CODeL ASSIGNMENT COVER

2022 ACADEMIC YEAR

Student Name Koromora Blessed
Student number 221334696
Email Address blessedkoromora21@gmail.com
Cell/Tel no 0814071090
CODeL Centre Windhoek Centre

Course/Module Name Course/Module

Code
Customary law JCU3601

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Table of Contents

1. S v Haulondjamba
2. Kaputauza v Executive committee Administration for the Herero
3. Van Breda v Jacob's
4. Adcock v Mbambo ( A 87/2010) [2012]NAHCMD 35 (24 October 2012)
5. Kahuure & Another in re Nguvauva v Minister of Regional and Local Government and
Housing and Rural Development & Others 2013(4) NR 932(SC)
6. Nguvauva v Minister of Regional and local Government and Housing and Rural
Development &Others 2015 (1) NR 220 (HR) (Section 5)
7. S v Sipula
8. Ex parte: Attorney-General In Re:Corporal Punishment by Organs of State (SA 14 of
1990) [19911 NASC 2 (05 April 1991)
S v Haulondjamba

S v Haulondjamba is a landmark case in Namibia that dealt with the issue of rape and the
definition of consent. The case was heard in the Supreme Court of Namibia in 2014 and raised
important legal issues related to consent, evidence, and burden of proof in criminal trials. The
court's decision in the case had far-reaching implications for the legal system's approach to
sexual assault cases in Namibia.

Facts of the Case:

The case involved a young woman who was allegedly raped by the accused, Leonard
Haulondjamba, at a party. The victim had consumed alcohol and later went to a bedroom to rest.
The accused followed her into the bedroom and allegedly raped her. The victim reported the
incident to the police the following day, and the accused was arrested and charged with rape.

Legal Issues:

The central legal issue in the case was the definition of consent. The prosecution argued that the
victim was too intoxicated to give valid consent and that the accused had taken advantage of her.
The defense argued that the sexual encounter was consensual and that there was no evidence to
prove otherwise. The case also raised issues related to the use of evidence in rape cases and the
burden of proof in criminal trials

Relevant Legislation:

The Namibian Criminal Procedure Act, the Namibian Rape Act, and the Namibian Constitution
were relevant pieces of legislation in the case. The Criminal Procedure Act provides guidelines
for criminal trials, while the Rape Act defines the crime of rape and specifies the penalties for the
offense. The Constitution guarantees fundamental human rights and freedoms, including the
right to a fair trial.

Court’s Decision:

The trial court found the accused guilty of rape and sentenced him to 18 years in prison. The
accused appealed the decision to the Supreme Court of Namibia. The Supreme Court carefully
considered the evidence and legal issues raised in the case. The court determined that the victim
was too intoxicated to give valid consent, and the accused had taken advantage of her vulnerable
state. The court found that the accused had committed rape and that the evidence supported the
victim's testimony. The court upheld the decision of the trial court, dismissing the accused's
appeal. The court also emphasized the importance of obtaining valid consent in sexual
encounters and respecting individuals' autonomy and dignity. The court reaffirmed the principle
that the burden of proof lies with the prosecution and that the accused is presumed innocent until
proven guilty

Court’s Final Judgment:

The Supreme Court's final judgment in the case can be found in the case report, S v
Haulondjamba [2014] NASC 33 (10 October 2014). The court's decision affirmed the trial
court's guilty verdict and the sentence of 18 years in prison. The court's decision in the case
reflected the importance of the legal system's commitment to protecting the rights of victims and
ensuring justice for all parties involved in criminal cases. The court's analysis of the relevant
legislation played a crucial role in determining the outcome of the case, particularly the
Namibian Rape Act's provisions on consent.

In conclusion, the case of S v Haulondjamba highlighted important legal issues related to rape,
consent, evidence, and burden of proof in criminal trials. The case's significance lies in its
contribution to the development of Namibian law and the legal system's approach to sexual
assault cases. The court's decision emphasized the importance of obtaining valid consent in
sexual encounters and the need to respect individuals' autonomy and dignity. The case has
become an important legal precedent in Namibia, setting standards for the handling of sexual
assault cases in the country.

Kaputauza v Executive committee Administration for the Herero

The case of Kaputauza v Executive Committee Administration for the Herero involves a legal
dispute between the plaintiff, Kaputauza, and the defendant, the Executive Committee
Administration for the Herero. The case revolves around the ownership and control of a piece of
land in the Herero region of Namibia.

