Section A Chapter 3 34

CHAPTER 3

OBJECTIVES

After completing this chapter you should be able to:

 Name and briefly discuss the sources of Namibian law

 Name the originating source of Namibian law
 Explain the term “legislation”
 Name the most important source of law in Namibia
 Name certain fundamental human rights guaranteed in the
Constitution of the Republic of Namibia
 State the functions of Public Law
 State the functions of Private Law

Contents Page

1. Sources of Law 35-38

1.1 Common law

1.2 Legislation
1.3 Custom
1.4 Customary law (Indigenous law)
1.5 Judgments of the courts
1.6 Other sources such as old authorities, textbooks and foreign law
1.7 International law

2. The Namibian Constitution 38

2.1. A brief survey on selected fundamental human rights and freedoms
39-42
2.2. Limitation on fundamental human rights and freedoms 42

3. Classification of the law 42-44

3.1 National Law and International Law

3.2 Substantive Law
2.2.1 Public Law
2.2.2 Private Law
2.3 Adjective Law
Section A Chapter 3 35

1. SOURCES OF THE LAW

By “sources of the law” we mean the “places” where the law originates
and where it can be found in order to apply it to a specific case. Most
people are under the impression that our law originates in legislation and
that one can find it there, but this is not correct. As said before, we have
an uncodified legal system in Namibia and there is accordingly more than
one source where the law can be found, such as:

1.1 Common law

1.2 Legislation
1.3 Custom
1.4 Customary law (Indigenous law)
1.5 Judgments of the courts
1.6 Other sources such as old authorities, textbooks and
foreign law
1.7 International law

1.1 Common law

As explained earlier, this is the originating source of our law in Namibia

and consists mainly of Roman-Dutch law and English law applicable in
Southern Africa because of the historic involvement of the Netherlands
and Britain. Examples of legal principles that originate from common law
are murder, robbery, theft and the principle that compensation must be
paid for damages caused unlawfully. This source will be applicable where
our formal sources (i.e. legislation, case law and customary law) are
unsuccessful. The common law can be found in written form in reported
court cases and in textbooks on law.

Many of the Roman-Dutch-principles have been superseded by legislation

or case law, while others have been abrogated by disuse, for example the
rule that adultery is a criminal offence1. Furthermore, English and German
laws have also influenced our common law and it is accordingly not pure
Roman-Dutch law anymore.

It is the function of our courts to interpret both legislation and common

law and the modern interpretation of common law can thus be found in
case law.

1
Article 66 of the Namibian Constitution (refer to paragraph 1.4 on page 37).
 Section A Chapter 3 36

1.2 Legislation

Legislation is law laid down by an organ of the State and is the most
important source of law in Namibia. Other words for legislation are
“statutes” and “Acts of Parliament”. It can be defined as the making of
Definition
of
law by a competent authority. Large parts of our law are to be found in
legislation legislation, such as criminal procedure law, labour law, law on negotiable
instruments, company law and the law of insolvency.

The most important legislation in force in Namibia is the Constitution of

the Republic of Namibia, Act 1 of 1990, which is, in terms of Article 1(6)
thereof, the supreme law of Namibia. Any law or conduct inconsistent
with the provisions of the Constitution is of no force or effect.

1.3 Custom

Custom operates as a source of law not by being recorded in writing or by

any other formal means, but can be described as rules of conduct that
had become binding over the years by observance by the community.

In the matter Van Breda v Jacobs 1921 AD 30 it was held that it was a
valid local custom amongst fishermen that, once a fisherman has thrown
out his nets for the purpose of catching a shoal of fish seen moving along
the coast, no other fishermen are entitled to throw out their nets within
any reasonable distance.

It appears from the said judgment that the following requirements must
be met before a rule of custom will be recognised as a legal rule:

• It must be reasonable;
• It must have existed for a considerable period of time;
• It must be generally recognised and observed by the community; and
• The contents of the rule must be certain and clear.

