Define sources of law and discuss extensively the different sources of law

in Namibia? In your answer briefly state why sources of law are there and
where applicable, refer to case law.
1. Introduction:

According to Professor Amoo Sources of Law is defined as the location of the law
and the individual fidelity to the law. Within Namibia there are two types of
sources of law which consist of primary sources of law that include:

1. The Constitution
2. Legislation
3. Common Law
4. Case Law
5. Customary Law
6. International Law

Whereas secondary sources of law include:

1. Juristic writings by recognised publicists

2. Comparative Law
3. Private International Law
4. Autonomative sources /Legislation

This essay shall extensively discuss the different sources of law in Namibia.

2. Constitution:
The Constitution is an instrument that defines the state and sets out
powers and restraints as well as governs the relationship between the
government and citizens. It is inherently a social contrast between the
state and its citizens and can be seen through the 148 provisions spread
out in 21 Chapters. The Constitution is a source of law because it sets the
universal standards for all other sources of law and because of its
authoritative origins and is a product that was constituted by a recognised
authority which is the Constituent Assembly. Article 1 (6) of the
Constitution mentions Supremacy of the Constitution principle whereby the
Constitution is regarded as the ultimate authority. In the case of Kausea v.
Minister of Home Affairs in assessing the extent of the limitations to rights
 and freedoms the Court had to be guided by the values and principles that
were essential to a free and democratic society which respected the
inherent dignity of the human person, equality, non-discrimination, social
justice and other such values.
3. Legislation:
These are written rules promulgated by a recognised legislative authority
or body of the state. Legislation is also known as a Statute or an Act of
Parliament and deals primarily with a variety of issues. Four different forms
of legislation would include:
1. Enabling Legislation
2. Delegated/Subordinate Legislation
3. By-Laws
4. Autonomic Legislation

Legislation is a source of law because the Constitution establishes

Namibia as one based on the Rule of Law seen in Article 1 (1), because it
emanates from a recognised authority namely Parliament seen in Article
44 of the Constitution.

4. Common Law:
Is in reference to the law of a country that does not originate from
legislation of that country and is in reference to the Anglo-American system
of law, which applies today not only in England but to the rest of the
Common Wealth. The Nature of Common Law is derived from proceeding
decisions of courts in similar past cases derived from past case
precedents. Common Law is a source of law because it is formally
recognised in terms of Article 66 of the Namibian Constitution and the
Namibian Common Law system is based on Roman-Dutch principles. In
the case of Willis v Baddaly, it states that “there is in fact no such thing as
judgment law, for the judges do not make the law, though they
frequently have to apply existing law to circumstances as to which
 it has not previously been authoritatively laid down that such law is
applicable.

5. Customary Law:
This refers to the norms, values, and practices recognised and practiced
by various traditional communities. Customary Law is a source of law as it
has been formally recognised in terms of Article 66 of the Namibian
Constitution. Furthermore, Customary Law has been cemented through
the traditional authorities Act 25 of 2000 and the Community Courts Act 10
of 2003. Test for customary law laid down in Breta v Jacobs
1. Customs must be reasonable
2. Customs must have existed long ago
3. Customs must be generally recognized and observed by the community
4. Content of customary law must be clear and certain
6. International Law:
Refers to the body of rules and principles that regulate the relationship
between States. States are the primary legal subjects of International Law
and there are two types of International Law which consists of:
1. Public International Law
2. Private International Law

Article 144 of the Namibian Constitution recognises the general rules of

public international law and international agreements binding upon
Namibia as a source of Law.

Conclusion:

Namibia is seen as a Hybrid and uncodified legal system due to the fact
that Namibia accommodates both informal and formal sources of law
deriving from a variety of sources.
Discuss the three types of Interpretations with reference to case law:

1. Introduction:
Legal interpretation is the process by which the courts interpret to the
provisions of a legal instrument reason being would be that certain legal
instruments can have more than one interpretation which would need to be
clarified. This essay shall entail the three types of interpretation seen in
Namibia.

