. Proclamation Act 21 of 1919
which states that law of the Cape Province will apply and will be binding in SWA. This
proclamation gave SA authorities the right to apply the 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)

*Common law is universal law that developed in England

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.

Where did the courts derive the principles of law?


From customs to 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.

Can a Supreme Court depart from its previous decision?


As a general principle, the Supreme Court is said to be bound by its previous decision, but in
certain cases, the Supreme court can depart from its previous decision if for instance it is found
that the previous decision was arrived per incuriam.

Advantages and Disadvantages of Common law


Predictability: one can rely on precedent (past decided cases)

Retroactivity
Precedents do not cover all the areas of law (cases of 1st impression)

Restraint on Judicial Law-making


Common law methodology implies that the court in certain cases/instances may lay down certain
principles of law.

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.

*Statute law is more authoritative compared to common law.

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.

 German Imperical Code


The link with the history development of Namibia: the Germans introduced the Imperical code.
The Lande Strat were also responsible for local legislative functions, they had the authority to
make laws called ‘ordinances’.
Under proclamation 21, SA laws were also applicable in Namibia. A particular piece of
legislation applicable for SA was also made available to Namibia under the Proclamation. The
Attorney General also had legislative power which he could pronounce under the Proclamation.
All Statutes passed after 1918 were not automatically applicable in Namibia unless declared so
by proclamation. After 1925, SA Parliament had legislative authority over Namibia, thus all the
Statutes became applicable in Namibia.
Courts after 1990: Namibia had its own Constitution which created 3 organs of state, one which
is the legislature. Laws enacted by Parliament are known as Acts of Parliament. Before the Act is
promulgated it must be introduced to the National Council as a Bill.

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.

Delegated Legislation/Subsidiary Legislation


Parliament may delegate authority to an individual/institution (eg minister) with expertise in a
particular field to make laws known as delegated legislation. The document is called a Statutory
instrument/Executive instrument.
The document containing (rules and regulations) provisions regarding the act come from the
ministers are not called an Act.
Rules made by municipality are called the by-laws, authority to made such laws are granted by
Acts of Parliament.

Concept of Ultra Vires


The Act of Parliament may delegate acts of authority to a statutory body, but the rules made by
such an individual/body must be consistent with the Constitution or Acts of Parliament.

Private Member Bill


Ordinary citizens can initiate a Bill for the Parliament through the representing in Parliament
known as the Private Member Bill. The public can also initiate a legislative process, a Bill, or
promulgate the law.

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.

How is this connected/related to judicial activism?


Setrak Avakian case
The relationship of the position of judicial activism is that where the Judges are not applying the
literal rule, they apply other rules of interpretation.
Eg: Golden Rule, and use variables which they determine will lead to a reasonable decision. This
process involves the elements of creativity and if this principle of law is laid by superior court,
by virtue of the principle of judicial activism and stare decisis, the inferior courts are bound by
this decision.
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 Customary Law
1. Definition of customary law
2. Admissibility of customary law
3. Proof of customary law

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.

Test for customary law laid down in Breta v Jacobs


1. Customs must be reasonable
2. Customs must have existed long ago
3. Customs must be generally recognized and observed by the community
4. Content of customary law must be clear and certain.

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.

Customary law in Namibian: Article 66(1)


Eg: corporal punishment is administered by lower courts although it is unconstitutional.

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.

What is international law?

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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.

Is international true law?


What is the binding effect of international law?
Austin states that international law is positive morality because it lacks the structure/mechanism
that is required for the enforcement of laws.

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.

Difference between ratification and accession:


Accession takes place where a country or State that is not initially involved in the negotiation of
international conventions. Ratification is the act of the State which accepts to be bound by
international conventions.

The writings of Jurists


In Namibia, Juristic writings are a secondary source of law.

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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.

The concept of constitutionalism is achieved through:


1. Separation of Power
2. The Rule of law
3. Judicial Review of Legislation
4. Judicial Review of Administrative/Executive actions

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.

Functions of each state:


Executive: In Namibia, Article 27(2) of the Constitution states that executive power is rested in
the President and Cabinet. The Namibian Constitution creates the executive presidency as
opposed to the ceremonial presidency.
Eg: Namibian President is not just a ceremonial head. As the Executive President, the President
chairs the meetings of the Cabinet. He is responsible for the appointment and dismissal of the
Prime Minister, Ministers and Deputy Ministers, Attorney General, Directed General of
Planning, Chief Justice, Judge President of High Court, other judges of the Supreme Court and
High Court, Prosecutor General, Government and Deputy government, Chief of Defence Force,
Inspector General of Police, Commissioner of Prisons…etc.

Who appoints the Permanent Secretary?


The Parliament

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.

Whether legislative sovereignty can be interpreted to mean supremacy?