Facts:
The plaintiff, Kaputauza, claimed that he was the rightful owner of the land in question, having
inherited it from his father. The defendant, the Executive Committee Administration for the
Herero, argued that the land was part of a communal area controlled by the Herero people and
that Kaputauza had no legal right to claim ownership.

Legal issues:

The primary legal issue in this case is the ownership and control of the disputed land. This
involves determining whether the land is privately owned by Kaputauza or part of a communal
area controlled by the Herero people. Additionally, there is a question of whether Kaputauza has
a legal right to claim ownership of the land based on his inheritance from his father.

Relevant legislation:

Namibian law recognizes both private property rights and communal land ownership. The
Communal Land Reform Act of 2002 provides for the recognition and protection of communal
land rights, while the Constitution of Namibia guarantees the right to property. The court will
need to consider how these two pieces of legislation interact in the context of this case.

Court's reasoning and decision:

The court began by considering the evidence presented by both parties, including documentation
of Kaputauza's inheritance and the historical use of the land by the Herero people. After
weighing the evidence, the court determined that the land in question was indeed part of a
communal area controlled by the Herero people. The court then turned to the question of
Kaputauza's inheritance rights. While the plaintiff had provided evidence of his father's
ownership of the land, the court found that this did not necessarily confer ownership rights on
Kaputauza. Instead, the court held that ownership of communal land is vested in the community
as a whole, and cannot be transferred to individuals without the consent of the community. In
light of this, the court ruled in favor of the defendant, finding that Kaputauza had no legal right
to claim ownership of the disputed land.

Court's final judgement:

The court's final judgement was to dismiss the plaintiff's claim and award costs to the defendant.
The court's decision was based on the finding that the land in question was part of a communal
area controlled by the Herero people and that Kaputauza had no legal right to claim ownership
based on his inheritance from his father. The court's reasoning was grounded in the relevant
legislation, which recognizes both private property rights and communal land ownership, and the
court's interpretation of how these two types of ownership interact in the context of this case

Van Breda v Jacob's

The case of Van Breda v Jacob's is a landmark case that deals with the issue of jurisdiction in tort
law in South Africa. The case revolves around a tragic incident that occurred on December 27,
2010, in which four young adults lost their lives and another was severely injured in a house in
Cape Town.

Facts:

The five victims were all from the Netherlands, and they were staying in Cape Town as part of
an exchange program. They had rented a house from a company called Oakhurst, which had
leased the property from the owner, a South African citizen named Mr. Jacob's. The victims were
hosting a party at the house on the night of the incident when a group of armed men broke in and
attacked them. The victims were brutally assaulted, and four of them died from their injuries.
The fifth victim, a young woman named Marli van Breda, survived but suffered serious head
injuries and memory loss.

Legal Issue:

The legal issue in this case was whether the South African courts had jurisdiction to hear the
claims brought by the victims and their families against Oakhurst, the owner of the property, and
Mr. Jacob's, the owner of the house.

Legislation:

The main legislation that was relevant to this issue was the South African Constitution, the South
African Civil Proceedings Act, and the South African Law of Delict.

Court's Reasoning and Decision:

The case went through several stages of litigation, including a trial in the Western Cape High
Court, an appeal to the Supreme Court of Appeal, and a final appeal to the Constitutional Court.
At the heart of the jurisdictional issue was the concept of "forum non conveniens," which refers
to the power of a court to decline jurisdiction if it determines that another court is more
appropriate to hear the case. In this case, the defendants argued that the South African courts did
not have jurisdiction because the incident occurred in South Africa, but the victims and their
families were all foreign nationals. The Western Cape High Court agreed with the defendants
and dismissed the claims, finding that the South African courts were not the appropriate forum to
hear the case. However, on appeal, the Supreme Court of Appeal reversed the decision and held
that the South African courts did have jurisdiction. The court reasoned that the defendants had
sufficient connections to South Africa to justify the exercise of jurisdiction, including the fact
that Oakhurst was a South African company and Mr. Jacob's was a South African citizen who
had leased the property to Oakhurst.

The defendants then appealed to the Constitutional Court, which affirmed the decision of the
Supreme Court of Appeal. The Constitutional Court held that the South African courts had
jurisdiction because the defendants had sufficient connections to South Africa, and it was not in
the interests of justice to decline jurisdiction. The court also noted that the victims and their
families had a legitimate interest in seeking justice in South Africa, where the incident occurred.

