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University of Namibia Law Review

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University of Namibia Law Review, vol. 2

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© 2015

EDITORIAL BOARD


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THE UNIVERSITY OF NAMIBIA LAW

REVIEW MANAGEMENT

EDITORIAL BOARD

FOR 2015

EDITOR-IN-CHIEF

Mr. Clever Mapaure : PhD (Candidate) -University of Namibia

MANAGING EDITOR

Mr. Immanuel Udjombala : LLB (Candidate) – University of Namibia

EDITORS:

Mr. Johannes Uusiku : LLB (Candidate) – University of Namibia

Ms. Martha Nambahu : LLB (Candidate) – University of Namibia

Mr. Kennedy Kariseb : LLB (Candidate) – University of Namibia

Ms. Onena Shivute : LLB (Candidate) – University of Namibia

Ms. Ester Embanga : LLB (Candidate) – University of Namibia

Ms. Wilhemina Shakela : LLB (Candidate) – University of Namibia

Mr. Richman Tjiriange : LLB (Candidate) – University of Namibia

Mr. Lameck Mukondomi : LLB (Candidate) – University of Namibia

Mr. Petrus Hatupopi : LLB (Candidate) – University of Namibia


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TRAINEE EDITORS 2015

Mr. Karel Gaeb : LLB (Candidate) – University of Namibia

Mr. Frederick van der Colf : LLB (Candidate) – University of Namibia

Ms. Madeleine Moukazerel : LLB (Candidate) – University of Namibia

Mr. Joas Neemwatya : LLB (Candidate) – University of Namibia


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IINTERNATIONAL ADVISORY BOARD MEMBERS FOR

2015

JUSTICE NOAMI SHIVUTE

Judge of the High Court of the Republic of Namibia

ADV. MARTHA IMALWA

Prosecutor General of the Republic of Namibia

PROF. BOYCE WANDA

Professor of Law: University of Namibia, Windhoek

PROF. SAM K. AMOO Professor of Law: University of Namibia, Windhoek

PROF. OLIVER C. RUPPEL

Professor of Law: University of Stellenbosch, South Africa

ADV. GERSON HINDA SC Legal Practitioner of the High and Supreme Court of Namibia

PROF. WERNER MENSKI

Professor of Law: University of London, England

ADV. UNANISA HENGARI

Legal Practitioner of the High and Supreme Court of Namibia

MR. NDJODI NDUENYEMA

Associate, Unam Law Review

FACULTY ADVISOR

MS. LINEEKELA USEBIU

Lecturer: University of Namibia, Windhoek


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© 2015


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This publication would not have been possible without the generous financial and moral assistance of

the below:

Faculty of Law

&

In partnership with SOAS Law Journal, University of London

© University of Namibia Law Review and the Authors

This publication is Copyright under the Berne Convention. In terms of the Copyright and

Neighbouring Rights Protection Act 6 of 1994 no part of this book may be reproduced or transmitted

in any form or by any means, electronic or mechanical, including photocopy, recording, or any

information storage and retrieval system, without permission of the copyright owner. The views

expressed by the authors are not necessarily those of the Editorial or Advisory Board members of the

University of Namibia Law Review, nor of its sponsors. While every effort has been made to ensure

the information within this Journal is correct, the Editorial Board cannot accept any responsibility for

any errors or inaccuracies.

Cover Design : Andrew Naunyango

Editor-in-Chief : Clever Mapaure

Language Editor : Unam Law Review Editorial Board

Layout & Design : Andrew Naunyango, Kennedy Kariseb & Immanuel Udjombala

ISSN: 2026 – 7665


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TABLE OF CONTENTS

Editorial Board ........................................................................................................................... III

Trainee Editors ........................................................................................................................... IV

International Advisory Board .................................................................................................... V

Guide to Contributors ................................................................................................................. X

Editorial Policy ......................................................................................................................... XII

Foreword .................................................................................................................................. XIII

Articles:

Indigenous and Minority Languages Protection in International Law: An assessment of

Namibia’ National Language Policy…………………………………………………………..…1

Chirstian Harris

A critical analysis of what constitute reasonable administrative action: Reference to Namibia,

South Africa and England……………………………………………………………..………...22

Johannes Uusiku

The Principle of Legitimate Expectation in Administrative Law: A Namibian

Perspective…………………………………………………………….………………………...38

Karel N. Gaeb & Joas K. Neemwatya

Protection of procedural rights in Expropriation matters: A comparative study- Namibian and

Ghanaian perspective……………………………………………………………………...…….51

Harris P. Masake

Shorter Note and Comments:

Rendering a forum for Legal Discourse in an era of Transformative

Constitutionalism……………………………………………………………………..…........…66

Justice Naomi Shivute

Judicial Independence: A Bulwark of Liberty…………………………………..…….…...……69

Judge Diarmuid F. O’Scannlain

Climate change crisis and Global Governance: Reflections from the Climate change Conference

on changes and opportunities for Law, Policy and Development …..…………….………..…..75

J.D. Kennedy Kariseb & McLean M. Handjaba


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Case Notes:

Prosecuting International Crimes—‘Sovereign immunity’ vis-à-vis the obligation erga omnes of

of R v Bow Street Metropolitan Stipendiary Magistrate exparte Pinochet Ugarte

……………………………………………………………………………………………....…85 Johannes Uusiku

Westcoast Fishing Properties v Gendev Fish Processors Ltd & Another—A tenet of “judicial

nationalism”? ……………………………………………………………………….…………89

J.D. Kennedy Kariseb


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GUIDE TO CONTRIBUTORS

The University of Namibia Law Review welcomes submissions for potential publication by

students, academics and other legal scholars to engage in academic writing on any relevant

legal matters incorporating a Namibian or international theme. The Law Review is open for

Articles, Case Notes, Comments, Legislative Summaries and/or Book Reviews.

ALL SUBMISSIONS SHOULD COMPLY WITH THE FOLLOWING

REQUIREMENTS:

1. Submissions must be written in British English. Gender neutral language is encouraged.

2. Upon submission to the Law Review, it is ipso facto presumed that the submission is

original and has never been previously published in any journal. Unpublished thesis and

dissertations are welcomed for consideration.

3. Only in exceptional circumstances will the Editorial Board accept previously

published material.

4. The Editorial Board reserves the right to forward submitted manuscripts in confidence to

an expert referee(s) for evaluation in a blind peer reviewing process.

5. Upon submission and subsequent approval, the author transfers copyright over the

manuscript to the Law Review.

6. All submissions must be sent via e-mail to [email protected] and must be in

both Ms Word and PDF format. No hard copy submission will be considered.

7. All Articles must be between 5,000 - 12,000 words; including footnotes. An abstract of

not exceeding 250 words should be included.

8. Legislative summaries and case notes should not exceed 5,000 words, including

footnotes.

9. Book or Journal reviews should not exceed 10,000 words, including footnotes.

mailto:[email protected]


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10. All manuscripts submitted must conform to the referencing style of the UNAM Faculty

of Law, therefore authors are encouraged to familiarise themselves with this referencing

style. The Referencing Style is available from the Law Review website.

Deadline for the next issue is the 2nd

April 2016.

SUBMISSIONS OF MANUSCRIPTS MUST BE ADDRESSED TO:

Private Bag 13301

Windhoek

The Editorial Board


Faculty of Law; University of Namibia

Enquiries:

Mr. Immanuel Udjombala

Managing-Editor

Mobile Number: + 264 61 206 306 22 / + 264 81 21 77 412

Email: [email protected]

Website: www.unamlawreview.com

http://www.unamlawreview.com/


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EDITORIAL POLICY

The University of Namibia is a peer refereed student periodical which publishes

contributions on all fields of law, both locally and beyond. Its aim is to predominantly

render a forum for legal discourse for students, legal practitioners, academics and other

professionals, from Namibia and elsewhere, to reflect on issues that are internationally

significant yet locally relevant.

The University of Namibia Law Review aims to be essential reading for those inside and

outside Namibia who wish to keep abreast with the developments of the Namibian legal

order and its relationship to legal issues internationally. It is published twice yearly in an

electronic version.

To ensure quality publication the Editorial Board reserves the right to forward all

contributions submitted in confidence to expert referees for evaluation in a blind peer

reviewing process. These blind peer reviewers are primarily members of our International

Advisory Board but may in certain circumstances be experts in a particular area of law,

who does not serve on the said board.

Although the University of Namibia Law Review is open to accept dissertations,

monographs and thesis for possible publication, the Editorial Board will only accept

previously published material only in exceptional circumstances and through consultation

with its International Advisory Board.

The Editorial Board endeavours to ensure that all contributions submitted are treated with

the utmost anonymity and confidentiality. Equally, the Editorial Board strongly places

emphasis on referencing and makes every effort to check all authorities cited. All

contributions should also comply with the Contributors Guidelines of the Unam Law

Review, especially its word limits.

Editorial Board

September 2015


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FOREWORD

We are proud to bring to your disposal yet another fruitful issue to seal the year. When the first

issue of our periodical was launched some three-four years back we did not expect that it would

go through several impressions and so clearly meet a continuing demand. We therefore remain

indebted to our readers and partners in this regard.

This issue is largely rooted in administrative and international law; at least in as far as our

article contributions are concerned. Under the international framework, Christian Harris, a

senior civil servant in the Ministry of Justice and currently a PhD candidate at the University of

Namibia deals with indigenous and minority languages protection in international law. Another

alumini, now a Magistrate in the Rundu district Magistrates Court, assesses the protection of

procedural rights in expropriation matters under an international framework with particular

comparative analysis on Namibia and Ghana. Under the Administrative law domain, Johannes

Uusiku and Karel Gaeb and Joas Neemwatya analysis the elements of reasonableness and the

doctrine of legitimate expectation respectively.

Our shorter notes and comments section contains contributions by two eminent judges, one on

the local front and the other from the US. Judge Naomi Shivute’s contribution, which is a slight

adaptation of a speech delivered at the launch of the second issue of the Unam Law Review, is

under the theme “Rendering a forum for legal discourse and research in an era of transformative

constitutionalism.” Judge Diarmuid F. O’ Scannlain’s contribution on the other hand, is a

comparative observation of the tenet of judicial independence in Namibia and the United States

of America. The section closes off with a contribution by Kennedy Kariseb and McLean

Handjaba on challenges and opportunities for law, policy and development in climate change

matters. This paper is a terse summary of a conference that was held in early September 2014.

The Editorial Board in the same vein extents its sincere appreciation to the Konrad Adenauer

Stiftung and the Rule of Law for Sub-sahara Africa Programme (DROP) of the University of

Stellenbosch for having invited our members to this prestigious conference. We look forward to

a stronger working partnership.

As is customary practice we close of this issue with two short case notes in the areas of

international law and civil procedure. We thank everyone who made a contribution to this issue

as well as our partners. In particular we extend a special word of appreciation to the Society of


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Advocates and the leadership of the SOAS Law Journal, from the University of London for their

partnership and assistance in the materialisation of this issue.

On a different note: Since our last issue, the terms of our Advisory Board members had ended.

We had been fortunate to formulate a new Advisory Board. Although some old faces remain,

there are a considerable new faces on the bloc! We extend our appreciation to the outgoing

members and welcome the new Board, wishing them a fruitful term ahead. We also extend our

congratulations to Judges Dinnah Uusiku and Dave Smuts on their appointments to the High

and Supreme Court of Namibia respectively. Unfortunately the Namibian legal fraternity also

mourned the passing of one of its longest serving members of the judiciary, namely Judge Brian

O’ Linn. We remain grateful for his service to justice and equity and hope that our periodical

will nurture the values he firmly stood for as a judge.

We are confident that this issue, like its predecessors, will not only be well received but be

equally useful and instructive for law reform and policy making purposes now or in the near

future.

The law for all contributions submitted in this issue are stated as at 31 July 2015.

Enjoy your reading!

Editorial Board

University of Namibia Law Review,

Windhoek, Namibia

29 September 2015


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ARTICLES

Indigenous and Minority Languages Protection in International

Law: An assessment of Namibia’ National Language Policy

Christian Harris

“The contention is that no nation or continent known to man has ever become developed or advanced

speaking a foreign language or foreign languages as their lingua franca. The reason is simple-

development is as much a state material advancement as it is a state of mind. For development to be

organic and thus truly authentic and sustainable it must occur within its own ‘cultural matrix’,

otherwise it retains a certain “otherness” and rootlessness which militates against its full

blossoming. ”

(From Anonymous source)

Introduction

Namibia is a multicultural country consisting of diverse languages and cultures. Like,

elsewhere on the African continent, the post-apartheid government elected to use English,

one of the continent’s colonial languages as the sole official language of the State to the

expense of other indigenous languages. There are genuine concerns that the complete

disregard of the promotion and use of indigenous languages in all aspects of governance has

disastrous consequences to the development as well as the cultural identity of the nation.

Calls from local scholars and international human rights organizations to protect and promote

the use of indigenous languages in all spheres of education and governance seem to have

been largely ignored by policymakers.

Prior to the independence of Namibia, the then South African colonial authorities had made

Afrikaans and in 1984, German as the two official languages of the then South West Africa.

Indigenous African languages were demoted to tribal enclaves and urban townships.

However, despite the apathetic and often hostile attitudes of black South Africans towards the

Afrikaans language which ultimately led to the now infamous Soweto Uprising, many

Namibians either wittingly or unwittingly embraced the language and still today, along with

English still serves as an important lingua franca in the country. Unofficial statistics put the

number of people fully or partially conversant in Afrikaans at between 55 and 60 percent of

BJuris; LLB; LLM (University of Namibia); PhD Candidate (University of Namibia); Alumni of the

International Tribunal of the Law of the Sea, Hamburg, Germany; Senior Legal Officer, Directorate of

Legal Services, Ministry of Justice; Republic of Namibia.


2 UNAMLR vol. 2(2)

the Namibian population. The language is widely spoken and understood by people residing

in the South and Central part of the country. It is however least spoken and understood in

most of the regions of the north and the north eastern part of the country.1

The Namibian government designated eight (8) languages as co-official or national languages

at the time of political freedom in 1990. The following languages are according to the

National Language policy designated as national languages: Afrikaans, Damara/Nama,

German, Otjiherero, Oshiwambo, Rukavango, Setswana and Silozi. In addition to the

nationally recognized languages, dozen other languages are native to Namibia, namely,

Cisubia, Cifwe, Citotela, Ciyeyi, Barakwena and Hambukushu spoken in the Zambezi region.

Nyemba and its related dialects are spoken in the Kavango region. Other indo-European

languages that can be heard spoken in the country are Portuguese, French and Spanish.

Chinese is also widely spoken by mostly an ever increasing Chinese community in the

country. The influence of missionary activities on language development and marginalization

in Namibia

Christian missionaries from Europe in their quest to “civilize” Africans and dissuade them

from worshipping “false gods” selected several indigenous languages to spread the gospel of

the bible. In Namibia, the London, Missionary Society and the Weslayan Methodist

Missionary Society were among the first to undertake this mission of “civilizing” the so-

called “savages” and save them from sin and themselves.2 For various reasons they had both

abandoned their activities in Namibia by the late 1860s. The Rhenish Missionary Society

started their activities among the Nama ethnic group in 1839, and somewhat later among the

Rehoboth Basters and the OvaHerero. The Finnish Missionary Society established their first

mission station in Owambo in 1870, and later extended their activities to Kavango. The

Roman Catholic Missionary Society opened a mission station in Windhoek in 1896, and

began preaching in Kavango in 1910. Other churches and missionary societies followed: the

Anglican Church in 1924, and the Dutch Reformed Church in 1955.3

1 Author’s own emphasis.

2 Maho, J.F. 1998. Few People, Many Tongues: The languages of Namibia. Windhoek: Gamsberg

Mcmillan (Pty) (Ltd), p. 173. 3 Cluver, A.D. 1991. Languages in contact and conflict in Africa: an ethnolinguistic survey of the

languages in Namibia. Unpublished draft copy. University of South Africa: Pretoria.


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Among the early missionaries’ most important tasks was the translation of the Bible. For this

they had to establish spelling conventions (codifications) and introduce new terminology

covering Christian spelling concepts. In the process they produced several dictionaries and

grammars, usually not meant for the indigenous population but for the missionaries

themselves, and future followers.4

Only states that there was little encouragement of indigenous literature, and missionaries

among the Ovaherero even tried to replace traditional oral poems with Christian songs.5

Some folktales and proverbs, however, were collected and published by Finnish missionaries

among the Owambo,6 and by German missionaries among the Khoekhoe and the Ovaherero.

7

Namibia’s National Language Policy

The outcome of the South West Africa’s People Organisation (SWAPO)’s language planning

for an independent Namibia was a policy of official monolingualism with English serving as

the single official language.8 However, for a clearly multilingual country policy nor the

selection of English as the only official language seem readily obvious. Thus, it would seem

wise to first question SWAPO’s decision to establish a monolingual policy and then its

decision to select English as the single language for that policy. In reality though, these

decisions, if the former can be called that, did not follow in such a sequence.9

The aim of SWAPO was not to establish a monolingual language policy and then select a

language to serve that policy. Rather, the aim of SWAPO was by and large to establish as

Namibia’s official language, and as a result, the policy became a monolingual one.10

The

monolingual aspect of Namibia’s language policy has ensued as a sort of implicit byproduct

4 Maho (1998:173).

5 Ohly, R. 1987. “The destabilization of the Herero Language, African studies of the academy”, vol. 2,

The Academy. Windhoek, p. 51. 6 Pettinen, A. 1925. ‘Marchen der Aandonga’. Zeitsschrift fur Eingeborenen-Sprachen. vol. 15, pp. 161-

179. 7 Maho (1998:173).

8 Frydman, J. 2011. A Critical Analysis of Namibia’s English-Only Language Policy. Selected

Proceedings of the 40th Annual Conference on African Linguistics, ed. Eyamba G. Bokamba et al., pp.

178-189. Somerville, MA: Cascadilla Proceedings Project. Available online at:

http://www.lingref.com/cpp/acal/40/paper2574.pdf. 9 Ibid.

10 Ibid.

http://www.lingref.com/cpp/acal/40/paper2574.pdf


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of the explicit decision to establish a dominant role for English in Namibia; it is this aspect of

Namibia’s language policy that has had the furthest reaching implications.11

Harlech-Jones,12

argues that there is a need to review language policy in education in

Namibia, for at least three reasons:

(1) There was a conflation between the aims of national language policy, and

language policy in education;

(2) The present language policy was formulated for conditions that are no longer

as predominant as they were formerly; and

(3) There was little attempt to harmonize language policy with the wider

educational goals.

