UPDATE: Researching Namibian Law and the Namibian Legal System
By Geraldine Mwanza Geraldo and Isabella (Skeffers) Nowases
Update by Isabella Nowases
Geraldine Mwanza Geraldo is an independent legal consultant. Geraldine holds a B. Juris and an LL.B from the University of Namibia and an LLM from the University of Pretoria.
Isabella Skeffers Nowases is a lecturer at the University of Namibia, Faculty of Law. Isabella holds the B. Juris, LL.B and the LLM degrees from the University of Namibia.
Hilya Nandago is an admitted Legal Practitioner with the High Court of Namibia. She is currently a Legal Advisor at Capricorn Investment Holdings (Pty) Ltd. She holds an LL.B degree from Rhodes University and a LL.M – Commercial Law from the University of Witwatersrand.
Published January 2013
(Previously updated by Hilya Nandago on April 2010)
See the Archive Version!
Table of Contents
The Namibian legal system is characterized by legal pluralism. It is an amalgamation of Westminster-style Constitutional law, Roman-Dutch common law, African customary law and international law. Most of what constitutes the corpus of Namibian law is not codified and must be distilled from the evolving body of jurisprudence.
Pre-colonialism, customary law was applicable to the various communities. Namibia was colonised twice; first by Germany from 1884 to 1915 and then by South Africa from 1915 to 1989. The period of German colonial rule did not leave significant traces in the legal system. The territory was mostly administered by means of regulations, which were the prerogative of the Governor duly advised by the Landesrat, the Governor’s advisory council. The country was divided by an imaginary line, the police zone. North of the police zone was not heavily administered by the Germans in comparison to the South.
The legal transition from German to South African administration was bridged by Martial law. By virtue of Proclamation Martial Law 15 of 1915 and its successive amendments, German law remained enforced unless specifically repealed. Proclamation 1 of 1921 confirmed this.
The legitimacy of South African occupation can be traced to article 22 of the Covenant of the League of Nations. South Africa was mandated to promote to the utmost the material and moral well being, and the social progress of the inhabitants of the territory. South West Africa (pre-independence Namibia) as a class C mandate was subject to consummate legislative, administrative and judicial regulation by the Union of South Africa. An important feature of the South African administration was the creation of a stable legislative framework. An important milestone in the history of South African colonial rule is the Administration of Justice Proclamation (SWA) 21 of 1919. It made Roman Dutch law, as existing and applied in the Cape Province as at 1 January 1920, the common law of South West Africa. Therefore, jurisprudence in South Africa was authoritative in South West Africa. This is still applicable to date as decisions of the Cape Provincial Division and the Appellate Court of South Africa before 1990 are applicable in Namibia. Roman Dutch law in the Cape, which is known as common law, was based on the Roman-Dutch law of the original Dutch settlers, in other words the interpretations of Roman law by authors such as Hugo Grotius and Johannes Voet. In addition, the legislative authority of South West Africa was the South African administration. Legislation which was applicable to South West Africa explicitly made mention of this extension. South African procedural law was also extended to South West Africa. An adversarial system of litigation still subsists. English law, which later took hold in the Cape Province, was also transferred to South West Africa. An area of law where there are traces of English law is maritime law. At this juncture it should be noted that three areas; the Eastern Caprivi Zipfel, Walvis Bay and the Rehoboth Gebiet had peculiar legal developments because of their somewhat obscure history. Therefore, if South African laws were to be applicable to these territories, this was expressly stated.
In 1989 after a liberation war and international pressure South Africa withdrew its administration from Namibia. A Constituent Assembly was formed. This body was tasked with drawing up a Constitution and organising an election to select a Namibian administration. The Constituent Assembly was given a set of principles by the international community, the 1982 principles, to include in the Constitution. Most of these principles are contained in the Bill of Rights. On the 9 February 1990 the Namibian Constitution was adopted. The Constitution has become the template against which the validity of all laws is tested. The constitutional order eradicated the era of Parliamentary supremacy and substituted it with constitutional supremacy and the rule of law. Chapter three of the Constitution imports a human rights culture into the Namibian legal order. Civil and political rights are expressed as positive rights, which give rise to obligations for the State, whilst the socio-economic rights are obligations, which are progressive, meaning that the obligation of the State is not immediate but conditional.