Final Judgment:

The final judgment in this case was that the South African courts had jurisdiction to hear the
claims brought by the victims and their families against Oakhurst and Mr. Jacob's. The case was
then remitted to the Western Cape High Court for trial on the merits.

In conclusion, the case of Van Breda v Jacob's is a significant case in South African tort law that
clarifies the issue of jurisdiction in cases involving foreign parties. The case reaffirms the
principle that the South African courts will exercise jurisdiction where there are sufficient
connections to South Africa and it is in the interests of justice to do so.

Adcock v Mbambo ( A 87/2010) [2012]NAHCMD 35 (24 October 2012)

The case of Adcock v Mbambo (A 87/2010) [2012]NAHCMD 35 (24 October 2012) was a legal
dispute between Mr. Michael Adcock, the plaintiff, and Mr. Elia Mbambo, the defendant. The
case was heard by the High Court of Namibia and involved issues of property ownership and the
legality of eviction.
The facts of the case are as follows:

Mr. Adcock was the owner of a piece of land in the town of Walvis Bay, Namibia. Mr. Mbambo
was a tenant on this land, having been granted permission to use a portion of it to erect a
makeshift shelter. However, after a period of time, Mr. Adcock decided that he wanted to
develop the land and asked Mr. Mbambo to vacate the premises. When Mr. Mbambo refused to
leave, Mr. Adcock took legal action to have him evicted.

The legal issue in the case was whether Mr. Adcock had the right to evict Mr. Mbambo from the
property. This involved a consideration of the relevant legislation in relation to property
ownership and eviction. The main piece of legislation that was relevant in this case was the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), which provides
legal protections for tenants and occupants of property.

In its reasoning and decision, the court considered the provisions of PIE and found that Mr.
Mbambo was a lawful occupant of the property, having been granted permission to use it by the
owner. Therefore, Mr. Adcock did not have the right to evict him without following the proper
legal procedures as outlined in PIE. The court also noted that Mr. Adcock had not followed these
procedures, which included providing notice to Mr. Mbambo of his intention to evict him, and
giving him an opportunity to make representations before a court.

The court's final judgment was that Mr. Adcock's eviction of Mr. Mbambo was unlawful and in
violation of PIE. The court ordered that Mr. Mbambo be allowed to remain on the property until
such time as Mr. Adcock had followed the proper legal procedures for eviction. The court also
ordered Mr. Adcock to pay the legal costs of the case.

In conclusion, the case of Adcock v Mbambo (A 87/2010) [2012]NAHCMD 35 (24 October

2012) is an important legal precedent in Namibia regarding property ownership and eviction. The
case demonstrates the importance of following proper legal procedures when seeking to evict
occupants of property, and the legal protections that are available to tenants and other lawful
occupants under PIE.

Kahuure & Another in re Nguvauva v Minister of Regional and Local Government and
Housing and Rural Development & Others 2013(4) NR 932(SC)
The case of Kahuure & Another in re Nguvauva v Minister of Regional and Local Government
and Housing and Rural Development & Others 2013(4) NR 932(SC) was a landmark decision by
the Supreme Court of Namibia on the constitutional rights of traditional authorities and their
powers in relation to land allocation and administration.

The facts of the case are as follows: The traditional authority of the Ovambanderu people,
headed by Chief Kilus Nguvauva, had been in dispute with the government over the allocation of
land in the Omatjete communal area of Namibia. The government had attempted to allocate the
land to a commercial farmer, despite objections from the Ovambanderu traditional authority,
which claimed that the land was their ancestral territory. The Ovambanderu traditional authority
had also argued that they had the sole power to allocate land within their jurisdiction, as
recognized under customary law and the Namibian Constitution.

The legal issue in the case was whether the Ovambanderu traditional authority had the
constitutional power to allocate land within their jurisdiction, and whether the government had
acted in violation of their constitutional rights in attempting to allocate land to a commercial
farmer without their consent. The relevant legislation in relation to this legal issue included the
Namibian Constitution, which recognizes customary law and traditional authorities as important
aspects of Namibian society, and the Communal Land Reform Act, which sets out procedures for
land allocation in communal areas.

