Section A Chapter 2 14

CHAPTER 2
OBJECTIVES

After completing this chapter you should be able to:

♦ Briefly distinguish between a criminal and civil case

♦ Explain the course of a criminal case
♦ Explain the course of a civil case
♦ Explain how judgments are enforced
♦ Explain the structure of the courts in Namibia
♦ Name the different sentences that can be imposed by the
court in a criminal action
♦ Define the term “jurisdiction”
♦ What is meant by “the independence of the courts”?
♦ Distinguish between the different courts in Namibia
♦ Explain how a person can become a legal practitioner in
Namibia
♦ Explain the respective roles of different players in the legal
profession
♦ Explain arbitration and mediation as methods of alternative
dispute resolution

Contents Page

1. The administration of justice 15

2. Distinction between criminal and civil court proceedings 15-16
2.1. Criminal proceedings 17-19
2.2. Civil proceedings 19-21
2.3. Enforcement of judgments 22
3. The Namibian Court system 22
3.1. Jurisdiction 22-23
3.2. The independence of the Courts 23
3.3. The structure of the Courts 23-25
4. The Legal Profession 27
4.1. Officers of court 27-28
4.2. Other court officials 28-29
5. Alternative Dispute Resolution (ADR) 30
5.1. Mediation 30-31
5.2. Arbitration 31-32
Section A Chapter 2 15

1. THE ADMINISTRATION OF JUSTICE

In primitive communities aggrieved persons could not call on the State for
legal aid but had to resort to self-help. This was an unsatisfactory state of
affairs. In a developed community, with any organised constitutional
dispensation, the State assumes the function of the administration of
justice.

When a wrongdoer harms the interest of the community as a whole, the

State penalizes him (criminal case). When harm is done to the private
interests of an individual, compensation is awarded (civil case). This
leads us to the distinction between criminal and civil procedure.

2. DISTINCTION BETWEEN CRIMINAL AND CIVIL COURT

PROCEEDINGS

Criminal law is concerned with the relationship between the Government

and the subject as well as the upholding of the Government’s authority.
When an individual’s behaviour violates public order, it is seen as a crime
and the State, acting on behalf of the community, imposes a punishment.
The punishment can take the form of a fine, imprisonment or even
community service. The State will prosecute the accused, irrespective of
whether or not the victim or aggrieved party wants him/her to be
prosecuted.

The terminology used will also be an indication of the type of case we

are dealing with, as, in criminal cases, a person is accused of having
committed a crime and the State conducts the case against the accused in
court and does so by means of the Public Prosecutor, while, in civil cases,
the aggrieved party who approaches the court for assistance, is known as
the plaintiff (or applicant), whilst the opposing party is called the
defendant (or respondent).

In the event of a civil dispute, a difference of opinion develops between

two or more individuals concerning a matter that affects only themselves.
The community as such does not have an interest in this dispute. The
aggrieved party has a choice whether or not he/she wants to approach
the court for assistance. There is also no punishment, but the person who
loses the case has to compensate the person in whose favour the
judgment was made. In addition, the person who loses can be expected
to pay the legal costs of the successful party.
 Section A Chapter 2 16

In some instances, however, the same action can give rise to both a
criminal and civil action. An example is in the event of a motor vehicle
collision where one of the drivers is guilty of reckless and negligent driving
(criminal action) and the innocent party also wants the guilty one to pay
for the damages caused to his/her vehicle as a result of the collision (civil
action).

Burden of In conclusion, in a criminal case the State has to prove beyond reasonable
proof doubt that the accused is guilty, while, in civil litigation, the party bearing
the proof must prove his case on a balance of probabilities. The standard
of proof required in civil cases is lower than in criminal cases 1.