· P.H. Katjivivi A History of Resistance in Namibia 1988 James Curry Publishers, London
· K. Derks Chronology of Namibian History – From Pre-Historical Times to Independent Namibia 1999 Namibia Scientific Society, Windhoek
· Hayes et al (Eds) Namibia under South African Rule – Mobility and Containment 1915 -46 1998 James Currey & Ohio University Press, Athens
The Constitution of the Republic of Namibia enjoys hierarchical primacy amongst the sources of law by virtue of its article 1(6). It is thematically organized into chapters, which contain articles that relate to the chapter title. It has 21 chapters and 148 articles, which mainly organize the state and outline the rights and freedoms of people in Namibia.
According to article 1(3) of the Constitution, there are three main organs of state, namely the Executive, the Legislature and the Judiciary. The relationship between these three organs is directed by the doctrines of the separation of powers and the rule of law. Another important feature of the Constitution is the Bill of Rights, which is embodied in chapter 3 of the Constitution. The Bill of rights outlines the 16 fundamental rights and freedoms, which voice the carpet values and spirit of the independent Namibian nation. Most jurisprudence post-independence revolves around the application and interpretation of chapter 3 of the Constitution. The Bill of Rights, it is understood, has occasioned a paradigm shift in the legal landscape from a culture of Parliamentary sovereignty to a rights-based philosophy. Its importance is evidenced by the fact that the rights and freedoms in Chapter 3 are entrenched.
The Constitution of Namibia, in art 1 stipulates that the Nambian State is composed of three organs; namely the Executive, Legislature and the Judiciary. Although the Legislature is the principal law-making body in the country, all three organs play a role in the development of the law.
Chapters 5 and 6 of the Constitution indicate that the Executive comprises of the President and Cabinet. Their working relationship is consultative and their paramount function is policy-making. Cabinet members are required to attend sessions of the National Assembly to answer questions pertaining to the legitimacy, wisdom, effectiveness and direction of Government policies. Government policies are published in Government Gazettes, which are distributed by the Ministry of Justice at a fee. Government Gazettes are referred to according to their number and dates, for example Gazette number 32 of 1996. In this particular example, this gazette is the 32nd of the year 1996. This is the same for all other gazettes when one considers the number and the year in its title.
Besides policy, the Executive is responsible for negotiating and signing international agreements, which according to art 144 of the Constitution form part of the law of Namibia. Namibia is a signatory to several international treaties and a member of various international organisations. It has submitted several reports to several treaty bodies and there have been five cases before three international tribunals against it. These are:
· the two South West Africa opinions (International Court of Justice - ICJ); Preliminary Observations in 1962 ICJ Reports 318 and Second Phase in 1966 ICJ Reports 6;
· Muller v President of the Republic of Namibia (Human Rights Committee) (2002) AHRLR (African Human Rights Law Report) 8 (HRC 2002);
· The Kasikili/Sedudu Island communication (International Court of Justice) available here .
· Diergaardt of Rehoboth Baster Community et al. v. Namibia; (Human Rights Committee), Communication No 760/1997, views of 25 July 2000, and;
· Sikunda v President of the Republic of Namibia (African Commission on Human and Peoples’ Rights) 2002 AHRLR 21 (ACHPR 2002).
By virtue of art 144 Namibia is monist, therefore with the exception of treaties that are in conflict with the Constitution, legislation and those that enter into force through mere signature, all treaties duly ratified are automatically incorporated.
Other legislative functions of the Executive include the president’s power to declare martial law by means of a Proclamation. Since independence, a state of emergency was only declared once, in two separate occasions, in 1999 when there was an uprising in the northeastern part of the country. The incident is commonly referred to as the Caprivi secession. The martial law is gazetted as the Proclamation No. 27 of 10 September 1999, which repealed Proclamations No. 23 of 2 August 1999 and No. 24 of 3 August 1999. In addition, the president has the power to promulgate Proclamations (in addition to those relating to martial law) and to initiate bills for consideration by the National Assembly. These functions are all subject to review, reversal or correction by the National Assembly. The presidential signature and publication in a gazette certify a bill and authenticate its validity. The President is compelled to assent to a bill if it is passed by a two-thirds majority of the National Assembly and confirmed by the National Council.
One of the most important government policies is that of Vision 2030, which sets out developmental goals for the country, which are aimed to be reached by 2030.
