ASSIGNMENT COVER

2023 ACADEMIC YEAR

Student Name Teofelus Andjene I
Student number 221286438
Email Address [email protected]
Cell/Tel no 0814805813
Campus Windhoek Campus

Course/Module Name Course/Module

Code
Legal Interpretation and Drafting JLD3602

Assignment no
(e.g. 1, 2 or 3, etc.).
1
 Question 1

1.1 Date of assent is the date on which an act is signed by the president after being sent to
him/her by the legislature to assent it after its adoption as required by Article 56 of the
Namibian Constitution. Commencement of laws or acts on the other hand means the
day the law comes into operation.

Section 13 of the Interpretation Act 33 of 1957 provides that if no date is provided

legislation will commence on the date on which it is published in the Government
Gazette. This provision set out 3 options of when legislation can commence which are:

1. The date specified in the legislation;

2. On the date to be determined by the President in a Proclamation;
3. The date on which the legislation is published on the Gazette.

Section 13 (2) provides that “day” begins immediately at the end of the previous day.
Section 13 (3) further provides that it can also be a date fixed by the President by
Proclamation. The Constitution requires legislation to be published in the Gazette before
it commences and the reason for the legislation to be published is so that people will be
aware of the legislation.

In respect of the Act in question, the Liquor Act 6 of 1998 came into force on the date of
publication in the Government Gazette on 22 December 2001. This means that no
commencement date was provided in the legislation when the President assented it,
and the President did not fix a commencement date by Proclamation.

1.2. The preamble of the Liquor Act 6 of 1998 provides that the Act is “to consolidate
and amend the laws relating to the sale and supply of liquor and to provide for matter
incidental thereto. I am of the view that the preamble in question was drafted within the
context of the mischief rule. The word mischief generally means the spur, the problem
that precedes the statute or what the statute or Act responds to or seek to address. The
mischief rule on its entirety is a principle of statutory interpretation that aims to
determine the intention of the legislature by considering the problem or mischief that the
statute intends to remedy. The application of this principle involves examining the
previous law, identifying the defect in it, and then interpreting the statute in a way that
address that gap or defect.

In regard to the preamble of the Liquor Act 6 of 1998 the provision “to consolidate and
amend the laws relating to the control of the sale and supply of liquor; and to provide for
matters incidental thereto” does not clearly point out the mischief that the Act intends to
address. However, the statement does suggest that the Act was enacted to bring
together and update existing laws relating to the control of liquor sales and supply. In
determining whether the mischief rule was employed in the dafting of the preamble of
this Act, refrence should be made to the Heydon’s case, which laid the mischief rule.
According to the judgment in Heydon’s case, three factors must be considered in
respect of the mischief approach to interpretation. This are; what was the law before the
statute and in the present issue the Liquor Act was enacted to amend existing laws
relating to the control of the sale and supply of alcohol among other things; what
problem or mischief the statute was trying to remedy, which in the present case could
be the unlawful selling and possessing of prohibited alcoholic breverages and without a
license; and what remedy was parliament trying to provide, which in regard to the Liquor
Act could be penalties for failing to comply with the Act. I am thus of the view that the
legislature used the mischief rule in drafting the preamble in the Liquor Act 6 of 1998.

1.3 The major difference between section 3(5) and Section 3 (6) of the Liquor Act 6 of
1998 is that section 3 (5) is a directory provision whereas section 3 (6) is a peremptory
provision. Directory provisions are provisions that grant authority in a permissive
vein.This means that non compliance with such provisions does not result in the
conduct being null and void. Peremptory provisions on the other hand refers to
provisions that requires exact compliance and adherence. The general rule here is that
if something is done contrary to the provision of a statute, it is null and void.

The most indicative factor in differentiating between peremptory and directory provisions
is the quality of the command the provision entails. In the case of Sterling Products
International Ltd v Zulu 1988, Gubbay JA stated that:
 “the court must look not only at the quality of the command and whatever it is
categorized as peremptory or directory but also at the intention of the legislature
which can only be derived from the words of the statute itself, its general plan
and its objects.”1

In Interpretation of Statutes, Juta, Devenish GE (1992) briefly set out the following
guideline.

1. Semantic guideline, under which regard may be given to the tenor of the
language of a provision based on grammatical meaning. Language of a
predominantly imperative nature is indicative of peremptoriness. This includes
the use of verb “shall”, the word “must”, words of an exclusive nature such as
“only” and provisions couched in negative terms like “no person shall.” Back
to the issue at hand one could clearly see that the inclusive of the verb “shall”
in section 3(6) of the Liquor Act 6 of 1998 indicate a requirement for exact
compliance which classified it as a peremptory provision. Under semantic
guideline we also find the use of words importing alternative or permissive
words like “may” or inconclusively and identifying outlining the subject matter
like “within a reasonable time” which indicate a discretion and will be
interpreted as being directory. Section 3(5) of the Liquor Act 6 of 1998 is an
example. It provides that “…only light liquor may be sold on the licensed
premises of caravan park.” 2

Question 2

Facts of the case

After the confirmation of active Covid-19 cases in Namibia on the 14th March 2020,
travel to and from Qatar, Ethiopia and Germany were suspended for 30 days. Three
days later on the 17th March, the president acting within the power granted him under
Article 26 of The Namibian Constitution read together with s 30(3) of the Disaster

1 Sterling Products International Ltd v Zulu 1988 (2) 2LR 293 (SC)
2 Devenish GE (1992) Interpretation of Statutes, Juta.
Mnagement Act of 2012, declared a State of Emergency in response to the outbreak of
the Coronavirus disease in the country.

