2023 ACADEMIC YEAR

Student Name Blessed Koromora

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
Question 1. Discuss the application and statutory recognition of customary law from a
historical perspective, starting from the Native Administration Proclamation no. 15 of 1928 to
Post-independence enactments.                             

Prior to the colonialism era the different tribes and clans in the land of Namibia had their own
unique ways of living that differed, from one tribe to another. They had their own customary
practices and laws, which were not necessarily written down but passed down orally
generation to generation. They governed various aspects of their lives such as marriages,
inheritance, land tenure and conflict resolution.the German empire colonized Namibia in the
19th century and they imposed a system primarily focused on regulating commercial
activities, property rights and the undermining of the local people1. The colonial government
imposed indirect rule, appointing chiefs who were loyal to the government and enforced the
German laws in their communities2. The system effectively weakened the power of the
customary law leaders and divided marginalized and weakened traditional communities.
Namibia later on fell into South African rule around 1955, where there was the introduction
of a system that segregated communities based on race and living area3.
The South African government, which at the time ruled Namibia, passed the Native
Administration Proclamation Act 15 of 1928 during the colonial era. The act established a
Native Administration system in Namibia, which was intended to oversee the affairs of the
nation's indigenous population4. It undermined the standing of traditional community leaders
under customary law and concentrated power in the hands of colonial administrators. The
Native Commissioner position was established by the Proclamation 5. This individual was
chosen by the colonial government and given extensive authority to manage native affairs in
a specific region. The Native Commissioner had control over native courts and native
authorities and was in charge of carrying out the Proclamation's provisions. Native American
courts held jurisdiction over issues involving customary law, including disagreements over
inheritance, marriage, and land6. The Native Commissioner had the authority to overturn
judgments rendered by native courts and, if necessary, to submit cases to higher courts. In an
effort to overturn the community leaders the proclamation established the position of
headman, who was appointed by the Native Commissioner to operate as a local representative
of the colonial authority7. The headman was responsible for preserving order and
implementing colonial rules and regulations in his region, in addition groups of headmen and

1
Collections in the Archives. 2019. The Namibian Struggle for Independence 1996-1990; A Historical
Background. Available at https://www.sahistory.org.za/article/namibian-struggle-independence-1966-1990-
historical-background . Lasted accessed [15/03/2023]
2
Nehlapo, T, Himunga, C, Maithufi, P, Weeks, S, M, Mogokeng, L, Ndima, P. 2014. African Customary Law
In South Africa; Post-apartheid and living law perspectives. South Africa; Oxford University Press Southern
Africa (Pty). P34.
3
Collections in the Archives. 2019. The Namibian Struggle for Independence 1996-1990; A Historical
Background. Available at https://www.sahistory.org.za/article/namibian-struggle-independence-1966-1990-
historical-background . Lasted accessed [15/03/2023]

4
Heinz, O.2016. Customary Law In Namibia;Development and Perspective. Namibia. Legal Assistance Center.
P76
5
the Native Administration Proclamation no. 15 of 1928.s5.
6
N.A.P Act 15 of 1928.s9.
7
The Native Administration Proclamation no. 15 of 1928.s11.
other community leaders who were responsible for governing their local communities under
the oversight of the Native Commissioner were established 8. Native authorities had limited
powers to enforce customary law, but their decisions could be overruled by the Native
Commissioner.However the establishment of enactments such as The Traditional Authorities
Act of 2000 which Empowers traditional authorities to resolve disputes and make decisions
on matters related to customary law and practices within their communities 9. The act also
Provides for the recognition of traditional authorities and their jurisdiction over their
respective communities10, and the methods in which community leaders can be appointed, it
also grants traditional authorities the power to make and enforce by-laws for the governance
of their communities11.
The act also introduced significant changes to the way marriages were conducted and
recognized under customary law, including a requirement for marriages to be registered with
a Native Commissioner or traditional leader in order to be recognized under customary law 12.
It removed the sense of community and oneness from marriages, of a marriage was not
registered or if one of the parties did not pay registration fee it would be dissolved by the
Native commissioner or would be deemed to have never existed 13. Marriages also differed
depending on the area or side of the “red line” it was officiated, giving different rights to
spouses married on both sides. These provisions had the effect of degrading customary
marriages by introducing new requirements for registration and recognition that were not
previously required under customary law. The requirement for registration and the associated
fees also made it more difficult and costly for people to enter into customary marriages.
Additionally, the provision for dissolution of marriages that were not registered or that had
not paid the required fees could be used to undermine and invalidate marriages that were
otherwise valid under customary law. In contrast enactments such The Married Persons
Equality Act, 1996 provides for the recognition and regulation of customary marriages in
Namibia, and gives spouses in customary marriages the same legal rights and protections as
spouses in civil marriages14. The act also allows spouses in a customary union to conclude a
written agreement regulating their property rights and obligations 15. Other enactments such as
The Recognition of Customary Marriages Act, 1993 recognizes customary marriages as valid
marriages and provides for their legal consequences16.
The Native Administration Proclamation No. 15 of 1928, gave the colonial authorities the
power to allocate and control land in indigenous communities, and limit the rights of
individual community members to occupy or use land without permission 17. It also provided
for the establishment of tribal councils to manage and administer land allocated to the local
tribes, subject to the supervision and control of the Commissioner of Native Affairs 18. In
8
The Native Administration Proclamation no. 15 of 1928.s14.
9
The Traditional Authorities Act 25 of 2000.s3(1)(b).
10
Traditional Authorities Act,2000.s4(1)(a).
11
Ibid.s6(1)(a).
12
The Native Administration Proclamation no. 15 of 1928.s26(1).
13
The Native Administration Proclamation no. 15 of 1928.s26(3).