The choice of English as the sole official language was not as straightforward as it might at

first seem.13

Haacke,14

characterizes the SWAPO and UNIN document as follows: ‘The

overall recommendations of this document are commendable-they avoided language

hegemony by choosing a supra-ethnic language as official language, and they recognized the

importance of mother tongue education for cognitive and cultural purposes. Nevertheless, the

impression cannot be avoided that the document largely served to present predetermined

party ideology.’

He further states that ‘the truly crucial criteria are unity and acceptability, and SWAPO had

as part of its political mobilization already identified English as the language of liberation

and Afrikaans as the language of oppression’. Besides, the choice of English being

ideologically based, there are some practical difficulties with the choice of English. In rural,

areas, for instance, it would seem difficult to implement English as a functional language

since, even if the children learn English at school, they have few if any opportunities to use

and develop their newly acquired competence.15

11

Ibid. 12

Harlech-Jones, B. 1998. Viva English! Or is it time to review language policy in education?. Reform

Forum: Journal for Educational Reform in Namibia, Vol. 6. p.1 Available online at:

http://www.nied.edu.na/journals/journal6/Volume%206%20Article%203.pdf . 13

Maho (1998:189). 14

Haacke, W.H.G 1994. ‘Language policy and planning in independent Namibia’. Annual review of

applied linguistics, vol. 14. p. 243. 15

Maho (1998: 189).

http://www.nied.edu.na/journals/journal6/Volume%206%20Article%203.pdf


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Linguistic determinism in the African context

Mazrui and Mazrui,16

contend that in Africa linguistic determinism has often been extended

to second language situations. There has been a basic assumption that the world view

‘inherent’ in any particular language can be transposed onto the speakers of another,

unrelated, language. European languages inherited from the colonial tradition which, in

Africa, are usually acquired as second or third languages, often in formal classroom

situations, are seen to exercise great control on African thinking perceptions17

. Describing the

colonial situation, for example, Ngungi wa Thiongo states:

The language of an African child’s formal education was foreign. The language of the books

he read was foreign. Thought in him took the visible form of a foreign language. The colonial

child was made to see the world and where he stands in it as seen and defined by or reflected

in the culture of the language of the imposition.18

Ngungi, concludes that the ‘domination of a peoples’ language by languages of the

colonizing nations was crucial to the domination of the mental universe of the colonized.19

This thesis draws its support from the observation that those who are most proficient in

European languages are also the most westernized culturally.20

Mental liberation in Africa has sometimes been seen, at least in part, in terms of reducing the

European linguistic hold on the continent and elevating indigenous African languages to a

more central position in society. Ngungi’s own efforts to write in his native Gikuyu, are not

only an exercise in reaffirming the dignity of African languages, but also a modest attempt to

counteract the influence of European languages on African minds.21

English and the danger of “Thought Control”

English, because of its liberal ideology and status as a world language, is more acceptable as

a second language, hence, the widespread preference amongst Africans for English as a

16

Mazrui, A and Mazrui, A. 1998. The power of Babel: Language and Governance in the African

Experience. Long house Publishing Services, p. 54. 17

Ibid. 18

Ngungi, T. 1986. Decolonizing the Mind: The Politics of Language in African Literature. London:

James Currey, p. 17. 19

Ngungi (1986:16). 20

Mazrui (1998:54). 21

Ibid.


6 UNAMLR vol. 2(2)

language of wider communication and educational medium.22

Willemse argue, however, that

while English proficiency provides access to the international world, there is also a danger of

a concomitant internationalization of thought control through the ‘world’ language.23

Ndebele is critical of the desire of native speakers of English to maintain control over English

in order to spread their influence. He draws a further link between the colonial relationship

between English and African languages. Ndebele states that the future cannot be defined

solely by those who have previously wielded power to their exclusive advantage.24

The Concept of Linguistic Minority

According to Swart,25

it is often stated that it is not easy to define the concept of a linguistic

minority. Section 27 of the International Covenant on Civil and Political Rights uses the

expression “linguistic minorities” but there is no consensus yet on a precise and acceptable

definition of a minority.26

Henrard,27

states that there is a measure of agreement regarding

certain elements of such a definition. A distinction is made between objective and subjective

elements of such a definition. The objective elements a “minority” group must satisfy include

the following: having ethnic, religious or linguistic characteristics differing from the rest of

the population; being a non-dominant, numerical minority; and having the nationality of the

state concerned. The subjective components include the existence of a sense of community

and a collective will to preserve the separate characteristics or identity of the group.28

How does one measure the objective criteria against? It has been suggested that the “rest of

the population” is the correct reference point.29

It is also important that the “rest of the

22

Fardon, R & Furniss, G. 1994. African Languages, Development and the State. London: Routledge, p.

105. 23

Willemse, H. 1991. ‘A position paper on language policy in a new South Africa’. New Observations

83. New York. pp. 6-8. 24

Ndebele, N. 1986. ‘The English Language and social change in South Africa’. Jubilee Conference of

the English Academy of Southern Africa, 4-6 September 1986. 25

Swart, M. 2008. The Constitutionalisation of Diversity: An Examination of Language Rights in South

Africa after the Mikro Case, p. 1083. 26

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such

minorities shall not be denied the right, in community with the other members of their group, to enjoy

their own culture, to profess and practise their own religion, or to use their own language. 27

Henrard, K. 1996. “The Definition of “Minorities” and the Rights of Minorities Regarding Education in

International Law”. in J. DE Groot/J. Fiers (eds), The Legal Status of Minorities in Education, p. 45. 28

Caportorti, F. 1991. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic

Minorities. New York: United Nations, p. 7. 29

Ibid, p.12.


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population’ does not have to refer to a monolithic bloc but can consist of various religious

and linguistic groups.30

The definition presented by Capotorti is generally considered to be the most widely accepted

definition. That definition and also the list above are parts of his 1977 Study on the Rights of

Persons Belonging to Ethnic, Religious or Linguistic Minorities.31

This study was made for

the UN Sub-Commission and was meant to provide insights for the further, concrete

development of the principles enshrined in Article 27. In that context he defined a minority

group as:

A group which is numerically inferior to the rest of the population of a state and in a non-

dominant position whose numbers possess ethnic, religious or linguistic characteristics which

differ from those of the rest of the population and who if only implicit maintain a sense of

solidarity directed towards preserving their culture traditions religion or language.32

Indigenous peoples and language

Rights such as freedom of expression, non-discrimination and the right of members of

linguistic minorities to use their language with other members of their group supply a

tapestry of what appears to be a generally accepted fundamental degree of protection for

individuals in a large number of areas, but they are all essentially individual rights.33

The

objective of these rights is not to protect or ensure the development of the language of any

group per se, although they may indirectly have this effect, especially in dealing with larger

linguistic communities.34

If an indigenous people is numerically less than 50 percent of a state’s total population, it is

objectively is a numeral minority and is thus entitled to the rights guaranteed to minorities

under Article 27 of the International Covenant on Civil and Political Rights, including the

30

Henrard (1996:45). 31

Åkerberg, A. 2001. Linguistic minorities– A study on the relation between people with disabilities and

minority rights under international law. Available online at http://academos.ro/sites/default/files/biblio-

docs/240/u-persons_with_disabilities_and_minority_rights.pdf. p. 7. 32

Carportoti (1991:4). 33

De Varenes (1996:250). 34

Ibid.

http://academos.ro/sites/default/files/biblio-docs/240/u-persons_with_disabilities_and_minority_rights.pdf

http://academos.ro/sites/default/files/biblio-docs/240/u-persons_with_disabilities_and_minority_rights.pdf


8 UNAMLR vol. 2(2)

right to establish and operate its own schools, using its language as medium of instruction,

free from government intervention, or assistance.35

The above has been confirmed in cases before the United Nations Human Rights Committee,

such as Lovelace v Canada,36

Omninayak v Canada,37

and Kitok v Sweden.38

It has also been

confirmed by the Inter-American Commission on Human Rights in the Miskito case.39

The

Commission considered the Misikitos of Nicaragua as a minority community, despite its best

efforts to avoid using the term “minority”.40

Rationale for protecting indigenous and minority languages

Human beings love to express their inner unedited feelings, sometimes even gossip, in a

language that assures them some measure of privacy, without malice to anyone. Sometimes

people feel like saying things for the exclusive consumption of the members of the

conversation and not outsiders without ill intent, just to be free!

A counterfactual question which still needs to be asked is whether African nations would

have done better if they had their own languages in which to communicate to and about

themselves, while denying their colonizers the unhindered gateway to understand them, and

in so doing allow access to their inner thoughts and dreams and, by extension, their plans. In

fact, even if the language chosen is similar to that of the former colonizer, it is an important

self-assertion for a nation to choose the language it wishes to use in its business and official

life.41

35

Ibid, p. 251. 36

Lovelace v Canada Communication 24/1977, UN Document A/36/40. 37

Omninayak v Canada Communication 167/1984, UN Document A/42/40. 38

Kitok v Sweden Communication 197/1985, UN Document A/43/40. 39

Report of the Commission on the situation of Human Rights of a segment of the Nicaraguan Population

of Miskito Origin and Resolution on the Friendly Settlement Procedure Regarding the Human Rights

Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser. L/V/II.62,

Document 26, 1984. 40

De Varenness (1996:251). 41

Diescho, J. ‘Diescho’s Dictum-Towards an African Language for Namibia’, New Era. 29 April 2014.

Available at https://www.newera.com.na/2014/04/29/dieschos-dictum-afrikan-national-language-

namibia.


9 UNAMLR vol. 2(2)

Most minority languages in the world are currently in rapid decline and face a serious threat

of extinction.42

Nettle and Romaine estimate that up to 905 of the world’s languages are now

considered endangered.43

Grace,44

argues that:

There are about 6000 languages in the world yet 55 per cent of the population speaks just 15

of them. Economic imperialism has gone hand in hand with linguistic imperialism as people

abandon their mother tongues in favour of the globally dominant English, Spanish, Arabic,

Chinese and Russian.

Krauss further posits that from the present trends that of the 6000 languages spoken today,

between 20% and 50% will ‘die’ by the end of the twenty-first century.45

On the African

continent, the quest towards national unity and reconciliation, social integration and

construction of a national identity in most of the African countries has led to linguistic

assimilation, linguistic loss and discrimination against linguistic minorities.46

Dorian vividly

contends that:

It is the concept of the nation-state coupled with its official standard language…that has in

modern times posed the keenest threat to both the identities and the languages of small

communities.47

Bamgbose,48

convincingly argues that the rationales for this approach are the notions that

multilingualism inhibits national integration necessarily involve the emergence of a nation

state with only one national language. Linguistic diversity, linguistic minorities and minority

languages have been viewed as problems. Minority language speakers are constructed as

linguistic oddities, deficient, suffering from lack of knowledge of the dominant language and

backward rather than owners of a positive resource, another language, or multilingual skills.

42

May, S. 2000. “Uncommon Languages: The Challenges and Possibilities of Minority Language

Rights”. Journal of Multilingual and Multicultural Development, vol. 21, p. 366 43

Nettle, D and Romaine S. 2000. “Vanishing Voices: The Extinction of the world’s language”. Journal

of Linguistics, p. 5. 44

Grace, J. ‘Silence Falls’, Mail and Guardian of 22-28 November 2002-3. 45

Krauss, M. 1992. “The world’s Languages in Crisis”. Languages, vol. 68 (1), pp. 4-10. 46

Blommaert, J. 2006. “Language policy and national identity” in T. Ricento (Ed). An introduction to

language policy: Theory and method, Oxford: Oxford Blackwell, p. 10. 47

Dorian, N. 1998. ,‘Western language ideologies and small-language prospects’ in L. Grenoble and L.

Whaley (eds). Endangered Languages: Language Loss and Community Response. Dartmouth College,

New Hampshire, pp. 3-21. 48

See generally Bamgbose, A. 1991. Language and the nation: The language question in Sub-Saharan

Africa. Edinburgh University Press for the International African Institute.


10 UNAMLR vol. 2(2)

De Varenes,49

asserts that the “importance of language for many minorities” derives from the

centrality of language “to their social and cultural identity”.50

Whereas Mancini and De

Witte note that “the use of a particular language not only serves as a means of functional

communication, but also expresses that person’s cultural heritage developed by all previous

speakers of the language”.51

Important legal instruments echo the notion that language is

constitutive to culture: “Language is one of the most fundamental components of human

identity. Hence, respect for a person’s dignity is intimately connected with respect for the

person’s identity and consequently for the person’s language.”52

The motivation for protection of the linguistic interests of minorities is to support what is

widely accepted as “the preeminent human rights norm”,53

and the ideal of nurturing cultural

diversity at large. Steiner further argues that:

By valuing diverse cultural traditions human rights law evidences what must be a basic

assumption-namely that differences enrich the world. They contribute to a fund of human

experience on which all individuals and groups can draw in the ongoing processes of change

and growth. Ethnic group nourish that fund.54

It has also been argued that language can be a source of power, social mobility and

opportunities. Williams and Sniper emphasize that in some quarters, language is a form of

power.55

The linguistic situation of a country’s society usually reflects its power structure, as

language is an effective instrument of societal control.56

According to Makoni and Trudell,

“it is undeniably true that communities of speakers of smaller languages tend also to be the

less politically empowered communities”.57

49

De Varenes, F. 1996. Language, Minorities and Human Rights. The Hague: Martin Nijhoff Publishers,

pp. 217-218. 50

De Varenes (1996:129). 51

Mancini, S and De witte, B. 2008. ‘Language Rights as Cultural Rights: A European Perspective’ in

Cultural Human Rights, pp. 247. (Francesco Francioni and Martin Scheinin eds., 2008). 52

Organization for Security and Co-operation in Europe High Commissioner on National Minorities, The

Oslo Recommendations Regarding the Linguistic Rights of National Minorities 11 (Feb. 1, 1998). 53

Steiner, H. J. 1991. ‘Ideals, and Counter-Ideals in the Struggle Over Autonomy Regimes for

Minorities’. Notre Dame Law Review, vol. 66, pp. 1548-1550. 54

Steiner (1991:1550). 55

See generally Williams, J.D. 1990. Literacy and Bilingualism. New York. Longman. 56

Ibid. 57

Makoni, S. and Trudell, B. 2006. Complementary and conflicting discourses of linguistic diversity:

Implications for Language Planning, pp. 14-28.


11 UNAMLR vol. 2(2)

Linguistic loss is sometimes seen as a symbol of a more general crisis of biodiversity,

especially indigenous languages that are seen as containing within them a wealth of

ecological information that will be lost as the language is lost. This ecolinguistic school of

thought regards saving endangered languages as an important part of the larger challenge of

preserving biodiversity.58

Language has served both as a reason (or pretext) for brutal conflict, and as a touchstone of

tolerance. Language can serve, in all spheres of social life, to bring people together or to

divide them. Language rights can serve to unite societies, whereas violations of language

rights can trigger and inflame conflict. There is, therefore, every reason to clarify the position

of language rights in various African states and in international human rights law, and to

analyse the experience of the management of multilingualism in diverse societies.59

According to UNICEF given the critical role of languages in transmitting knowledge and

information to all segments of society, there can be no doubt about their strategic importance

in attaining the Millennium Development Goals (MDGs) and Education for All (EFA) goals,

and expanding access to the benefits of globalization. For example, as factors of social

integration, languages play a strategic role in the eradication of extreme poverty and hunger

at the heart of MDG 1. As a support for literacy, learning and life skills, they are essential to

achieving MDG 2, namely, universal primary education, and efficiently preventing

HIV/AIDS, malaria and other diseases, which is the aim of MDG 6 but which can only be

effective if health programmes are delivered in languages understood by the learners.

Moreover, in their capacity as systems embodying local and indigenous knowledge about

resource management, languages are strategic to ensuring the environmental sustainability

foreseen by MDG7. But this can only be achieved if the interactions are based on vernacular

languages.60

58

Maja, I. 2008. Towards the Human Rights Protection of Minority Languages in Africa, p.1. Available

online at http://www.nyulawglobal.org/globalex/Minority_Languages_Africa.htm. 59

Maja (2008:1-3). 60

International Conference. Globalization& Languages: Building on Our Rich Heritage, 27-28 August

2008. Tokyo, Japan. Available online at: http://unesdoc.unesco.org/images/0018/001831/183170E.pdf.

http://www.nyulawglobal.org/globalex/Minority_Languages_Africa.htm

http://unesdoc.unesco.org/images/0018/001831/183170E.pdf


12 UNAMLR vol. 2(2)

Reasons for adopting a monolingual approach in State governance

There are a number of bad reasons for adopting the monolingual approach. Many States have

had a dominant ethno-linguistic group that shaped and directed the State-building process.61

Historically, such groups have often favoured the privileging of their own languages as a way

of consolidating their grip on the State and advantaging their own members in the

competition for economic resources and opportunities.62

From this perspective, the rationale

for State monolingualism has little to do with the common good and much to do with the

particular circumstances and interests of the dominant group.63

Balibar and Larporte, states that other motivations for adopting state monolingualism involve

appeals to chauvinistic assumptions about the intrinsic superiority or inferiority of particular

languages.64

They further argue that when Jacobims like Barere and Gregoire promoted

French in the 1970s, they did so in an intellectual context where French was understood to be

uniquely well suited for science, democracy, and progress. French was praised for its

precision, its clarity, its extensive vocabulary, and even its Subject-Verb-Object sentence

structure, which was thought to express correctly the nature of things. By contrast, the

regional forms of speech-contemptuously labeled “patois” were dismissed as backward

languages of superstition and subjection.65

There are further good arguments that can be made for State monolingualism. The best

reason for the state to privilege of a particular language is in order to integrate all of its

citizens into a common national framework. Such a framework consists of both a common

identity, a sense of attachment to the political community. The hypothesis is that

monolingualism will push speakers of less widely spoken languages to acquire a common

language and eventually to affirm a common identity associated with the language and other

symbols of the political community.66

61

Patten, J. 2008. “Justification for Minority Language Rights”. Journal of Political Philosophy, vol. 17

(1), pp. 102-128. 62

Ibid. 63

Ibid. 64

See generally, Balibar, R & Dominique, L. 1974. Le Francais ficitifs: Le Rapport des styles litteraires

au francais National. Paris: Librairies Hachette. 65

Ibid. 66

Patten, A. 2001. “Political theory and Language Policy”. Political Theory, vol. 29, pp. 683-707.