In modern law, custom plays a role in the trade usage. For example, it is
custom in the banking world (and therefore also law) that interest is
payable on an overdrawn bank account.
Section A Chapter 3 37

1.4 Customary law (also known as Indigenous law)

Many communities observe and apply unwritten customary laws, which

they have followed and passed on through generations. These laws differ
from tribe to tribe. The courts apply customary law principles if the parties
to a matter so choose, provided that the law concerned can be
ascertained readily and with sufficient certainty and that it is not contrary
to the principles of public policy. Article 66 of the Namibian
Constitution provides as follows:

“(1) Both the customary law and the common law of Namibia in force on the
date of Independence shall remain valid to the extent to which such
customary or common law does not conflict with this Constitution or any
other statutory law.

(2) Subject to the terms of this Constitution, any part of such common law or
customary law may be repealed or modified by Act of Parliament, and the
application thereof may be confined to particular parts of Namibia or to
particular periods.”

In general, customary law was never recognised as a competitor of the

official law of the State but as a supplementary law, which could be
applied at the court’s discretion. The courts of chiefs and headmen usually
apply the customary law recognised by the community concerned.

1.5 Judgments of the courts

Judgments of the courts are also known as judicial precedents or case

law. Courts are institutions that apply the law on a daily basis. The term
“court” in this context refers to the presiding officer, for example the
magistrate or the judge. The general rule is that it is the function of the
judges to apply an existing body of rules and not to create law. It may,
however, happen that no authoritative rule exists and the judge then has
to apply the law of Namibia to settle the dispute.

The most important judgments of the High Court and Supreme Court of
Namibia are reported in both the South African Law Reports and the
Namibian Law Reports.
Section A Chapter 3 38

1.6 Other sources such as old authorities, textbooks and foreign law

The works of old writers are still authoritative in our courts today as they
form part of common law as the originating source of law.

Whenever you have a legal problem, the easiest way to find an answer is
to consult a textbook on the particular subject where academics and other
lawyers explain the legal situation with respect to legislation, common law
and case law. These writings are not authoritative, but they sometimes
may have persuasive value. The same applies to foreign law. A judge will
turn to the law of other comparable modern legal systems if nothing can
be found in one or more of the above sources.

1.7 International law

International law is that body of law that is composed for its greater part
of the principles and rules of conduct which States feel themselves bound
to observe, and therefore do commonly in their relations with each.
International law includes the rules of law relating to the functioning of
international institutions or organisations and their relations with each
other, and their relations with states and individuals.

International law is a source of Namibian law by virtue of article 144 of

the Namibian Constitution, which states:

“Unless otherwise provided by this Constitution or Act of Parliament, the

general rules of public international law and international agreements
binding upon Namibia under this Constitution shall form part of the law of
Namibia.”

2. THE NAMIBIAN CONSTITUTION

The Constitution contains a chapter on fundamental human rights and

freedoms and accordingly seeks to entrench the freedom, equality and
human dignity of all individuals, as is evident from the words contained in
the preamble: “Whereas recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is
indispensable for freedom, justice and peace;” and “Whereas the said
rights include the right of the individual to life, liberty and the pursuit of
happiness, regardless of race, colour, ethnic origin, sex, religion, creed or
social or economic status;”. The Constitution provides the courts with the
power to review legislation so that they can test all legislation against the
provisions of the Constitution.
 Section A Chapter 3 39

2.1. A brief survey on selected fundamental human rights and

freedoms

Chapter 3 of the Namibian Constitution entrenches our fundamental rights

and freedoms. A detailed discussion of these rights falls outside the scope
of this course, and we’ll only highlight a few.

Article 6 Protection of life

The right to life is important as without it one cannot exercise any other
rights. The right to life shall be respected and protected. No law may
prescribe death as a competent sentence and no court or Tribunal shall
have the power to impose a sentence of death upon any person. No
executions shall take place in Namibia.
Let’s do the following activity to test your understanding on what you’ve
learnt so far.2
Can death sentence be imposed by any court in
Namibia? Briefly motivate.
Activity 1

Article 7 Protection of liberty

No persons shall be deprived of personal liberty except according to

procedures established by law. This means that no person shall be
arrested without a valid reason or outside the scope of the law.

Article 8 Right to dignity

The right to dignity means that all human beings have dignity that must
be respected by other people, including the State and the law.