Another example of government policy is the National Policy on HIV/AIDS – Approved by the National Assembly on the 14th March 2007This particular policy addresses the issue of HIV/AIDS in Namibia. The foreword is undersigned by the President of the Republic. The national policy aims to provide an overall reference framework for all HIV/AIDS related policies and to guide the national HIV/AIDS responses of al sectors in society. The policy contains its strategies, goals and objectives. In addition, the policy lays out the different areas of interest which should be concentrated on by the different role players in the implementation of HIV/AIDS policies and programmes. Finally, government undertakes certain obligations in terms of the policy, known as ‘policy statements’, which are included under each chapter of the policy.
The Legislature as outline in chapter 7 and 8 of the Constitution is made up of the National Assembly and the National Council. In Namibia Parliament refers to the National Assembly acting in terms of the Constitution and subject to review by the National Council. The Legislative power of Namibia is vested in the National Assembly subject to assent of the President or the National Council where applicable. As the principal legislative authority in Namibia, the National Assembly has the power to make and repeal laws. Laws passed by the National Assembly are referred to as Acts of Parliaments and published in the Government Gazette with reference to their numbers and year of promulgation. Unless the Constitution provides otherwise, a simple majority of votes cast in the National Assembly shall be sufficient for the passage of any bill or resolution of the National Assembly.
The sessions of the National Assembly are open to the public unless a two-thirds majority decides otherwise. The Assembly also has to agree to the treaties negotiated and signed by the Executive. The National Assembly after independence was taxed with the task of deciding which laws and international treaties, promulgated and entered into prior to independence, would be retained or succeeded to. In addition to the Acts of Parliament and international treaties, the debates of the National Assembly are available to the public in publications known as the Hansards. Hard copies of the Hansards are available at the National Assembly resource centre.
National Council buttresses the work of the National Assembly. Its functions include amongst others; considering bills passed by the National Assembly, considering subordinate legislation and recommending legislation on matters of regional concern.
Namlex - The Namlex is a compilation of the Legal Assistance Centre and the Ministry of Justice. It serves as an index to all Acts of Parliament, international treaties and cases. The most recent version is updated to the year 2010.
How to Cite:
Acts of Parliament are cited as follows: Criminal Procedure Act, no 25 of 2004. The name of the Act (which is usually the subject matter of the Act) precedes the number of the Act and the year it was published.
The Administration of Justice as the Constitution refers to it comprises of the Supreme Court, the High Court and the Lower Courts. The administration of justice is independent from the other organs of state. The sacrosanct nature of this value was expressed by the Supreme Court in Ex-Parte Attorney General, Namibia: In re the Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC).
The Supreme Court is the highest national forum of appeal. It has inherent jurisdiction over all legal matters in Namibia. It adjudicates, according to art 79 of the Constitution, appeals emanating from the High Court, including appeals, which involve the interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms guaranteed therein. It also hears matters referred to it by the Attorney General or authorised by an Act of Parliament. To date, only two cases have been referred to the Supreme Court by the Attorney General, namely; Ex-Parte Attorney General: In Re Corporal Punishment by Organs of State 1991 (3) SA 76 and Ex-Parte Attorney General, Namibia: In re the Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC). As Namibia has a system of stare decisis, all decisions emanating from the Supreme Court are binding on all other courts unless they are reversed by an Act of Parliament or the Supreme Court itself.
Decisions of the Supreme Court are all recorded in the Namibian Law reports and some in South African law reports. The Namibian law reports is a series of reports published according to years. They record the decisions of the Supreme Court and High Court. For every ten year period there is an index to the reports, which has both a thematic and alphabetical listing. Each report has an introductory index guiding readers. In addition, each case is summarised on the first page of the case record. The flynote or headnote as the summary is called indicates the theme and key words of the case. Generally, cases are summarised using the following key points:
· Name: If it is a civil dispute, the plaintiff is cited first and then the defendant’s name. Criminal matters are cited as State versus the accused. This is commonly abbreviated as S v The Accused. The Accused surname is used rather than his first name.
· In circumstances where there are more than one plaintiffs/defendants or accused persons. The first plaintiff/defendant or accused is cited and the rest is recorded as others. E.g. S v Hamunyela and 2 others.
· Issue: it is also referred to as the legal question.
· Judgment: this pertains to the findings of the Court and the Court order.
· Ratio Decidendi: this refers to the reasoning of the court in reaching the conclusion it came to.