13 UNAMLR vol. 2(2)

If State monolingualism can succeed at getting citizens to converge on a common language

and identity, then a number of important goals can be advanced. A common language may

well be essential if all citizens are to have an equal opportunity to work in the modern

economy. Minority-language communities risk being ghettoized when their members are

unable or unwilling to master the majority language of the State. Their economic

opportunities will be limited by the work available in their own language.67

International Protection of Language Rights

Various international legal instruments contain provisions relating to the language rights of

minorities.68

Contemporary international law provides the legal framework for the protection

of the use of languages. It may be reminded that the United Nations Charter proscribes

discrimination on the ground of language,69

as does the Universal Declaration of Human

Rights,70

and the two international covenants adopted in 1966.71

The international human rights law regime take a very different culture based approach to

language rights. Under international rights law, language and cultural identity are inextricably

intertwined, and language rights claims must be reviewed in this light.72

The culture based

approach to language rights in international human rights law has three basic prongs. First, as

essentially a remediation measure, language rights ensure fair and proper treatment of

traditionally repressed minorities in order to remove potential sources of conflict in

67

Kymlicka, Will. 2001. Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship.

Oxford: Oxford University Press, p. 26. 68

The Universal Declaration of Human Rights is based on the principle of non-discrimination. Art. 2 (2)

of the Declaration states that everyone is entitled to fundamental rights and freedoms without

discrimination and in particular, without discrimination. The International Convention on the

Elimination of all Forms of Racial Discrimination that was adopted on 21 December 1965 and came

into force on 4 January 1969 affords special measures for the purpose of securing the satisfactory

advancement of certain racial or ethnic groups. 69

The protection against discrimination in the use of languages has been recognized since the

establishment of the United Nations Organization. As a matter of fact one of the purposes of the

organization is "[t]o achieve international co-operation in solving international problems of an

economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for

human rights and for fundamental freedoms for all without distinction as to …language…".See United

Nations Charter, Article 23. 70

See Universal Declaration of Human Rights, Article 2. 71

See International Covenant on Civil and Political Rights, Article 2.1 and International Covenant on

Economic, Social and Cultural Rights, article 2.2.; See also: Committee on Economic, Social and

Cultural Rights, General Comment No.16, UN Doc. E/C.12/2005/4, para. 10 which highlights that the

principle of non-discrimination, as a corollary of the principle of equality, "prohibits differential

treatment of a person or group of persons based on his/her or their particular status or situation, such

as …language…, or other status, such as …ethnicity…" 72

Gilman, D. 2001. A “Bilingual” Approach to Language Rights: How Dialogue Between U.S. and

International Human Rights Law May Improve the Language Rights Framework. Harvard Human

Rights Journal vol. 24, p. 11.


14 UNAMLR vol. 2(2)

multiethnic societies and thereby protect peace and security. This concern dates back to the

Minorities Treaties adopted after World War I,73

and continues to motivate international

human rights law treatment of minority languages.74

Second, language rights are intended to guarantee the general civil rights of individuals.

Almost all human rights treaties contain a clause prohibiting discrimination on the basis of

language and specifically guarantee without regard to language, the general rights delineated

in the instruments, such as freedom of expression or due process.75

The human rights

approach thus acknowledges the possibility of discrimination on the basis of language as well

as the reality that general rights may be uniquely denied or limited to language minorities.

The approach seeks to counter the problem by injecting an explicit language element into the

analysis of equal protection and other individual rights.76

In the South West Africa case,77

the judge stated that:

The principle of equality before the law does not exclude the different treatment of persons

from the consideration of factual differences such as language etc. to treat different matters

equally in a mechanical way would be as unjust as to treat equal matters differently.78

The same judge also made reference to the issue of language of education and the principle of

equality, as follows:

If there exists the necessity to treat one race differently from another, this necessity is not

derived from the physical characteristics or other racial qualifications but other factors,

namely religious, linguistic, educational, social, etc. which in themselves are not related to

race or colour…for instance, if we consider education we cannot deny the value of vernacular

73

See generally De Varenes, F. 1996. Language, Minorities and Human Rights. The Hague: Martin

Nijhoff Publishers. 74

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic

Minorities, G.A. Res. 47/135, Annex, U.N. GAOR, 47th Sess. Supp. No. 49 (Vol. I), U.N. Doc.

A/47/49 (Vol. 1), at 210 (Dec. 18, 1992) [hereinafter U.N. Declaration on Minority Rights] (“[T]he

promotion and protection of the rights of persons belonging to national or ethnic, religious and

linguistic minorities contribute to the political and social stability of States in which they live. . . .”);

see also U.N. Econ. & Soc. Council, Specific Groups and Individuals: Minorities, ¶¶ 2, 69, U.N. Doc.

E/CN.4/2006/74 (Jan. 6, 2006) [hereinafter U.N. Minorities Expert Report] (Gay McDougall,

Independent Expert). 75

Ibid. 76

Gilman (2001:11-13). 77

South West Africa case (1966) International Court of Justice. 78

Ibid.


15 UNAMLR vol. 2(2)

as the medium of instruction and the result thereof would be separate schooling as between

children of diverse population groups…in this case separate education and schooling may be

recognized as reasonable. This is justified by the nature of the matter in question.79

Third, language rights seek to guarantee diversity and promotion of multiple cultural

identities in a society. In the case of Lopez-Alvarez v Honduras, the Inter-American Court of

Human Rights found a violation of equal protection with cultural identity impacts when the

Honduran State jailed a Garifuna minority rights activist and prevented him from using the

Garifuna language while in jail. The Court took pains to note that “mother tongue represents

an element of identity.”80

Human rights instruments thus guarantee language rights as a

means of protecting the development of cultural identity and thereby also “enriching the

fabric of society as a whole”.81

The general prohibition of discrimination on the ground of language set forth in several

human rights instruments is complemented by some of the provisions of the international bill

of human rights which are intended to protect culture and cultural manifestations such as

Article 22 of the Universal Declaration of Human Rights82

and Article 15 of the International

Covenant on Economic, Social and Cultural Rights (ICESCR).83

The UNESCO Universal Declaration on Cultural Diversity (UNESCO UDCD) has

summarized in Article 5 the major universal human rights related to the use of languages,

79

Ibid. 80

Lopez-Alvarez v Honduras, Inter-Am. Ct. H.R. (ser. C) No. 141 (Feb. 1, 2006). 81

U.N. Human Rights Comm., General Comment No. 23, ¶ 9, U.N. Doc. CCPR/C/21/Rev.1/ Add.5

(Aug. 4, 1994) [hereinafter General Comment No. 23]. 82

Article 22 of the Universal Declaration of Human Rights states: “Everyone, as a member of society, is

entitled to realization, through national effort and international co-operation and in accordance with

the organization and resources of each State, of the …cultural rights indispensable for his dignity and

the free development of his personality”. 83

Article 15 of the International Covenant on Economic, Social and Cultural Rights states:

“1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any

scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full

realization of this right shall include those necessary for the conservation, the development

and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable

for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the

encouragement and development of international contacts and co-operation in the scientific

and cultural fields.”


16 UNAMLR vol. 2(2)

which have been recognised in the international bill of human rights in addition to the

prohibition of discrimination on the ground of language. These entitlements include:

The right of all persons to express themselves and to create and disseminate their

work in the language of their choice, and particularly in their mother tongue

(UDHR, article 27; ICCPR, article 27; ICESCR, article 15);

The right of all persons to be entitled to quality education and training that fully

respect their cultural identity (UDHR, article 26; ICESCR, article 25); and

The right of all persons to participate in the cultural life of their choice and

conduct their own cultural practices, subject to respect for human rights and

fundamental freedoms. (UDHR, article 27; ICESCR, 15).

Is globalisation responsible for the demise of minority languages?

Giddens,84

defines globalisation as:

The intensification of worldwide social relations which link distant localities in such a way

that local happenings are shaped by events occurring many miles away and vice versa.85

One of the main concerns under discussions on globalization is whether these globalizing

processes will inevitably result in greater uniformity, or whether diversity, ethnicity, cultural,

linguistic, and nationality can still be maintained in an increasingly interconnected world.

For many observers, the forces of globalisation have been viewed, however despairingly, as

an inevitable threat to diversity resulting in the increase in the destruction of cultures and

languages.86

Globalisation is not synonymous with what is immediately suggested by the French word

mondialisation (roughly, “universalization” as covering the whole globe).87

Global economic

85

See generally, Giddens, A. 1990. The Consequences of Modernity. Stanford, Calif.: Stanford University

Press. 86

May, S. 2008. Language rights: linking the local and the global. Available at:

http://unesdoc.unesco.org/images/0018/001831/183170E.pdf. 87

Mufwene, S. 2005. Globalization and the Myth of Killer Languages: What’s Really Going on? p. 1

Available at http://mufwene.uchicago.edu/publications/globalization-killerLanguages.pdf.

http://unesdoc.unesco.org/images/0018/001831/183170E.pdf

http://mufwene.uchicago.edu/publications/globalization-killerLanguages.pdf


17 UNAMLR vol. 2(2)

systems in this local sense are actually the unmarked structure in polities such as the

Americas and Australia, where indigenous languages have massively been replaced by

European colonial languages over the couple of centuries.88

They have evolved from a

European tradition in which numerous vernaculars have been replaced by national, official

languages.89

However, Mufwene, 90

argues that European colonial languages are not the only killers of

indigenous languages in Africa and other parts of the world. Mufwene cites the example of

Botswana where the Khoisan people have been giving up their language even in places where

they are the majority. According to Batibo,91

the Khoisan have been losing grounds to

Tswana (a dialect of Setswana) in Ngamiland simply because the Khoisan have been

subjected to some sort of serf status relative to the Bantu.

In Kenya, there have been reports about language loss among the Elmolo and the Yaaku. The

Elmolo are a very small fishing population on the southeastern shores of Lake Turkana. They

spoke a Cushitic language related to Dhaasanac and Arbore near southwest Ethiopia.92

In the

late 19th

century, the drought, famine, and bovine pleuro-pneumonia which hit the Samburu

population, their pastoral neighbours, very hard also intensified neighbourly contacts between

the two groups. The Elmolo were gradually assimilated by the majority and shifted to their

language, Maa.93

The Yaaku, also a Cushitic population, were bee-hive keepers. They had very little contact

with the Maasai before the second half of the 19th

century. Absorption within the majority

population, whose language Maa, functioned also as a lingua franca with hunter-gatherers of

the region, and exogamy led to the loss of the Cushitic language. During the same drought

and famine period, it is the pastoralists who depended on the hunter-gatherers for their

survival, but it is the latter, demographically much smaller, who gave up their languages.94

88

Ibid. 89

Ibid. 90

Ibid. 91

Batibo, H. M. 1998. “The fate of the Khoisan languages of Botswana”, in: M. Brenzinger (ed.).

Endangered languages in Africa. Cologne: Rudiger Koppe Verlag, p. 267. 92

Tosco, M. 1998. “People who are not the language they speak”: On language shift without language

decay in East Africa”, in: M. Brezinger (ed), Endangered Languages in Africa,.Cologne: Rudinger

Koppe Verlag, pp. 119-142. 93

Ibid. 94

Tosco (1998:142).


18 UNAMLR vol. 2(2)

What is equally informative about language shift is that in all these cases, English, the official

language in both Kenya and Botswana, hardly figures as a contender, despite its political and

economic prestige in these countries. Language competition is more local than linguists have

shown it to be, and the fact that English does not function as a vernacular has certainly kept it

out of the arena in which these indigenous vernaculars have been competing.95

Mufwene,96

further asserts that European colonial languages are generally no threat to the

indigenous languages of Africa and Asia. In some cases, the expansion of the European

official languages is hampered, instead, by the indigenous urban vernaculars, which are

associated with an aspect of modernity that is more tangible, being closer to indigenous

cultures.97

Kiswahili as the future official language of the whole of Africa?

African leaders, officials of the then Organization of African Unity, African citizens of the

continent and sympathisers of African problems have for many years now been calling for

one or more African languages to be used as the continent's official lingua franca(s), for

official as well as intra-national business, and other social interactions in the place of colonial

languages. Among the languages most favoured for this task is Kiswahili.98

Kiswahili is one of the most successful indigenous lingua francas in Africa. Next to Arabic,

it is perhaps the most pan-African in terms of its transnational scope, with a growing

population of speakers estimated to be in the tens of millions.99

With a tradition of writing

that goes back centuries before European colonial rule, it has an important instrument of mass

mobilisation in the struggle against colonialism in and horizontal integration, nationally as

well as regionally, and has functioned as a medium of trade, religion, education, civil

administration, practical politics and collective bargaining throughout the East African

95

Mufwene (2003:32). 96

Mufwene, S. 2003. “Colonization, globalization, and the future of languages in the twenty-first

century”, in: MOST: Journal of Multicultural Societies, p. 4. Available at

http”//www.unesco.org/most/v14n2mufwene.pdf. 97

Ibid. 98

Amidu, A. A. 1995. “Kiswahili: A Continental Language: How Possible Is It?”. Nordic Journal of

African Studies, vol. 4 (2), pp. 50-70. Available online at: http://www.njas.helsinki.fi/pdf-

files/vol4num2/amidu.pdf. 99

Mazrui and Mazrui (1987:160).

http://www.njas.helsinki.fi/pdf-files/vol4num2/amidu.pdf

http://www.njas.helsinki.fi/pdf-files/vol4num2/amidu.pdf


19 UNAMLR vol. 2(2)

region.100

Increasingly, too, Kiswahili has consolidated its potential as a language of science

and technology.

Because of the said achievements of the language, it quickly came to acquire a sentimental

value in addition to its older instrumental value. Many Africans developed strong nationalist

sentiments towards Kiswahili, seeing it as a language of national sovereignty, as a possible

symbol of transnational and continental unity, and as a reminder of the common origins of

people of African descent now scattered throughout the globe.101

Advantages of Kiswahili over other languages

According to Amidu,102

the main advantages that Kiswahili has over the other languages are:

(1) Close grammatical affinity with the languages of the hinterland of Africa all

the way to South Africa and perhaps West Africa;

(2) It is the vehicle of international and intra-national commerce and business

transactions on the East coast;

(3) It is the key to the rapid propagation of the Gospel in Africa, and he might add

also the Koran; and

(4) It is also the key to a rapid and accelerated education and training of the

Africans in the Humanities, Science and Technologies of the more advanced

parts of the world.

However, Amidu concedes that not all of these advantages have been exploited, notably

number four. Krapf played down the role that national and ethnic sentiments could play in the

acceptability of Kiswahili as a lingua franca in Africa.103

One important dimension of this

colonial projection was Kiswahili’s presumed ‘dual nature’, part ‘African’ and part ‘Arab’.

Kiswahili was often defined, sometimes pejoratively, as a hybrid child of a union between the

languages of Africans and Arabs or the ‘highest of animals’, i.e., Africans, and the ‘lowest of

human beings’ i.e Arabs.104

Half-baked ethnographic ideas from Europe thus went on to

100

Ibid. 101

Ibid. 102

Amidu (1995:52). 103

See generally Krapf, L.J. 1950. Outline of the Elements of the Kisuaheli Language with Special

Reference to the Kinika Dialect. Tubingen. 104

Whiteley, W.H. 1969. Swahili, The Rise of a National Language. London: Methuen and Co. Ltd.

Reprinted 1993. Hampshire: Gregg Revivals, p. 7.


20 UNAMLR vol. 2(2)

create the impression that the achievements of Kiswahili would not have been possible

without its presumed ‘more human’ Arab parentage.105

In reaction to this colonial, sub-humanizing, sociolinguistic conception, therefore, African

nationalists rejected not only the suggestion that Africans were less than human, but also the

thesis that Kiswahili was less than wholly African. Kiswahili and its achievements now came

to be presented as the product of the collective genius of the African people themselves who,

at the maximum, just borrowed items from Arabic, as English borrowed from French, for

example to meet certain functional needs in their expanding world.106

Conclusions and Recommendations

The Namibian government has been very silent and ineffective in promoting the use of

indigenous languages in the country. The National Language Policy of the country is almost

non-existent. Evidence points to the fact that Namibians are unable to master the English

language proficiently and hence the need to develop and promote the use of all the country’s

indigenous languages in all spheres of society. To sum up, I recommend the following:

An increase in use of all indigenous languages in the media and broadcasting;

The National Language Policy should be revisited and necessary changes be made;

Amend the national Constitution and declare all indigenous languages as co-official

along with the English language;

Establish a language body or regulation authority that develops and promotes the use

of indigenous languages in all spheres of society;

Street signs and government notices be made in indigenous languages;

Educational curriculum at Secondary Schools and at tertiary level be tailored in order

to allow other subjects to be taught in indigenous languages;

An introduction of a third indigenous language in all years of schooling;

Increase the use of indigenous languages as among the main requirements for access

to government jobs; and

Encourage the formation of bodies or societies that promote the use of all indigenous

languages in the country.

105

Mazrui and Mazrui (1986:161). 106

Ibid.


21 UNAMLR vol. 2(2)


22 UNAMLR vol. 2(2)

A critical analysis of what constitute reasonable administrative

action: Reference to Namibia, South Africa and England

Johannes Uusiku

Abstract

The right to reasonable administrative action is a fundamental right in terms of the Namibian

Constitution. The primary objective of this paper is to explore the elements of reasonable

administrative action under Article 18 of Namibian Constitution and to make a comparative

analysis with the South African Constitution as well as the PAJA (Promotion of

Administrative Justice Act). Reasonableness is generally construed as a fairly abstract

concept which is short of a definition or a clear and concise exposition of what its elements

are. The Namibian Constitution is silent on what constitutes reasonable administrative action

although it expressly provides that an administrative official should act reasonably. In other

words the Namibian Constitution mandates that an administrator should act fairly and

reasonably but does not go further to explain the content of reasonable administrative action,

which has led to more obscurity than clarity. Namibian case law such as the revered

judgment of former Chief Justice Strydom in Chairperson of the Immigration Selection Board

v Frank and Another has given us a glimpse of the content of reasonableness as implicit in

the Namibian Constitution. This article seeks to go further, to procure a full exposé of

reasonable administrative action by briefly analysing case law, making a comparative

analysis with South Africa and reaching a contextualised conclusion. In my view for the true

spirit and tenor of Article 18 to prevail and for administrative justice to be realised in a more

efficacious manner, this is a matter that is definitely worthy of thorough investigation.

With that in mind my hypothesis is that if the concept of reasonableness is studied and

conceptualised the administrative bodies and administrative officials in Namibia would have

a clear understanding of what is expected of them when exercising these so called powers

clothed by State authority over the subordinate person.

Introduction

At the outset, before we proceed with the ascertainment of reasonable administrative action

under Article 18 of the Namibian Constitution, it is best to provide a broad definition to the

term “reasonable” in the light of the administrative action implications.

LLB Candidate (University of Namibia); Student Research Assistant; Law Reform and Development

Commission of Namibia (LRDC).