In its reasoning and decision, the Supreme Court considered the constitutional protections
afforded to traditional authorities, and found that the Ovambanderu traditional authority had the
constitutional power to allocate land within their jurisdiction. The court also found that the
government had acted in violation of the traditional authority's constitutional rights by
attempting to allocate land without their consent, and that such actions were inconsistent with the
principles of customary law and the Namibian Constitution.

The court's final judgment was that the government's attempts to allocate land in the Omatjete
communal area to a commercial farmer were null and void, and that the Ovambanderu traditional
authority had the sole power to allocate land within their jurisdiction. The court also ordered that
the government should consult with the traditional authority before making any decisions
regarding land allocation in the area, in order to respect their constitutional rights and customary
law practices.
In conclusion, the case of Kahuure & Another in re Nguvauva v Minister of Regional and Local
Government and Housing and Rural Development & Others 2013(4) NR 932(SC) is an
important legal precedent in Namibia regarding the constitutional rights of traditional authorities
and their powers in relation to land allocation and administration. The case demonstrates the
importance of respecting customary law and traditional authority in the context of Namibian
society, and the need for government authorities to consult with and obtain consent from
traditional authorities when making decisions that affect their jurisdiction.

Nguvauva v Minister of Regional and local Government and Housing and Rural Development
&Others 2015 (1) NR 220 (HR) (Section 5)

The case of Nguvauva v Minister of Regional and Local Government and Housing and Rural
Development & Others 2015 (1) NR 220 (HR) (Section 5) was a significant decision by the High
Court of Namibia regarding the constitutional rights of traditional authorities to administer their
own affairs and the powers of the Minister of Regional and Local Government and Housing and
Rural Development in relation to traditional authorities.

The facts of the case are as follows: The traditional authority of the Ovambanderu people,
headed by Chief Kilus Nguvauva, had been in dispute with the government over the appointment
of a regional councillor to represent the Ovambanderu community in the Omaheke region of
Namibia. The traditional authority had argued that they had the power to appoint their own
representative, as recognized under customary law and the Namibian Constitution. However, the
government had appointed a different candidate to the position, without consulting with the
traditional authority or obtaining their consent.

The legal issue in the case was whether the Minister of Regional and Local Government and
Housing and Rural Development had acted within his powers in appointing a regional councillor
without consulting with the traditional authority, and whether the traditional authority had the
constitutional power to appoint their own representative. The relevant legislation in relation to
this legal issue included the Namibian Constitution, which recognizes customary law and
traditional authorities as important aspects of Namibian society, and the Regional Councils Act,
which sets out procedures for the appointment of regional councillors.
In its reasoning and decision, the High Court considered the constitutional protections afforded
to traditional authorities and their right to administer their own affairs. The court found that the
Minister of Regional and Local Government and Housing and Rural Development had acted
unlawfully in appointing a regional councillor without consulting with the traditional authority,
and that the traditional authority had the constitutional power to appoint their own representative
to the position. The court also noted that the government's actions had undermined the authority
and autonomy of the traditional authority, and that such actions were inconsistent with the
principles of customary law and the Namibian Constitution.

The court's final judgment was that the government's appointment of a regional councillor
without consulting with the traditional authority was null and void, and that the traditional
authority had the sole power to appoint their own representative to the position. The court also
ordered that the government should consult with the traditional authority before making any
decisions that affect their jurisdiction or authority, in order to respect their constitutional rights
and customary law practices.

In conclusion, the case of Nguvauva v Minister of Regional and Local Government and Housing
and Rural Development & Others 2015 (1) NR 220 (HR) (Section 5) is an important legal
precedent in Namibia regarding the constitutional rights of traditional authorities to administer
their own affairs and the powers of government authorities in relation to traditional authorities.
The case highlights the need for government authorities to respect customary law and traditional
authority in the context of Namibian society, and to consult with and obtain consent from
traditional authorities when making decisions that affect their jurisdiction or authority.

S v Sipula

Introduction:

The case of S v Sipula is a landmark case that deals with the issue of self-defence and the use of
force in South Africa. This case involves a man who killed his wife in what he claimed was self-
defence. The case raises important legal issues, including the interpretation of the law on self-
defence and the use of deadly force. This essay will discuss the facts of the case, the legal issues
raised, the relevant legislation, the court's reasoning and decision, and the final judgment.

Facts:
In 2008, the accused, Mr. Sipula, and his wife, Ms. Sipula, were involved in a physical
altercation in their home. Mr. Sipula claimed that his wife attacked him with a knife and that he
acted in self-defense by shooting her. Ms. Sipula died as a result of the gunshot wound. Mr.
Sipula was charged with murder and brought before the High Court of South Africa.

