Society & the Engineer

(Introduction to Law)
• Lecturer: DR AIMITE JORGE
• Contract details: Tel: 061 206 3599
• Office in Main campus: Y-107
– Office at This campus--- CV228 (Visiting Professors)
• email: ajorge@unam.na
 Law
• Law
• Sources of Law:
• (i) The Constitution
• (ii) The Common law (Roman Law, Roman-
Dutch law & subsequent jurisprudence).
• (iii) Legislation & Regulations (and By-laws)
• (iv) Customary law (customary African law)
• (vi) International Law .
 Sources of Law
• Constitution (Act 1 of 1990) = Supreme law in the country;
• (Acts of Parliament (Legislation) & Regulations.
• [Occasionally “Presidential Decrees” (very seldom in Namibia)].
• Our Common law (Roman texts: Roman Digest; Roman Institutes; others Roman writings).
• Roman-Dutch jurists of XVI-XVIII Centuries:
• (Johannes Voet, Van Leeuwen, Huber, Hugo Grotius, Van der Linden; Robert Pothier,
Van Groeneweegen, etc).
• Jurisprudence of the Old 4 South African provinces plus Jurisprudence of
South West Africa).
• New jurisprudence of Namibia (from 1990 until now) .
• Customary Law (African Customary law-Law of various Indigenous groups
of Namibia)
• International Law (Treaties, Conventions , Protocols & Declarations).
STRUCTURE OF THE LEGAL SYSTEM
• Our legal system structure:
• Three spheres of Government:
• Executive, legislature & Judiciary.
• The Judiciary:
• Magistrates Court, High Court & Supreme Court.
• (Specialized courts in some jurisdictions; eg, Tax
Court; Labour Court, Competition Tribunal, in South Africa).
• Small claims courts (still under discussion in Namibia)
Structure of Courts and the Rule of “Stare Decisis”
(Binding precedent & Jurisdiction of each Court)

Supreme
Court

High Court
High High Court

Court

Magistrates Magistrates Magistrates

Court Court
Court
 Structure of Courts and the Rule on “Appeals”
Appeal system where there is more than one High Court.

Supreme
Court

High Court-C High Court -A

ur h
t-B
Co Hig

Magistrates Magistrates Magistrates

Court Court
Court
Structure of Courts and the Rule on “Appeals”
Appeal system
Supreme
Court

High Court
High Court
(Specialist Court:
Example- (Specialist Court:
example: Labour

att er rt
Competition or

M en o u
Issues)

er al
Land Issues)

[G gh C

s)
Hi

Magistrates Magistrates
Magistrates
Court
Court Court
The Constitution & Other Laws

• The Constitution is the Highest law in the

Country. All laws must conform to the
Constitution. Whether laws in any area of
Engineering, business, Trade, etc, all laws must
conform with the Constitution. Any law which
does not conform with the Constitution will be
struck down or must be brought in conformity
with the Constitution.
 Relations between laws
• Original Legislation and Derivative Legislation
• The parliament enact laws, usually called “Statutes”.
• All Statutes enacted by the parliament are Original
Laws (Original legislations).
• Then, once a statute is enacted, the respective
Minister in the area in which that law falls, may
enact “Regulations” to specify the practical
applications of that Law. Thus, all Regulations are
derivative Laws (Derivative legislations).
 Structure of Laws

PARLIARMENT

“ACTS “

Ministry of
Defence
(REGULATIONS)
Ministry of Trade
(REGULATIONS)
AT es f
UL eri o
EG sh try

)
NS
(R Fi inis

IO

MINISTRY OF
M

EDUCATION
(REGULATIONS)
 Relations betweens laws
• Because an Act of parliament is a original legislation and the
Regulations issued by the Minister are (is) derivative legislation,
there cannot be a conflict between the original legislation and
the derivative legislation. A derivative legislation which goes
beyond what a Parliament enacted, is called “ultra vires”
(beyond the powers), and therefore invalid.
• (example: Parliament enacts 5% tax on Alcohol; Regulations
says 7% tax on Alcohol). Regulation is invalid. If Ministry of
Finance collected 7% tax on alcohol, consumers are entitled to
a refund through a collective action against The Ministry of
Finance (Class Action) to recover the extra 2% overcharged to
consumers.
 Relationship between Law and Culture

• Because we live in a Multicultural society, all cultures

are recognized in law and enjoy equal standing before
the law. Laws that were/are in existence in the
different cultural and ethnic groups are given
protection by the law.