23 UNAMLR vol. 2(2)

The Oxford dictionary,1 defines reasonable simply as the “sensible way of behaviour”.

However; needless to say this definition is far too vague and ambiguous to afford itself any

credibility in administrative law. The term “reasonableness” can be seen to be a contentious

topic due to the fact that there is no consensus on what exactly the term reasonableness

entails. Nevertheless each jurisdiction has attempted to define reasonableness according to its

own understanding as will be evident throughout the paper.

Namibian Common law approach to reasonable administrative justice (pre constitutional

approach)

Richardson,2

is of the opinion that it was believed that the traditional approach to

unreasonableness was to the effect that unreasonableness would constitute an independent

ground for validity of administrative action only in cases of gross unreasonableness. He adds

that where ulterior motive and/or mala fide could be inferred or that official had failed to

apply his or her mind to the matter, the traditional subjective state of mind would be favoured

rather than an objective assessment of the unreasonableness of the action.

Richardson goes on to say that the appeal to common law in, for example, principles of

natural justice does not evoke the image of an active community associated with classical

common law thought as he illustrates by discussing the cases of Union Government v Union

Steel corporation,3

and Feinstein v Baleta.4

In these cases the court found that the

unreasonable exercise of a discretionary power did not constitute an independent ground for

judicial review of administrative action. In the first case the court found the action of the

official must have amounted to gross unreasonableness such that something else could be

inferred from it, to be either unexplainable except on the assumption of mala fides or ulterior

motive to amount to unreasonableness or that it had amounted to proof that the person on

whom the discretion was conferred had not applied his mind to the matter.

In the Baleta case the court was of the view that apart from investigating a charge of mala

fide or corrupt motive it could not investigate the reasons actuating or the purpose impelling

1 Martin, M. 1997. A Dictionary of Law. Oxford. Oxford University Press, p. 517.

2 Richardson, G. 1994. Administrative Law & Government Action: The Courts and Alternative

mechanisms of Review. Oxford. Clarendon Press, p. 28. 3 Union Government v Union Steel Corporation 1928 AD 220.

4 Feinstein v Baleta 1930 AD 319.


24 UNAMLR vol. 2(2)

the organ in exercising the powers conferred upon it. With that in mind, the ground upon

which the court was allowed to review the exercise of administrative discretion was

examined in the Theron v Ring Van Wellinton,5 case where, on one hand, Janson JA (as he

then was) recognised an extended formal yardstick where by reasonable administrative action

was a requirement for administrative act. Janson JA based this yardstick on the following

three factors:

i) The existence of the common law requirement against unreasonableness or

unfairness;

ii) Support found in English law; and

iii) The fact that our courts applied this yardstick in the past albeit unconsciously.

By applying this yardstick the court limited the area of the merits of the case on which the

organ based its decision. On the other hand, Botha JA in the minority judgement held that

unreasonableness had never been accepted as an independent ground for judicial review. He

relied on the case of National Transport Commission v Chetty’s Motor transport,6 and held

that the tribunal was the final arbitrator in its special field and right or wrong, reasonable or

unreasonable was a decision which stood unless this is vitiated by proof on review in the

Supreme Court that the commission failed to decide the matter at all. This failure as

aforementioned could be established by proving mala fide improper motive, arbitrariness or

caprice or that the decision is grossly unreasonable to so striking a degree as to warrant the

inference of a failure to apply its mind to the matter. 7

The constitutional foundation of reasonable administrative justice (post-independence

approach)

Hinz,8 propounds that the Constitution of the Republic of Namibia deals with the issue of

reasonable administrative justice in two of its Articles. The first is Article 18, which provide

that “administrative bodies and administrative officials shall act fairly and reasonably and

comply with the requirements imposed upon such bodies and officials by common law and

any relevant legislation, and persons aggrieved by the exercise of such acts and decisions

5 Theron v Ring Van Wellinton 1972 3 SA 726 (A).

6 National Transport Commission v Chetty’s Motor Transport 1972 3 SA 726 (A).

7 Ibid.

8 Hinz. M. O. 2009. “More administrative justice in Namibia? A Comment on the initiative to reform

Administrative Law by statutory enactment”. In Namibia Law Journal, vol. 1 (1), p. 82.


25 UNAMLR vol. 2(2)

shall have the right to seek redress before a competent Court or Tribunal’’. The second is

Article 5 which provide that “the fundamental rights and freedoms enshrined in this Chapter

shall be respected and upheld by the Executive, Legislature and Judiciary and all organs of

the Government and its agencies and, where applicable to them, by all natural and legal

persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter

prescribed”. According to this obligation, the three organs of the State – including the

Executive, therefore are obliged to respect and uphold the fundamental rights and freedoms

spelled out in Chapter 3 of the Constitution.

Hinz, believes that in the development of the concepts of fairness and reasonableness, the

usual and principal guide is the reference to natural justice which is considered as ‘a

construct to cover fair treatment norms developed by the courts, and not what the linguistic

closeness of natural justice to natural law may provoke, namely to believe that it is a

jurisprudential (legal-philosophical) concept that would allow the systematic and

theoretically consistent comprehension of administrative justice’.

According to Levy AJ (as he then was), in the case of Frank & Another v Chairperson of the

Immigration Selection Board,9 it is believed that Article 18 of the Constitution does not

repeal common law; in fact, it embraces it. Hinz opines that, Article 18 expresses the interest

of the Constitution-makers to secure legal certainty and stability in the post-independence

legal order by providing for the continuation of the legal dispensation that prevailed before

the Constitution’s enactment.10

The same interest is also articulated in Article 140 of the

Constitution for all laws in force immediately before the date of independence, and in Article

66 for the respective common and customary law. In other words, even if Article 18 did not

exist, the common-law-grounded administrative law of Namibia would not be different from

what it is today with reference to Article 18.

Hinz, adds on by mentioning how Article 18 entails more than the mere constitutional

confirmation of inherited administrative common law, since it also offers space for the

further development of this law in the spirit of the Constitution, whilst Article 5 reaches

beyond Article 18. However he believes that the yardstick of Article 18, which is used to

measure the constitutional validity of administrative law, is rather general and primarily

9 Chairperson of the Immigration Selection Board v Frank & Another 1999 NR 257 (SC), at p. 265

10 Ibid.


26 UNAMLR vol. 2(2)

procedural, unlike the yardsticks of Article 5, which according to him are very precise,

namely the specific fundamental rights and freedoms.

He proceeds to mention that the orientation of Article 5 ought to be the eventual point of

reference when it comes to the constitutional foundation with regards to reasonableness of

administrative law as it is considered as the platform from which to assess the degree to

which inherited administrative law complies with the Constitution, and upon which to build

in the reform of administrative law. To him, the placement of Article 5 introduces in Article

21 (1) and Article 22, namely that the fundamental rights and freedoms are at the very centre

of the Constitution’s gravity i.e. whatever the State does is subject to these rights; and

whatever the administration does is subject to these rights. Thus, the very law that regulates

the administration is subject to these rights in order for them to be perceived as reasonable.

England

In England, “reasonableness” as the criterion for judicial review of administrative action is

mostly associated with the so-called “Wednesbury reasonableness test”. This is the derivative

of the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation,11

whereby a dispute arose out of which a local authority opposed a picture theatre. The

authority has granted a license to the theatre for cinematographic performances, with the

condition that no children under 15 years of age shall be admitted to any entertainment on

Sunday, whether accompanied by an adult or not. In attaching the condition to the license, the

authority was within the sphere of free discretion assigned to it by section 1 subsections 1 of

the Sunday Entertainments Act,1932,12

which simply provided that the licensing authority

may make use of the license “subject to such conditions as the authority thinks fit to

impose”.13

When reviewing and eventually dismissing the action for judicial review, Lord Greene, M.R.

stated:

The courts will not interfere with the discretion assigned to public authorities, provided that;

the authority took into account all the things it ought to have taken into account; the authority

11

Associated Provincial Picture Houses Limited v Wednesbury Corporation 1948 1 K.B 233. 12

No.1 of 1932. 13

Graig ,P. 1999. Administrative Law. London: Sweet & Maxwell, p. 21.


27 UNAMLR vol. 2(2)

did not take into account things they should not take into account (improper purposes) and the

decision is not unreasonable, i.e. it is not a decision that no reasonable authority could ever

have come to.14

To add to the views of the judge above, Craig,15

has gone further to say that there are two

meanings that can be given to “reasonableness”. He postulates that there is a distinction in the

levels of review in the two senses of “unreasonableness”. In other words, in order to find

what is reasonable action by an organ of State one needs to look at whether the action by the

official or body was indeed unreasonable action.16

Craig refers to the same oft-cited judgment

of Lord Greene and mentions how there seem to be two meanings of the term

“unreasonable”. The two meanings of the concept of unreasonableness will now be discussed

below.

Umbrella sense

Under this heading the concept of unreasonable is used simply as a synonym for a host of

more specific grounds of attack, such as taking account of irrelevant considerations or actions

for improper purposes and acting mala fide ,which as Lord Greene M.R. himself said, tend to

run into one another. The second is said to be the substantive sense.

Substantive sense

Under this heading the concept of unreasonable is a decision that may be attacked if it is so

unreasonable that no reasonable public body could have made it. To prove the substantive

sense one would require something quite extreme. The example that Lord Greene M.R. gave

is that of a teacher being dismissed for having red hair.17

Craig, believes that the role of unreasonable in its substantive sense is conceived as a safety

act to be used after tests such as relevance or purpose.18

He further adds that the two senses of

unreasonableness reflect therefore the two levels at which judicial control can take place as

aforementioned.19

14

Associated Provincial Picture Houses Limited v Wednesbury Corporation 1948 1 K.B 233. 15

Graig (1999:219). 16

Ibid. 17

Ibid. 18

Ibid. 19

Ibid.


28 UNAMLR vol. 2(2)

In other jurisdictions such as Canada, the reasonableness simplicity is the deferential standard

that a court can give to an administrative decision maker.20

Where the decision is a matter of

law, a mix of fact and law or a discretionary decision it is said that the decision is

unreasonable. Where the decision is “not supported by any reasons that can stand up to a

somewhat probing examination” i.e., it is unreasonable where “there is no line of analysis

within the given reasons that could reasonably lead the tribunal from the evidence before it to

the conclusion at which it arrived.”

South Africa

With regards to South Africa, administrative actions are governed under the Promotion of

Administrative Justice Act21

(from herein PAJA). The notion of reasonability is judged per

case on its own facts and is exercised alongside the rule of law.22

Unreasonableness is

declared to be the ground of review before the courts, and this is in accordance with section 6

(2) (h) of PAJA, if such administrative action is of such an unreasonable nature that no

reasonable person could have so exercised the power of the performed function.23

Thus unreasonable administrative action relates to the unreasonable action of discretionary

power or abuse of discretionary power, and therefore reasonable administrative action relates

to the reasonable use of discretionary powers. It is worth noting for clarity’s sake that a

reviewing court is not lying down or changing or shaping administrative policy.24

Thus the

task is to ascertain the legality of such administrative action, as the courts are not allowed to

usurp or seize the powers of the administrator. In the past, the courts would but merely refer

the matter back to the administrator and not substitute with its own findings; the only

exception was in cases where there was evidence of mala fide.

Under the Interim Constitution, there was no mention of reasonableness of administrative

action. However, it introduced the concept of justifiability via the requirement that every

person is entitled to administrative action which is justifiable in relation to reasons given for

it where the individual’s rights are affected or threatened. This requirement stayed in force

20

Michal, B. 1995. Reasonableness in Administrative Law: A Comparative Reflection on Functional

Equivalence. Gondor: Orch Publishers, p. 4. 21

No. 3 of 2000. 22

Glinz. C. 2009. “The right to be given reasons as part of a fair administrative procedure: A comparative

study of Namibian, South African and German law”. In Namibia Law Journal, vol. 1 (2), p. 22. 23

Ibid. 24

Ibid.


29 UNAMLR vol. 2(2)

into the 1996 Constitution. Under section 33 of the 1996 Constitution, it did away with this

concept and introduced the idea that administrative actions must be reasonable.

South Africa appears to take a similar stance to that of England as found in the Wednesbury

case. Even though the United Kingdom tends to give too much focus to the wording of a

statute, rather than considering the general scheme and purpose of the statute, the valuable

principle laid down in Wednesbury is that a decision is said to be unreasonable only if any

unreasonable person could not have made such a decision. The South African case of Bato

Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others,25

followed the principle laid down in Wednesbury. They had made inquiry as to whether the

decision was made in line with section 6 (2) (h) of PAJA.

The following requirements are found from the case of Minister of Health v New Clicks SA

(Pty) Ltd Pharmaceutical Society of South Africa and Others,26

dealing with the question of

reasonableness:

The nature of the decision;

The identity and expertise of the decision maker;

The range of factors relevant to the decision;

The reasons given for the decision;

The nature of the competing interests involved; and

The impact of the decision on the lives and wellbeing of those affected.

Furthermore in the case Minister of Health stated that there is no sharp line that can be drawn

between the requirements of procedural fairness and reasonableness in the context of the

failure of an administrative body to consider representation made to it. The case is said to be

a good illustration of the close relationship between rationality and reasonability.

25

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (7)

BCLR 687 (CC); 2004 (4) SA 490 (CC). 26

Minister of Health v New Clicks SA (Pty) Ltd Pharmaceutical Society of South Africa and Others

2006(1) BCLR 1 (CC) paras 187 and 188.


30 UNAMLR vol. 2(2)

Namibian Courts approach on Reasonable Administrative Action

The question of the reasonableness as required by Article 18 of the Namibian Constitution

was recognised in a number of cases that came before the courts. The most applicable and

referenced cases are briefly discussed below.

The Chairperson of the Immigration selection board v Erna Elizabeth Frank and

Elizabeth Khaxas,27

In this case the respondent was a German national who visited Namibia for the first time in

1990. During 1991 she applied for temporary work permit, and four years later she applied

for a permanent residence permit, which was unsuccessful. During June 1997, she re-applied

for a permanent residence permit and this time around attached a letter which she requested

to appear before the Board to allow her to answer any queries should they have had any or to

deal with any information if required by the board. Frank also attached a letter stating the

respondents’ sexual orientation. In July of the same year, she was informed that her

application was unsuccessful, and no reason was given by the appellant.

The Court was asked to review the appellants’ decision in terms of the common law and

Article 18 of the Constitution on the grounds; that there was no reasonable evidence to justify

the decision, that she had a legitimate expectation that she would be informed of all

information in possession of the appellant, and be given an opportunity to deal with such

information. The other grounds of review was that the appellant failed to apply the principle

of natural justice, particularly the audi alteram partem rule, and that appellant failed to give

reasons for its decisions.

Regarding respondents request to appear in person to answer queries by the appellant, the

latter said that respondents’ application was complete and fully motivated and therefore not

necessary to call the respondent to appear before the board. With regards to the issue that the

respondent is lesbian; the appellant denied that this played a role in the decision taken and

stated that respondent’s sexual orientation was considered a private matter having no bearing

on the application. Appellant furthermore denied that it failed to apply the principle of natural

justice and stated that it took all information relevant to the respondent’s application. It

27

2001 NR 107 (SC).


31 UNAMLR vol. 2(2)

admitted its failure to give reasons for its decisions denying that it was in law not obliged to

do so.

The court found that the appellant failed to apply the principle of natural justice- the audi

alteram partem rule. Although the Board made use of its own expertise and knowledge of

relevant facts and followed policy and principles and guidelines which it believed it was

entitled to in the proper exercise of its duties and responsibilities. The principles of natural

justice required the Board to have disclosed such facts, principles and policies to the

applicant and allowed an opportunity to respond thereto, by letter or personal experience

before the Board or both.

The court held that the Board was entitled to grant or refuse a permanent residence permit, on

the information before it and provided that the Board acted reasonably that would be the end

of the matter. However, there may well be instances where the Board acts on information

they are privy to, if such information is potentially prejudicial to applicant, it must be

communicated to him/her to give such person an opportunity to respond to the information.

The honourable judge referred to the case of Loxton v Kendhart Liqour Licensing Board,28

where it was decided that, in instances where applicant should reasonably have foreseen that

prejudicial information would reach applicant he /she is duty bound to give such information.

In the absence of any prescription of the statute the appellant was free to determine its own

procedure provided its fair and does not defeat the purpose of the Immigration Control Act.29

The Government of the Republic of Namibia v Ngeve Raphael Sikunda 30

In this case an application was brought for the release of Mr. Sikunda, from detention and for

setting aside of the Ministry of Home Affairs order for his removal from Namibia. The

Ministers order for the detention and removal was in terms of section 49 (1) of the

Immigration Control Act,31

on the recommendation of the Security Commission established

under Article 114 of the Namibian Constitution. The Minister of Home Affairs submitted that

Mr. Sikunda and others were a security threat to the Namibian State. The Court had to

28

Loxton v Kendhart Liqour Licensing Board 1942 AD 275. 29

No. 7 of 1993. 30

2002 NR 203 (SC). 31

No. 7 of 1993.


32 UNAMLR vol. 2(2)

determine whether Mr. Sikunda was a citizen and or domiciled in Namibia in terms of the

Immigration Control Act.32

The first issue the court was faced with was the question whether the Security Commission

was properly constituted, and whether the decision of the Minister to declare Sikunda

persona non grata (prohibited immigrant) without affording him an opportunity to make

representation was indeed valid.

The court came to the conclusion, that the Act could not be deemed to apply to Sikunda, as

he was found to be domiciled in Namibia, whilst the Act only applied to aliens or prohibited

immigrants. In the second identified issue, the Security Commission in terms of article 114 of

the Constitution stipulated that it shall consist of six members for its legal existence. At the

time when it made its recommendation for the detention and removal of Mr. Sikunda, it only

had four members, it thus sufficed to decide the validity of the decision to recommend on the

ground that the Commission was not properly constituted at the time of the taking of a valid

decision. The court in its approach referred to a principle from the South African jurisdiction,

which was laid down in 1919, as per Innes CJ:

The general rule in such circumstances is that when several persons are appointed to exercise

judicial powers, then in the absence of a provision to the contrary, they must all act together,

there can only be one adjudication and that is the adjudication of the entire body. And the

same rule would apply whenever to deal with any matter as one body, the action taken would

have to be the joint action of all of them.

The judge went on to say that what this meant was that the composition of the Security

Commission under Article 114 was peremptory in that it stated that; the commission should

consist of six members; it does not contain any exceptions or qualifications. The Commission

was a body empowered to take decisions that may affect people’s rights, now if it was not

properly constituted, it will be deemed not to have the necessary power to take such decision.