🖎 ACTIVITY 12

Decide what type of action (criminal or civil) will be initiated in each of

the following instances:

1. Policeman shot by diamond dealers. _______________

2. Same policeman owned a vehicle, furniture, clothing and his family can not decide
how his property must be divided. _______________
3. Mrs. X wants to divorce Mr. X._______________
4. Before the finalisation of the divorce, Mr. X came home one night under the influence
of alcohol, assaulted Mrs. X and his three children, including a baby of 3 months.
_______________
5. Mr. A promised to marry Ms. B. He failed to turn up at the church on his wedding
day. _______________
6. Mr. A and Ms. B did get married, but after a year Mr. A decided to get married to Ms.
C, while he is still legally married to Mrs. B._______________
7. Mr. D, a building contractor, agreed to build houses for the Government at the Single
Quarters. Mr. D agreed to have the project finished by 31 December 2018, but by
that time he only completed up to the halfway mark. ___civil ____________
8. Mr. D, when tendering for the contract with the Government, entered into an
agreement with one of the Board members to give him 10% of the contract price if
the said Government official ensures that the contract is awarded to
D._______________
9. Mr. Naughty goes to Shoprite and pays for his groceries with a cheque he had stolen
from his grandmother’s handbag. ___CIVIL/CRIMINAL _____
10. Mr. Innocent took some of his child’s pocket money out of the piggy bank to buy
bread and milk for the family. He will refund his child again when he receives his
salary at the end of the month. __NO ACTION _____
11. Two adults make a video recording of their lovemaking process. __NO ACTION ___
12. The above recording is sold to a sex shop. ___CIVIL___

1 An example is the American case of O.J. Simpson where the State was unable to convict the accused on a
charge of murder, but the family of the deceased subsequently succeeded with a civil claim against him.
2 Answers below additional reading on page 33.
Section A Chapter 2 17

2.1. Criminal proceedings

Criminal law is concerned with the relationship between the Government and the
subject as well as upholding the Government’s authority.
When an individual’s behaviour violates public order, it is seen as a crime and the
State, acting on behalf of the community, imposes a punishment. The
punishment can take the form of a fine, imprisonment or community service.
The State will prosecute the accused, irrespective of whether or not the victim or
aggrieved party wants him/her to be prosecuted.
The following is a course of a criminal case
Crime report
A crime can be reported by a member or members of the public. Thus, a
member of the public may report a crime to the police or sometimes the victim
may lay a charge.
Investigation
Investigation by the police involves the processes of recording the complaints,
gathering evidence. The investigating officer opens a docket (a file) and gathers
information
Arrest or summons
The criminal procedure is set in motion the moment a person is arrested or
summoned to appear in court. At arrest an accused should be explained of his
rights (judges rules) ie the right to remain silent, right to a lawyer, to apply for
bail etc.
Charge
After the arrest, the arrested person may be charged (the accused is formally
accused of the commission of a crime). This usually happens at the police
station.
Appearance in court
An accused person must be brought before the court within 48 hours after
having been arrested. At first appearance, the accused is explained of his or her
rights to legal representation and the offence charged with. This includes the
right to apply for bail.

Plea
At first appearance, the accused may be asked to plead to the charge. Pleas
often encountered are guilty or not guilty. If the accused pleads guilty and
admits all the elements of the offence, the case may be finalised or if the
Section A Chapter 2 18

accused pleads not guilty, the case may be remanded either for further
investigation or legal representation or for trial.
Bail
Bail is an amount that is paid to secure the accused’s attendance at court. The
court has a discretion whether to grant bail or not. Bail can be opposed by the
prosecution on several grounds, such as possibility of the accused interfering
with witnesses, skipping bail or if it is not in the public interests or the interest of
the administration of justice. Bail allows the accused to keep his life intact,
maintain his freedom, job and family ties etc.
Trial
A trial can take place once investigation has been completed. At the trial, the
prosecution leads evidence to prove a case against the accused. This is done by
calling witnesses and handing in to court some other forms of evidence, such as
real evidence (example a knife used in the commission of a crime) and
documentary evidence. The accused can remain silent or lead evidence by
testifying in his or her own defence and calling witnesses.
Judgment
After the prosecution and the accused have led evidence, the court must give a
verdict. A verdict can be guilty or not guilty.
Sentence
If the accused has been found guilty, the prosecution proves or does not prove
previous convictions record. The accused presents evidence in mitigation of
sentence The prosecution will then submit factors in aggravation of the
sentence. The court will pass the sentence after having considered the
seriousness of the offence, the personal circumstances of the accused and the
interests of the society.
Appeal and review
Once a case is finalised, depending on the experience of the magistrate and the
seriousness of the sentence, the case is either sent on automatic review or not.
An accused person who is convicted of an offence and not happy with the
sentence or conviction can appeal on both sentence and conviction or on either.
The prosecution can also appeal an acquittal or a sentence which it considers too
lenient.

