Section A Compulsory 40 Marks

Question 1 [20]
1.1 Juristic writings are a recognized source in the Namibian legal system. However it is
considered:
A. A primary source
B. A secondary source
C. Binding authority
B

1.2 A child under the age of 7 (infans) and a mentally challenged (insane) person have limited
capacity to act. T/F
False

1.3 In the English case of Heydon (1585) 76 ER 637 it was held that one of the factors the
court must discern and consider is:
A. The golden rule
B. The plain meaning of the words
C. The mischief and defect for which the Common Law did not provide
D. The defect of the legislation
C

1.4 The High Court shall have original jurisdiction, which means that it may do anything that
the law does not forbid.
True

1.5 One of the basic characteristics of analytical positivism is:

A. That there is no distinction between law and morality.
B. The law is what it is and not what it ought to be
C. That law is based on value judgments.
D. To promote social interest [1]
B

1.6 The doctrine of rule of law deals with governance according to law, and not according to
momentary whims and caprices of government and the protection of the fundamental
rights of the individual. TRUE

1.7 The concept ratio decidendi literally means:

A. Radio broadcast
B. Reason for the decision
C. Remark in passing
D. Reason for the facts [1]
B

1.8 The onus in a criminal case is met if the allegations are proved on a balance of
probabilities.
False

1.9 Jurisdiction may be defined as

A. The area of a country.
B. Competence of a particular court to hear and adjudicate a specific case.
C. Appeal and review procedures.
D. Nature and seriousness of a case [1]
B

1.10 The common law principles of natural justice are contained in the audi alteram partem
and nemo judex in causa sua rules. TRUE

1.11 The concept of “Constitutionalism” embraces, among others, the following notion/s:
A. Parliamentary sovereignty
B. Rule of law and dictatorship
C. Arbitrary rule
D. Rule of law and separation of powers [1]
D

1.12 Choose the correct full citation of an Act of Parliament:

Judges’ Pension Act
Judges’ Pension Act of 2011
Judges’ Pension Act 13 of 2011
Act 13 of 2011

1.13 The parties to a civil case are the

A. Appellant and Respondent
B. Plaintiff and the state
C. Plaintiff and defendant
D. State and Accused
C

I.14 Obiter dictum means “remake in passing” and it creates a precedent.

False

1.15 Judicial power shall be vested in the Courts of Namibia, which shall consist of:
A. Supreme, High and Lower Courts of Namibia
B. The Supreme, Labour and High Courts of Namibia
C. The High and Lower Courts of Namibia
D. Supreme and High Courts of Namibia [1]
A

1.16 The audi alteram partem rule requires that a person should not be a judge in his own
cause.
False
1.17 The general jurisdiction of a court to function as court of first instance, to hear appeals or
to review cases is determined by the following factors
A: Type of case
B: Seriousness of offence
C: Geographical area
D: A and C
E: B and A
D

1.18 The doctrine of separation of powers means that in the exercise of the functions of
government as provided under the constitution, one branch of government should not
interfere with the functions of another organ of the State.
True

1.19 Judges or presiding officers participate actively in an adversarial system. T/F

False

1.20 Professional conduct rules apply to the following area/s in the legal profession.
A: Relationship with parents
B: Relationship with the client
C: Relationship with children
D: Relationship with family
B

Question 2 [20]
Read the attached Annexure 1 and answer the questions.

2.1 Identify and label Annexure 1 as a source of law. [2]

Case law / judicial precedent
2.2 Write the full citation of the source of law in Annexure 1. [2]
S v Bam & Another (WVB-CRM-1380/2016) (CR 39/2017) [2017] NAHCMD 170 (22
June 2017)

2.3 Identify and state the leading presiding officer delivering the source of law in Annexure1.
[2]
UNENGU, AJ

2.4 Name two (2) other source of law referred to in Annexure 1. [2]
 Criminal Procedure Act
 High Court Act
 Various cases (case law) / judicial precedents
 If the student indicated legislation and judicial precedent, marks may be rewarded.