Other publications that record cases of the Supreme Court are the criminal justice compilation, known as the Republic of Namibia Criminal Law Precedents and the Butterworths Constitutional Law Reports, which is a South African publication but includes noteworthy Namibian decisions from the Supreme Court. Decisions of Namibian courts, which have human rights content, are also reported in the African Human Rights Law Review. These publications are available from the website of the Centre for Human Rights at the University of Pretoria.
Unlike the Supreme Court, the High Court exercises inherent (original) jurisdiction. The High Court can act as both a court of appeal and a court of first instance over civil and criminal prosecutions and in cases concerning the interpretation, implementation and preservation of the Constitution. The High Court is presided over by the Judge-President. A full sitting of the High Court consists of the Judge-President and 6 other judges. The jurisdiction of the High Court with regard to appeals shall be determined by Acts of Parliament.
Decisions of the High Court, which bind lower courts, are recorded in both Namibian and South African law reports. The decisions are recorded and summarised in the same way as Supreme Court decisions. In order to distinguish a Supreme Court decision from a High Court decision the abbreviation SC is placed at the end of the citation as opposed to HC. An example of a High Court citation would read as follows: S v Mushwena and twelve others 20004 (11) NCLP 24 (HC).
There are several lower courts in Namibia. They are the magistrate courts, the labour courts and the customary courts. The lower courts are creatures of statute, in other words, they are created by Acts of Parliament and are bound by the four corners of legislation.
Magistrate courts deal with the most cases in the entire legal system. They are manned by magistrates who are employed by the Ministry of Justice. The decisions of magistrate courts are written down; however, they are not recorded in any law report. The decisions have to be written in case either party to the proceedings feel prejudiced by the outcome and wants to go on appeal or review to the High Court. They are created by the Magistrates Court Act no. 32 of 1944. The magistrates are governed by the Magistrates Act 3 of 2003.
The Labour courts have gained prominence over the past few years. They too are manned by magistrates. They deal with labour disputes, mainly arising from alleged contraventions of the Labour Act No. 6 of 1992. The courts are still applying the 1992 Act, although the 2004(no.15) Labour Act has already been gazetted. There is already an amendment to the 2004 act, the Labour Bill of 2007. Decisions of the labour courts are recorded. They are recorded in the Namibian Labour Court Reports. An example of a case reported in these reports is Municipality of Walvis Bay v Du Preez NLLP (Namibia Labour Law Publication) 2002 (1) 14 NLC. In terms of the Labour Act, ‘competent court’ means the Labour Court or any magistrates’ court established in terms of the Magistrates’ Courts Act No. 32 of 1944. In addition, Labour Courts are established by section 15 of the Labour Act No. 6 of 1992.
As of 1 November 2008, Namibia promulgated the Labour Act No. 11 of 2007, which repealed the 1992 Act. The 2007 Act has brought substantial change to the labour practise in Namibia. Firstly, the 1992 Act is applicable in so far as matter/cases instituted prior to promulgation of 2007 Act. This means all labour matter and cases are now dealt with under the Act of 2007. The biggest change caused by the 2007 Labour Act is the abolishment of the District Labour Courts.
Labour matters are no longer resolved by means of litigation. As a way to curtail the length of these proceedings all labour matter are dealt with either by conciliation or arbitration (s81 & s84, respectively) and are presided over by an arbitrator or conciliator whose decision shall be regarded as final and binding. Should the matter not be solved than only will the parties be afforded an opportunity to file a hearing in the High Court-Labour Court. The Labour Court now has the standing of a court of appeal.
Community courts, which apply customary law, were created by the Community Courts Act 10 of 2003. Prior to this date, these courts operated without recognition as part of legal system. These developments are extension of art 66 of the Constitution which holds that 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. The courts have no reporting system, as the laws that they apply are very dynamic and may not be applied the same in any number of cases heard before them.
The regional courts are the least used lower courts. They are actually in a phase of extinction.
Art 140 of the Constitution is dedicated to laws in force at the date of independence. The Namibian administration at independence was guarding against creating a lacuna in the law when it decided that all laws, which were in force immediately before the date of Independence, shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court. This applied to both legislation and case law prior to independence. Case law prior to independence captured Roman-Dutch common law. This is the written source of this form of law. Common law in Namibia is not written and is only as recorded in case law and writing of jurists such as Hugo de Groot.
