DISTANCE- MODE ASSIGNMENT TEMPLATE

2022 ACADEMIC YEAR

Student Name Kleopas S Kapalanga
Student number 221000771
Email Address kkapalanga@gmail.com
Cell/Tel no 0811286565
UNAM CAMPUS Windhoek Campus

Course/Module Name Course/Module

Code
Customary Law 1 JCU3601

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Table of Contents
Question 1 ............................................................................................................................................. 2
Under customary law, can a chief use corporal punishment to discipline his or her subjects?2
2. Cases That deal with Corporal Punishment ................................................................................ 2
3. Conclusion ........................................................................................................................................ 6
Question 2 ............................................................................................................................................. 6
Customary practices in Aawambo community in relation to marriage ......................................... 6
Reference ............................................................................................................................................ 11

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Question 1

Under customary law, can a chief use corporal punishment to discipline his or her
subjects?
Customary law employs a wide range of broad phrases, each of which appears to
have a precise definition. The Traditional Authority Act of 2000 defines customary law
as traditional community standards and rules of procedure, traditions, and usages that
do not conflict with the Namibian Constitution or a legislative act1.Article 66 of the
Constitution provides that both customary law and common law in effect prior to
independence should continue in force as long as they do not contradict with the
Constitution or an act of Parliament.2 Article 140 further recognised customary law by
stating that all laws in effect beforehand to independence, including customary law,
shall continue to be in force unless repealed or ruled unconstitutional by a court of
law, as we will demonstrate later.3

Corporal punishment, on the other hand, is a circumstance in which a person in

authority such as a traditional chief uses physical force to inflict pain for disciplinary
reasons4 This can be accomplished by flogging, spanking, or whipping with a stick or
an item. The traditional authority act defines a chief as a top traditional leader of a
traditional community.5 Corporal punishments were recognised and imposed as per
native and custom under proclamation Proc R348 of 1967 and R320 of 1970. In this
study, we will discuss whether traditional leaders can use corporal punishment such
as flogging or sparking. To support our stance, we shall refer to previously settled case
law.

2. Cases That deal with Corporal Punishment

As we have discussed above, customary laws are recognised in Namibia but only to
the extent that they do not conflict with any provision of the constitution. The
Constitution is the supreme law of the land and every other law acquires its legitimacy
from the Constitution.6 Article 8 of the Namibian Constitution makes it clear that any

1
Section 1 Traditional Authorities Act 25 of 2000.
2
Namibia Constitution 1990
3
Ibid.: Article 140(1)
4
Corporal Punishment. (n.d). Retrieved from
https://www.lac.org.na/laws/annoSTAT/Traditional%20Authorities%20Act%2025%20of%202000.pdf
5
The Act of 2000
6
Article 1(6) of the Constitution
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inhumane, degrading treatment or physical abuse will not be permitted, In all
proceedings by a state organ, the dignity of every person in Namibia shall be
respected, and respect for human dignity shall be preserved during the implementation
of any penalty.7

S v Sipula8

One tribal police officer was charged with assault with intent to do grievous bodily harm
after allegedly assaulting the complainant with a stick on the buttocks. He pleaded
guilty and explained that he was only enforcing an order of a tribal court that had
imposed a penalty of corporal punishment on the complainant. The court then had to
determine whether corporal punishment by a tribal court is unconstitutional. In solving
the issue, the court explained that corporal punishment was used in accordance with
native law and tradition, and that it was recognized by Proclamations R348 and R320
in 1967 and 1970, respectively. Because this was an informal manner of punishment,
it was not formulated by the government.9

Court further held that corporal punishment can be assumed to be illegal on the bases
of Article 8 of the Namibian Constitution as it was interpreted by the Namibian
Supreme Court in Ex parte Attorney-General re: Corporal Punishment by organ of the
state.10 Corporal punishment became outlawed in Namibian law at the time of the
aforementioned judgment, and this attitude also included Native and Custom law. The
court also noted that some tribal courts, notably the Linyati tribal court, continued to
impose corporal punishment in accordance with native law and tradition, which could
be owing to ignorance of the aforementioned judgment or a view that the judgment did
not apply to them.11

The Ex parte Attorney-General: Corporal Punishment decision was also difficult to

interpret because it dealt particularly with corporal punishment in government schools
and appeared to only be focused on state organs like as judicial, quasi-judicial, and
administrative agencies.