One has to draw the distinction between the legislative functions of Parliament that operates
under unwritten constitution and that operates under a written constitution. In the case of the
former, the general principle is that legislative sovereignty will be interpreted to mean/to include
legislative supremacy. An example of a jurisdiction that operates under written constitution is the
UK and it is an accepted general principle in Constitutional Law that under the British
Constitution, the Parliament of UK has unlimited legislative function and that no court or
anybody has the power to declare an Act of Parliament dully passed by the House of Commons
and House of Lords invalid. However, in the jurisdiction that operates under a written
constitution, the legislative functions of Parliament are limited by the Constitution  legislative
sovereignty of Parliament is limited by the Constitution. In this case, we talk of legislative
sovereignty and the supremacy of Constitution. Namibia operates under a written Constitution
and therefore the legislative function of Parliament of Namibia is limited by the Constitution and
the general law.

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.

In modern administration the government machinery cannot function effectively if administrators


are not given the power to act. Because of this, Act of Parliament gives specific powers to
administrators. In such cases it is said that the administrator is vested with discretionary power.
The nature of administrative discretion is such that when an administrator exercises that
discretion he/she cannot be questioned on the correctness or otherwise decision that has been
taken consequent to the discretionary power granted to him/her by an Act of P. So long as their
decisions are not ultra vires.

“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

 must describe how the principles were stated in these cases.


Quote relevant parts of the case.

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.

What happens if the requirement of Article 18 is not complied with?


- The court has the power to declare the decision on the act non and void, and to set it
aside.
- As a general rule, the court cannot substitute its decision for that of the administrative
officials/body because that power is vested in the administrative body/official, but not the
court.
- However, under certain circumstances the court can substitute its decision from that of
the administrator (Frank case).

In addition to the above, the court can also make such orders
a. Certiorari
b. Prohibition/Interdict
c. Mandamus
d. Habeas Corpus
e. Damages

Certiorari is an order issued by a higher court ordering an inferior court/tribunal to make


available to the higher court the transcripts of the proceedings conducted by that inferior
court/tribunal

Prohibition/Interdict is an interim order issued by the court ordering an individual/institution to


refrain from acting in an alleged unlawful manner until the case has finally been dispensed off.
RDL, known as interdict

Mandamus is a court order ordering an administrative body/official to perform a function


imposed by law.

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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.

The Rule of Law


The doctrine of the rule of law and constitutionalism are related concepts because they both deal
with the limits on the exercise of the powers of government. The rule of law deals with
governance according to law, and not according to momentary whims and caprices of
government and the protection of the fundamental right of the individual.

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.

Doctrine of Stare Decisis


Judges reason by analogy (by comparing the two cases, the facts, issue, judgment, by example).
Judges use principles of law in other cases as a consideration. The methodology of stare decisis
involves the deductive and inductive method. The deductive method involves the process
whereby conclusions are made form a basic legal position. Inductive method involves the
process whereby conclusions are made after observation and consideration of legal principles
(what does the law say in certain positions, applying the various principles before coming to a
conclusion). Both these methods are part of the stare decisis methodology. The doctrine of stare
decisis demands that like cases must be decided alike.

How does the court arrive at a ratio decidendi?


Goodhart’s Theory: the RD of a case based on fact, fact that is material to the case. Eg: Chilufia.
(a) City council did not comply with principles of natural justice. (b) External factors (member of
political party)  these were based on material fact. It will be of general application.

What is the binding element of a precedent?


The binding element of a precedent is the Ratio Decidendi:
How does one arrive at the RD? According to Goodhart, the RD of a precedent is based on facts
which a judge considers to be material. A position/principle of law will be propounded based on
this material fact and it will be of general application. The facts that are not material will be

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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”

Difference between to overrule and reverse a decision


A decision is overruled if it involves a principle of law. If the higher court overrules a decision, it
is actually overruling the principle of law laid down in by the inferior court. Principle of law can
be overruled if it was arrived per incuriam (when judges come to a decision, they are meant to
ideally mention all the relevant law, therefore per incuriam means that not all relevant laws were
consulted).
To reverse is to change the decision made by the lower court. Eg: guilty reversed to not guilty.

Refer to the difference between obiter dicta and ratio decidendi


The RD of a case has a binging effect for future cases that are similar, whereas an OD is not
binding. RD is based on material facts of a case, whereas the OD is based on hypothetical facts.

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.

How does the court do this?


By looking at variables/factors that will lead them to ascertain the intent of Parliament. Setrak
Avakian case: looking at the intention of the deceased instead of applying the law as it is.
Each case will have to be decided on its own merits. However, the court will deprive from the
application of the Literal Rule and declare an interpretation as absurd or unreasonable if that
particular interpretation will:
(a) be in conflict with the Constitution,
(b) deprive the individual of his/her existent right,
(c) if that interpretation will be inconsistent with public policy and morality.

R v Takawira and Others


In this case, the statute states clearly that anyone in possession of subversive material will be an
offence. If interpreted literally this would mean that ‘the policeman who tool possession of the
subversive material, the public prosecutor who tendered is as evidence, the judicial officer who
examined it’ would all be guilty of the offences.

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)

All three of these rules relate to the interpretation of the Statute.

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.

Minister of Defence v. Mwangdinghi


The High and Supreme Courts of Namibia accepted the principle that a Constitution, and more
particularly one containing a Bill of Rights, calls for an interpretation different from that which
courts traditionally apply to ordinary legislation.

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