2. Literal Rule:
This rule holds that if the words of a statute are clear it must be
followed out even if such a literal interpretation may lead to absurdity. In
the interpretation of the statute the goal is to find out the intention in
which the legislature is mandated to pass laws in terms of Article 44 of
the Constitution. The essence of the literal method is to rely exclusively
on the language used without paying regard to the consequences of the
interpretation. Within the case of Graceland Architects CC v Howard &
Chamberlain Architects & Another paragraph 13 mentions how section
11 of the Architects and Quantity Surveyors Act 13 of 1979 read
together with section 13 “for gain performs any work” is clear and
unambiguous.

3. Golden Rule
This rule is a deviation from the Literal Rule whereby the words of the
statute are clear and are not open to more than one meaning the rule
must be applied if the interpretation leads to an absurdity that is so
glaring that it must have never been intended by the legislature. Within
the case of S Van Zyl v the State in paragraph 60 the court mentions
that although the complainant repeatedly stated that the appellant had
 sex with her, it must be borne in mind that the word “sex” is necessarily
synonymous with vaginal intercourse.

4. Mischief Rule:
This rule aims to put into place what Parliament was trying to put out in
a particular Statute or Provision. Origins of the Mischief Rule is seen
through the Exchequer Courts decision in Heydon in 1584 for the true
interpretations of all statutes which includes the following:
1. What was the common law before the Act?
2. What was the mischief and defect for which the Common Law did
not provide?
3. What remedy the Parliament hath resolved and appointed
Parliament to cure the result of the Commonwealth
4. The true reasons of the remedy and the office of the judge is to
make such construction as shall supress the Mischief and advance
the remedy. And to suppress subtle invention and evasions for
continuance of the mischief rule and add force and life to cure and
remedy, according to the true intend of the makers of the Act. Within
the case of Myburgh v Commercial Bank of Namibia the courts had
mentioned that the Common Law Rule correlated with the disorder
conducted by the marriage in community of property which caused
the wife to become the topic of the marital capacity of her husband
post-independence in result of its dispute with the equality
provisions of the Namibian Constitution.

5. Conclusion:

It can be seen that the cardinal rule of legal interpretation is determine

the intention of the legislature and this can be determined by having
regard to the words of the legal instrument and the context in which
the words are used in that particular legal instrument.
Discuss the presumptions of Statutory Interpretation and the Difference
between Peremptory and Directory Provisions:

Introduction:

Statutory Presumptions are assumptions that the courts take into account in
interpreting statutory provisions. In the absence of a clear indication, statutory
provision is taken to have the meaning arrived at by employing the assumptions.
This essay shall highlight the various factors within the presumptions of Statutory
Interpretation and distinguish the difference between Peremptory and Directory
Provisions.

1. Where no date is specified, the legislation comes into operation on the

date of publication in the Government Gazette:
In terms of s 12 (1) of the Interpretation of Laws Proclamation 37 of 1920
and Article 56 (10 of the Namibian Constitution. In the case of S v
Ngitukwa the Stock Theft Amendment Act, 2004 was signed by the
president on the 15 December 2004 and published in the government
gazette on the 20 December 2004 and the accused pleaded guilty of theft
during December, there was no specification as to the exact date on which
the crime was committed. therefor it became a cause for concern as the
court could not established as to which date the crime was carried out so
that they give an accurate verdict as to which Act the accused is now
subjected to.

2. The presumption against the alteration of the common law more than is
necessary:
In the absence of clear language, expressed by words the courts will not
rule that the legislature intended a significant departure from the common
law. In the case of Du Preez v Minister of Finance the court mentioned that
the viewing Act as a whole the Legislature by making such formidable
 provisions in the Act for payment of tax and interest on overdue payments
must have intended to part from the common law principle unless the
contrary intention clearly appears. No such other intention is apparent.

3. Presumption that the legislation seeks to achieve public good:

The primary basis of this presumption is the natural law thesis that the law
should be just. The passage of legislation presupposes that the legislation
is presumed not to have intended to deprive an individual of an existing
vested rights.

4. The presumption of constitutionality:

An Act of Parliament is presumed to be constitutional until the contrary is
shown. This is because Article 1 (6) of the Namibian Constitution provides
that the Constitution shall be the supreme law of the land and that all laws
as such must be passed on the basis that they have met the basic
requirements of the Constitution. If a provision is capable of having more
than one meaning, with one of the interpretations falling within the meaning
of the Constitution while the other does not, it will be presumed that the
legislature intended to act constitutionally and that one possible meaning
within the Constitution will be adopted.