7
Ibid.
8
S v Sipula 1994 NR 41 (HC)
9
Ibid.: at p42
10
Ex parte Attorney-General in re : Corporal Punishment by organs of the state 1991 NR 178 (SC)
11
S v sipula, at p45
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The court pointed out that in the above-mentioned judgment, the court order made no
mention of traditional authority in the Eastern Caprivi, nor of regulation R 320 of 1970,
which applies to them. 12

The court reiterated its position that corporal penalties stem from native law and
tradition, and that they should be distinguished from corporal punishment administered
by a government school, as in the case at hand. Native law and custom were
incorporated into Namibian legislation and were even recognised after independence,
meaning they remained in effect until abolished or deemed illegal by a competent
court. Because the Supreme Court in the aforementioned case did not expressly
declare corporal punishment to be unconstitutional in any circumstance, one could
argue that article 140 (1) read with article 25 (1)(b) of the constitution requires an
express court order to declare a statute or action unconstitutional.13

In light of the foregoing, the court concluded that the Supreme Court's reference to
proclamation R 348 of 1970 in the aforementioned judgment can only mean that the
court intended to declare the proclamation unconstitutional insofar as it recognised the
imposition of corporal punishment in accordance with native law and custom. The
court further stated that the aforementioned judgment is binding on all tribal institutions
throughout Namibia, implying that corporal punishment, whether by a state agency or
a tribal court, is illegal and hence not permitted.14

Ex parte Attorney-General in re: Corporal punishment by organs of the state 15

In this case, the Attorney General filed a petition with the Chief Justice, demanding
that the Supreme Court exercise its jurisdiction and act as a court of first instance to
resolve the constitutional issues. The court had to decide whether state-sanctioned
corporal punishment is illegal and so violates any article of the Namibian Constitution.
The court emphasizes in its decision that the spirit of the constitution demonstrates
the Namibian people's commitment to the building of a democratic society founded on
human dignity, liberty, and the rule of law. Article 8 of the constitution must be viewed

12
Ibid.
13
Ibid.: at p47 -48
14
Ibid.: at p49
15
Supra.: note 10
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in conjunction with the fundamental humanistic concept enshrined in the permeable of
the constitution.16

Some sections of the Criminal Procedure Act 51 of 1977, some sections of the Prisons
Act no 8 of 1959, some sections of the Children Act 33 of 1960, section 1 of the
Criminal Law Amendment Act 8 of 1953, and the code of conduct of the Ministry of
Education, Sport, and Culture were challenged and allowed corporal punishment by
judicial, quasi-judicial, and administrative bodies of the state. According to the court,
physical punishment was out dated because it was only recognized by the South
African government during the apartheid era. The constitution's article 8 aims to
protect citizens against torture and other forms of cruel, inhuman, or humiliating
punishment.17

The court went on to say that even if the constitution authorised derogations from
chapter 3's fundamental rights and freedoms, derogations from article 8 are not
allowed. The court concluded that the imposition of corporal punishment on adults by
state organs is degrading, inhumane, and incompatible with civilised values pertaining
to the administration of justice and the punishment of offenders. After considering
articles from other statutes such as the European Convention for the Protection of
Human Rights and Fundamental Rights, it concluded that every human being has an
inalienable dignity, and the way corporal punishment is inflicted causes anguish and
The court went on to explain that harming a human body is essentially immoral,
especially when it is planned, prescribed, and carried out by an organised society.

The court had no difficulty concluding that physical punishment in a government

institution, whether for an adult or a juvenile, constitutes inhumane or degrading
punishment, as described by Article 8(2)(b) of the constitution. The court held and
proclaimed that any sentence imposed by any judicial or quasi-judicial authority
authorizing or directing physical punishment against any individual is illegal and in
violation of Namibian constitution article 8. physical suffering, depriving the recipient
of any dignity and self-respect.18

16
Ibid.: p178
17
Ibid.: p180-187
18
Ibid.: p188
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In summary, comparable sentiments have been expressed by judges in several
jurisdictions. In the case of S v Ncube,19 the court describe physical punishment as
degrading, inhumane, and in violation of human rights. In the case of S v juvenile,20
the same court stated that corporal punishment of adults and juveniles was
unconstitutional. The Botswana court in S v Petrus21 also disapproved of and criticized
the use of corporal punishment by South African courts at the time. In the case of S v
Bassoon22, Judge Leon of the South African court stated that whipping is not only an
assault on the person of a human being, but also on his dignity.