2.2 Civil proceedings

In the event of a civil dispute, a difference of opinion develops between two or
more individuals concerning a matter that affects only them. The community as
such does not have an interest in this dispute. The aggrieved party has a choice
whether or not he/she wants to approach the court for assistance.
Section A Chapter 2 19

There is also no punishment, but the person who loses the case can be ordered
to compensate the person in whose favour the judgment was made. In addition,
the person who loses can be expected to pay the legal costs of the successful
party.
In a civil case, there are two types of proceedings, namely action and application
proceedings. Action proceedings are used when there is a material dispute of
fact. This means there is an important factual question which the parties to the
dispute disagree on and which the court is going to have to decide. Witnesses
are going to testify. Application proceedings on the other side is when there is no
material dispute of fact. The application is based only on paper and therefore do
not require witnesses to testify in court.
Below is a course of a civil case, in which action proceedings are instituted:
Written demand
The first step is usually a written demand. If there is no action, this is usually
followed by summons.
Summons
Summons is the initiation of proceedings in which the plaintiff informs the
defendant of the action with a stated time after service to answer to the claim of
the plaintiff and to also inform the defendant of the consequences of the failure
to do so. Summons are signed by the clerk of court and are used by the sheriff
or the deputy sheriff or messenger of court to inform the defendant of the claim
against him or her and the steps that the defendant may take in response to the
claim.
Notice of intention to defend
If the defendant wishes to defend the claim, the defendant has to file a notice of
intention to defend with a certain time limit.

Plea
After delivering the notice of intention to defend, the defendant has to reply to
the claim of the plaintiff with a certain time limit.
Replication/reply
After receipt of the plea of the defendant, the plaintiff can reply to the plea by
means of replication (in the case of the High Court) or a reply (in case of a
magistrates court).
Claims in reconvention
A defendant who has a claim against a plaintiff may link his or her claim to the
action of the plaintiff. In this regard a claim in reconvention is delivered with the
plea.
Section A Chapter 2 20

Judgment by default
If a defendant fails to deliver his or her notice of intention to defend, the plaintiff
may set aside the matter down for judgemnt by default.
Special pleas
The defendant can answer to the claim set out in the particular of claims by
means of a special plea which must be included in the plea of defence. Examples
of special pleas are the court does not have jurisdiction, the claim has
prescribed, that the case has been dealt with in a court of law before and is
finalised.
Exceptions/striking out
Instead of replying to a particular of claims on the merits, a party may except to
the pleading, that its vague and embarrassing or it does not disclose a course of
action or defence. A pleading is vague and embarrassing if it is capable of more
than one meaning.
Summary judgement
This procedure is employed to dispose of a defence which has no substance.
Close of pleadings
This procedure is employed to serve a reply to a plea, but it is very rarely
necessary. Formerly, this is a stage in the course of pleading in an action in the
High Court that occurred 14 days after service of the reply, defence to
counterclaim, or defence.
Trial preparation stage
Here, the notice is given by the plaintiff to enrol the matter for trial. Notices to
discover are sent and received, discovery affidavits are sent and received,
notices to inspect and sent and received and notice of intention to present expert
evidence and summary of expert evidence is employed and pre-trial confence is
held where applicable. The trial date is allocated and notice of set down is
served.
Trial
At trial each party is given a chance to present evidence . The plaintiff first
presents evidence by calling all witnesses. Evidence is given in chief and then
cross-examination by the defendant follows and the re-examination. This
procedure is followed in respect of all witnesses that are called to testify on the
plaintiff’s case. After all witnesses are called, the plaintiff closes his or her case.
Absolution from the instance
After the plaintiff has closed his or her case, the defendant then can apply for
absolution from the instance. If successful, the case is finalised. If not successful,
Section A Chapter 2 21