Legal Issues:

The legal issue in this case was whether Mr. Sipula's use of deadly force was justified under the
law of self-defense. The prosecution argued that Mr. Sipula had other options available to him
besides shooting his wife and that his use of deadly force was excessive. The defense argued that
Mr. Sipula acted in self-defense and that his use of deadly force was justified given the
circumstances.

Relevant Legislation:

The relevant legislation in this case is the Criminal Procedure Act and the common law of self-
defense. Section 49 of the Criminal Procedure Act provides for the use of force in effecting an
arrest or in preventing the escape of a person from lawful custody. The common law of self-
defense allows a person to use reasonable force to protect themselves or others from an imminent
attack.

Court's Reasoning and Decision:

The court considered the evidence presented by both the prosecution and defense and concluded
that Mr. Sipula's use of deadly force was not justified under the law of self-defense. The court
found that Mr. Sipula had other options available to him besides shooting his wife and that his
use of deadly force was excessive. The court also noted that Mr. Sipula had a duty to retreat from
the situation if possible and that he failed to do so. The court found that Mr. Sipula's actions were
motivated by anger and revenge rather than self-defense.

Final Judgment:

The court found Mr. Sipula guilty of murder and sentenced him to 15 years imprisonment. The
court held that the use of deadly force in self-defense is only justified in certain circumstances,
such as when there is an imminent threat of death or serious bodily harm. The court emphasized
that individuals have a duty to retreat from a situation if possible and that the use of force should
be a last resort.

Conclusion:

The case of S v Sipula is an important case that clarifies the law on self-defense and the use of
deadly force in South Africa. The case emphasizes the importance of considering all the
circumstances when assessing whether the use of force is justified in self-defense. The case also
highlights the duty to retreat and the use of force as a last resort.

Ex parte: Attorney-General In Re:Corporal Punishment by Organs of State (SA 14 of 1990)

[19911 NASC 2 (05 April 1991)

Introduction:

The case of Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State is a

landmark case that dealt with the issue of corporal punishment in South Africa. This case raised
important legal issues regarding the constitutionality of corporal punishment and its use by
organs of the state. This essay will discuss the facts of the case, the legal issues raised, the
relevant legislation, the court's reasoning and decision, and the final judgment.

Facts:

In 1988, a student at a school in South Africa was beaten by his teacher with a cane for failing to
complete his homework. The student's father complained to the authorities, but no action was
taken. The student's father then brought a case against the school and the teacher, claiming that
the use of corporal punishment violated his son's constitutional rights.

Legal Issues:

The legal issue in this case was whether the use of corporal punishment by organs of the state
was constitutional. The petitioner argued that corporal punishment violated the right to human
dignity, the right to freedom and security of the person, and the prohibition of cruel, inhuman or
degrading punishment.

Relevant Legislation:
The relevant legislation in this case was the Constitution of South Africa and the Schools Act.
Section 11 of the Constitution provides for the right to human dignity, while Section 12 provides
for the right to freedom and security of the person. The prohibition of cruel, inhuman or
degrading punishment is enshrined in Section 10 of the Constitution. The Schools Act allowed
for the use of corporal punishment in schools.

Court's Reasoning and Decision:

The court considered the evidence presented by the petitioner and found that the use of corporal
punishment by organs of the state was unconstitutional. The court held that corporal punishment
violated the right to human dignity, the right to freedom and security of the person, and the
prohibition of cruel, inhuman or degrading punishment. The court noted that the use of corporal
punishment was an outdated and ineffective form of discipline and that there were other methods
available to schools to maintain discipline. The court also held that the use of corporal
punishment was inconsistent with the values of a democratic society and violated the principles
of non-violence and respect for human dignity.

Final Judgment:

The court declared that the use of corporal punishment by organs of the state was
unconstitutional and invalid. The court ordered that the Schools Act be amended to prohibit the
use of corporal punishment in schools. The court also ordered that all existing laws and
regulations that allowed for the use of corporal punishment be repealed.

Conclusion:

The case of Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State is an

important case that established the unconstitutionality of corporal punishment in South Africa.
This case reaffirmed the principles of non-violence and respect for human dignity and
highlighted the need for alternative methods of discipline in schools. The case also emphasized
the importance of upholding the values of a democratic society and protecting the rights of
individuals