As the Security Commission was not properly constituted when it purported to consider the

minister’s request and made its recommendation, it could thus not have made a valid decision

32

No. 7 of 1993.


33 UNAMLR vol. 2(2)

for the purpose of section 49 (1) of the Immigration Control Act.33

The Minister did not have

the jurisdiction, making its order void ab initio.

The third identified issue was whether the Minister and Security Commission in making its

decision to declare Sikunda persona non grata without affording him an opportunity to make

his representation was valid, as required by the audi alteram partem rule?

The court said that the Security Commission was an administrative body and its member’s

administrative officials, in terms of Article 18 of the Namibian Constitution, and

consequently had to act fairly and reasonably. The Article thus obliged the Security

Commission to give the applicant an opportunity to deal with the matter orally or in writing,

as it holds that in order to see whether the administrative body has acted fairly and

reasonably, it can only be determined by providing reasons for the decision. Even when there

is a legitimate reason for refusing, such as state security, this option would still be open. The

court concluded that reasons should always be given for decisions made; this may be done

prior to an application to a court for a review or in the course of a review for an application.

Comparison of the two Judgements

The first case,34

mainly dealt with the importance of the principles of natural justice as the

main template to be used in the ascertainment of reasonableness. As aforementioned by Hinz,

it also served as a principle in upholding common law in accordance with the values

enshrined in the constitution, namely article 18. Glinz,35

opines that the Frank case also

propounded how reasons for arriving at an administrative decision played a crucial role in

determining the issue of reasonableness. She referred to the words of Levy AJ who stated in

the first instance judgment of the High Court that:

An unfair or unreasonable decision entitles an aggrieved person to redress by the Court, but

the Court cannot judge what is reasonable or unreasonable unless the administrative body

gives its reasons for arriving at its decision. Therefore, he came to the conclusion that the

respondent was obliged to give reasons where such exist.36

With regards to the Sikunda case

33

No. 7 of 1993. 34

Chairperson of the Immigration Selection Board v Erna Elizabeth Frank and Elizabeth Khaxas 2001

NR 107 (SC). 35

Glinz (2009:18). 36

Supra, at p. 107.


34 UNAMLR vol. 2(2)

Glinz mentions how it emphasized that Article 18 of the Namibian Constitution obliges

administrative organs exercising discretion to give reasons for its decisions as it requires the

administrative bodies and officials to act fairly and reasonable.37

This they can show by

providing reasons for their decisions and when necessary afford the party affected by the

decision the opportunity to make his/her representations. The provisions of reasons for a

decision allows a person to test whether the decision maker had acted fairly or reasonably,

this may be done by checking whether the decision maker acted in bad faith, or had an

ulterior purpose.38

Taking the rules of natural justice by an administrative body or official into mind, the court is

required to refer the matter back to the administrative organ concerned for reconsideration. It

should give an instruction that the aggrieved party be heard, but will not grant the application

or set aside the decision. This is due to the rules that relate to fair procedure and because the

doctrine of separation of powers as the courts are concerned only with the regulation of

administrative acts since policy decisions are not the domain of the courts.39

Glinz, bases her arguments on the case of Government of the Republic of Namibia v Cultura

2000,40

whereby the court went to say that Article 18 is part of the Constitutional chapter on

fundamental rights and freedoms and should be interpreted “...broadly, liberally and

purposively...to give the article a construction which is most beneficial to the widest possible

amplitude.”41

The Court in the Cultura case further went on to say that “there is no basis to interpret the

article in such a way that those who want to redress administrative unfairness and

unreasonableness should start off on an unfair basis because the administrative organ refuses

to divulge reasons for its decisions”.

It is evident from the two cases that the latter one provides a more clearer perception as to the

ascertainment of reasonableness by providing that a court of law can overrule the decision of

37

Ibid. 38

Ibid, at p. 19. 39

Ibid. 40

Government of the Republic of Namibia v Cultura 2000 1993 NR 328 (SC) at 340 B-F. See also Glinz

(2009:18).


35 UNAMLR vol. 2(2)

an administrator, unlike the Frank case, when it is unreasonable, that is to say that such

decision is irrational and illogical, in the sense that it is, as the three examples given above,

that of long periods of delay, where the applicant may suffer prejudice and where it would

result in gross unfairness.

Contrast between South African and Namibian approach

South African and Namibian laws are considered as practically the same as they both share

the same sources of law. With regards to administrative laws, both derive theirs from a

combination of both Roman Dutch as well as English, of which Namibia has literally adopted

South African Law.

The main difference however, lies in the fact that Namibia only adopted statutory laws that

were enforced before independence as enshrined under Article 140 of the Constitution which

mentions (1) Subject to the provisions of this Constitution, 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

basically means that any other statutory law adopted by South Africa after 1990 does not

apply to Namibia, thus making the Rules outlined in PAJA to be restricted to South African

administrative law only.

From the above mentioned, it is clear that South Africa has PAJA that gives a more concise

definition of reasonableness unlike Namibia which has to rely on common law as its basis.

This however does not invalidate or give an inferior ranking to the Namibian legal system.

Just like in various other jurisdictions all over the world, Namibia has not adopted specific

legislation which deals with the administration of justice in particular, however the

constitutional provisions enshrined under Article 18 gives ample flexibility for the provision

of legislature with regard to administrative action as long as such provisions conform to the

spirit of Constitutional values. A recent initiative of the Namibian Ministry of Justice and its

Law Reform and Development Commission opened the debate on the question of whether or

not Namibia should follow the approach adopted by other countries, namely to introduce a

statutory framework for the promotion of administrative justice.


36 UNAMLR vol. 2(2)

Conclusion and Recommendations

It is believed that there is a great need for Namibia to conceptualize what the term

reasonableness in terms of Article 18 of the Namibian Constitution is in order to give clarity.

Having, conclusively discussed the concept of reasonableness in Namibia and in other

jurisdictions it can therefore be noted that Namibia does not really differ in the term

reasonable action. This according to some can be done by introducing a body similar to the

South African PAJA for Namibia. To oblige administrators to give reasons for decisions

taken, not only to avoid further disadvantage to aggrieved persons but allow a format exercise

of discretionary power that is not broad but rather specific.

The opinion of introducing a system like PAJA, has been a topic of debate in Namibia

specifically. Recent initiative of the Namibian Ministry of Justice and its Law Reform and

Development Commission opened the debate on the question of whether or not Namibia

should follow the approach adopted by other countries, namely to introduce a statutory

framework for the promotion of administrative justice.42

Due to that an international

conference entitled “Promoting Administrative Justice in Namibia” (PAJN), was held in

Windhoek from 18 to 21 August 2008. The PAJN Conference was attended by international

experts in administrative law from Germany, South Africa and Zimbabwe.43

Namibia was

represented by government officials, judges, legal practitioners, and staff members of the

University of Namibia’s Faculty of Law. The practically unanimous opinion expressed by the

Conference was that Namibia should indeed pursue the possibility of introducing an

administrative law statute, while at the same time taking note of the country’s socio-

economic conditions.44

Hinz, alludes that although the conference provided a relatively comprehensive picture of

administrative justice in the country, further research is required on the state of affairs in

terms of the constitutional basis of such justice, its operation through courts and tribunals,

and its shortcomings. This, he believes will strengthen the foundation on which the Namibian

bill to promote administrative justice can be developed, and will convince the various

42

Hinz (2008:89). 43

Ibid. 44

Ibid.


37 UNAMLR vol. 2(2)

stakeholders – including politicians and those in charge of finances alike – of its usefulness,

as administrative law reform will certainly not be without financial consequences.45

He opines that research would need to investigate

The nature of administrative actions;

The perceptions of administrators in respect of their performance of administrative

duties;

The perceptions of citizens as regards the administration’s behaviour;

Cases where citizens would have liked to see a judicial review of administrative

decisions;

Cases where citizens decided not to appeal to the courts because of logistical or

financial problems;

The number of administrative cases decided since independence;

The existence and contents of written or oral administrative reasoning; and

The way the administration handles citizens’ dissatisfaction with administrative

decisions.46

Comparative legal research would also be needed to see how other countries deal with

administrative justice, and what avenues they offer to assist citizens in obtaining it. Such

comparative work would enable one to assess whether or not the South African response, in

particular, to the need to strengthen administrative justice is indeed a suitable model for

Namibia and in return become a template of clarity in ascertaining administrative issues

including that of the more solid ascertainment of reasonableness in relation to administrative

action.

45

Ibid. 46

Ibid.


38 UNAMLR vol. 2(2)

The Principle of Legitimate Expectation in Administrative Law:

A Namibian Perspective

Karel N. Gaeb & Joas K. Neemwatya

Abstract

Most legal systems are currently facing many administrative law challenges because of the

growth of administrative power. The range of tasks performed by the administrators has

increased, so has the potential for arbitrary or unfair action as regards the individual.1

Therefore, the argument stressing the importance of keeping administrative authorities within

their perimeter is transformed in the administrative context into a claim of practicing

different doctrines that debar an administrator from turning out to be an irrational or

arbitrary authority. The doctrine of legitimate expectation has appeared as a new tool to

prevent such arbitrariness or misuses. It is the ‘latest recruit’ to a long list of concepts

fashioned especially by the Western courts for the review of administrative actions.2

In Namibia, it is true that there is no general Statute like Administrative Justice Act laying

down the minimum procedure which administrative authorities must follow while exercising

decision making power. Nonetheless the Court has always insisted that administrative

authorities must follow a minimum standard of fair procedure (ensuring legitimate interest of

individual).3

This minimum procedure refers to the concept of natural justice which

ultimately protects and ensures legitimate expectation.4 Focusing on this aspect, this paper

examines an introduction of the doctrine, its scope, and its application as a check against

arbitrary decisions of the administrator, furthermore, how this doctrine has been integrated

LLB (Honours) Candidate, Diploma in Paralegal Studies (University of Namibia); Student Assistant,

Faculty of Law (University of Namibia). LLB (Honours) Candidate; Diploma in Paralegal Studies (University of Namibia); Student Assistant;

Faculty of Law (University of Namibia). 1 Thomas, R. 2000. Legitimate Expectations and Proportionality in Administrative Law. Oxford: Oxford

University Press, p. 1. 2 Takwani, C. K. 2006. Lectures on Administrative Law.India: Eastern Book Co., p. 278.

3 Waterberg Big Hunting Lodge and Another v The Minister of Environment and Tourism Case No. SA

13/2004. The Court stated as follows at page 20: “The ratio of this “doctrine of legitimate expectation”

is consistent with the thinking and principles contained in Article 18 of the Namibian Constitution. The

said doctrine, as well as Article 18, are based on reason and justice in the exercise of administrative

discretion. The doctrine was overtaken by the later incorporation of Article 18 in the Namibian

Constitution. Nevertheless the doctrine can serve a useful purpose in supplying some specifics to the

broad and general norms set out in Article 18 and be used as a tool for the implementation of Article

18. As such it should be applied by our Courts in conjunction with Article 18.” See also Chairperson of

the Immigration Selection Board v Frank and Another 2001 NR 1075 SC: For the relationship between

the doctrine of legitimate expectation and Article 18. 4 Article 18 of the Namibian Constitution Act 1 of 1990. See also Md. Harun Reza Scope of legitimate

expectation doctrine (2011).


39 UNAMLR vol. 2(2)

into Namibian case law with reference to the setting of Namibia's constitutional-

administrative law dispensation.

Introduction: Description and Scope of the Doctrine

The doctrine of legitimate Expectation is meant to provide aid to persons when they are not

able to substantiate their claims on the grounds provided by law. The impact of this doctrine,

at least in its traditional form, is that if an Administrative Decision Maker makes a promise or

gives an undertaking to exercise power in a particular way, instantaneously, until that

promise or undertaking is formally rescinded or achieved, those affected by that exercise of

the power have a legitimate, enforceable, expectation that it will be exercised in accordance

with the promise or undertaking.5

The Supreme Court of India had an opportunity of establishing the meaning and scope of the

doctrine in Union of India v Hindustan Development Corp.6 In explaining the meaning and

validity of the doctrine upon it arising, the Court held that:

Time is a threefold present: the present as we experience it, the past as a present memory and

the future as a present expectation. For legal purposes, the expectation cannot be the same as

anticipation. It is different from a wish, a desire or hope nor can it amount to a claim or

demand on the ground of a right. However earnest and sincere a wish, a desire or a hope

maybe and however confidently one may look to them to be fulfilled…the legitimacy of an

expectation can be inferred inter alia, if it is founded on the sanction of law or custom or an

established procedure followed in a natural and regular sequence. Such expectation should be

justifiably legitimate and protectable.7

Riggs submits that:

….[t]he legitimate expectation doctrine has become a rationale for granting judicial review of

administrative decisions in circumstances where the applicant had good reason to anticipate

5 Scott, D. & Felix, A. 1997. Principles of Administrative Law. London: Cavendish Publishing Ltd, p.

127. 6 (1993) 3 SCC 499.

7 Ibid.


40 UNAMLR vol. 2(2)

(i.e. a legitimate expectation) that the decision would be favourable or at least that he would

be properly consulted before the adverse decision was made.8

Allan argues that the doctrine is simply an instrument for responding to incidents of

unfairness, hence there is no point in further delimiting it according to some additional

principle.9 This must be incorrect, for certainly situations of unfairness will arise where the

doctrine is entirely inapt, and where no expectation will be capable of being identified.

Legitimate expectation concerns itself with interests which by themselves would not invite

legal protection. Moules, calls this the “special significance” of the concept: rather than the

nature of the interest attracting the application of the rules of natural justice it is the

“legitimate expectation arising out of the conduct of the decision-maker which provides the

basis of the protection”.10

This uniqueness of legitimate expectations can be seen in the

classic case of Ng Yuen Shiu.11

The applicant’s status as an illegal immigrant meant that he

had no free-standing legal right to challenge the refusal of the Hong Kong authorities to grant

him a hearing; only because of a prior Government assurance that illegal immigrants would

have such a hearing was the Court able to intervene, thereby protecting his legitimate

expectation. As Lord Fraser stated:

The doctrine is capable of including expectations which go beyond enforceable legal rights.12

The point being made here is that the doctrine has an extraordinary and distinct role within

administrative law. In contrast to other situations where, for instance, fairness and natural

justice are demanded by the very nature of the thing being sought, the doctrine is also able to

intervene where interests have crystallised into protectable rights by virtue of some action of

the decision-maker. This argument lies at the core of this paper-the role of the doctrine is

narrow and specific, unlike the broad principles of fairness and abuse of power.

8 Riggs, R. E. 1988. Legitimate Expectations and Procedural Fairness in English Law. American Journal

on Comparative Law 395, p. 403. 9 Allan, T. R. S. 1994. Law, Liberty and Justice: The Legal Foundations of British Constitutionalism.

Oxford: Clarendon Press, p. 197-204. At p. 198 Allan argues for restricting the phrase “Legitimate

Expectation” to cases where the court has decided to fully vindicate an expectation; this use as a

conclusory label would be the extent of its role. Yet conceptually it would remain simply an instrument

of fairness. 10

Elias, P.1988. “Legitimate Expectation and Judicial Review”. In Jowell J & Oliver D. (Eds). New

Directions in Judicial Review. London: Stevens, p. 41. 11

Att Gen of Hong Kong v Ng Yuen Shiu 1983 (2) A.C. 629. 12

Ibid at p. 636.


41 UNAMLR vol. 2(2)

Historical development of the Doctrine of Legitimate Expectation

Classification of acts into quasi-judicial administrative acts and pure administrative acts has

been rooted in unfairness and abuse of administrative powers by administrative authorities.

According to this grouping, the rules of natural justice were only applied in respect of quasi-

judicial administrative acts.13

This has not only granted administrators a green light to abuse

their powers but also ignored an individual’s right to a hearing where no legal right has been

acquired.14

This has thus militated against the rule of fairness as it excludes an individual’s

legitimate expectations. Consequently, the Appellate Division in Administrator, Transvaal v

Traub,15

adopted the doctrine of legitimate expectations to guard against abuse of

discretionary powers by those with authority to exercise it. However, prior to the Traub case,

the doctrine was somehow raised in several cases though it was not successful. Worth of

noting of those cases is the matter of Castel NO v Metal and Allied Workers Union, where the

appellate Division noted that:

Even if the "legitimate expectation" approach were to be adopted, there is no room for its

application here …nothing had happened before the application for authority was submitted

and nothing happened thereafter which could have caused the applicant to entertain such an

expectation…I am by no means sure that this case would in England be classified as a

"legitimate expectation" case.16

The holding of the court in Castel No case then served as guidelines for a successful claim for

a legitimate expectation not only in the Traub,17

case that was decided a year later, but for

any legitimate expectation case that may arise today and tomorrow. Therefore, it could be

argued that the doctrine of legitimate expectation had been recognised in law in Roman-

Dutch law in the Castel No case. It would appear that the appellant only failed on the

question of facts.18

13

Pretoria North Town Council v Ai Electrical Ice Cream Factory (Pty) Ltd 19533 SA 1 (A) 11AC);

South African Defence and Aid Fund v Minister of Justice 1967 1 SA 263 (A) 278C-D. See also

Wiechers, M. 1985. Administrative Law. Cape Town: Juta & Co, Ltd, pp. 136 & 180. 14

Oberholzer v Padraad van Outjo 19744 SA 870 (A) 875 at -876B; Baxter, L. 1984. Administrative

Law. Durban: Butterwoths, p.573. 15

Administrator Transvaal v Traub 1989 4 SA 731 (A). 16

Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T). 17

Administrator Transvaal v Traub 1989 4 SA 731 (A). 18

Castel NO v Metal and Allied Workers Union 1987 4 SA 731 (T).


42 UNAMLR vol. 2(2)

Birth of the Doctrine into Namibian Administrative Law

The doctrine was first developed in the English jurisdiction in the case of Schmidt v Secretary

of State of Home Affairs.19

The Home Office, which administered the Aliens Order, had a

policy of according aliens studying at a ‘recognized educational establishment’ a permit to

live in Britain. The plaintiffs had been admitted to study at the Hubberd College of

Scientology and were given permits to live in the country for a certain period of time. The

Home Secretary, because of the concerns about Scientology, announced that the college

would no longer be considered a ‘recognized educational establishment.’ When the plaintiff

applied for the renewal of their permits, they were refused. They then alleged that this

constituted a denial of natural justice, since they were not given a hearing before this decision

was made.

Lord Denning emphasized that, since the plaintiffs were aliens, they were only entitled to

remain in the country “by licence of the Crown.” He held that the duty to allow

representations to be made “depends on whether [the plaintiffs] has some right or interest, or,

some legitimate expectation, of which it would not be fair to deprive him without hearing

what he has to say.”20

The doctrine was adopted into the Namibian jurisdiction via the South African case of

Administrator Transvaal v Traub,21

and was hailed into Namibian law in West Air Aviation

(Pty) Ltd & Others v Namibia Airports Co Ltd & Another.22

For purposes of this article, we

find it vital to elaborate more on these two latter cases.