or if thedefendant did not apply for absolution from the instance, then the case
proceeds for the defendant to present evidence.
Defendant presents evidence
The defendant calls all witnesses. The procedure for examination in chief of each
witnesses is followed. Each witness is cross-examined in chief by the plaintiff and
re-examined by the defendant. The defendant closes its case
Judgment
The court will consider the evidence before it, that of the plaintiff and the
defendant and decides on a balance of probabilities of the case as to who to find
in favour of.
Appeal and review
If either party is not satisfied with the court’s decision, they can take the decision
on appeal. If a party believes that an irregularity occurred during the trial, for
example the magistrate or judge was biased, admitted inadmissible evidence or
excluded admissible evidence, they can take the case on review.

2.3. Enforcement of judgments

Enforcement of judgment in criminal cases

Judgment in criminal cases is executed by the relevant organs of the State that
are authorised to do so. Thus, imprisonment is enforced by the Department of
Correctional Services.

Enforcement of judgment in civil cases

A civil judgment or order of the court directs the person against whom it has
been granted to do something, not to do something, to deliver something or to
pay an amount in money. If the person against whom judgment (performance
other than payment of sum of money) has been granted, fails to comply with the
court order, he or she is guilty of contempt of court for which he or she could be
sentenced to pay a fine or serve a term of imprisonment.
Where a debtor fails to make payment of an amount of money in terms of a
court order, other judicial proceedings are available to give effect to the court’s
order. These proceedings are a warrant or writ of execution (in terms of the writ
the debtor’s property is attached and sold in execution. The proceeds are then
applied to discharge the writ. The other option is to hold an enquiry into the
Section A Chapter 2 22

financial position of the debtor concerned. The court after the inquiry then order
the debtor to pay off the debt in instalments.

3. THE NAMIBIAN COURT SYSTEM

The principal organs that enforce the application of the law are the law courts in
Namibia. Chapter 9 of the Constitution of the Republic of Namibia deals with the
administration of justice in Namibia. In terms of Article 78, the judicial power
shall be vested in the courts of Namibia, which shall consist of a Supreme Court
of Namibia, a High Court of Namibia and Lower Courts of Namibia.
The key difference between the Supreme Court, High Court and the Lower
Courts lies in the nature of their jurisdiction.

3.1 Jurisdiction

Jurisdiction can be defined as the authority which a court has to decide a case
before it and to take cognizance of matters presented for decision.

The Supreme Court and High Court have inherent jurisdiction, they are created
by the Constitution and therefore derive their jurisdiction from the Constitution.
The Lower Courts’ jurisdiction is derived from the Magistrate’s Court Act 32 of
1944, as amended. The jurisdiction of a court is determined by factors such as
geographical area, the nature of the issue and the person. In a criminal case the
court’s jurisdiction is determined by the kind of offence and the possible
sentence, while the amount claimed and the nature of the relief sought are the
decisive factors in a civil case.

3.2 The independence of the courts (the judiciary)

The courts in Namibia are independent from the legislature and the executive.
Article 78(3) of the Constitution provides that no member of the Cabinet or the
Legislature or any other person shall interfere with Judges or judicial officers
(magistrates) in the exercise of their judicial functions, and all organs of the
State shall accord such assistance as the Courts may require to protect their
independence, dignity and effectiveness, subject to the terms of the Constitution
or any other law. This simply means that no one may tell a judge or a magistrate
how to decide a case. To further strengthen the independence of the judiciary,
the Judiciary Act 11 of 2015 was passed to provide for a separate dealing of the
administrative and financial matters of the office of the judiciary.
Section A Chapter 2 23

3.3 The structure of the courts

The hierarchy of the courts can be illustrated as follows:

3.3.1 The Supreme Court

The Supreme Court, with its seat in Windhoek, is the highest court in the
country. It consists of a Chief Justice and such additional Judges as the
President, acting on the recommendations of the Judicial Service Commission,
may determine.
The Supreme Court adjudicates upon 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
thereunder.
The Supreme Court is only a court of appeal; no trials take place before this
court. The Supreme Court is obliged to hold not less than three sessions during
each year. The decisions of the Supreme Court are final.