In s v Machwili,23 the court stated that when an adult is flogged, especially when he
is flogged in addition to being put to gaol, nothing is accomplished other than revenge,
and the society standard suffers as a result. It lowers itself to the level of the criminal
it is punishing, behaving in the same savagery that it condemns in him.

3. Conclusion
It clears from the above mentioned Namibian case that corporal punishment will not
stand the test of the Namibian Constitution, the constitution is the supreme law of the
land, therefore administering of corporal punishment is a violation of Article 8 of the
Constitution. The courts in other jurisdiction also took the same stand which is a clear
demonstration that corporal punishment is not welcomed anywhere, in conclusion,
corporal punishment is not allowed anywhere in Namibia, either by an organ of the
state or tribal court.

Question 2

Customary practices in Aawambo community in relation to marriage

Customary practices can be characterized as behaviours passed down from
generation to generation that are accepted and respected by members of a
community. In this study, we will focus on the one linked to marriage in the Aawambo
group.

19
S v Ncube 1988 (2) S.A. 702
20
S v juvenile 1990(4) S.A 702
21
S v Petrus [1985] L.R.C (Const.) 699
22
S v Basson 1979 (2) S.A.431
23
s v Machwili 1986 (1) S.A 156 (N)
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Due to our lack of expertise in this area, an interview was done with Mrs Aune
Kapalanga Haumpolo, an ordinary citizen of Uukwaludhi community in the Omusati
region:

Initiation of marriage

It’s believed that only a man can propose marriage and if a woman initiate the idea of
marriage then it looked as a bad omen and even in the future if things are not going
well a woman can be blamed for initiating marriage.

Parental approval

Whenever couples agreed to get married an introduction event has to take place
whereby parents have to make a through observation on the couples, focusing mostly
on the lady whereby even the physical appearance will be checked as possessing
some unusual features such as the formation of ankles and swollen eye area believed
to indicated danger to the life of a husband to be, thus even if couples may have been
in a long term relationship without parent’s approval that marriage may not take place.

Payment of lobola

Before marriage takes place a man is expected to make a payment to the woman’s
family as a token of appreciation for being given a woman to marry, this kind of
payment may include cattle’s, hoes, and most of the necessities that may be needed
or used during the wedding ceremony. This means, it is believed that the man is
responsible of ensuring that the wedding ceremony takes place by attending to the
needs at the house as well as to that of the bride which gives a burden to the husband,
and in the future may lead to the abuse of the woman in the hands of the husband as
he is made by this practice to believe that he owns the woman and she has become
one of his property.

Residing in the man’s parents’ house

It is expected of the couples once married to stay in the man’s parent house for a
period of time before moving to their permanent place whereby they will be given a
small portion of the house to make their kitchen. During that period the wife will be
expected to serve her parent-in law with everything being served at their kitchen and

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will work under the control of her husband as well as her in-law which mostly cause
conflict and misunderstanding between the wife and her in-laws.

Acquisition of place for residing

It is believed that it’s the man’s responsibility to look and prepare a place for them to
stay with the wife so even if the wife has a piece of land that she may have acquired
before marriage, couples may not move in to that place and call as theirs as the man
will be labelled weak and some may even bully him. This kind of practice has been
giving man the pressure of ensuring that they acquire a comfortable place for
themselves with a minimum contribution from the wife. In addition to that this practice
makes a woman feels like she doesn’t own that house and can leave anytime if the
husband feels so.