Administrator Transvaal v Traub23

The respondents, all of whom were medical doctors, had applied to the Director of Hospital

Services to be appointed or reappointed to the position of Senior House Officer at the

Baragwanath Hospital of which the third appellant was the Superintendent. In accordance

with the existing practice, the applicants were forwarded to the Head of the hospital

departments concerned, who submitted them with favourable recommendation to the

Director, whose function it was, under delegated powers to make such appointments.

19

(1969) 2 Ch. 149 (C.A). 20

Schmidt v Secretary of State for Home Affairs. (Ibid). 21

1989 (4) SA 731 (A). 22

2001 NR 256 (HC). 23

Administrator Transvaal v Traub 1989 (4) SA 731 (A).


43 UNAMLR vol. 2(2)

The applications of each of the respondents were not approved. Moreover, it was common

cause that the applicants were rejected because the respondents motivated by profound moral

considerations and professional disquiet had signed an incisively critical letter. The letter was

thereafter published in the South African Medical Journal. It severely criticized the Provincial

Administrator, and drew attention to the appalling and totally unacceptable conditions

prevailing in the medical wards at Baragwanath Hospital.

The Court had to decide whether the audi principle only applied to ‘existing rights’, or

whether indeed the impact was wider than just consideration of existing rights,24

because in

this case the respondents were not yet vested with ‘existing rights.’ The Court, after tracing

the genesis and development of the concept of legitimate expectation in English law found

that the respondents and the rest of the applicants had expectations owing to the existing

practice that fell short of enforceable rights that required protection.25

The learned Judge

went on to observe that in both Australia and New Zealand the concept of legitimate

expectation had been employed by the courts in the context of judicial review of

administrative action.

In this judgment, the Chief Justice accepted that the doctrine of legitimate expectation should

be incorporated into the South African jurisdiction. The Court therefore found that the

applicants had legitimate expectations, once their applications for the posts of Senior House

Officers had been recommended by the departmental head. The director’s approval of the

appointment would therefore follow as a matter of course. If the director intended some

change, he or she should give them a fair hearing as each particular case required.26

The Chief Justice further recognised that a legitimate expectation might arise in at least two

instances: firstly, where a person enjoys an expectation of a privilege or a benefit of which it

would not be fair to deprive him or her without a fair hearing, and secondly, in circumstances

where the previous conduct of an official has given rise to an expectation that a particular

procedure will be followed before a decision is made.27

24

Ibid, p. 747 C-D. 25

Ibid, p. 744 D-E. 26

Ibid, p. 761H-762D. 27

Ibid, p. 758D-F.


44 UNAMLR vol. 2(2)

West Air Aviation (Pty) Ltd & Others v Namibia Airports & Another28

The respondent sought to enhance both airport security and ramp safety. To achieve this it

decided to revise its terms and conditions and policy without informing the applicants.

Subsequently, it disconnected or relieved the applicants of its duties and services to do

ground handling because it thought West air Aviation was compromising airport security and

ramp safety. It appointed another company to take over the services of ground handling.

The applicants then contended that it was an established part of their respective businesses to

carry on ground handling services, as such they had a legitimate expectation as in the case of

the first respondent that they would be permitted to continue what was an established regular

practice. In this regard they further contended that there was an obligation on the first

respondent to act fairly towards the applicants when decided or revising its conditions and

policy. Respectively the applicants submitted that they were at least entitled to an opportunity

to make representations before the conditions and the policy could be changed, they therefore

sought an order that the first respondent’s decision should be reviewed and set aside.

Hannah, J the then Judge of the High Court, cited with approval the decision of Administrator

Transvaal v Traub and highlighted that legitimate expectation arise despite a person claiming

some benefit or privilege has no legal right to it, as a matter of private law. He nonetheless

may have a legitimate expectation of receiving the benefit or privilege. The Court usually

protects legitimate expectation by judicial review as a matter of public law. In addition,

legitimate or reasonable expectation was found to emanate either from an express promise

given on behalf of a public authority or from the existence of a regular practice which the

claimant can reasonably expect to continue.

He further extracted a few extracts of particular significance as follows:

…the particular manifestation of the duty to act fairly which is presently involved is that of

the recent evolution of our administrative law which may enable an aggrieved party to evoke

judicial review if he show that he had a ‘legitimate expectation’….the principle may now said

to be firmly entrenched in this branch of the law. As the case show, the practice is closely

connected with ‘a right to be heard’…29

(emphasis added).

28

2001 NR 256 (HC). 29

West Air Aviation (Pty) Ltd v Namibia Airport Co Ltd 2001 NR 256 at 263-264.


45 UNAMLR vol. 2(2)

There has been a number of other Namibian decisions that have followed this ruling. In so

doing they likewise have also highlighted that legitimate expectation is closely linked to the

right to be heard, thus anticipating procedural fairness. This was the case in Open Learning

Group of Namibia Finance v Permanent Secretary of the Ministry of Finance & Others,30

were Damaseb JP had the following to say regarding legitimate expectation:

Where a public authority so acts as to create or bestow a benefit or concession in

circumstances where it is under no statutory duty to do so, those enjoying such benefit

acquires a legitimate expectation to be heard before any action adverse to the enjoyment of

that benefit is taken. Put simply, the public authority granting the benefit must respect the

dictates of the Constitution; it must act fairly and reasonably.31

Damaseb JP justifies his assertion in providing that:

The reason is simple: relying on such benefit the grantee may organise his or her affairs in

reliance on such benefit or concession – affairs which may be negatively affected by a

summary withdrawal of the benefit or concession.32

In applying this principle to the facts of the case, Damaseb JP held that:

The applicant, relying on the benefit of the deduction code, organised its affairs to its

financial advantage and that a potential disruption would ensue in the wake of its withdrawal

is amply demonstrated on the papers. As clear from the agreement, the applicant is also

required to invest resources in a ‘social upliftment programme’. It therefore assumed a

financial risk entering into the agreement. The applicant therefore had a legitimate

expectation to be heard, assuming the withdrawal of the code constitutes administrative

action.33

30

Unreported judgment of the Namibian High Court, Case No.: (P) A96/2005. Judgment delivered on 10

January 2006. 31

At page 38, para 94. 32

Ibid. 33

Ibid.


46 UNAMLR vol. 2(2)

Application of Substantive Legitimate Expectation through implication in the Namibian

Context

In the case of Minister of Health and Social Services v Lisse,34

the plaintiff, a specialist

obstetrician and gynaecologist was previously employed by the defendant as a medical

officer from 1989 to 2003, and later as a specialist. He resigned in 2003 and commenced his

private practice in January 2004. He then applied to the defendant during 2004 for

permission to engage in the treatment of patients and to perform medical procedures at State

hospitals under the jurisdiction of the defendant in terms of section 17 of the Hospitals and

Health Facilities Act, 36 of 1994 (“the Act”). On 5 April 2004, the defendant refused the

application of the plaintiff. However between January and April 2004, before his application

was declined, he consulted with state patients, particularly those on the Public Service

Employer Medical Aid Scheme (“PSEMAS”) in anticipation of being granted leave to

engage in the treatment of patients and to perform medical procedures at State Hospitals.

Issues:

(1) The reasons for the Minister’s decision were only supplied subsequent to her

final decision and only when requested to do so by Dr Lisse and/or his legal

representatives; and

(2) Minister relied on complaints from staff, fellow doctors and other people but

never presented an opportunity for Dr Lisse to refute such statements or

address them the minister in making his decision failed to consult senior staff

at the hospital.

The Court held that the Minister did not afford Dr Lisse a proper hearing before decision was

taken; she failed to appreciate Dr Lisse right to his legitimate expectation to a fair procedure,

therefore the decision taken was unfair, unreasonable and in conflict with Article 18. The

Courts further decided not to send the application back to be reviewed by the Minister as the

same decision would be anticipated and therefore be unjust. The court ordered the Minister to

issue the acquired authority to practise.

34

CASE NO. SA 23/2004


47 UNAMLR vol. 2(2)

So it is seen here that the core of substantive legitimate expectation is then realised. The

promise/practice by the public authority which is in source of the applicant’s procedural

rights and in a sense protection can be seen as substantive because the applicant being Dr

Lisse receives what he was led to expect. It is through implication that substantive legitimate

expectation was applied, on the basis of the judgement granted.

In re: Van Rooyen v University of Namibia35

The matter was based on the fact that Van Rooyen was awarded Full Professor rate and that

the Vice Chancellor later send him a letter stating that there was an error done on awarding

him such Full Professorship which was signed by the Pro-Vice Chancellor Hangula on behalf

of the Vice Chancellor Peter Katjavivi.

The VC stated that it should have been that of Associate Professor. Van Rooyen stated that if

he is deprived of his Full Professor title which he had been using and which the Dean Prof

Du Pisanni his employee congratulated him about will affect him financially. The court under

the Judgement of Damaseb JP stated that the University’s decision to alter Van Rooyen status

from full professor to that of associate professor constitutes a unilateral alteration of the Van

Rooyen conditions of employment. The University is therefore ordered to restore the status

quo ante with immediate effect.

This meant that the benefit which was constituted upon Van Rooyen which is a substantive

legitimate expectation as Van Rooyen showed that profession of such level from on tier to

another upgrading tow positions at once is a practice which has been taking form for a long

period of time such as a lecture to being promoted to Associate Professor.

In the case of Witvlei Meat (Pty) Ltd v The Cabinet of the Republic of Namibia,36

the courts

had an application to grant relief sought by the applicant. The applicant had brought forth one

of the grounds of Substantive legitimate expectation. The court held that it would not need to

focus or consider on this concept as there were others of more importance/consideration in

the matter. We can see here that the courts are not foreign to the doctrine of substantive

legitimate expectation and could therefore be expressly in applied in the courts.

35

Van Rooyen v University of Namibia 2004 NR 150 (LC). 36

(A 07-2014) [2014] NAHCMD 115 (31 March 2014) (1).


48 UNAMLR vol. 2(2)

Article 18 does not restrict the duty of Administrative bodies or administrative officials to act

fairly and reasonably only in regard to procedure. It must be inferred that this requirement

also applies to the substance of the decision. This inference is strengthened by the last part of

the article, which provides that “…persons aggrieved by the exercise of such acts and

decisions, shall have the right to seek redress before a competent Court or Tribunal".37

What Article 18 of the Namibian Constitution does is that it does not confine itself to

"procedurally fair administrative action", but provided generally that – "Administrative

bodies and administrative officials shall act fairly and reasonably … and person aggrieved by

the exercise of such acts and decisions, shall have the right to seek redress before a competent

Court".

The general principle of a duty to act fairly and reasonably, supplements the common law

and any relevant statute law, but obviously any common law or statute law in conflict with

this provision, will be unconstitutional. Article 18 does not talk of any person’s legitimate

expectation.38

Thus, its purpose could not be fully attained with invoking the doctrine of

legitimate expectation. One of the rights provided in Article 18 is the right to a hearing. This

is the essence of procedural legitimate expectation which is fairly part of our law. In Frank

case,39

the Supreme court noted that the doctrine of legitimate expectation may entitles a

person to a right of hearing even where such person would otherwise not have acquired such

right. Therefore legitimate expectation may, on itself, amount to another right though short of

a legal right.

As alluded to earlier, certain requirements must be met. In the Uffindell case,40

the court

held that a legitimate expectation only arises where there was an established practice of

consultation, or where a promise or representation has been made that consultation will

37

This view has been laid down in my decision in the High Court in Aonin Fishing (Pty) Ltd v Minister of

Fisheries and Marine Resources 1998 NR 147 HC and confirmed by this Court in: The Chairman of

the Immigration Selection Board v Frank, 2001 NR 107 SC 109E-110B; 116F-121G; 170F-176I;

Government of the Republic of Namibia v Sikunda 2002 NR 2003 SC at 226G-229F. See also High

Court decision 2001 NR 181. Mostert v Minister of Justice, 2003 NR 11 at 22J-28H. Cronje v

Municipal Council of Mariental, 2004 (4) NLLP 129 at 175-182. Bel Porto School Governing Body &

Others v Premier Western Cape & Another 2002 (3) SA 265 CC at 291C –295H; 300C-316E. 38

Ibid. 39

Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SCA). 40

Arthur Fredrick Uffindell t/a Aloe Hunting Safaris v Government of Namibia And 4 Others case NO.

(P) A. 141/2000.


49 UNAMLR vol. 2(2)

be made. The court held that the respondent failed to adduce evidence of the practice of

consultation.

Conclusion

The developed concept of legitimate expectation has gained sufficient importance in

administrative law.41

The doctrine has been developed to check and to control the

exercise of powers by the administrative authorities and thereby it aims at the main

aspect of this branch of public law. The substance of the doctrine is implied

commitments without hampering express policies. The doctrine is invoked to enforce

regularity, predictability and certainty in government dealings. It is the tool of

protecting individual citizens against the administrative actions subject to the

satisfaction of the court as to the existence of the factors necessary to justify the

expectation as legitimate. For this reason, the court should exercise self-restraint and

restrict the claim of denial of legitimate expectation to the legal limitations.

The utilisation of the doctrine of legitimate expectations is two-fold: On the one hand, it

assists in determining the circumstances in which a duty to act fairly arises. A public

body that, through its conduct, has created a legitimate expectation on the part of the

person who is subject to its decision-making powers, must act fairly towards that

person. Therefore, a person who has a legitimate expectation has a stronger claim to fair

treatment than a person whose interests may be affected by an administrative decision,

but who does not have any legitimate expectation.

On the other hand, the doctrine assists in defining the content of the duty to act fairly. A

person who has a legitimate expectation is entitled to a higher degree of fairness than a

person who can claim only that the exercise of statutory decision-making powers affects

his interests adversely. Accordingly, the application of the doctrine by the Courts is not

an end. The doctrine is a tool to be used in determining whether the decision-maker

owes a duty of fairness to the person concerned and what that duty entails.42

The doctrine of legitimate expectation in Namibia, is still in an evolutionary stage; but

one thing is certain that it managed to have its position entrenched in the same line with

41

Massey, I. P. 2001. Administrative Law. Eastern Book Company, 5th Edn, p. 293. 42

Pretorius, D. M. 2000. “Ten Years After Traub”. The South African Law Journal, vol. 117 (3), p. 547.


50 UNAMLR vol. 2(2)

other contemporary world practicing this doctrine successfully. But this is not the end.

To continue with this success, the judges are to play the lead role by being well-

resourced with different facets of this doctrine. As there are no fixed rules to express

this principle, the judges should be more careful in deciding a claim based on legitimate

expectation so that nobody can use the inherent uncertainty of this principle. At the

same time, a constant comparative analysis with other countries and to import new ideas

from them will be of use for the smooth development of legitimate expectations in

Namibian law.


51 UNAMLR vol. 2(2)

Protection of procedural rights in Expropriation matters:

A comparative study- Namibian and Ghanaian perspective

Harris P. Masake

Abstract

Expropriation is a contentious process which is capable of putting to test a States’ respect for

democracy and rule of law, in particular the State’s respect for the right to procedural

fairness. Expropriation debates appears to be far from being contained and or exhausted, to

an extent that in Namibia and beyond we read tabloids’ exposing concerns about

expropriation of land. ‘Landless citizens are aggrieved and they need the land’, ‘farmers and

landowners are worried’, ‘the economy is relatively in its infancy stage’, ‘land grabbing or

caesarean birth’? The search for an amicable solution continues. Amidst the expropriation

debate, this article brings to light the importance of procedural rights in expropriation

matters and the enforcement mechanism thereof. It is argued that the violation of procedural

rights is prohibited and may afford the affected individual a ground to review the

expropriation decision. It is trite that the State is vested with the authority to expropriate any

property on condition that the requisite requirements are satisfied, including the State’s

constitutional mandate to respect and protect procedural rights for all.

Introduction

Namibia and Ghana have become more common to granting far-fetching powers to

administrative functionaries through the instrumentality of the Constitutions,1 and various

statutes.2 These powers include the power of eminent domain or the right to expropriate

privately owned property. These powers invoke the safeguards provided by the rules of

procedural fairness which tend to protect the rights of individuals whose property is

expropriated.3

Expropriation constitutes a drastic interference with the rights of individuals as a result

statutes which empower expropriation are, with their regulations, strictly interpreted. When

BJuris, LLB (University of Namibia); LLM (University of Stellenbosch); LLD Candidate (University

of Stellenbosch). Magistrate, District of Rundu, Republic of Namibia. 1 Article 16 (2) of Namibian Constitution; Article 20 of the 1992 Ghanaian Constitution.

2 Section 20 of Agricultural (Commercial) Land Reform Act 6 of 1995; Section 1 of State Lands Act 125

of 1962. 3 Article 18 of Namibian Constitution; Article 23 of the 1992 Ghanaian Constitution.


52 UNAMLR vol. 2(2)

courts or tribunals interpret the power of expropriation, they give relevant attention to

common law presumption that the legislature does not intend to interfere with existing rights.

Further courts take into account the presumption that the legislature does not intend to

compulsory acquire rights or property without payment of just compensation. This

presumption is widely recognised as an international customary principle and has been

accepted and practiced worldwide. In the case of Burland Pty Ltd v Metropolitan Meat

Industry Board,4 the court held that a statute will not be read as authorising the compulsory

acquisition by the Crown of a subject’s property without the payment of compensation unless

such an intention is clearly stated in the statute. The effect of taking into account these

presumptions among others is to ensure that the right to property is protected. These

presumptions have been supplemented by the Constitutions.5

The other common law interpretation presumption which strives to protect the affected

individual is that where the statute is equivocal, then the interpretation which favours the

affected individual must be adopted. Given these substantive presumptions, the questions

arise as to the where about of the presumptions which tend to protect the affected individual’s

procedural rights? Are procedural rights an afterthought matter? This article deposits a

discussion on the protection of procedural rights and elucidates the importance of procedural

rights in expropriation matters.

The importance of procedural rights

Traditionally expropriation is regarded as an original mode of acquisition of property. It

refers to the acquisition of a right or rights that are capable of forming part of a private

person’s patrimony or estate.6 Expropriation in a narrower meaning may refer ‘to disseise or

dispossess of ownership, to deprive of property’. It has for a long time been accepted and

understood to mean the process by which an owner is deprived of all or some of his rights in

his or her property,7 which rights become vested in the State or some other public body

authorised to acquire those rights for a payment of fair, just and adequate compensation.