An appeal is lodged when one of the parties to a judgement feels that the court
has erred in its decision. On appeal, the court does not listen to oral evidence
about the facts of the case; it only studies the typed record of the court from
where the appeal is lodged.

3.3.2 The High Court

The High Court is seated in Windhoek and in Oshakati since 2009. It is the
highest trial court in the country and also has the jurisdiction to hear and
Section A Chapter 2 24

adjudicate upon appeals from Lower Courts and also reviewing proceedings of
such courts.
It consists of a Judge-President and such additional judges as the President,
acting on the recommendation of the Judicial Service Commission, may
determine and has jurisdiction to hear and adjudicate upon all civil disputes and
criminal prosecutions, including cases which involve the interpretation,
implementation and upholding of the Constitution.
The High Court is the only court which has jurisdiction on divorce proceedings;
the status of a person in respect of mental capacity; applications for the
sequestration of a person’s estate; the liquidation of a company or the validity or
interpretation of a will. The High Court is also the upper guardian of all minors.

3.3.3 The Lower Courts

The Lower Courts are presided over by magistrates or other judicial officers
appointed in accordance with procedures prescribed by Act of Parliament.
The Lower Courts may be divided into two main groups, namely District Courts
or Magistrates’ Courts (civil and criminal jurisdiction) and Regional Courts (only
criminal jurisdiction).
Magistrates’ Courts
Magistrates’ Courts are to be found in most towns in Namibia and have both civil
and criminal jurisdiction.
▪ Civil jurisdiction of the Magistrate’s Court
Magistrates’ Courts cannot hear certain types of cases such as divorce cases,
disputes in which the validity and interpretation of a will are at stake and cases
in which someone’s mental status is to be determined.
The Magistrate’s Court is further limited with regard to the monetary scope or
quantum of the claim or cause of action.
At present, the maximum amount in respect of illiquid claims (amount of claim
not determined) is N$ 25 000, but when the claim is based on a liquid document
(such as a cheque) or actions arising out of the Credit Agreements Act 75 of
1980, the maximum is raised to N$ 100 000.
▪ Criminal jurisdiction of the Magistrate’s Court
The criminal jurisdiction of a Magistrate’s Court is also limited. It may not hear
criminal cases in which the accused is on trial on charges of crimes such as
murder, rape and high treason. In addition, the maximum sentence that a
Magistrate’s Court can impose is limited to 5 years imprisonment or a fine of N$
20 000 per charge.
Section A Chapter 2 25

There are also Special Lower Courts such as Maintenance Courts, District Labour
Courts, Children’s Courts (for matters such as adoption of children) and Juvenile
Courts (for juvenile offenders).
Regional Courts
A Regional Court can try any criminal offence, such as murder and rape, but not
high treason. It can impose a maximum jail term of 20 years and a maximum
fine of N$ 100 000 per charge.
Other courts
The chiefs and headmen of certain communities have their own courts where
they apply the customary law (indigenous law) recognised by that specific
community. The courts are referred to as community courts.

Let’s do the following activity.3

🖎 ACTIVITY 2

In each of the following cases name the court/s that will have
jurisdiction to hear the matter:
a A Policeman is shot by diamond dealers.
b Mrs. X wants to divorce Mr. X.
c Mr. X owes his local shebeen owner N$1000 and is refusing
to pay the account.
d The Magistrate’s Court in Oshakati convicted Mr Innocent of
theft and imposed a prison sentence of 5 years. Mr innocent
wants to appeal against the judgement.
e Mr. D was seriously involved in a car accident. He institutes a
claim for N$500 000 against Mr. E, the driver of the vehicle.

