Section A Chapter 1 3

CHAPTER 1

OBJECTIVES

After completing this chapter you should be able to:

 Define the concept of “law”
 Say what is the purpose of the law in a specific
community
 Name the criteria for justice
 Name and briefly discuss the principles of modern
Namibian law
 Explain what a “juristic act” is
 Explain what a “legal subject” is
 Explain the legal term “obligation”
 Explain the term “execution” of property by the
creditor
 Distinguish between a delict and a crime

Contents Page

1. The concept of “law” 4

2. The purpose of law 5-6
3. Principles of modern Namibian law 8-9
4. A brief history of Namibian law 10
5. Important basic legal concepts 10-12

5.1 Juristic act

5.2 Legal subjects
5.3 Obligation
5.4 Execution of property
5.5 Delict
5.6 Crime
5.7 Difference between crime and delict
Section A Chapter 1 4

1. THE CONCEPT OF LAW

Various definitions of law can be found in literature. For the purpose

of this course, the following definition will be followed: Law refers
to rules and regulations that govern human conduct or
other societal relations, which are recognised as binding by
the State and enforced by organs of the State.

Some aspects can be highlighted from the foregoing definition,

which can elucidate further on our understanding of law.

The first one is that law embodies rules and regulations that
govern human behaviour. These rules and regulations state how
people are to conduct themselves in society and in dealing with one
another. It must be pointed out that the rules and regulations also
regulate artificial persons, such as companies, educational and
religious institutions, clubs and societies.

The second one is that law is recognised by the State. This

feature emphasises that law comprises only those rules and
regulations which are made1 by the State and recognised as such by
the State. If a rule is not recognised by the State it does not qualify
as law.

The third one is that law consists of rules and regulations that
are enforced by the organs of State. This aspect of
enforceability is an important element of law, as it distinguishes
legal rules (law) from other rules, such as moral rules. The courts
and the police as organs of State enforces the law. On the other
hand, moral rules are not enforced by the State. The
enforcement of law can take place in form of punishment in case
of a crime or compensation in case of a civil case.

Generally viewed, the law affects virtually all our relationships,

whether or not we wish it or know of it. Borrowing a book from a
library, driving a motor vehicle on a public road, being a party to
and signing of a contract, buying a study guide or a newspaper,
getting married, borrowing money from a bank etc.

1
In exception of the common law.
Section A Chapter 1 5

2. THE PURPOSE OF LAW

2.1 Preservation of peace and order

So often one reads in the newspapers or watches on television

about different crimes being committed across Namibia. The law
was going to be unnecessary if all people were perfect. This is
because there will be virtually no conflict. However, in truth, if there
is no law, there will be chaos, as people will resort to self-help. Law
is used as a tool of control by governing activities of people and
businesses. Thus, in a nutshell, it can be said that one of the
purposes of the law is therefore to maintain peace and order within
a specified community.

2.2 To do justice

Justice is regarded as a second object of the law. Justice is not easy

to define as it is subjective. What is just for one person, may not be
just for another person. For the purpose of this course, justice will
be regarded as equivalent to fairness. In this context justice will be
regarded as what appears right and fair to a fair-minded person.
Law must serve the ends of justice.

The criteria for justice in Namibia

Our legal process strives towards formal justice in the following

respects (which are the criteria for justice):
▪ Similar cases must be treated in a similar manner
▪ Every person shall be entitled to a fair and public hearing by
an independent and competent Court or Tribunal established
by law
▪ Criminal procedure regards a person accused of crime as
innocent until proven guilty according to law, after having
had the opportunity to present his or her case. The process
requires that both sides be heard, that a person must appear
before a competent and independent Court within a
reasonable time and that no force or undue influence may be
used to induce an accused to confess to a crime
▪ The process also requires that every person to a hearing shall
be given enough time and facilities for the presentation of
his/her defence;
▪ Every person to a hearing shall have the right to have a
representative in a hearing against him or her.
 Section A Chapter 1 6

In addition to the above, there are basic rules of natural

justice that have evolved from our common law, namely:
▪ Audi alteram partem rule-which literally translates as “listen
to the other side”. In other words, a person in a civil or
criminal hearing must be given a chance to be heard. The
person must be allowed to state his or her case before the
Court or a Tribunal and to challenge or comment on the
evidence presented by the other party;
▪ Nemo iudex in sua causa , which means no one may act as a
judge in his or her own case. This rule implies that a
presiding officer should have no personal interest or derive
any benefit from the outcome of a dispute or that that the
presiding officer should be impartial in the proceedings.

2.3 To create rights and duties

Law creates rights for all human beings that can be enforced when
violated with rights comes obligations or duties to exercise those
rights in a reasonable fashion with regard to the rights of others.
The emphasis is on “duties”, however, most people put the
emphasis on “rights”, but one must remember that rights and duties
are two sides of the same coin: One person’s rights create duties for
another. A “right” can be described as any right, which a legal
subject has with regard to a specific legal object and which is
protected by law.
It is in the best interest of human kind that each person gives up his
or her unlimited freedom in order to make peaceful co-existence
possible. Any legal relation among people therefore accordingly
creates rights and duties.