Article 10-Equality and freedom from discrimination

This aspect was already discussed in unit 1, paragraph 3.2 on equality.

2
Answer on page 45.
Section A Chapter 3 40

Article 11 Arrest and Detention

A person cannot be arrested or kept in prison unlawfully. There must be a

valid reason for that. Once a person is arrested and kept in police custody,
they must be explained why they are arrested and must appear before a
Magistrate within 48 hours. The aspect of the 48 hours rule was discussed
previously in unit 2 in paragraph 2.1.1 on the course of criminal
proceedings on a subheading of appearance in court.

Article 12 Fair Trial

The right to a fair trial relates to criminal and civil cases. Rights are given
to those accused of crimes and to parties in civil cases. Refer back to Unit
1 in our discussion of criteria for justice in paragraph 2.2. After having
done so, attempt the activity below.
Let’s do the following activity to test your understanding on what you’ve
learnt so far.3
X has been arrested for stock theft. What are the
rights that he is entitled to at his trial?
Activity 2

Article 13 Privacy

The right to privacy relates to the privacy of person in their homes (what
they do there and don’t), a privacy in their letters, phone-calls, emails,
should not be interfered with unless under specified circumstances such
as preventing crimes, protection of health, protection of the rights or
freedoms of other human beings.

3
Answer on page 45.
Section A Chapter 3 41

Article 16 Property

Everyone has the right to own property (whether movable or immovable

in Namibia. To get property alone or in partnership with others. This right
can be limited in regard to foreign nationals. The State can take away
your property provided you’re given fair compensation.

Article 17 Political Activity

Every Namibian has a right to belong to a political party of his or her

choice and to participate in the activities of such a political party. Every
citizen of 18 years of age or more has the right to vote and every citizen
of 21 years of age can run for a political office.

Article 18 Administrative Justice

Administrative bodies and administrative officials shall act fairly and

reasonably and comply with the requirements imposed upon these bodies
and officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the right
to seek redress before a competent Court or Tribunal.
Administrative bodies and officials refer to tribunals created for a specific
purpose, or government agencies or other organs of state, whereas
administrative officials include Ministers and other government employees
or officials that exercise public power etc.

Article 20 Education

The right to education is given to everyone, hence there is no age

limitation. Primary education is compulsory for everyone, and the State
should render enough facilities ie schools for individuals to realise the
right to primary education and primary education shall be free of charge.

Article 21 Fundamental Freedoms

All persons shall have the right to: freedom of speech and expression,
which shall include freedom of the press and other media; freedom of
thought, conscience and belief, which shall include academic freedom in
institutions of higher learning and the freedom to practise any profession,
or carry on any occupation, trade or business in amongst other freedoms.
It is important to note that the Constitution guarantees freedom of
thought, conscience and belief, which shall include academic freedom in
institutions of higher learning. This includes institutions like NUST, UNAM
& IUM etc.
Section A Chapter 3 42

2.2. Limitations of fundamental human rights and freedoms

The exercise of the rights and can be limited and are necessary in a
democratic society and are required in the interests of the sovereignty and
integrity of Namibia, national security, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an
offence.

3. CLASSIFICATION OF THE LAW

Traditionally, the law is divided into two main categories, i.e. National Law
and International Law. The National Law can be subdivided into Public
Law and Private Law.

3.1 NATIONAL LAW and INTERNATIONAL LAW

National Law means the law of a nation, i.e. the law of a specific
country such as Namibia, while International Law is the body of
rules governing the relations between States/countries and relates
to treaties, boundaries of countries, the seas as well as limitations
on methods of warfare. When the rules of international law have
been violated the international court of justice (ICJ) in The Hague
can hear the matter.

SUBSTANTIVE – and PROCEDURAL LAW

National Law can further be subdivided into Substantive – and

Procedural Law. Substantive Law can be described as the law that
determines the content and meaning of the different legal rules,
while Procedural Law is that part of the law that regulates the
enforcement of substantive law, i.e. how a case must be handled
when a legal rule has been violated.