2.5 Identify the Court disposing of the source of law in Annexure 1. [2]
High Court

2.6 Identify the legal issue/s discussed in the above source of law. [3]

2.7. Identify the classifications of law relating to the substantive issues in Annexure 1. [3]
Substantive Law Adjective Law
Public Law Criminal Procedure
Criminal law Interpretation

2.8 Outline the decision of the Court in Annexure 1. [4]

 The court found that no irregularity was committed by the learned magistrate in the
matter. The record of proceedings is returned and the magistrate is instructed to
continue with the trial of the case and hear the defence’s (accused one and two) case.
 The record of proceedings is returned and the magistrate is instructed to continue
with the trial of the case and hear the defence’s (accused one and two) case.
SECTION B Answer any Three (3) Questions 60 Marks

Question 3
Provide an analysis of the case Ex Parte Attorney-General of Namibia: in re Corporal
Punishment by Organs of State 1991 (3) SA 76 (NmS). What theory of law do you consider
relevant and that may be used as the jurisprudential basis for the decision in this case? You
must explain your answers. [20]

 Students must briefly outline the facts, legal issue/s, decision and reasons for the decision of
the Corporal punishment case:
1. Facts
• The Attorney-General (AG) submitted a petition to the Chief Justice (CJ) in terms of sec
15(2) of the Supreme Court Act 15 of 1990.
• The AG sought the consent of CJ to exercise jurisdiction to act as a Court of first instance
in hearing and determining a constitutional question which the AG sought to refer to the
Supreme Court under the powers vested in him by art 87(c) read with art 79(2) of the
Constitution of the Republic of Namibia Act 1 of 1990.
• The Chief Justice was of the opinion that the application was of a nature which justified
the exercise of the Court's jurisdiction to act as a Court of first instance in hearing and
determining the relevant constitutional question.

2. Legal issue/s
• The Supreme Court is requested to determine whether the imposition and B infliction
of corporal punishment by or on the authority of any organ of State contemplated in
legislation is -
(1) per se; or
(2) in respect of certain categories of persons; or
(3) in respect of certain crimes or offences or misbehaviours; or
(4) in respect of the procedure employed during the infliction thereof in conflict with any
of the provisions of chap 3 of the Constitution of the Republic of Namibia and more in
 particular art 8 thereof and, if so, to deal with such laws as contemplated in art 25(1)
of the Namibian Constitution.'

 In short, the AG asked the Supreme Court to determine the constitutionality of corporal
punishment by certain organs of the state.
 I.e. whether or not corporal punishment amounts to cruel, inhuman or degrading treatment
and whether or not such treatment/punishment impairs the dignity of a person.
 At the time, there were a number of pre-independence legislation and policies that
sanctioned the imposition/infliction of corporal punishment by organs of the state.
 The court found that the laws which allowed for the imposition /infliction of corporal
punishment by organs of state infringes/violates the right not to be subjected to cruel,
inhumane and degrading treatment and therefore also the right to dignity (Article 8 (2)(b)
read with Article 8 (1).
 According to the Court “The question as to whether a particular form of punishment
authorised by the law can properly be said to be inhuman or degrading involves the exercise
of a value judgment by the Court.” – Also see S v Ncube and Others
 The late Mahomed AJA stated that:
“It is however a value judgment which requires objectively to be articulated and identified,
regard being had to the contemporary norms, aspirations, expectations and sensitivities of
the Namibian people as expressed in its national institutions and its Constitution and further
having regard to the emerging consensus of values in the civilised international community
(of which Namibia is a part) which Namibians share. This is not a static exercise. It is a
continually evolving dynamic. What may have been acceptable as a just form of
punishment some decades ago may appear to be manifestly inhuman or degrading today.
Yesterday's orthodoxy might appear to be today's heresy.”
 Berker CJ further states:
“In other words, the decision which this Court will have to make in the present case is
based on a value judgment, which cannot be primarily be determined by legal rules and
precedents, as helpful as they may be, but must take full cognisance of the social
conditions, experiences and perceptions of the people of this country. This is all the more
so as with the advent and emergence of an independent sovereign Namibia, freed from
 the social values, ideologies, perceptions and political and general beliefs held by the
former colonial power, which imposed them on the Namibian people, the Namibian
people are now in the position to determine their own values free from such imposed
foreign values by its former colonial rulers.”
 From the aforementioned extracts from the corporal punishment case, it may be inferred
that the jurisprudential basis of this case is the Natural Law School of thought.
 Students must outline the basic characteristics of Natural law and relate to the reasons for
the decision in the case.
 Basic characteristics of Natural law
 The jurists of this school contend in a variety of ways that for its validity, law depends on
the satisfaction of some moral, ethical and formal requirements or imperatives outside the
law itself.
 They begin their exposition and analysis of law from the premise that law consists of a
hierarchy of norms and that, on top of this hierarchy, is the ultimate or imperative norm that
all human laws must conform substantially to for their validity.
 They contend a fortiori, that law is not what it is, but what it ought to be, and that there is
no separation between law and principles of morality and justice.
 Natural law is based on value judgments, which emanate from some absolute source.
 If one relates the above characteristics to the ratio of the given case, the following factors
may be related to this school of thought:
- The Constitution is the Supreme Law;
- As such it may be equated with the “imperative norm” jurist from the natural law
school refer to;
- Like with the notion of the “imperative norm”, the Court tested the validity of the
laws in question against the constitution to determine its validity;
- When it tested the validity of the legislation against the Constitution (Art. 8(1) and
8(2)(b), it gave a broad purposive interpretation to these provisions;
- The court clearly stated that it is embarking on providing a “value judgment which
requires objectively to be articulated and identified, regard being had to the
contemporary norms, aspirations, expectations and sensitivities of the Namibian
people as expressed in its national institutions and its Constitution and further having
 regard to the emerging consensus of values in the civilised international community
(of which Namibia is a part) which Namibians share”.
- This implies that the Court had recourse to extraneous factors when it interpreted the
law, thereby drawing its reasoning within the realms of the Natural Law School of
thought.