Let’s do the following activity.2

Complete the following sentences by inserting the

missing words:
a Law refers to..............and...................that govern
Activity 1 human conduct or other societal relations, which are
recognised as binding by the State and enforced if
necessary.
b One of the purposes of the law is to maintain peace
and............
c ...........................is an aspect that distinguishes law
from morality.
d One person’s rights create.................................for
another

2
Answers on page 13 below additional reading.
Section A Chapter 1 7

Let’s do another activity to test your understanding

further.3

Decide whether justice was served in each of the

following instances. Briefly motivate each answer.
Activity 2
a X was found breaking in a house and was
beaten up by members of the police to confess
to his crime.
b Y was not allowed a lawyer in court to defend his
case of alleged theft.
c X was attending a case in which the Magistrate
was his brother and despite strong evidence
against X, X was found not guilty on all criminal
charges.
d A reckless driving case of Y has been in the court
for 5 years. It has been postponed all times in
the past for police investigation.
e X appeared in court on a charge of malicious
damage.
to property but was only given 30 minutes to
prepare and defend his case.
f Y was found guilty in court for the murder of X. Y
was not given a chance to tell the court his side
because it was felt that it was not necessary.
g X was told by the Police that if he admitted to the
crime, the police would consider releasing him on
police bail.

3
Answers below additional reading on page 13.
Section A Chapter 1 8

3. PRINCIPLES OF MODERN NAMIBIAN LAW

In this section we’ll introduce you to the principles of modern law.

These principles are embedded in Namibian law to ensure justice.

3.1 Just application

The law must be fair and right according to the community’s system
of values. The aspirations and values of the Namibian people are
contained in a document called the Namibian Constitution,
1990.These values are dignity, freedom of speech etc.

3.2 Equality

No one is above the law. The prohibition on unfair discrimination in

the Constitution seeks not only to avoid discrimination against
people who are members of disadvantaged groups, but prohibits
discrimination on specified grounds, such as sex, ethnic origin,
creed, social status. At the heart of the prohibition of unfair
discrimination lies a recognition that the purpose of our new
constitutional and democratic order is the establishment of a society
in which all human beings will be accorded equal dignity and respect
regardless of their membership of particular groups. Thus, the law
applies equally to all persons in the same conditions.
All persons are equal in the eyes of the law if they fall into the same
class. The law applies to Markus, Kativa and Mbambo provided they
are engaged in the same activity. However, if Markus walks along a
road, Kativa drives a car and Mbambo is a passenger, they all fall
into different categories applicable to road use. All will be subject to
laws governing the activities they are engaged in.

3.3 Uniformity

Law should apply uniformly, not only regard to all persons but to all
areas. For example, if Peter a law professor living in Windhoek
contravenes the law and is punished, then Mr Sam, a chartered
accountant who commits the same offence in Keetmanshoop or
Rundu should also be punished.
Section A Chapter 1 9

3.4 Authority

An essential requirement of law is that only the proper authority is

allowed to make a law. In Namibia, the main laws are made by the
legislature, but some other statutory bodies have legislative powers
delegated to them. For example, when one finds a parking ticket for
an expired meter bay, this law in this regard to the offence is made
by the local municipality, i.e. Windhoek City Municipality.

3.5 Certainty

The law must be certain. People must know it and anticipate how to
conduct themselves. Legal certainty means that law is predictable,
that it will be applied consistently and that it has fixed and certain
content. This is the ideal of lawyers and ordinary individuals alike.
They want to know what the legal position in a specific case is so
that clients can be advised, and lives can be planned.

Let’s do the following activity4

Decide in each instance whether the statement is

Activity 3 true or false
a. The law applies to everyone except to the
President and politicians.
b. The law is only made to serve the rich people in
Namibia
c. Any person can make laws in Namibia.
d. A law that offends the values of the community
can be made by lawmakers.
e. Only the legislature can make laws in Namibia.

4
Answers below additional reading on page 13.
Section A Chapter 1 10

4. A BRIEF HISTORY OF NAMIBIAN LAW

In order to understand modern law better and also to evaluate and

facilitate future developments or changes in law, it is important to
have some knowledge of the history of the law.

Namibian law

Namibian law today is the product of different sources. First, it is

rooted in Roman law. Secondly, during the 15th and 16th centuries,
Roman law was mixed with Dutch Customary law-hence the term
Roman-Dutch law and it was this law that was brought to the Cape
of Good Hope in South Africa by Van Riebeeck in 1652. English law
exerted some influence on Roman-Dutch law. Roman-Dutch was
then applied to Namibia when Namibian was colonised by South
Africa by way of Proclamation 21 of 1919 which made Roman Dutch
law applicable to Namibia. At independence, the Roman Dutch law
was adopted by the Namibian Constitution under Article 140.