Expropriation consists of both substantive and procedural law. This article concerns the

analysis of procedural rights in expropriation matters.

4 (1968) 120 CLR 400 at 406.

5 Article 16(2) of Namibian Constitution; Article 20 (2) (a) of the Ghanaian Constitution of 1992;

Section 25(2) of the 1996 South African Constitution. 6 Badenhorst, P.J. et al. 2006. Silberberg and Schoeman’s The Law of Property. 5

th Ed. Durban:

LexisNexis Butterworths, p. 559. 7 Ayr Harbour Trustee v Oswald (1883) 10 R 472, (1883) 10R (HL) 85, LR 8 App Cas 623.


53 UNAMLR vol. 2(2)

Procedural law or adjective law comprises the rules by which a court or tribunal hears and

determines what happens in matter or administrative proceedings. The rules are designed to

ensure a fair and consistent application of due process to all cases that come before a court.8

In contrast, substantive law refers to the actual claims and defences whose validity is tested

through the procedures of procedural law.9

Essential to the implementation of and

compliance with substantive rights, procedural rights play an important role in giving effect

to the substantive rights. In context of procedural law and a broad analysis although not

exhaustive list, procedural rights includes: access to information; participation in decision

making; access to justice; fair hearing and substantive redress. Although different legal

processes aim to resolve many kinds of legal disputes, the legal procedures share some

common features. All legal procedures, for example, are concerned with due process. A court

cannot impose a penalty against an individual who has not received notice of a lawsuit being

brought against them, or who has not received a fair opportunity to present evidence for

themselves.10

The purpose for procedure,11

is to maximise the fairness of any proceeding. Nevertheless,

strict procedural rules have certain drawbacks. For example, they impose specific time

limitations upon the parties that may either hasten or slow down the pace of proceedings.

Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that

have nothing to do with the merits of the case, and yet the failure to follow these guidelines

may severely damage the party's prospects of success.12

Procedural systems are constantly

torn between arguments that judges should have greater discretion in order to avoid the

rigidity of the rules, and arguments that judges should have less discretion in order to avoid

an outcome based more on the personal preferences of the judge than on the law or the facts.

The fair procedure clause serves two basic goals. One is to produce, through the use of fair

procedures, more accurate results: to prevent the wrongful deprivation of interests. The other

goal is to make litigants feel that the government has treated them fairly, for example

8 Bekker, P. M. et al. 2010. Criminal Procedure Handbook. 9

th Edition (Joubert ed). Cape Town: Juta

and Co., p. 5. 9 Bekker. et al. (2010:6).

10 Government of the Republic of Namibia and Others v Mwilima and Others 2002 NR 235 (SC) 245.

11 Standardisation for the means by which cases are brought, parties are informed, evidence is presented,

and facts are determined. 12

Wiechers, M. 1985. Administrative Law. Cape Town: Juta and Co, p. 213


54 UNAMLR vol. 2(2)

listening to both litigants’ side of the claims. The fair procedure clause is essentially a

guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an

opportunity to be heard at a meaningful time in a meaningful way, a decision supported by

substantial evidence, etcetera. In general, the more important the individual right in question,

the more process that must be afforded.

In Slochower v Board of Higher Education,13

the court found that, the extent to which

procedural due process must be afforded to the recipient is influenced by the extent to which

he may be condemned to suffer grievous loss and depends upon whether the recipient’s

interest in avoiding that loss outweighs the governmental interest in summary adjudication. It

is submitted that no one can be deprived of their dignity, for example, without the rigorous

protections of a criminal trial and special determinations about aggravating factors justifying

such deprivation. On the other hand, suspension of a driver's license may occur without

many of the same protections.

Administration of justice in expropriation

The State or a competent body which is authorised to expropriate should in principle adhere

to the precepts of natural justice before the implementation of the expropriation. The rules of

natural justice are flexible enough to allow for their attenuation in the circumstances of

extreme urgency. The onus, however, should always rest on the public authority to justify

departure from the rules of natural justice in the case of an expropriation. Article 18 of the

Namibian Constitutions provides that:

Administrative bodies and administrative officials shall act fairly and reasonably and comply

with the requirements imposed upon such bodies and officials by common law and any

relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall

have the right to seek redress before a competent Court or Tribunal.14

The provision of Article 18 of the Namibian Constitution requires that the conduct of the

administrative official must be fair and reasonable, as well as legitimate. A similar provision

is found in the Ghanaian Constitution which provides that administrative bodies and

administrative officials shall act fairly and reasonably and comply with the requirements

13

350 U.S. 551 (1956). 14

Namibian Constitution.


55 UNAMLR vol. 2(2)

imposed on them by law. Further that persons aggrieved by the exercise of such acts and

decisions have the right to seek redress before a court or other tribunal.15

The above

constitutional provisions protects and gives the affected individual whose property is

earmarked for expropriation a right to administrative action that is procedurally fair. The

procedural qualification is significant since the administrative law notion of fairness is not

substantive in nature.16

For administrative action to be fair it is implied that the rules of

natural justice, and in particular the principle of audi alteram partem, have to be applied by

the decision-maker before he or she makes his or her decision.

The audi alteram partem rule in expropriation

Procedural fairness in the form of audi alteram partem or the right to be heard requires that

the decision maker must provide adequate opportunities for those affected to present their

cases. Further to be presented with an opportunity to respond to the evidence and arguments

being advanced by other participants or in the knowledge or possession of the decision

maker. It is concerned with giving people an opportunity to participate in the decisions that

will affect them and more importantly to give the affected individuals an opportunity to

influence the outcome of the expropriation decision.17

Participation is crucially an important component of administrative law as it safeguards the

interests of the affected individuals. Further that not only does it signal respect for human

rights but it helps improve the quality and rationality of administrative decision.18

In Westair

Aviation (Pty) Ltd v Namibia Airports Company Ltd,19

Hannah J dealt with a situation where

the applicants had not been afforded a hearing before the decision was made. The argument

was that, in the light of the undisputed facts, the applicant had a legitimate expectation of a

hearing and that the provisions of the applicable Act did not disentitle them from such a

hearing.20

Hannah J rejected the argument that a particular section of the applicable Act

section 5 (2),21

excluded the right to seek a hearing.22

15

Article 23 of the 1992 Ghanaian Constitution. 16

Bel Porto School Governing Body v Premier, Western Cape 2002 (3) SA 265(CC). 17

Hoexter, C. 2007. Administrative Law in South Africa. Cape Town: Juta and Co. p. 326. 18

Kessl v Ministry of Lands Resettlement and Others 2008 (1) NR 167 (HC). 19

2001 NR 256 (HC). 20

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A) at 756E - 757C. 21

Airports Company Act 25 of 1998. 22

Westair Aviation (Pty) Ltd and Others v Airports Company Ltd and Another 2001 NR 256 (HC) 265D.


56 UNAMLR vol. 2(2)

The approach to the audi alteram partem rule with reference to its application in statutes was

set out in Publications Control Board v Central News Agency (Pty) Ltd,23

where the court

held as follows:

One begins with a presumption that the kind of statute referred to impliedly enacts that the

audi alteram partem rule is to be observed, and, because there is a presumption of an implied

enactment, the implication will stand unless the clear intention of Parliament negatives and

excludes the implication.24

The Ghanaian Constitution further stretches the procedural protection afforded to the affected

individual whose property is earmarked for expropriation by placing a positive duty on the

expropriating authority. The positive duty being that firstly, compulsory acquisition of

property by the State must only be made under a law. Secondly, such law must make

provision for the prompt payment of fair and adequate compensation. Thirdly, such law must

provide for a right of access to the High Court by any person who has an interest in or right

over the property whether direct or on appeal from other authority, for the determination of

his interest or right and the amount of compensation to which he is entitled.25

The right of access to the High Court by any person who has an interest in or right over the

property guaranteed by the Ghanaian Constitution strongly signifies the effort to guarantee

the audi alteram partem which procedurally protects the affected individual whose is the

owner of the property or anyone who has an interest in such property.

The principles of natural justice appear to be applied varyingly by different jurisdictions, for

example in Zimbabwe. The decision of Mike Campbell (Pvt) Ltd and others v The Republic

of Zimbabwe SADC (T) Case No. 2/2007 presents a different form of jurisprudence. In this

case Amendment 17 Act of 2005 of the Zimbabwean Constitution effectively vested the

ownership of agricultural lands compulsorily acquired under Section 16B (2) (a) (i) and (ii)

of Amendment 17 in the State. It is worth to note that this provision did not provide for

compensation on the property as a whole (value of property). Rather it allowed compensation

only on improvements effected on such land before it was acquired by the affected

23

1970 (3) SA 479 (AD). 24

Publications Control Board v Central News Agency (Pty) Ltd 1970 (3) SA 479 (AD) at 489C–D. 25

Article 20 (2) (b) of the 1992 Ghanaian Constitution.


57 UNAMLR vol. 2(2)

individual. To the demise of affected individuals, whose farms were compulsorily acquired

by the government of Zimbabwe, the amendment ousted the jurisdiction of the courts to

entertain any challenge concerning such acquisitions.26

It is on this basis that the matter was

brought before the SADC-Tribunal.

In a nutshell, Amendment 17 of the Zimbabwean Constitution entails that, the provisions of

any law referred to in section 16 (1) regulating the compulsory acquisition of land that were

in force on the appointed day, and the provisions of section 18 (1)27

and (9),28

do not apply in

relation to land referred to in subsection 16B(2) (a).

Hence, the exception was allowed for the purpose of determining any question related to the

payment of compensation on improvements made on the land (referred to in subsection 16B

(2) (b)). That is to say, a person having any right or interest in the land may:

(a) not apply to a court to challenge the acquisition of the land by the State;

(b) no court may entertain any such challenge; and

(c) the person affected, in accordance with the provisions of any law referred to in

section 16 (1) (regulating the compulsory acquisition of land) that were in

force on the appointed day, may only challenge the amount of compensation

payable for any improvements effected on the land before it was acquired.29

Therefore, the right to procedural fairness was limited only to the aspect of compensation

payable for any improvements effected on land before it was acquired. This excluded any

challenge on the legality of compulsory acquisition of property.

The SADC-Tribunal stressed the fact that Amendment 17 indeed ousted the jurisdiction of

the courts of law in Zimbabwe from any case related to acquisition of agricultural land.

Therefore, the affected individuals were unable to institute proceedings under the domestic

jurisdiction. This position was subsequently confirmed by the decision of the Supreme Court

given on February 22, 2008 in Mike Campbell (Pty) Ltd v Minister of National Security

Responsible for Land, Land Reform and Resettlement (SC 49/07). It will be recalled that the

26

Mike Campbell (Pvt) Ltd and others v The Republic of Zimbabwe SADC (T) Case No. 2/2007 at p. 12. 27

The right to protection of law. 28

The right to a fair hearing and determination of civil rights or obligations by a court of law. 29

Mike Campbell (Pvt) Ltd and others v The Republic of Zimbabwe SADC (T) Case No. 2/2007 at p. 13.


58 UNAMLR vol. 2(2)

Supreme Court of Zimbabwe delivered its judgment dismissing the Applicants’ claims in

their entirety. The court held that the question of what protection an individual should be

afforded in the Constitution in the use and enjoyment of private property is a question of a

political and legislative character. Thus, as to what property should be acquired and in what

manner is not a judicial question.30

The Court further held that, by the clear and

unambiguous language of the Constitution, the Legislature in the proper exercise of its

powers had lawfully ousted the jurisdiction of the courts of law from any of the cases in

which a challenge pertaining the acquisition of agricultural land may be sought.31

The Court

furthermore stated that the Legislature had unquestionably enacted that such an acquisition

shall not be challenged in any court of law.32

The Supreme Court, therefore, concluded that

there cannot be any clearer language by which the jurisdiction of the courts has been ousted.

The procedure to follow

It is one of the fundamentals of procedural fairness that those affected by decisions within its

scope should in general receive notice of the process about to be undertaken in a sufficient

degree or detail and in a timely fashion to enable the fulfillment of their participatory

entitlements.

Notice of expropriation

A notice of impending expropriation is essential and must contain sufficient information to

enable the owner of the property earmarked for expropriation to exercise his or her rights. In

Namibian context, section 20 (2),33

refers to ‘expropriation notice’, on comparison in

Ghanaian context, section 1 (1),34

which refers to ‘executive instrument’. It must be stated

that the terminologies are different but they mean the same thing at most contain similar legal

effects.

The notice must contain a clear and full description of the property in question and a sketch-

plan showing the approximate position of such property. It is a statutory requirement that, the

30

Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land, Land Reform and

Resettlement (SC 49/07) at p. 15. 31


Resettlement at p. 21. 32


Resettlement at p. 19. 33

Agricultural (Commercial) Land Reform Act 6 of 1995. 34

State Lands Act 125 of 1962.


59 UNAMLR vol. 2(2)

notice must indicate the date of expropriation,35

as well as the date upon which the State will

take possession of the property. The date so stated for the taking of possession should not be

more than 6 months after the date of expropriation so stated. The expropriation notice

requires to be served upon every person who, according to the title deed of the land, has any

interest in that land. In Kessl v Ministry of Lands Resettlement and Others and two similar

cases,36

the court held that:

Non-compliance with s 20(2) of the Act, which requires that the minister shall cause service

'on the owner concerned' of as 20 notice of expropriation. If agricultural land in which

somebody else has an interest is to be expropriated, section 20 (4) requires such service to be

effected on anyone who has such interest, according to the deed to that land.37

In the Ghanaian context, it is a requirement that the executive instrument to be served

personally on any person having an interest in the land.38

The service of such executive

instrument may in alternative be left with any person in occupation of the land.39

If no person

is found on such land, service may be made through traditional authority,40

found in such area

or may be affixed at a convenient place. 41

Finally, the executive instrument must be published on three consecutive occasions in a

newspaper circulating in the district where the land is situated.42

On the publication of the

executive instrument for acquisition, any person claiming a right or having an interest in land

subject to the instrument, such person is entitled to submit a claim within six months from the

date of the publication. The claim must indicate the particulars of claim or interest in the

land, the manner of how such person was affected and the amount of compensation.43

As far

as information relating to the expropriation is concerned, it seems that its nature and purpose

must be described with sufficient particularity otherwise the right to make representations

will be illusionary rather than real.

35

Section 20(2) (b) of the Agricultural (Commercial) Land Reform Act 6 of 1995. 36

2008 (1) NR 167 (HC). 37

Kessl v Ministry of Lands Resettlement and Others 2008 (1) NR 167 (HC) at 212. 38

Section 2(a) State Lands Act 125 of 1962. 39

Section 2(b) State Lands Act 125 of 1962. 40

Section 2(c) State Lands Act 125 of 1962. 41

Section 2(d) State Lands Act 125 of 1962. 42

Section 2(e) State Lands Act 125 of 1962. 43

Section 4 State Lands Act 125 of 1962.


60 UNAMLR vol. 2(2)

Private owner to participate in meetings

Every person has the right to participate freely in the government of his or her country, either

directly or through freely chosen representatives in accordance with the provisions of the

law.44

Participatory governance is a process emphasizing the broad participation of

constituents in the direction and operation of political systems. This creates opportunities for

the affected owner to make meaningful contributions to decision-making. In Kessl v Ministry

of Lands Resettlement and Others and two similar cases the court laid down guide line inter

alia that:

When the minister considers expropriating a particular property, he/she must observe the

principle of audi alteram partem, namely he/she must afford the landowner the right to be

heard on the issue. This may, for instance, be achieved by the minister inviting

representations in writing from the affect landowner responding to the invitation.45

Inevitably the affected person’s right to participate in meetings where a decision that affect

such person’s right is or would be made is inviolable except where a limitation is permitted

by law.

Decision must be that of the decision-maker

Our courts have in several decisions in the past expressly held that where a particular person

is authorised by legislation to take decisions, he, and he alone, should take those decisions.

The designated and authorised decision-maker cannot abdicate or delegate these powers.46

Although he is entitled to take recommendations of others or other bodies that may have

specific expertise in a certain field into consideration, but ultimately it remains his decision.47

In Leach v Secretary for Justice, Transkeian Government,48

the court considered whether the

Cabinet could assist the minister, who was the functionary. The court found that

44

Article 13 (1) of African Charter on Human and People’s Rights. 45

Kessl v Ministry of Lands Resettlement and Others 2008 (1) NR 167 (HC) at p. 212. 46

Kauima Riruako and Others v The Minister of Regional, Local Government and Housing and Others,

case No (P) A 336/2001 at pp. 24-26. 47

Disposable Medical Products v Tender Board of Namibia 1997 NR 129 (HC) at 135D-H. 48

1965 (3) SA 1 (E).


61 UNAMLR vol. 2(2)

By doing this the respondent has in fact not exercised his discretion at all. He has been guided

by the views of somebody else. I cannot imagine a clearer case of failure to exercise one's

own discretion which is what the respondent was by law called upon to do.49

The decision to expropriate must be made by the authorised person after consultation with the

designated committee or board. In terms of section 20 (1),50

the Minister has power, after

consultation with the Commission to decide to acquire any property. This statutory

requirements entails that were the designated person fails to take a decision or where the

decision to expropriate is taken by any person other than the designated person, such decision

may be set aside. Put differently, the affected individual whose property is subjected to

expropriation may find a ground for review or decision taken by non-designated person may

constitute a ground for requesting review.

Review of expropriation decision

Among the most significant powers available to the State is the discretionary power to

expropriate privately owned property. Its misuse is perhaps the greatest threat to the

consolidation of democratic values in our politics in particular the right to property. It is not

surprising that the constitution in jealously protecting the rights inter alia right to property

has taken special steps to regulate the use of discretionary power of expropriation and put in

place a review mechanism.51

A person whose property or who has interest in the property

which is subject of expropriation and who believes that the expropriator has misused his

discretionary power can seek review in the courts to test the legality of the use of the

discretionary power.52

The practice at common law was that the courts had inherent jurisdiction to review

administrative decisions and to set aside or correct them.53

This common law principle has

been supplanted by various constitutional provisions. The result had been that judicial review

and the enforcement of administrative law in courts has largely become a constitutional

matter. In this light, the affected individual whose property, the expropriator has decided to

compulsorily acquire, such affected individual has recourse by means of approaching a court

49

Leach v Secretary for Justice, Transkei Government 1965 (3) SA 1 (E). 50

Agricultural (Commercial) Land Reform Act 6 of 1995. 51

Article 18 of Namibian Constitution; Article 23 of the 1992 Ghanaian Constitution. 52

Jacobs, M. 1982. The Law of Expropriation in South Africa. Cape Town: Juta and Co, p. 214. 53

Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC) at 746.