Gender roles and responsibilities

Even if the modern world is requiring gender equality, in the aawambo community this
is far from being reached as the roles and responsibilities for husband and wives are
still respected and if a man found helping a wife with chores such as cooking, washing
clothes, feeding the babies or changing the baby’s nappies its treated as a taboo and
judged as a disrespect to the husband. Community have a believe that it is the
responsibility of the wife to take care of the children and the husband, she is the one
expected to instil good morals and values in children and whenever a child goes wrong
in life it will be blamed on the wife alone though those children lived with both their
mother and father in the same house. This is also the practice that contribute to the
fathers not taking full responsibilities of ensuring that the needs of the children are met
as to them it’s not their duties and may end up giving birth to a lot of children as they
cannot feel the burden of raising them.

Extra love affairs

In aawambo community if a man happen to have an extra love affair outside marriage
it can be accepted and tolerated, a man may even get a child from that affair and the
wife may be expected to raise that child and treat him/her with care and love but if a
wife is to have an extra love affair it cannot be tolerated at all, from the moment its
noted then its expected for the woman to leave the husband house without any delay,

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if a husband forgive his wife for such a mistake then he will be labelled weak and not
man enough.

Bearing of children in marriage

If the married couple could not bear children, the woman is always the one to be
blamed without any medical observation made, she can be insulted and sometimes
can even lead to a divorce as the husband may be recommended to look for a child
outside marriage, but even if its medically proven that a man is the one with a problem
no one will recommend the same to the woman.

Naming of children

Another customary practice still accepted and respected is the naming of children that
is believed to be the duty of the husband / father without any input from the wife,
whether she likes the name or not she has no say in the matter and have just to accept
it. The topic of the child’s name is mostly not even discussed until the child is born,
and sometimes husband use this chance to express their joy or anger that they may
have towards their wives, in laws or friends through giving an insulting name but the
wife has just to accept.

Initiation of sexual intercourse and orgasm

In aawambo community its culturally believed that a woman may not initiate sexual
intercourse to her husband, even if she has that feeling, she just has to wait for the
husband to initiate and during the process her feel of satisfaction may not be
considered thus whether she have reach orgasm or not it does not matter to the
husband as long as he is satisfied. More so a woman is not expected to deny sex to
her husband whether she is in the mood of it or not she is always expected to agree
to it whenever the husband feels like having it.

Divorce is a taboo

It’s also expected that one’s a woman is married then she has to remain married for
the rest of her life whether the marriage life is going well or she is experiencing
difficulties, she may not divorce as it is believed to be a taboo which may even be
linked to her future generation and may affect the approval of her children’s marriage
by the society. Due this belief a lot of woman has to keep tolerating abuse and torture
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from their husband without divorce just to protect their reputation as well as not to
cause a bad omen to their future generation. But in cases where the man decided to
divorce the wife, when a traditional marriage ends, the distribution of property is
arranged between the spouse and his or her relatives without the involvement of a
court. Thus, in customary law, the common law laws that govern maintenance, the
distribution of the married estate, and the custody of the marriage's children have no
bearing.

Conclusion:

Following Namibia's independence in 1990, a new constitution was drafted, with

Chapter 3 containing fundamental human rights and freedoms. Because the
constitution is the country's supreme law24, some of the country's customary norms
have been marginalized, while others have been abolished by acts of parliament.
Because the Constitution declares that all persons are equal before the law,
discrimination based on gender is no longer permitted. According to The Married
Persons Equality Act of 1996.25, a man and a woman now have equal power in a civil
or customary marriage.

24
Article 1(6) of the Namibian Constitution
25
Act No. 1 of 1996
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Reference

Case law

Ex parte Attorney-General in re: Corporal Punishment by organs of the state 1991 NR

178 (SC)

S v Basson 1979 (2) S.A.431

S v juvenile 1990(4) S.A 702

S v Machwili 1986 (1) S.A 156 (N)

S v Ncube 1988 (2) S.A. 702

S v Petrus [1985] L.R.C (Const.) 699

S v Sipula 1994 NR 41 (HC)

Statutes

Married Persons Equality Act No 1 of 1996

Namibia Constitution 1990

Traditional Authorities Act no 25 of 2000.

Internet Sources

Corporal Punishment. (n.d). Retrieved from

https://www.lac.org.na/laws/annoSTAT/Traditional%20Authorities%20Act%2025%20
of%202000.pdf

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