5. The presumption against retrospectivity:

In terms of this presumption, unless the contrary intention is clear, a
statute is not presumed to have an intentional retrospective operation
contemplating or directing to the past. The presumption works on the
assumption that the law maker is presumed to legislate only for the future.
However the exception is that if the enactment expressly provides for
retrospective operation.

6. The presumption in favour of the principles of natural justice:

When a statute authorizes judicial powers which may influence individual
or property rights there is a presumption that in the absence of an express
 provision or a clear intention to the contrary, the powers so given are to be
exercised in accordance with the principles of natural justice.
The two main principles of natural justice are:
1. Audi Alteram Partem Rule
2. Nemo Judex Principle.

7. The Presumption against interpreting a statute so as to oust or restrict the

jurisdiction of the courts:
Is a well-recognised rule in the interpretation of Statutes that, in order to
oust the jurisdiction of a court of law, it must be clear that such was the
intention of the legislature contextualised in Article 5 and 25 of the
Namibian Constitution. (The case I have that relates to this section would
be the Katjiuanjo and Others v Municipal Council of the Municipality of
Windhoek (unknown-2013/2987) [2014] NAHCMD 311 (21 October 2014)
case, however I do not know the relevant facts to place out that relate to
the above mentioned)

8. The presumption that a statute will not be interpreted so as to violate a rule

of international law or international obligations:
This presumption requires the courts to seek an interpretation of a Statute
that will not make domestic law conflict with international law. This is even
more corroborated by the fact that in terms of Article 144 of the Namibian
Constitution, international Law forms part of the law of Namibia.

9. Presumptions made in terms of the Interpretation of Laws Proclamation 37

of 1920:
With reference to law in legislation, shall mean any law, proclamation or
any other enactment having the force of law. Persons unless said
otherwise shall include Municipal Council or likewise authority, it shall also
include any company registered, corporate or incorporate which is seen in
Section 2 of the Proclamation. In every law unless the contrary intention
appears, words importing the masculine gender shall include females. In
addition, words in singular number shall include plural and words in plural
shall include singular. Seen in Section 6 (a) and (b) of the Proclamation.
When a law confers a power, jurisdiction or right or impose a duty on the
holder of an office unless the contrary intention appears, the power,
jurisdiction or right may be exercised and the duty shall be performed from
time to time by the holder of the time being in office.

Distinction between Directory and Peremptory provisions:

Directory provisions is a provision that requires substantial compliance
only. Whereas peremptory provision is a statutory provision that requires
exact compliance which can be seen as mandatory. Failure to comply with
peremptory provision will leave the ensuing act null and void. Words with
imperative or affirmative character indicate a peremptory provision eg.
Shall or ‘must’. Words that are permissive such as ‘may’ indicate a
discretion and is interpreted as being directory. Within the case of Torbitt &
Another v International University of Management on appeal found that the
word ‘must’ should in view of semantic and jurisprudential guidelines
developed by the courts be interpreted as permissive, requiring only
substantial compliance in order to be legally effective. Within the case of
Hailulu v Director, Anti-Corruption Commission & Others the court
mentions that the respondent is correct to point out the permissive
language of s 18 (2) whereby the subsection does not oblige the
Commission to consider all factors listed in the section in every case.

Conclusion:
It can be seen that with regards to the distinction of the peremptory and
directory provisions the two distinctions are important in discerning the
degree of compliance necessary and in establishing the consequences of
non or defective compliance. (Do not have a conclusion to wrap up the
presumptions)
Define stakeholders of the legal fraternity and briefly outline their
roles:

Introduction:

Stakeholders of the legal fraternity consist of:

1. Judges
2. Master of the High Court
3. Sheriff of the Court
4. Registrar of the Court
5. Legal Practioner
6. Specialised Legal Practioners
7. Magistrate
8. Prosecutors

This essay outlines the roles of the various stakeholders within the legal
fraternity of Namibia. (Would I also need to include the legal institutions
when it comes to this topic of stakeholders or would that be separate)