Due to the rise of the Covid-19 cases from two on 13 March to 16 by the 6th April, the
President on the 17th April issued Proclamation 13 of 2020 amending the earlier
regulations. According to this Proclamation the lockdown, movement, restriction, closure
of businesses and associated regulations were extended to the entire nation from the
said date to the 04th May 2020. On 28 April the President further issued Proclamation
No 16 titled “State of Emergency Covid-19.” This Proclamation entails the Suspension
of Operation of Provisions of Certain Laws and Ancillary Matters Regulations and the
Namibian Constitution. Certain Provisions of the Labour Act 11 of 2007 were suspended
too. According to Regulation 19 of the Suspension of Regulations, it is an offence for an
employer to terminate employment, force an employee to take unpaid leave, reduce
remuneration of an employee or refuse to reinstate an employee under specific
circumstances. On top of that, the President issued Proclamation 18 on 04 May 2020
which suspends the operation of further laws.

The applicant ( Namibia Employers Federation and Others) aggrieved by Regulations

and Proclamations which suspends section 12, 23 and 34 of the Labor Act 11 of 2007
that employers would have used to reduce their losses as a result of business closure
due to the lockdown. Suspension of the said sections means that employers would not
be able to lay off employees, reduce their hourly remuneration or force them into unpaid
leave. The applicant claimed that the president went outside the scope of his authority
under Article 26 (5) (b) when he suspends the Labor Act requirements. The applicant
argued that the President could only create measures to combat the pandemic.
Therefore, the President’s suspension of the relevant provisions of the Labor Act and
the Namibian Constitution is unconstitutional.

Legal questions

The legal questions that the court had to answer are as follow;

(a) Whether the applicant are aggrieved persons as stipulated under Article 25 of
the Namibian Constitution;
 (b) Whether the President exceeded the powers conferred on him by Article 26
(5) (b) of the Constitution when he promulgated regulations 19 of the
Suspension Regulations and regulation 12 of the Further Suspension
Regulations;
(c) Whether the President impermissibly delegated the powers conferred on him
by Article 26 of the Constitution when he promulgated regulation 15 of Stage
2 Regulations among other regulations

Court’s finding and reasoning

(a) Whether the applicant are aggrieved persons as stipulated under Article
25 of the Namibian Constitution.

In determining this issue the court made reference to a decided case of

Trustco Ltd T/A Legal Shield Namibia and Others v Deeds Registries
Regulation Board and Others. In this case, the court held that in a state
mandated by a constitution, citizens should be free to exercise their rights and
seek judicial guidance when the law is unclear in order to protect their rights
and they should not be limited on acquiring legal clarity regarding their rights. 3
The court further made reference to the case of Transvaal Coal Owners
Association and Others v Board of Control, where it was held that the person
whose rights are threatened by invalid order cannot be precluded from
bringing the matter to court on the ground that such person is not yet
convicted of an offence or imprisoned.4 The court thus held ruled that if the
applicants are accurate on their claim, and the Regulations are found to be
ultra vires or in violation of the Constitution, then they will have effectively
justified their rights, and if they are wrong, then they will gain clarification
regarding their legal rights in that matter. Therefore the court was satisfied
that the applicants fall under the provisions of Article 25 of the Namibian
Constitution.

3Trustco Ltd T/A Legal Shield Namibia and Others v Deeds Registries Regulation Board and Others 2011
(2) NR 726 (SC).
4 Transvaal Coal Owners Association and Others v Board of Control 1921 TPD 447
 (b) Whether the President exceeded the power conferred on him under
Article 26.

The court a quo quoted from the decided case of Total Namibia Pty Ltd v
OBM Engineering and Petroleum Distributors CC, when Chief Justice
Mohamed stated that:
“A Constitution is an organic instrument. Although it is enacted in the form
of a statute, it is sui generis. It must broadly, liberally and purposively be
interpreted so as to avoid the `austerity of tabulated legalism' and so as to
enable it to continue to play a creative and dynamic role in the expression
and the achievement of the ideals and aspirations of the nation, in the
articulation of the values bonding its people and in disciplining its
Government.” 5

The court further recognized that the same nature that requires the Constitution
to be broadly and generously interpreted also requires for narrow or strict
interpretation in regard to derogations from rights and freedoms conferred on
people by the Constitution. Further highlights were made to the reasoning in a
South African case of Affordable Medicines Trust v Minister of Health. It was
reasoned that the exercise of public power must conform to the Constitution
which is the supreme law, and the principle of legality must be followed. 6 The
ultra vires concept typically applies when repository of public power performs a
function outside the purview of the authority granted. The court found that to best
answer the issue at hand, it is necessary to look in the empowering provision,
which in this case is Article 26. After a close interpretation of the wordings of
Article 26, the court found that there is a restriction included in the mandate
proviso, which is that the authority granted by Article 26(5)(b) does not permit the

5Total Namibia Pty Ltd v OBM Engineering and Petroleum Distributors CC 2015 (3) NR 733SC
6Affordable Medicines Trust v Minister of Health [2005] 2ACC3; 2006 (30 SA 247 (CC); 2005 (6) BCLR
529 (CC) Para 49.
 President to act in a manner that is contradictory to the requirements of Article 24
of the Constitution.