• In cases of conflicts of such laws, however, with the

Constitution, such laws must be brought in conformity
with the Constitution.
Relationship between Professions/Trades

• The Constitution guarantees all its citizens the

right to a profession and right to freedom of
Trade. Freedom of Trade and Freedom of
profession also include freedom to work in
association between members of the
respective trade; as long as such association
complies with the laws and regulations of the
Company Act and related legislations.
 Courts and Case Law
• Although Courts are only empowered by legislation to Interpret the
Law (but not to enact new laws); in practice however with the Rule of
Star Decisis (system of precedent), indirectly courts (High Courts and
Supreme Court) “make laws” (the judge-made-law). In essence this is
kind of filling in a vacuum in the law. But Courts are very careful as not
to be seen as making new laws. (For example, the principle of
‘subrogation’ in insurance contract, is a ‘judge-made-law’. Normally no
legislation provides for a right to subrogation. In the desire to prevent a
wrongdoer from benefiting from his wrong act where the insured has
already recovered its loss through an insurance company, courts
following an English principle, indirectly sanctioned the application of
“subrogation” in insurance law; thus effectively making the law of ‘sub-
rogation”.
 By-laws
• Occasionally Municipalities are empowered to pass certain “laws”
applicable to their areas of jurisdictions. Such laws are called
Municipality “By-Laws”. An example: Municipalities may enact by-
laws on how to collect garbage; or how to use certain parks in their
areas; or they may restrict the height of buildings in certain places;
or the “quality” of houses to be built in certain areas.
• Zoning laws, are usually Municipality by-laws. Sometimes, such
laws are passed by the Town-Council.
• (For example, if you live in Windhoek, you cannot build a shake in
“Klein-Windhoek or Eros”. That By-Law is only applicable to
Windhoek, not in other cities. If the mayor of other cities wants to
allow ‘shakes’ to be built, the town council may approve such
move!)
 Relationship between domestic law &
International law
• International law is generally expressed in Treaties,
Protocols, & Conventions and “use cogens”
(established norms of International law either
through custom or from usage).
• In Namibia, normally International law becomes part
of National law once it has been signed by the
Minister of Foreign Affairs (and accented to by the
Parliament (except norms that are use cogens.
Norms that are use cogens are automatically binding
in all countries).
(TREATIES AND DOMESTIC LAW (Cont).

Constitutional provisions
Some treaties, such as treaties of alliance, should not need to have effect in domestic law. For other
treaties, it may be necessary to create new criminal offences or other enforcement mechanisms. How
this is done, it all depends on the constitution of each State.

Although no two constitutions are the same, there are two general approaches: ‘dualism’ and
‘monism’. Both are doctrines developed by scholars to explain the different approaches. Although
dualism is often presented as the opposite of monism, this is misleading: many constitutions in the
world contain both dualist and monist elements. Namibia is essentially a “monist” system in this
regard. South Africa, on the other hand, is essentially a ‘dualist system”, with some exceptions. The
United Kingdom has perhaps the purist form of dualism; Switzerland, on the other hand, perhaps the
most developed form of monism. In between there are many variations.

Dualism
Under the dualist approach, the constitution accords no special status to treaties; the rights and
obligations created by them have no effect in domestic law except in so far as legislation gives effect to
them. When legislation is specifically made for this purpose, the rights and obligations are then said to
be ‘incorporated’ into domestic law. This approach reflects, on the one hand, the constitutional power
of the executive generally to bind itself to a treaty without the prior consent of the legislature and, on
the other hand, the supreme power of the legislature under the constitution to make law.
But, treaty provisions that have been incorporated by the legislature then have the status only of
domestic law and can be amended or repealed by later legislation, even if this would be a breach of
the treaty.
Treaties and domestic law (Cont).

Monism
The essence of the monist approach is that, without legislation, a treaty may become part of domestic
law once it has been concluded in accordance with the Constitution and has entered into force for the
State.
However, in many countries adopting the monists system and for some Treaties, and in many cases
some legislation may still be needed. When legislation is not needed the treaty is commonly described
as ‘self-executing’. Although there are many variations, there are usually three main common
features. First, the constitution requires the treaty to be first approved by the legislature, although
there are exceptions for certain types of treaty or for certain circumstances. Second, a distinction is
made between treaties according to their nature or subject matter, some being regarded as being self-
executing, others requiring legislation. Third, a self-executing treaty may constitute supreme law and
override any inconsistent domestic legislation, whether existing or future.

NAMIBIA

Namibia constitutional practice

Namibian Constitution under Article 144 has essentially adopted a monist approach to International
Law. Under this section of the Constitution, “international is part of Namibian law).

(However, this is not an absolute statement. Indirectly Namibia also follows the dualist approach in
several instances.