Judges:
Are judicial officers who preside over legal proceedings in superior courts.
Their core function would include hearing all witnesses and any other
evidence presented by legal practioners, assessing the credibility of
evidence and arguments made by legal practioners for purposes of issuing
and ruling on the matter at hand based on the interpretation of the law and
their own objective judgement.
Judges are therefore appointed by the basis of their knowledge or
expertise by the President on the recommendation of the Judicial Service
Commission pursuant to Article 82 (1) of the Namibian Constitution.
Judges hold office until the age of 65 years the President shall be entitled
to extend their retirement age to 70 years old.
Mater of the High Court:

The Master of the high Court is a public office created in terms of section 2
55of the Administration of Estates Act, 1965 tasked with specialised
services of supervision, custodianship, arbitration and information
regarding deceased and insolvent estates and trusts, serving beneficiaries
of estates and trusts, minors, and mentally challenged persons in Namibia
for the purpose of safeguarding those beneficiaries financial and
proprietary rights. In the case of Mwoombola and Another v The Master of
the High Court the judge of the High Court stated that the deceased
intentions of her will were clear and that the will was valid and for the
Master of the High Court to consent to the will.

Sheriff of the Court:

The Sheriff of the court is an official appointed in terms of section 30 and

section 26 (1) (a) of the High Court, 1990 and Supreme Court Act, 1990
respectively, with the primary function of execution of court process. In the
discharge of his or her functions he or she may be assisted by one or more
deputy-sheriffs or assistant sheriffs of the court.

The sheriff or the deputy-sheriff concerned or his or her assistant shall

execute all sentences, decrees, judgments, writs, summonses, rules,
orders, warrants, commands and processes of the High Court and make
return of the manner of execution thereof to the court and to the party at
whose instance they were issued.

Registrar of the Court:

The Registrar of the court is the principal administrator of the court process
as well as storing of important documentation relating to all court matters.
The Registrar’s office sees to the issuing of summonses, the receipts of
fines and any other payments made to the court, the management and
processing of court files and the compilation of the Court files/rolls.

The Registrar is appointed in terms of section 31 (1) (a) of the High Court,
1990 (in the case of the High Court and section 26 (1) (a) of the Supreme
Court Act, 1990 (in the case of the High Court), and may be assisted by
Deputy-Registrars or assistant-Registrars, as the case may be, in the
discharge of his or her functions.

Legal Practioner:

Section 1 of the Namibian High Court Rules defines a legal practitioner as

“a person who, in terms of the Legal Practitioners Act, 1995 has been
admitted and authorised to practise as a legal practitioner or is deemed to
have been so admitted and authorised and practises for personal gain or is
in the service of a law centre or the State”.

The Legal Practitioners Act, 1995 is the primary law that regulates the
legal profession and legal practitioners. It sets out amongst others their

Section 4 of the Legal Practitioners Act, 1995 provides inter alia that the
Court shall admit and authorise to practice as legal practitioners only
persons who are “fit and proper to be so admitted and authorized”, in
addition to other formal and professional requirements.

Under Namibian law, all legal practitioners are members of the Law
Society of Namibia; which body is mandated to “maintain and enhance the
standards of conduct and integrity of all members of the legal profession”.
(section 41 of the Legal Practitioners Act, 1995).

Specialised Legal Practioners:

Notaries:

Notaries public are legal practitioners certified in terms of section 86(2) of

the Legal Practitioners Act, 1995 to notarise documents (i.e., antenuptial
contracts, notarial bonds, certain contracts pertaining to immovable
property, and leases to be registered in terms of section 77 of the Deeds
Registry Act, which in terms of any law may be performed only by a notary
public.
Their main functions include inter alia the administering of oaths and
affirmations, authentication of certain classes of legal documents,
protesting notes and bills of exchange, providing notice and authentication
of foreign drafts and legal documents, preparing marine or ship's protests
in cases of damage, and the provision of exemplifications and notarial
copies.

Conveyancer:
conveyancers are legal practitioners certified in terms of section 87(1) of
the Legal Practitioners Act, 1995, having passed an examination in
conveyancing set and held by the Board for Legal Education under section
11(1)(d) of the Legal Practitioners Act, 1995.