3 Answers below additional reading on page 33.

Section A Chapter 2 26

4. THE LEGAL PROFESSION

There are people with legal qualifications in many careers, for example in the
business world as legal advisers, in local management bodies, in journalism, in
the diplomatic service, etc. However, professions such as judge, magistrate,
public prosecutor and legal practitioner are traditionally considered to be
branches of the legal profession and these persons are regarded as officers of
the Court.
In terms of Article 12(1)(e) of the Namibian Constitution “all persons…shall be
entitled to be defended by a legal practitioner of their choice.”
Due to the high costs of legal assistance, not everyone who needs legal aid is
able to afford it. The State therefore has a duty to provide legal representation
under certain circumstances.

4.1 Officers of the Court

In the Supreme Court and High Court the presiding officers are known as judges
and in the Lower Courts as magistrates.
Public Prosecutors act on behalf of the State in criminal prosecutions.

4.1.1 Legal practitioners

Section 17(a) of the Legal Practitioners Act 15 of 1995 provides that a legal
practitioner, who is duly admitted and enrolled as such, shall have the right of
appearance in any court or tribunal in which persons are entitled by law to legal
representation.
In terms of this Act the admission requirements for Legal Practitioners are:
▪ a recognised legal qualification
▪ at least 6 months practical legal training
Section A Chapter 2 27

▪ successful completion of a course presented by the Justice Training Centre,

including the Legal Practitioners’ Qualifying Examination
A legal practitioner does not have the right of audience in the Supreme Court of
Namibia unless he/she has practised as such for a period of at least one year and
holds a certificate to that effect.

Conveyancers
A legal practitioner can become a conveyancer by passing an additional
conveyancing examination. Conveyancers deal with the transfer (conveyance) of
land.
Notaries public
Legal practitioners who have practised as such for a period of at least five years
may apply to be appointed as a notary public by the Chief Justice. A notary does
specific work, which includes the drawing up of special types of contracts such as
antenuptial contracts.
Society of Advocates
Despite the provisions of the Legal Practitioners Act, one still finds legal
practitioners practising as members of the Society of Advocates (called the
“Bar”). The Society of Advocates is an umbrella body, which regulates the
profession. Members of the society do not form part of a firm or a partnership;
they work for their own account.
The members of the Bar are normally specialist litigants. Clients do not approach
members of the society directly; legal practitioners refer them to him/her.
An aspirant member of the society must do pupilage of at least three months
with a qualified member and then successfully complete the Bar Council
examination.
The Prosecutor-General
The Prosecutor-General is appointed to prosecute in the name of the Republic of
Namibia offenders of the law, to institute and defend appeals in criminal cases in
the High Court and the Supreme Court of Namibia. The Prosecutor-General
appoints prosecutors to conduct prosecution countrywide in the name of the
State. The Prosecutor-General is the chief of all the prosecutors throughout
Namibia and oversees that prosecutors perform their function competently in the
prosecution of criminal matters.

4.2 Other court officials

The sheriff (and his/her deputies)

Section A Chapter 2 28

The sheriff (and his/her deputies) is responsible for the serving of all court
documents, such as summonses and court orders of the High Court. The sheriff
also attaches property and organises sales in execution.

The Messenger of Court

The messenger fulfils the same role as the sheriff, but with regard to
Magistrate’s Court matters.
The Clerk of the Court
A clerk of court is the administrative head of the lower courts and deals with
administrative aspects of civil and criminal cases before the lower courts. The
clerk of court can issue summons or applications or issue warrants of executions,
accepts payment of fines etc.
Court interpreters
Because English is the official language used in court and there are those
instances when one of the party or both parties do not understand and or speak
English a court interpreter is used to interpret from a local or foreign language to
the official language mostly in proceedings inside court or an inquiry outside
court.
Court orderly
A court orderly is basically a police officer, in the employment of the Namibian
Police, who is usually present in court. A court orderly is required to ensure the
safety and proper conduct of all persons in court as well as attend to specific
requests by the presiding officer.
The Attorney -General
The Attorney-General is the principal legal advisor to the President and the
Government and takes all action necessary in amongst others to protection and
uphold the Constitution.