Researching the Namibian legal system prior to independence overlaps with researching the South African legal system before 1989. The only way to tell which cases have been overturned is by reference to the case in which it is overturned, unless it directly affects (by amendment or repeal) a particular piece of legislation. In addition, laws, which were not repealed at independence by the Constitution, as outlined in the constitutional schedule, are repealed in Government Gazettes. In the absence of an official method of legal citation for both cases and legislation, citations are according to the preference of the publisher.
JUTA (Available on CD-Rom and online)
Superior Courts (Records judgments of the High Court and Supreme Court, as well as all applicable legislation relevant to the respective courts)
The different law reports:
· The Republic of Namibia Criminal Law Precedents
· The Namibian Law Reports
· Labour Court Reports (Namibian Labour Law Publications)
· Butterworths Constitutional Law Reports
How to Cite:
S v Forbes and Others 2005 NR 384 (HC) is an example of how cases are cited in the Namibian law reports. The common abbreviation for the Namibian Law reports is NR.
Cases are usually cited by reference to: Names of the Parties; the year the report was published; the volume number of the report (if the report uses volumes, which is not the case with Namibian Law Reports); the page number on which the case begins; and an abbreviation indicating the court, which delivered the judgment.
Legal Practitioners are defined and governed by the Legal Practitioner’s Act no 15 of 1995. Before the promulgation of the Act, the profession was divided into advocates and attorneys, with advocates being specialists at law. The situation has changed to a certain degree.
An attorney is a general legal practitioner, with which a person has his/her first interaction when he/she has a legal problem. An attorney is the most accessible legal practitioner, as he/she deals with a wide spectrum of the legal field. To practise as an Attorney in Namibia, every person shall be admitted as a legal practitioner by the High Court of Namibia and enrolled with the Law Society of Namibia. In addition, an attorney may only practice under the guise of a firm in possession of a Fidelity Fund Certificate or they personally must obtain a Fidelity Fund Certificate, without which they cannot represent clients in a court of law. The Legal Practitioners Act makes provision for some legal practitioners to practice without a Fidelity Fund Certificate i.e. state attorneys and prosecutors.
An advocate is a person, which specializes in a specific field of law. Although the division between attorneys and advocates is not recognized anymore as it was before, an advocate may practice without a Fidelity Fund Certificate. The reason for this difference is based on the practise that attorneys accept monies from client as a result; they hold trust accounts for which they are accountable for. Whereas, advocates are instructed by attorneys as result, they are not in possession of trust monies. Advocates in Namibia belong to what is known as the ‘Society of Advocates of Namibia’, which serves as a membership and disciplinary body.
Legal Advisors are also qualified lawyers. They are usually employed in the private sector and act as legal advisors for the private entities. In Namibia, a legal advisor need not be admitted with the High Court of Namibia. However, in practise most companies prefer legal advisors that have a minimum of two-year practising experience.
This political appointment is the government’s legal adviser. The Attorney General (AG) has final responsibility over the office of the Prosecutor General. The meaning of final responsibility was settled by the Supreme Court in Ex Parte Attorney General: In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1995 (8) BCLR 1070 (NmSC). Final responsibility does not mean control over the PG, it means that the Prosecutor-General has to keep the Attorney-General informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
The chief of staff of the prosecutorial team is the Prosecutor General (PG), an individual of integrity, conscientiousness and experience according to the Constitution. The powers and functions of the Prosecutor-General are to prosecute and defend appeals in criminal proceedings in the High Court and the Supreme Court. The PG still has final decision making power whether to prosecute or not.
The Ombudsman is the public protector. The Ombudsman protects the public in, inter alia, matters concerning violations of fundamental rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous treatment, manifest injustice, or corruption by an official in the employ of any organ of Government. Other issues within its jurisdiction include the functioning of the Public Service Commission, administrative organs of the State, the defence force, the police force and the prison service in so far as such complaints relate to the failure to achieve a balanced structuring of such services or equal access by all to the recruitment of such services or fair administration in relation to such services, as well as issues pertaining to the over-utilization of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia. In terms of the Constitution, the Ombudsman is guaranteed independence from any person, including any government body or official.