(c) Whether the President impermissibly delegated the powers conferred

on him by Article 26 of the Constitution when he promulgated regulation
15 of Stage 2 Regulation among other regulations.

The court made reference to the case of Shidiack v Union Government to

support its statement that when the legislation specifically points to a specific
official to exercise certain power, delegating such power would result in the
conduct being ultra vires. Innes ACJ in Shidiack stated that the Minster is a
person selected by Parliament to exercise a personal discretion and judgment
in regard to a matter of great public importance, and the doctrine of agency
cannot regulate his power or his responsibility. 7 The same applies to the
President, and if it was meant for him to be free to designate another person
to be satisfied in his place, there could have been a clear provision on the
empowering Article in regard to that matter. In this case Article 26 in its
entirely does not make any such provision. It was thus found that the
President delegated his power in the following manner:

(a) By regulation 14(1)(a), the President empowers a minister to issue

directives that augment or expand on any rule's provision.
(b) Through regulation 14(1)(b) and its counterpart regulation 15(1)(b) the
President authorizes a minister to make directions.
(c) According to rule 14(2) of the President, a directive issued under the
regulations has the legal authority to address any situation that falls under
the purview of any legislation or other law that is subject to the
administration of the minister in question. This, according to the
court's interpretation, means that the President is essentially handing his

7 Shidiack v Union Government [1912] AD 642.

 ministers "a blank cheque" to handle any issue falling under the purview of
any legislation or law, which implicitly covers the Constitution. This is the
purest form of ceding power; it is uncontrolled, and it is unquestionably
improper delegation.
(d) According to regulation 14(3) of the regulations, the Attorney-General
must approve any directive issued under the regulations before it takes
effect, and it must be published in the Gazette. According to Article 26(5),
the President, and the President alone, has the authority to enact laws,
including those that suspend rights. Consequently, the President alone
has the last say. Therefore, it is a power-abdication on his part to permit
the Attorney General to make the final decision regarding what the
directives must include. Therefore, Regulation 14(3) is an unlawful grant of
authority.
(e) According to regulation 14(5) of the President, a ministerial directive may
establish offenses for violations of, or failure to comply with, the directive
and may impose fines of up to N$2,000 or terms of up to six months'
imprisonment, or both. This direction, in the court's opinion, may lead to
crimes that, at some point or another, may rob citizens of their freedom. It
was thus held that this delegation is unlawful because the President alone
should have the authority to exercise it.

Judgment

The court ruled that:

Regulation 12(1)(a); regulation 12(1)(b); regulation 12(2); regulation 12(5); and

regulation 16 , regulation 19(1)(a); regulation 19(1)(b); regulation 19(1)(c); regulation
19(2); regulation 19(4); regulation 19(6); regulation 19(8); and regulation 25 are
unconstitutional and invalid

Regulation 14 contained in the “State of Emergency Covid-19 Regulations”,

Proclamation No 9 of 2020 is unconstitutional and invalid.
Regulation 15 contained in the “State of Emergency Covid-19 Regulations”,
Proclamation No 17 of 2020 is unconstitutional and invalid.

The first six respondents were ordered to pay the costs of the applicants plus the costs
of 3 instructed legal practitioners.

Conclusion

From the analysis made above, it is evident that where power bestowed on one specific
person is delegated to another person, such conduct amounts to a breach of power and
is thus ultra vires. The principle of legality, and the objective of the Bill of rights
engraved in Chapter three of the Namibian Constitution are vital in the interpretation of
the Constitution. This implies that in any interpretation that might affect human rights
and freedom protected under Chapter three, such interpretation must be strictly
conducted as no to divert from the objective of the legislation.
Reference list

Books

 Devenish GE (1992) Interpretation of Statutes, Juta.

Case law

 Affordable Medicines Trust v Minister of Health [2005] 2ACC3; 2006 (30 SA 247
(CC); 2005 (6) BCLR 529 (CC) Para 49.
 Shidiack v Union Government [1912] AD 642.
 Sterling Products International Ltd v Zulu 1988 (2) 2LR 293 (SC).
 Total Namibia Pty Ltd v OBM Engineering and Petroleum Distributors CC 2015
(3) NR 733SC.

 Transvaal Coal Owners Association and Others v Board of Control 1921 TPD
447.
 Trustco Ltd T/A Legal Shield Namibia and Others v Deeds Registries Regulation
Board and Others 2011 (2) NR 726 (SC).

Legislation

 The Constitution of the Republic of Namibia.