5. ALTERNATIVE DISPUTE RESOLUTION (ADR)

Section A Chapter 2 29

Referring a dispute to the courts for adjudication is not the only option available
to the parties to a contract. A dispute may be subjected to other dispute
resolution procedures which function independently from the courts of law.
There are other different procedures outside the court system that may be
utilised to finalise a dispute. The most important are the processes of mediation
and arbitration.
The processes of mediation and arbitration are the processes which are
considered to be relatively speedy, inexpensive and informal in nature
In Namibia, alternative dispute resolution is increasingly being used to finalise
disputes. Many institutions in Namibia including NUST, the Labour Commissioner
actively promote private arbitration and private mediation.
Alternative dispute resolution is particulaly suited for purposes of reaching
solutions for a multiple of disputes. Examples thereof are disputes resulting from
building contracts, contracts pertaining to civil engineering, insurance, lease and
labour disputes.

5.1 Mediation

This is a voluntary procedure whereby a neutral third party (called the mediator)
brings the parties who are involved in a dispute to an agreed solution. The
decision-making lies with the parties to a dispute, the mediator only assists the
parties to arrive at a mutual solution.
Advantages of mediation
(a) is more informal;
(b) can be less expensive in certain instances;
(c) is speedier;
(d) is always better if a negotiated agreement with regard to a dispute is
reached, instead of having an independent third party make a decision
which results in there being a winner and loser to the dispute; and
(e) does not result in a final decision and therefore other options such as
ongoing mediation, arbitration or even litigation may still be considered.
Disadvantages of mediation
(a) It is dependant on a measure of co-operation between the parties;
(b) Certain disputes have passed the point of consensus-finding processes
and mediation would therefore amount to a waste of time;
Section A Chapter 2 30

(c) A party to a dispute could possibly agree to the suggestions of a mediator

whil all the relevant facts to the dispute have not yet been disclosed or
been subjected to cross-examination;
(d) A perception may be created that the party who recommends mediation is
revealing a lack of confidence in his or her own case.

5.2. Arbitration

Arbitration is a proceess in terms of an agreement, whereby a chosen neutral

person (called an arbitrator), after a judicial investigation, makes a final award
with regard to an issue outside the ordinary system of litigation. Private
arbitrations are regulated by the  Arbitration Act 42 of 1965. The Labour Act 11
of 2007 makes provision for arbitration of labour matters in some instances after
a failed conciliation attempt.
Advantages of arbitration
(a) The parties to a dispute can appoint as an arbitrator a specialist in relation
to the dispute at hand. Presiding officers in the courts are generally
knowledgable of the law, but they are not necessarily specialists in fields
such as enginerring and computer technology;
(b) Arbitration can be an expedient way of finalising a dispute. There is, for
example, no court roll where parties have to await their cases;
(c) Arbitration is private and confidential. This process does not take place in
open court and in presence of the public and the media;
(d) An arbitration award is final and is not subject to appeal unless the parties
reach such an agreement. In the case of courts, decisions may be
appealable from the magistrate’s court to the high court and eventually to
the supreme court;
(e) Arbitration may in certain instances be less expensive means of finalising
a dispute than court procedures. It must be remembered that parties
themselves are responsible for the arbitrator’s professional fee. The state
is responsible for the salaries of magistrates and judges.
Disadvantages
(a) A person who is dissatisfied with an arbitration award has no option to
appeal against such a decision;
(b) It may possibly be more expensive than litigation;
(c) Certain disputes are more suited for litigation where, for example, a court
decision must set precedent;
Section A Chapter 2 31

(d) The parties to a dispute may possibly qualify for legal aid from the state if
they litigate, while there are no such possibilities to receive legal aid in the
case of arbitration of a dispute.

🕮 ADDITIONAL READING
1. Amoo, S.K. (2008). Introduction to Law: Cases & Materials
Windhoek: Macmillan Education. (Pages 1-30).
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ANSWER: ACTIVITY 1: PAGE 16

1. Criminal
2. Civil
3. Civil
4. Criminal and civil
5. Civil
6. Criminal and civil
7. Civil
8. Criminal and civil
9. Criminal and civil
10. No action
11. No action
12. No action

ANSWER: ACTIVITY 2: PAGE 26

a Regional and High Court

b High Court
c Magistrate’s Court
d High Court
e High Court