Conveyancers and Notaries are legal practitioners who have written special exams with the Justice Training Centre, allowing them to effect the legal transfer of immovable property. The primary legislation, which conveyancers use, is the Deeds Registries Act 47 of 1937, which deals with the registration of title deeds for immovable property.
Sundry Acts, which are also of application, include the Administration of Estates Act 66 of 1965, Stamp Duties Act 15 of 1993 and the Transfer Duties Act 14 of 1993.
L@W (Provides an electronic link between banks and conveyancers in Namibia; go to Around the Globe and Namibia.)
The University of Namibia and the Polytechnic of Namibia are the two major institutions, which offer courses on the Namibian legal system.
The University of Namibia has a degree program. It offers a Baccalaureus Juris (B.Juris) which compromises of 45 modules over a period of three full-time or 4 years part-time. The B.Juris is a prerequisite for enrolling for the Bachelor of Laws (LL.B). The LL.B compromises of 24 modules over a period of two years full-time or three years part-time. Students who successfully complete the Bachelor of Laws are eligible to register at the Justice Training Centre (JTC) for classes and exams that will enable them to sit for the Namibian Legal Practitioners Qualifying Examination.
The University of Namibia also has a master’s program. The program is styled in such a way that candidates are allowed to write a thesis of any relevant legal subject. The thesis may be completed within a maximum period of three years, after which the thesis is scrutinized by the Post Graduate Committee of the University for approval, after the student has successfully undergone a viva voce examination.
As of the 2012 academic year, the University has started phasing out the two-abovementioned Bachelors degrees. The University has introduced a revamped LLB program, which may be completed in a minimum of four years. This degree is not offered on a part-time basis. Various new courses have been introduced to the new program, including exciting new modules like competition law.
Since 2011, the University has also introduced two Diploma courses; one being the Diploma for Paralegal Studies whilst the other is a Diploma in Arbitration and Alternative Dispute Resolution. Both courses are completed in two years.
The Polytechnic of Namibia offers, in the Department of Criminal Justice, offers various specialised courses in criminal justice. The Department, under the School of Humanities and Social Sciences, offers two Bachelors Degrees in Criminal Justice (one Honours) and various service courses.
· De Rebus Journal: is a South African journal that contains comprehensive discussions on the Namibian legal system;
· Namibia Law Journal (NLJ): is a Namibian biannual publication (published January – June and July – December)
· Namibian Law Report
· Namibia Labour Law Publication
· Namibia Criminal Law Publication: 2004 and 2005 publications only
Centre for Human Rights (Provides a bibliography of written material on the Namibian legal system).
University of Pretoria (Has a collection of Namibian law reports and legislation).
University of Namibia Library (Provides an online search engine for all publications available at the University of Namibia)
Superior Courts of Namibia (Provides both reported and unreported cases, as well as schedule for pending cases and legislation applicable to the High Court and Supreme Court of Namibia)
High Court and Supreme Court Judgments (cases)
Legislation and Court Rules
Namibian Law Reports (cases) and South African Law Reports
Namibian Statutes, Regulations, Ordinance
Namibian Statutes and Government Gazette Publication
There are several institutions with a legal component in Namibia. Given the fact that there are very few academic writings on the Namibian legal system, most recent developments are recorded in journal articles and publications of various institutions. The following is a non-exhaustive list of some of these institutions:
(e) Ministry of Justice:
· Directorate: Law Reform and Development – (email)
· Directorate: Legal Advice
· Directorate: Legal Services and International Co-operation
· Directorate: Legal Aid
(l) Konrad Adenauer Foundation
This section deals with the legislative changes Namibia experienced under a democratic dispensation. The section will discuss the various legislative changes experienced since 1990s.
In 2007, s128 of the Labour Act 11 of 2007 banned labour hire completely. Section 128 inter alia provides
(1) No person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party.
(2) Subsection (1) does not apply in the case of a person who offers services consisting of matching offers of and applications for employment without that person becoming a party to the employment relationships that may arise there from.
(3) Any person who contravenes or fails to comply with this section commits an offence and is liable on conviction to a fine not exceeding N$80,000 or to imprisonment for a period not exceeding five years or to both such fine and imprisonment.
(4) In so far as this section interferes with the fundamental freedoms in Article 21(1) (j) of the Namibian Constitution, it is enacted upon the authority of Sub-article 2 of that Article in that it is required in the interest of decency and morality.
[Date of commencement of section 128: 1 March 2009.]