3.2 SUBSTANTIVE LAW is further subdivided in:

PUBLIC LAW and PRIVATE LAW

Public law governs the relationship between the State and the
Public Law
State’s subjects (the individual) as well as the organisation and
functions of the State. The State and the individual are on unequal
footing, since it comprises a relationship of authority with the State
as the bearer of Government authority.
Section A Chapter 3 43

Private
Private Law, on the other hand, governs the relationship between
Law individuals on an equal footing. State bodies can also institute
actions in terms of Private Law without having any claim to
Government authority.

3.2.1 PUBLIC LAW

• Constitutional Law, administrative law, criminal law and

labour law forms part of public law. For the purpose of
this course, it is important to concentrate on labour law.
Labour law deals with the rules governing the
relationship between employers and employees.

3.2.2 PRIVATE LAW

• Includes law of patrimony, property law, law of

succession, intellectual property law, law of obligations.
For this course, it is important to only know the following
laws which form part of private law.

➢Intellectual Property Law

This subdivision relates to patrimony which has to do with

rights to intellectual property. Examples are patent rights,
copyright and trademarks.

➢Law of Obligations

This division relates to patrimony that has to do with

personal rights and the three most important personal
rights are contract, delict and unjustified enrichment.

The law of obligations is thus further subdivided in:

Law of contract
This division contains provisions regarding the
conclusion, enforcement and termination of contracts.

Law of unjustified enrichment

This refers to obligations that arise from instances where

one person will have a claim against another if the latter
has been enriched (in other words has gained something
or obtained an asset to the prejudice of the former)
without a valid legal ground.
Section A Chapter 3 44

3.3 PROCEDURAL LAW is accordingly further subdivided in:

• Criminal Procedure

Lays down the rules for the investigation of alleged criminal

offences and the processes to be followed in court as discussed in
chapter 2.

• Civil Procedure

Determines the procedure to be followed when an individual wish

to enforce his/her rights against another as discussed in chapter 2.

• Law of Evidence

Determines how the facts in either a criminal or civil case must be

proved, e.g. the manner in which witnesses should lay their
evidence before the court and kinds of evidence that are
inadmissible.

• Interpretation of Statutes

Rules that prescribe how the meaning of statutory provisions (and

sometimes also the meaning and clauses in contracts) are
determined.
Section A Chapter 3 45

 ADDITIONAL READING
1. Amoo, S.K. (2008). Introduction to Namibian Law: Cases &
Materials. Windhoek: Macmillan Education. (Pages 1-30).
2. Bennett.T.W. (2011). Traditional African Religions in South Africa.
UCT Press. (Pages 1-19).
3. Humby, T. Kotze L., & du Plessis A.(ed). (2012). Introduction to Law
and Legal Skills in South Africa. Cape Town: Oxford University Press.
(Pages 1-8; 45-117).
4. Hinz, M, O. (ed). (2010). Customary Law Ascertained, Vol 1: The
Customary Law of the Owambo, Kavango & Caprivi Communities
of Namibia. Windhoek: Namibia Scientific Society. (Pages 1-5).
5. Hinz, M, O. (ed). (2013). Customary Law Ascertained, Vol 2: The
Customary Law of the Bakgaklagari, Batswana & Damara
Communities of Namibia. Windhoek: UNAM Press. (Pages 1-21).
6. Kelbrick, R., Manamela, T., Stoop, P., Manamela, E., Hurter, E., Masuku,
B. & Stoop, C. (2014). General Principles of Commercial Law 9th ed.
Cape Town: Juta & Co. Ltd.
7. Kleyn, D., & Viljoen, F. (2010). Beginner’s Guide for Law Students. 4th
ed. Cape Town: Juta & Co. Ltd.
8. Meintjies, L. Van der Walt et al. (2011). Introduction to South African
Law: Fresh Perspectives. 2nd ed. Cape Town: Heineman/Pearson
Publishers.

ANSWERS

ANSWER: ACTIVITY 1: PAGE 39

A sentence of death is outlawed by the Namibian Constitution in article 6. No competent court or tribunal in Nami bia can impose such a sentence.

ANSWER: ACTIVITY 2: PAGE 40

The right to legal representation, the right to remain silent, the right to call witnesses, the right t o cross-examine, the right not to be tortured to
confess to a crime.