Conveyancers specialise in preparing and in certain circumstances

executing legal documents for registration in a deeds registry or for
attestation or execution by the Registrar of Deeds. The Deeds Registries
Act, 1937 stipulates the overall functions and responsibilities of
conveyancers by providing that certain deeds and legal documents are to
be prepared by a conveyancer, and that such preparer accepts
responsibilities for the correctness and accuracy of those facts referred to
in regulation 44A.

Magistrates:

Magistrates are judicial officers who preside over legal proceedings in

lower courts, more especially magistrates courts established in terms of
section 11 of the Magistrates Act, 2003.

Their core functions include hearing all witnesses and any other evidence
presented by the legal practitioners or prosecutors, of the case, assesses
the credibility of evidence and arguments made by legal practitioners, for
purposes of issuing a ruling on the matter at hand based on their
interpretation of the law and their own objective judgment.

Their jurisdictional functions and powers, in contrast are set out in the
Magistrates Court Act, 1944. Magistrates are appointed by the Minister of
Justice in terms of section 13 (1) of the Magistrates Act, 2003 and hold
judicial office until the age of 65.

Prosecutors:
Article 88 of the Namibian Constitution establishes a prosecuting authority
to be headed by the Prosecutor-General.

The functions of this office include inter alia the prosecution, subject to the
Constitution, in the name of the Republic in criminal proceedings, including
defending criminal appeals made in the Courts.

The core functions of prosecutors are the decision to prosecute and

representation of the prosecution in court. In some jurisdictions, especially
in the inquisitorial systems, the functions of prosecutors may also
encompass investigating crimes, supervision of investigators’ compliance
with procedural rules, judicial interim release such as bail, plea and
sentence agreements and bargaining, diversion of offenders to alternatives
to prosecution, victim support and recommendations regarding sentence.
In the case of Prosecutor-General v Namoloh according to Mr Namandje
the Prosecutor General is obliged to ensure that accused persons are not
exposed to unreasonable delay in criminal prosecution.

Conclusion:

It can be seen that stakeholders continue to play a vital role within

Namibia’s social development.
With reference to the devised cases, critically discuss constitutional
interpretation:

Introduction:
The constitution is a legally enforceable document that sets out the
fundamental principles or established precedent according to which State
is constituted and governed. It sets out the powers of both the State and it
citizens and governs the relationship between these two subjects. The
interpretation of the Constitution will be directed at ascertaining the
foundational values inherent in the Constitution. Through an analysis
constitutional interpretation shall be critically discussed.

Case Law:

In the case of Ex parte Attorney-General: In re corporal punishment by

organs of the State the Namibian Constitution seeks to articulate the
aspirations and values of the new Namibian nation following upon
Independence. It expresses the commitment of the Namibian people to the
creation of a democratic society based on respect of human dignity,
protection of liberty and the rule of law. For this reason colonialism as we;
as the ‘the practice and ideology of apartheid from which the majority of
the people of Namibia have suffered for so long are firmly repudiated.
Article 8 of the Namibian Constitution must therefore not be read in
isolation but within the context of a fundamental humanistic constitutional
philosophy introduced in the preamble of the Namibian Constitution.

In the case of Kausea v. Minister of Home Affairs in assessing the extent

of the limitations to rights and freedoms the Court had to be guided by the
values and principles that were essential to a free and democratic society
which respected the inherent dignity of the human person, equality, non-
discrimination, social justice and other such values.

In the case of Ex Parte Attorney-General in re: The Constitutional

relationship between the Attorney-General and the Prosecutor-General in
the process of interpreting the Constitution there should be recognition of
the character and origin of the instrument and a court should be guided by
the principle of giving full recognition and effect to those rights and
freedom which were enshrined in the Constitution.

General principles of Constitutional interpretation:

The Constitution must be broadly, liberally and purposively interpreted

because it is a sui generis document. Constitutional interpretation is an
inherently flexible process and the provisions in the Constitution cannot be
interpreted or considered in the isolation, but must be read within the
context of a fundamental humanistic constitutional philosophy introduced in
the preamble. During Constitutional interpretation the spirit and tenor of the
Constitution must prevail and be adhered to and Constitutional
interpretation must take into account the values underlying the Constitution
which in result would be the value judgement.

Conclusion:

Therefore, it can be seen that the Constitution must be given a generous

and purposive interpretation and Constitutional interpretation must have
regard to international law and comparative law with due regard for thr
Namibian context.
 Discuss the classification of law and its signification?