The ban has been an area of great debate resulting in legislative and constitutional challenges in Namibia since 2007. The reason for the ban was founded on the exploitation encountered by the labour hire workforce during colonialism.
Prior to independence, Namibia’s labour system was founded on contract migrant labour system. A contract migrant labourer was an unskilled labourer (usually black people from the northern part of Namibia) who migrated from northern regions of South West Africa (as Namibia was then called) into the urban areas in pursuit of employment.
The contract migrant labour is a system adopted by the white regime (during the German colonisation in 1912 and later the South African apartheid regime, 1945) that ensured employment of black people under white supremacy. With new tax system introduced in rural areas, blacks were forced to move out of these “reserves” and into the urban areas where they took up employment with the white a “boss or master”. The fancy urban areas were established purely for whites, and black people were not allowed to enter these urban areas unless they carried a pass, which ensured that they took up employment and they were only allowed to live in those areas purely for employment purposes.
The labourers were mostly employed as domestic workers, farmer labourers, herders, miners, and fisherman or they performed any form of unskilled work. Their purpose was to serve as tools for their employers without fair reward for their input. In those circumstances blacks worked in poor conditions with no proper working apparel and tools (especially for miners and fisherman). There was little or no concern at all regarding a safe work environment or conditions.
The black man received minimal wages, hardly sufficient even for their basic needs. The education given to black people was meant only to enable them to remain in the servant position and as efficient tools for their master. The aimed was to prevent black people from aspiring to acquire a better standard of living than that was enjoyed by the white people. In those circumstances they lived in poor housing developments (dubbed townships) usually at the outskirt of urban areas i.e. Katutura, Kuisebmond, Mondesa, were they had no proper municipal services, and appalling sanitation.
The contract migrant system was aimed at advancing racial discrimination. Workers were regarded as property of the white master for the duration of the contract period, often six to 24 months. They suffered physical abuse by means of chastisement at the hands of the employer. Chastisement by an employer was an acceptable means of instilling discipline towards an employee for insubordination. The mere fact that you “belonged” to this master meant that workers had no right to say or even think what they wanted. Black workers belong to the master and shall serve them at the white-man’s pleasure. Once on contract, the workers could be forced to remain employees for as long as the master required their services. This sense of ownership was similar to slavery that Africans suffered under white colonization.
It is these characteristics of the contract migrant labour that led to the protection of employees under the Namibian Constitution. Article 9 of the Namibian Constitution abolished any form of slavery and forced labour against a person. Furthermore, article 21 (1) (j) entrenched the freedom to practise any profession, or carry on any occupation, trade or business. This provision together with the Labour Act 6 of 1992 and international convention emancipated black people from the forced labour of the contract migrant system.
In the early 1990s, the abolishment of migrant labour system led to the emergence of a new market, the labour hire system.
Labour hire is a form of outsourcing that provides flexible employment of employees, often in the pursuit of higher company profits with minimal obligations to the workers. A labour hire company is the employer that will recruit employees and then outsource them to a third party, the client where the worker will be doing the specific job. The employer-employee relationship is between the labour hire company and the workforce. The company than enters into a contract with the client-firm that uses the services rendered by the workforce and pays the labour hire company, which in turn pays it employees.
Prima facie, the relationship is similar to that of a recruitment agent. However, trade union and Namibian lawmakers argued that labour hire had characteristics similar to the contract labour system. The employment relationship is between the company and the workforce; this meant that the client is not obliged to negotiate with the workers for any change, especially an improvement in employment. In fact, the working relationship is cost effective in that clients of labour hire companies pay a small fee in return for maximized profits. Research by trade unions state that the labour hiring company retains 15-55% of the fee paid by the client as commission. As a result, the employees are once again faced with extremely the low wages for hard labour.
The client is not required to negotiate wages, to pay for medical aid and there is no sick leave pay or severance pay. Labour hire workforce does not derive any benefits enjoyed by a permanent employee. In fact, the labour hire is based on a no-work-no-pay system. In the event of a strike, the company provides the client with substitute workers, so they do not actually suffer as intended. This type of employment is an obstruction to traditional employment benefits as a result striking is not practised, maternity and sick leave is discouraged.