Question 4
4.1 Distinguish between constitutional supremacy and parliamentary sovereignty. [10]
Parliamentary sovereignty
 According to Dicey, the doctrine consists of two essential propositions
 The first is Parliament has the right to make or unmake law whatsoever
 The second is that no person or body may override or set aside legislation made by
Parliament,
 There is no other constitutional authority whose powers can prevail over those of
Parliament
 Whilst there are other legislative bodies and organs of State with other kinds of power,
they are all subordinate to Parliament
 Parliament is the supreme law- making authority in the State
Constitutional supremacy
 This means that the Constitution takes on the nature of a higher law.
 The provisions of the Constitution will prevail over all other legal or political actions
of government which are inconsistent with it
 In Namibia, constitutional supremacy is dealt with by Article 1(6)
 It provides that the Namibian Constitution is the supreme law.

4.2 Identify the main features of the Namibian Constitution of 1990. [10]
 Constitutional supremacy (Article 1(6)
 Separation of powers (Article 1(3), Chapter 5, 6, 7, 8 and 9)
 Checks and balances
 Independence of the judiciary (chapter 9, Article 78)
  Rule of law [Article 1 (1)]

Question 5
Zaire is a citizen of the Republic of Montana. He obtains a visa to visit Namibia. Here he finds a
job with a firm that delivers furniture. He obtains a work permit for two months. One morning,
shortly after the permit expires, Zaire is driving a lorry. He decides to read a text message on his
phone. In the process, the lorry collides with another vehicle, a Mercedes Benz AMG. In a state
of shock Zaire jumps out of the vehicle and runs away. In the meantime, members of the City
Police have arrived. They chase after him and eventually arrest him. In the police van one
member of the police assaults him. Zaire is detained at the police station and eventually appears
in court. He is refused bail.
Identify all the divisions of law that come into operation in the above case. Motivate your
answers. [20]
 Public law, which comprises
 Criminal law, because of the crimes committed such as assault, overstaying
 Administrative law, application for a work permit
 Private law, which comprises
 Law of delict, negligent driving causing damage to another vehicle
 Law of property, infringing one’s own property
 Adjective law, which comprises
 Civil procedure, to be used for the claim on damage to property
 Criminal Procedure, for bail application
 Law of evidence, evidence to be led at a bail application

Question 6
6.1 Mr Problem consults you, an attorney at Best Lawyers Inc. for advice on a legal
matter. However he does not understand what is a source of law and also does not
know the sources of law applicable in Namibia. Explain to your client the concept
 “source of law” and list all the sources of law that are recognised in the Namibian
legal system. [10]

 Student must define the concept “sources of law”: the location of the law and the basis of
the individual’s fidelity to the law. Where students made reference to primary and
secondary sources of law, a mark was awarded.
 List all sources of law:
- Constitution;
- Legislation;
- Case law;
- Common law;
- Customary law;
- International law;
- Juristic writing, old and new.

6.2 Explain the difference between “appeal” and “review” and list the four (4) grounds
upon which the proceedings of any lower court may be brought under review before
the High Court. What is the name of the source of law that outlines these grounds for
review? [10]
Answer:
• Appeal: If a person is not satisfied with the decision of a court, s/he can apply to a higher
court for a reversal of the decision of that court.
• If either of the parties in a matter is of the opinion that the presiding officer erred in
his/her findings as to the facts of the case or in the application of the law to the case, s/he
can apply for leave to appeal from the court that delivered that judgement. (2)
• Review: If a person believes that an irregularity occurred during trial, s/he can take the
matter on review. (2)
Section 20 of the High Court Act of 1990 (2)
(1) The grounds upon which the proceedings of any lower court may be brought under review
before the High Court are-
 a) absence of jurisdiction on the part of the court;
b) interest in the cause, bias, malice or corruption on the part of the presiding judicial
officer;
c) gross irregularity in the proceedings;
d) the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence. (1 mark each).

Total Marks: 100 Good Luck!