14
Married Persons Equality Act, 1996.s2(1).
15
Married Persons Equality Act,1996.s4(1).
16
The Recognition of Customary Marriages Act, 1993
17
Ibid.s14.
18
Ibid.s15.
contrast enactments including The Communal Land Reform Act of 2002 which governs the
management and administration of communal land in Namibia, which is held in trust by the
government on behalf of the communities that live on it 19The act provides for the
establishment of communal land boards, which are responsible for managing and
administering communal land, and for the recognition and protection of the rights of
communities and individuals who live on communal land. The Land Reform Act of 1995
governs the acquisition, allocation, and transfer of land in Namibia, and seeks to redress the
imbalances created by the colonial and apartheid systems of land ownership 20. The act
provides for the acquisition of land by the government for purposes such as resettlement,
redistribution, and national parks, as well as for the allocation of land to individuals and
communities who were historically excluded from land ownership.
In conclusion the Native Administration Proclamation no. 15 of 1928, spearheaded the
system of segregation and racial discrimination known as apartheid. It aided in the expansion
and organized take over of the land through controlling every aspect of life for the local
people. It diminished the importance of community leaders and the local ways of living under
customary law which led to the locals being subjected to rules unknown to them in order to
survive the harsh and degrading system.

Question 2. Discuss the Constitutional limitations, if any, in respect of the enforcement and
application of customary law in Namibia

Being the supreme law under article 1(6)21, the Namibian Constitution sets limitations to the
extent laws can reasonably apply without violating its founding principles. The constitution
limits the application and enforcement of customary law by setting constraints on the conduct
of customary law in relation to the founding principles of democracy, the rule of law and
justice for all22. Certain customs of the local such as customs relating to inheritance and
succession are inherently patriarchal, such is mentioned in the case of f Nghidinua v.
Kandjimi and Others (2002), where the court had to consider the application of customary
law practices in relation to the inheritance rights of women 23. The court held that customary
law could not be used to discriminate against women in matters of inheritance 24.The court
noted that the Constitution of Namibia provides for the right to equality and non-
discrimination, and that customary law must be interpreted in a manner that is consistent with
these principles25. The court also held that customary law must evolve and adapt to changing
social and cultural realities, and that it cannot be frozen in time. The court noted that the
status of women in Namibia had changed significantly since the adoption of customary law
practices, and that these practices must be interpreted in light of these changes. In a nutshell
customary law cannot be used to justify practices that are in contrary with the fundamental
human rights.

19
The Communal Land Reform Act of 2002

20
The Land Reform Act of 1995
21
The Namibian Constitution.Article1(6).
22
The Namibian Constitution.Article 1(1).
23
Nghidinua v Kandjimi and Others (SA 23/2002) [2002] NASC 2 (31 July 2002)
24
Ibid.
25
Ibid.
Furthermore the recognition of customary law is under article 66 of the Namibian
Constitution, the article also contains limitations towards the conduct of customary law.
Under the article customary law must not be in conflict with the Constitution or any other
law. In cases where there is a conflict between customary law and statutory law, the latter
prevails. As in the case of State v Shaningwa and Others (2001), the case involved a conflict
between customary law and statutory law regarding the age of marriage. The Combating of
Immoral Practices Act of 1980 prohibited marriages between minors, while customary law
allowed for such marriages. The court held that the statutory law prevailed and that any
marriage involving a minor was illegal. Article 66(2) applies to the modification of
customary law, this means that the legislature can modify customary law to be applicable in
modern society.

Furthermore, customary law cannot be applied in a manner that is inconsistent with

international human rights standards such is stated in article 144 of the Namibian
Constitution26. Namibia is a signatory to several international human rights treaties, and the
Constitution recognizes the importance of these treaties in the country's legal system. As
such, customary law must be interpreted and applied in a manner that is consistent with these
international human rights standards.

26
The Namibian Constitution.Article 144.
Reference list

Books

1. Nehlapo, T, Himunga, C, Maithufi, P, Weeks, S, M, Mogokeng, L, Ndima, P. 2014.

African Customary Law In South Africa; Post-apartheid and living law perspectives.
South Africa; Oxford University Press Southern Africa (Pty).
2. Heinz, O.2016. Customary Law In Namibia;Development and Perspective. Namibia.
Legal Assistance Center.

3. The Namibian Constitution

Statutes

1. The Native Administration Proclamation No. 15 of 1928

2. The Traditional Authorities Act 25 of 2000
3. Married Persons Equality Act, 1996
4. The Recognition of Customary Marriages Act, 1993
5. The Communal Land Reform Act of 2002
6. The Land Reform Act of 1995

Cases

1. Nghidinua v Kandjimi and Others (SA 23/2002) [2002] NASC 2 (31 July 2002)

Internet sources

1. Collections in the Archives. 2019. The Namibian Struggle for Independence 1996-1990; A
Historical Background. Available at https://www.sahistory.org.za/article/namibian-struggle-
independence-1966-1990-historical-background . Lasted accessed [15/03/2023]
2. Collections in the Archives. 2019. The Namibian Struggle for Independence 1996-1990; A
Historical Background. Available at https://www.sahistory.org.za/article/namibian-struggle-
independence-1966-1990-historical-background . Lasted accessed [15/03/2023]