Studies conducted by the Labour Resource and Research Institute (LaRRI) in Namibia concluded that labour hire composes of semi/unskilled workforce. Due to the colonial past, labour hire workforce composes of the black race, not excluding the Coloured/Baster race. Due to the racial composition, labour hire is deemed as discriminatory not only racially but also on the basis of gender. With an illiterate or semi-illiterate workforce, it is easy to take advantage of those who do not know or understand their rights. These people are forced to contract and take up employment in unfavourable conditions with job insecurity, low wages, minimum training and skills development and low levels of unionisation. The choice to take up such employment is not exercised by a person who is entirely aware of their constitutional entitlement.
The exploitation experienced by labour hire workforce resulted in the ban on labour hire under section 128 of the Labour Bill of 2007 tabled in Parliament. The rationale to ban labour was justified on the ground that the abuse experienced by labour hire workforce was perceived to have similarities to the colonial migrant labour system. The workers although afforded protection under the Constitution still experience hardship at their place of employment as they suffer amongst others racial and gender based discrimination.
Section 128 being the area of contention not only outlawed labour hire but also other practices such as outsourcing and sub-contracting.
Namibia’s largest labour hire company, Africa Personnel Services (APS) had a contrary view to the ban by section 128. Soon after it was the case, APS filed an application with the High Court of Namibia to argue the constitutionality of the ban. APS argued that the ban violates the constitutional right to carry on business and trade of your own choice.
On 1 December 2007, High Court Judge Collins Parker with two fellow Judges declared labour hire unconstitutional as it equates to modern-day slavery by reducing human beings to “personal property”. On 31 December 2007, after being signed by President Pohamba, the Act was gazetted. However, APS managed to stave of the ban on labour hire until the Supreme Court had made a ruling on APS’s against the decision of the High Court.
Five judges of appeal made their ruling on 14 December 2009 by declaring that the blanket ban of labour hire was unconstitutional.[]
When challenging the constitutionality of legislation in Namibia, the particular statute must be tested to conform to the values and principles entrenched in the Constitution. The Judges of Appeal, Chief Justice Peter Shivute, Judge of Appeal Gerhard Maritz, and Acting Judges of Appeal Johan Strydom, Fred Chomba and Simpson Mtambanengwe heard argument on the appeal on 3 March 2009.
In their judgments, the court took cognizance that labour hire opens up unhealed wounds of the past were the contract labour system treated labourers as “personal property” resulting in injustice, indignities and inhumanities.
However, looking at the substance of a labour hire relationship, the ban constitutes an unreasonable restriction and infringement on the constitutional protection to practise any profession, or carry on any occupation, trade or business of own choice. Labour hire creates a contractual and statutory obligation between the company and the employees. In the exercise of their rights, the obligation created between the employees and the company permits the employee with an opportunity to participate in an economic activity of their own choice. Unlike in the past, the workers are no longer forced to join any form of employment that was usually determined by the physical stature and/or gender, but they enter employment on basis of what they actually want to do.
On this ground the court declared that labour hire does conform to the principles entrenched in the Constitution. In view of criticism by trade unions, it goes without saying that labour hire is susceptible to abuse. In the interest of protecting workers, on 26 January 2010, the Namibian Cabinet made a decision to implement regulation under the Labour Act of 2007 that will protect the labour hire workforce.
According to the Minister of Labour and Social Welfare, Immanuel Ngatjizeko, labour hire should not be allowed to exist in its current form. There should be a statutory obligation that provides for the protection of employees’ right against the labour hire companies. These companies have a greater bargaining power against the employees; it is therefore government’s duty to ensure protection of the workforce. []
The greatest challenge regarding labour hire is to afford labour hire workforce the same protection a permanent employee is accorded i.e. the establishment of trade unions in labour hire organizations, the abolishment of minimal wage for labour hire in comparison to permanent employees. Labour hire should be entitled to the same basic conditions of employment as any workforce. The court expressly left the regulation of labour hire in the hands of the legislator. The protection of labour hire has become a new challenge for the legislator, who has to adopt regulations that not only equate labour hire workforce to their counterparts in direct full-time employment but also afford them equal bargaining power to their employer and ensure protection of their constitutionally entrenched rights and freedoms.
1. Labour Resource and Research Institute (LaRRI) ;
2. Labour Act 11 of 2007;
3. African Personnel Services (Pty) Ltd v Government of the Republic of Namibia // Speaker of the National Assemble // Chairperson of the National Council // President of the Republic of Namibia. Look here.