Introduction:

Classification of law serves as a basis for the arrangement of laws within a

nation in any stage of its development. This would include:

1. Domestic Law
2. International Law
3. Public Law
4. Private Law
5. Substantive
6. Procedural Law

This essay aims to outline the classification of law and its signification.

Domestic law:

Refers to all laws applicable in a particular national system or country. This

include widely all laws passed by parliament, principles decided through
cases by the courts, customary laws of the different communities, and the
generally held and accepted common law principles. Domestic or national
law is therefore a reference to all these laws as a collective and as it
applies to the whole national system. These national laws are only binding
on the State in which they are made.

International Law:

International law, sometimes referred to as the “law of nations” refers to

the set of rules, norms, and standards generally accepted in relations
between nations and regulates the relationships between States. It is the
set of law that sets out the rights and obligations of States and how they
ought to interact with each other and the international community.

Public law:
Public law is that part of law which governs relationships between
individuals and the State, and those relationships between individuals
which are of direct concern to society. Public law asserts State sovereignty
and power.

Private Law:
Private law on the other hand regulates the legal relationship between
private individuals. The relationship established is one that is
predominantly horizontal as both parties to such a relationship are equal in
terms of bargaining powers. Private law predominantly involves legal
claims enforceable privately between two or more parties.

Substantive Law:

A reference to any area of the law that has substantive principles. In other
words, any area of the law that sets out the applicable principles, rights
and obligations that individuals (or even the State) has and how they are
constituted.

Procedural Law:
Sometimes also referred to as adjective law, is a reference to all aspects of
the law that provides guidance on how substantive law should be enforced.
Procedural law therefore sets out the procedure of enforcement of laws.

Conclusion:
(Kind of stuck of how to conclude and for this topic would I also need to
include systemic classifications of law or only when specifically asked for
systemic classification)
With reference to case law, discuss the jurisdiction of the High Court

Introduction:
Jurisdiction is the official power to make legal decisions and judgements
and it can be seen that the High Court has three primary forms of
jurisdiction that consist of:

1. Inherent Jurisdiction
2. Appeal Jurisdiction
3. Review Jurisdiction

This essay shall outline the powers of the High Court within Namibia.

Inherent Jurisdiction:

Article 80(2) of the Namibian Constitution states that the High Court shall
have original jurisdiction to hear and adjudicate upon all civil disputes and
criminal prosecutions including cases which involve interpretation,
implementation and upholding of the constitution fundamental rights and
freedom guaranteed thereunder especially the Bill of Rights.

Inherent Jurisdiction of the court predominantly refers to the wide powers

the High Court has to make its own rules and regulate its own
proceedings.

Inherent/Original jurisdiction aims to:

1. Prevent the abuse of the court process

2. Ensure that the court provides an effective remedy
3. Restrain irregularities in the proceedings of the Lower Court
4. To supervise its officers

Appeal and Review jurisdiction:

Mentioned in Section 16 of the High Court Act of Namibia the High Court
shall have the jurisdiction over all persons residing or being in relation to all
causes arising and all offences triable within Namibia, and shall have the
power of jurisdiction which may be vested in it by law and have the power
to

a) Hear and determine appeals of the lower Courts in Namibia

(b) Review the proceedings of lower courts

Section 19 (1) of the High Court Act of Namibia mentions that the High
Court may take into consideration:

a) Receive further evidence, orally or by deposition and continue hearing

the matter either on appeal or review,
b) Remit the case to the court of First Instance for Further hearing
c) Confirm, amend or set aside the judgement which is the subject of
appeal or review

Case Law:

In the case of Elias v Bank of Namibia it was found that the decision of the
Labour Court was not supported with reason and therefore upheld the
appeal to the High Court.

In the case of S v Bam & Another a special review was brought before the
High Court where two accused persons were charged with assault with the
intention to do grievous bodily harm.

Within the case of the Prosecutor-General v Miguel the legal issue was
whether the High Court has jurisdiction to stay the order of the Magistrate
Court? The Court held that the High Court has inherent jurisdiction which
means that the court can draw upon its reserve sources of powers
whenever it is just and equitable to do so.

Conclusion:

(Struggling to conclude and overall for each topic do I have enough case
law)