5. Important legal concepts

5.1 Juristic Act

A juristic act can be described as an act that has, or intended

to have, legal consequences. A juristic act may be:

• Unilateral (one party), e.g. the making of a will or the

cancellation of a contract; or
• Bilateral/multilateral (two or more parties), e.g. the
making or varying of a contract.

5.2 Legal subjects

Legal subjects are human beings or entities5 subject to the

law. Every legal subject has legal capacity, i.e. the capacity to
be the bearer of rights and duties, the capacity to perform
juristic acts and the capacity to sue and be sued as a party in
a lawsuit6. Every person has the capacity to be the bearer of

5
Also known as juristic persons; no physical existence.
6
locus standi in iudicio.
Section A Chapter 1 11

rights and duties, but not all persons can incur obligations,
perform juristic acts and litigate. The law recognises two
categories of persons, i.e. natural persons and legal/juristic
persons.

5.2.1 Natural persons

A natural person refers to a human being.

5.2.2 Juristic persons

Juristic persons can be described as entities

recognised as the holders of rights and subject to
duties. Categories of juristic persons are as follows:

• Companies, Close Corporations; Banks (in terms of

general enactments of Parliament);
• Universities, Polytechnics; Namibian Broadcasting
Corporation (under special enactments of
Parliament); and
• Voluntary associations such as churches, clubs and
political parties.

5.3 Obligation

In a legal context, the term obligation refers to a legal bond

between the legal subjects in terms of which the one person
(called the debtor) is bound to render a performance of some
kind7 to or for the other (called the creditor). These
obligations may come about through contract, delict or
through other various courses such as unjustified enrichment.
A legal obligation may consist in giving something, doing
something or in not doing something. The debtor has a duty
to render the performance, while the creditor has a right to
receive it.

5.4 Execution of property

The creditor under a civil obligation is not entitled to resort to

self-help, but has the right to institute legal proceedings
against the debtor in a competent court to obtain a judgment
ordering the debtor to perform. In the event where the

7
The performance can include, but is not restricted to, the payment of money or to act or not to act
in a specific manner.
Section A Chapter 1 12

performance consists of the payment of money and the

debtor is unable to render such performance due to, for
example, financial constraints, the creditor has the right to
proceed to attach the debtor’s property and sell it in
execution in order to satisfy the judgment debt.

5.5 Delict

A delict can be defined as an unlawful act or omission that

causes harm to the person, property or personality of
another.

5.6 Crime 
A crime can be defined as unlawful conduct for which the
wrongdoer is liable to punishment by the State. Crimes can
be divided into two main classes, i.e. common law crimes and
statutory offences.

5.7 Difference between crime and delict

The basic difference between crime and delict lies in the legal
remedy attaching to each. The main purpose of a criminal
prosecution is to protect society by punishing the offender,
while a delictual remedy aims to compensate the victim for
the harm he/she has suffered as a result of the
wrongful/unlawful act. Both, however, constitute anti-social
and unlawful conduct and many delicts are also crimes, e.g.
assault, theft, malicious injury to property, defamation8.

8Please refer to the discussion on the distinction between criminal and civil court proceedings in
Chapter 2 for further information in this regard.
Section A Chapter 1 13

 ADDITIONAL READING
1. Amoo, S.K. (2008). Introduction to Namibian Law: Cases &
Materials. Windhoek: Macmillan Education. (Pages 1-30).
2. Humby, T. Kotze L., & du Plessis A.(ed). (2012). Introduction to
Law and Legal Skills in South Africa. Oxford University Press.
(Pages 1-8; 45-117).
3. Kleyn, D., & Viljoen, F. (2010). Beginner’s Guide for Law
Students. 4th ed. Juta & Co. Ltd. (Pages 1-18).
4. Meintjies L., Van der Walt et al. (2011). Introduction to South
African Law: Fresh Perspectives. 2nd ed. Cape Town:
Heineman/Pearson Education. (Pages 1-20).
5. Schulz, H. et. al. (2014). General Principles of Commercial
Law. Juta South Africa (Pages 1-24).
6. Sharrock, R. (2017). Business Transactions Law. 9th ed. Cape
Town: Juta & Co. Ltd. (Pages 1-8).

ANSWERS

ACTIVITY 1: PAGE 6

a. Rules and regulations

b. Order
c. Enforceability
d. Duties

ACTIVITY 2: PAGE 7

a. No justice. No person may be forced to confess to a crime.

b. No justice. Everyone has the right to a legal representative.
c. No justice. The magistrate has personal interest in the matter.
e. No justice. There has been an unreasonable delay.
f. No justice. A person must be given enough opportunity to prepare his or her defence.
g. No justice. Every person must be given a chance to state his or her side.
h. No justice. There has been improper influence.

ACTIVITY 3: PAGE 9

All statements are false