62 UNAMLR vol. 2(2)

or tribunal for relief. Both in Namibia and Ghana this principle is guaranteed in the respective

constitutions. The last part of Article 18 of the Namibian Constitution provides that:

A person aggrieved by the exercise of such acts and decisions shall have the right to seek

redress before a competent Court or Tribunal.

A similar provision is provided by the Ghanaian Constitution,54

which provides that

administrative bodies and administrative officials must act fairly and reasonably and comply

with the requirements imposed on them by law. Further that any persons aggrieved by the

exercise of such acts and decisions have the right to seek redress before a court or other

tribunal. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs,55

the court

confirmed that the courts’ power to review administrative action no longer flows directly

from the common law but from the Constitution.

It is common cause that the right to expropriate by the State or any authorised body is

discretional in its nature. Due to the element of personal choice inherent in discretion, certain

criticisms have been made against its use in public affairs. For example, it has been argued

that there is always the danger that discretionary powers will be used arbitrarily.56

It therefore

leads that whenever a public body has a duty imposed on it by statute, and such body

disregards or acts contrary to the contemplated duty, the court may be asked to review the

proceedings complained of and set aside or correct them.57

Among the recurrent themes in

political thought has been the need to control executive power so that it is not abused. One

method for controlling executive power is through judicial review. The aim of judicial review

is to ensure that public officials stay within the law and do not abuse their powers.58

In

People's Popular Party v AG,59

the court stated that:

The powers conferred on the High Court are wide in the extreme, but they seem to me to

reflect the intention of the drafters that the courts should be the custodians and protectors of

the liberties of the individual citizens of Ghana. It is a duty, which is at once onerous and

54

Article 23 of the 1992 Ghanaian Constitution. 55

2004 (4) SA 490 (CC) paragraph 22. 56

Anim-Odame (2011:1); Lisulo (1999:25). 57

Kessl v Ministry of Lands Resettlement and Others 2008 (1) NR 167 (HC) 208. 58

Grey, J. 1979. “Discretion in Administrative Law”. Osgoode Hall Law Journal, (O.H.L.J.) vol. 17, pp.

107-132. 59

[1971] 1 G.L.R at 140.


63 UNAMLR vol. 2(2)

honourable. In discharging these duties the courts must tread the narrow, humble but firm

path between the Scylla of over-zealousness and the Charybdis of judicial timidity. Where the

liberty of the citizen has been invaded they should by all means offer protection, but they

should not try to find an invasion where none has occurred.60

The power of the Court includes the power to award monetary compensation in respect of

any damage suffered by the aggrieved persons in consequence of such unlawful denial or

violation of their fundamental rights and freedoms.61

The affected individual whose property

is the subject of expropriation has, as a form of constitutional protection, a right to request a

competent court or tribunal to review the expropriators’ decision.

The affected individual has an option to either proceed by way of application or motion.

Motion proceedings have the advantage of being speedier and cheaper than actions. Civil

actions are instituted by summons and conducted as oral trials, whereas applications are

launched by means of notice of motion supported by a founding affidavit. The notice of

motion must set out the decision or proceedings sought to be reviewed and must be supported

an affidavit setting out the grounds and facts which applicant relies. It must call upon the

concerned chairman or presiding officer whose decision or proceedings will be brought under

review to show cause why the decision should not be reviewed, corrected or set aside.62

Enhancing procedural right: Aspect of Land Tribunal

The Land Tribunal is the creature of the Agricultural (Commercial) Land Reform Act,63

which provides in terms of section 67 (1) that the seat of the Lands Tribunal is Windhoek, but

the functions of the Lands Tribunal may be performed at any such place in Namibia as the

chairperson of the Lands Tribunal may determine.

The creation of the Lands Tribunal may be viewed as further guaranteeing, protecting and

enforcement,64

of the rights of individuals whose property is expropriated for purposes of

land redistribution. In particular the right to access justice at the very cheapest rate, this being

60

People's Popular Party v AG [1971] 1 G.L.R. at 140. 61

Article 25(4) Namibian Constitution. 62

Clive, P. 2002. The Fundamental Right to Just Administrative Action: Judicial Review of

Administrative Action in the Democratic South Africa (Doctoral Thesis, Rhodes University), pp. 511-

513. 63

Section 63 (1) of the Agricultural (Commercial) Land Reform Act 6 of 1995. 64

Article 25(2) of the Namibian Constitution.


64 UNAMLR vol. 2(2)

that even the least poor person may have vindication of justice.65

In so doing enhancing such

affected person’s right to be heard on matters related to expropriation. This is because, in

event that the affected individual is not happy with the compensation offered by

expropriating authority or the procedure which the expropriator adopted, then the affected

individual may bring such complaint before the Lands Tribunal for determination.

The mandate and jurisdiction of the tribunal is provided for in terms of section 67 (2) which

is mainly: firstly, to decide any appeal lodged with it in terms of any provision of the

Agricultural (Commercial) Land Reform Act.66

Secondly, to consider and give a decision on

any application made to it in terms of any provision of the Agricultural (Commercial) Land

Reform Act.67

Thirdly, is generally to inquire and adjudicate upon any matter which is

required or permitted to be referred to it under any provision of the Agricultural

(Commercial) Land Reform Act or any other law.68

Any decision, order or determination of

the Lands Tribunal may be executed as if it were a decision, order or a determination made

by the High Court of Namibia. The affected party who is not satisfied with the decision of the

Lands Tribunal has the right to appeal.69

Thus any party to any proceedings before the Lands

Tribunal may appeal against any decision, order or determination, given by the Lands

Tribunal. The appeal may be launched as if it were against a judgment or an order given in

civil proceedings by a single judge of the High Court of Namibia sitting as a court of first

instance.70

Conclusion

The concept of procedural fairness has its origins in the natural law which informed the

development of the rules of natural justice as part of the common law of both Namibia and

Ghana. Despite incidents of early legislative exclusion, procedural fairness is alive and well

today. Procedural fairness in judicial proceedings or judicial review of administrative

decisions are important societal values applicable to any form of official decision-making

65

Section 75 of Agricultural (Commercial) Lands Reform Act 6 of 1995 provides that: The expenditure

incidental to the performance of functions of the Tribunal shall be defrayed from the Fund. 66

Section 67(2) (a) Agricultural (Commercial) Land Reform Act 6 of 1995. 67

Section 67(2) (b) Agricultural (Commercial) Land Reform Act 6 of 1995. 68

Section 67(2) (c) Agricultural (Commercial) Land Reform Act 6 of 1995. 69

Section 74 Agricultural (Commercial) Land Reform Act 6 of 1995. 70

For the purposes of prosecuting any such an appeal the provisions relating to appeals of the High Court

Act, 1990 (Act 16 of 1990), and of the Supreme Court Act, 1990 (Act 15 of 1990), as well as the rules

of court made under those Acts, respectively, shall apply mutatis mutandis.


65 UNAMLR vol. 2(2)

which can affect individual interests. Procedural fairness is also known as ‘natural justice’.

Both terms are used interchangeably. It requires a procedurally fair hearing and an unbiased

decision being made. All parties to a complaint must be afforded natural justice. The right to

a fair hearing requires that individuals should not be penalised by decisions affecting their

rights or legitimate expectations unless they have been given prior notice of the case, a fair

opportunity to answer it, and the opportunity to present their own case. The mere fact that a

decision affects rights or interests is sufficient to subject the decision to the procedures

required by natural justice.


66 UNAMLR vol. 2(2)

SHORTER COMMENTS AND NOTES

Rendering a forum for Legal Discourse in an era of

Transformative Constitutionalism

Judge Naomi Shivute

Introductory Remarks

I feel greatly honoured to have been invited to attend the Launch of the second volume of the

UNAM Law Review. I was overwhelmed and humbled by your decision to ask me to

perform a special function that of being the key note speaker at this milestone event.

The extrajudicial interaction between the members of the judiciary and the academia is a

welcomed trend that affords us an opportunity to share ideas and create awareness amongst

members of the public of the greater appeal of the law and a significant contribution that it

can make to the well-being of our people. I am therefore delighted to learn that my senior

colleagues have preceded me in interacting with the members of the academia at this premier

institution of higher learning.

I am highly impressed to learn that the UNAM Law Review Journal is a student run journal

whose aims, inter alia, is to stimulate intellectual debate and encourage scholarly research.

Not all of the institutions of higher learning I know of run journals of this kind which the law

students at UNAM have managed to establish with the assistance of the members of the

Faculty of Law and that such a venture requires hard work and dedication. I commend you

for this.

A Law Review Journal serves as a platform on which to provoke serious debates on legal,

political and economic issues affecting our societies and the international community at large.

In this regard, it is doubtless to state that the UNAM Law Review is a perfect vehicle for

students, academics, members of the judiciary and the profession to debate on issues aimed at

developing and refining our jurisprudence.

Judge of the High Court of Namibia. This is a slightly edited version of a speech delivered on the 14

th

of September 2014 at the launch of Unam Law Review vol. 2 (1).


67 UNAMLR vol. 2(2)

As we are all aware, Namibia is a sovereign State which operates under a liberal Constitution

founded upon the principles of the rule of law, democracy and justice for all. The Supreme

Court decision in Attorney-General v Minister of Justice and Others 2013 (3) NR 806 (SC) in

paragraph [6] reflects that before the advent of constitutionalism in Namibia, legislation made

applicable to "the Territory of South West Africa" was passed by the South African

parliament in an era of "parliamentary sovereignty” where legislative powers were not

constrained by constitutionally entrenched fundamental rights and not subjected to judicial

review. At that time, the political, socio-economic and constitutional landscape in Southern

Africa was vastly different to that of the present day. The Supreme Court has also pointed out

in the Attorney-General case in paragraph [8] that:

[A]fter our country’s Independence, Namibian Courts have developed a reservoir of distinctly

Namibian jurisprudence based on the Constitution and Namibian law. Decisions of foreign

courts that are found to be persuasive due to the similarity of applicable principles,

provisions, issues and other circumstances relevant to matters at hand may, of course, be

followed by our courts on principle rather than precedent... Furthermore, even where the

wording in a foreign constitution is similar to that of a provision in the Constitution, caution

should be exercised when considering the constitutionality of the provisions of a statute:

Ultimately the meaning and import of a particular provision of the Constitution must be

ascertained with due regard to the express or implicit intention of the founders of the

Constitution. Furthermore, as a general proposition, whilst foreign precedent is a useful tool

to determine the trend of judicial opinion on similar provisions in jurisdictions which enjoy

open and democratic societies such as ours, ultimately the value judgment that a Namibian

Court has to make in the interpretation of the provisions of the Constitution in as much as

they may impact on the impugned provisions, must be based on the values and aspirations of

the Namibian society.

Undoubtedly, our superior Courts will play a key role in their onerous task which is to

develop and refine this reservoir of a distinctive Namibian jurisprudence. My personal point

of view is that the responsibility to define and refine our jurisprudence cannot be left for the

courts alone, but equally shared among law students, academics and members of the legal

profession.

The advent of the Constitution has given rise to 'transformative constitutionalism'. Although

the concept may be incapable of a precise definition, it entails the idea that constitutional law


68 UNAMLR vol. 2(2)

cannot be confined to abstract notions of fairness, but should have as its primary purpose the

overcoming of past discrimination and disadvantages suffered by a group of people for

various reasons.

As the late Chief Justice of South Africa, Chief Justice Pius Langa, pointed out in a lecture on

the theme of Transformative Constitutionalism at Rhodes House, Oxford, on 11 June 2008

that one of the elements of transformative constitutionalism is the shift from the culture of

State authoritarianism to a culture of the justification of State power. In the context of

judgment rendering, Chief Justice Langa opined, it is no longer sufficient for judges to rely

on the mere say-so of previous courts or parliament for justifications of their decisions. On

the contrary, judges now bear a sacred responsibility to justify their decisions by reference

not only to authority but also to ideas and values that underpin the constitution and society.

It is therefore my fervent wish and expectation that the UNAM Law Review Journal will serve

as a vehicle for legal discourse with a view to develop and refine our jurisprudence, including

the essential subject matter of transformative constitutionalism. By casting a critical eye on

important judgments of our courts, for example, and offering alternative solutions to legal

problems, this Journal would greatly contribute to the much needed access to justice in the

country. The Journal should be a medium for intellectual debate and academic excellence.

Depending of the quality of its scholarship, the Journal will receive greater appeal, not only

to students and academics, but also to members of the Judiciary and the legal fraternity.

I therefore urge members of the community I have just mentioned to submit scholarly articles

for possible inclusion in the Journal's Issues so as to make a contribution towards the

development of our law and jurisprudence as well as to promote continued legal education.

It is therefore my honour and privilege to launch Volume 2, Issue 1 of the UNAM Law

Review Journal.

I thank you.


69 UNAMLR vol. 2(2)

Judicial Independence:

A Bulwark of Liberty

Judge Diarmuid F. O’Scannlain

Introductory Remarks

Thank you very much for welcoming me to Swakopmund, for inviting me to speak with you

as part of the Fourth African Law Deans’ Forum, and for the warm reception.

Congratulations to the International Association of Law Schools and the fine leadership of

your President Professor Frank Wang and your host Dean John Baloro in training young

lawyers to promote the Rule of Law throughout the world.

As an American judge speaking in Namibia tonight, I wish to say a few words about what I

see as a common thread—a shared virtue—that binds the American and Namibian judicial

systems, and, for that matter, all African judicial systems. That virtue is the principle of

judicial independence. Judicial independence flows from the notion that truly to secure the

Rule of Law, domestic tranquillity and individual liberty, courts must not only be

independent and impartial but must be seen to be so.

The concept of judicial independence is elusive and any attempt to define it falls inevitably

short. While it is true enough that judicial independence refers to judicial autonomy to make

fair and impartial decisions, such a simple and short definition offers only a limited picture of

the vibrant and complex ideal. In my view, judicial independence actually consists of two

intertwined components. The first is decisional independence, which captures the notion that

a judge should make a fair and impartial decision in each individual case. The second is

institutional independence which refers to the separation of the judiciary from the legislative

and executive to reduce the concentration of powers in the political branches.

United States Circuit Judge for the Ninth Circuit. This is a slightly adapted version of the speech

delivered at International Association of Law Schools Fourth African Law Deans’ Forum Monday,

April 13, 2015, Sea Side Hotel; Swakopmund, Namibia.


70 UNAMLR vol. 2(2)

Namibia and the United States have gone to great lengths to protect both components of

judicial independence. In doing so, these countries have demonstrated their commitment to

meaningful notions of liberty under the Rule of Law.

As you may know, in Namibia, the ideal of judicial independence is enshrined in the national

Constitution, with Article 78 (2) explicitly stating:

The Courts shall be independent and subject only to the Constitution and the law.

Article 78 (3) further confirms that “[n]o member of the Cabinet or the Legislature or any

other person shall interfere with Judges or judicial officers in the exercise of their judicial

functions…” Reinforcing these explicit commands, legal rights like freedom of speech and

expression, and extra-legal measures like salary protection and security of tenure, give effect

to the ideal of judicial independence.

In preparing these remarks, I discovered the 1995 Namibian Supreme Court decision entitled,

In re the Constitutional Relationship between the Attorney-General and the Prosecutor

General. That opinion reaffirms the sacrosanct value of independence in judicial

administration and demonstrates the country’s commitment to the Rule of Law. If you have

not yet had a chance to read it, I commend it to you.

Like in Namibia, the principle of judicial independence is also deeply ingrained in the United

States. Indeed, I suggest that judicial independence was brooding in the minds of the

American Founders in the late 1700’s long before ink flowed onto the early drafts of our

Constitution. Among the many accusations against King George III of England in our 1776

Declaration of Independence, was the charge: “He has made Judges dependent on his Will

alone, for the tenure of their offices, and the amount and payment of their salaries.”

Recognising the perils of such dependence, the American Founders established in our

Constitution life tenure for federal judges during good behaviour and salaries that could never

be decreased. The Founders secured these neutral arbiters in an independent judiciary

designed to be an “[e]xcellent barrier [against] the encroachments and oppressions of the

representative body.” They vested “[t]he judicial Power of the United States” in a separate


71 UNAMLR vol. 2(2)

branch, forming a three-dimensional system of checks and balances designed to limit

governmental abuse and to protect individual liberty.

As evidenced by these constitutional commitments, both Namibia and the United States seem

to agree on the necessity of judicial independence to the noble precept of “equal justice under

the law,” which is to say to the Rule of Law generally, sometimes referred to in Namibia as

Rechtstat. Nevertheless, we must remain vigilant to protect these principles in practice. To

illustrate that point, I thought I would share with you three examples from my own country’s

history of the enduring struggle to establish and to guard judicial independence.

If you ask any American law student to tell you about the most important Supreme Court

case in American history, he is likely to tell you about the revered 1803 decision Marbury v.

Madison. But despite this case’s fame, we can easily lose sight of its importance to affirming

judicial independence as a core concept of American government. To appreciate Marbury’s

enduring legacy, it is useful to recall the facts and context of that case.

In 1803, the political climate in the United States was turbulent, to say the least. The early

years of the American Republic, which had only been formed in 1789, witnessed a divisive

struggle between the two prominent political parties of the time, the Federalists and the

Republicans. That battle had reached its climax when Thomas Jefferson, the newly elected

Republican President, instructed his Secretary of State, James Madison, to withhold the

commission as justice of the peace from William Marbury, whom the outgoing Federalist

President John Adams had appointed at the eleventh hour. Marbury proceeded to sue

Madison in an effort to obtain his commission.

When the Supreme Court heard the case, Chief Justice John Marshall deftly secured the ideal

of judicial independence, while at the same time protecting the fledgling institution that was

the American judiciary. The immediate upshot of the case was that the Court refused to order

Madison to deliver the commission, stating that the congressional act purporting to grant the

Court jurisdiction ran afoul of the Constitution.

Invoking the power of judicial review—and relying on the ideal of judicial independence—

Chief Justice John Marshall famously proclaimed that “[i]t is emphatically the province and


72 UNAMLR vol. 2(2)

duty of the judicial department to say what the law is,” and that such duty is to be carried out

on the basis of law, and not politics.

These hallowed words solidified judicial review and anointed the judiciary as the

independent and ultimate interpreter of the law. As one American legal scholar has accurately

explained, “There can be little doubt that Marbury is the premier legitimating case when it

comes to judicial independence and power in the United States.”

But the battle between the Republicans and the Federalists in the High Court continued even

after Marbury. Only a year later, in 1804, the legislature challenged the fragile ideal of

judicial independence when it instituted impeachment proceedings against Justice Samuel

Chase of the United States Supreme Court. As a signer of the Declaration of Independence

and a faithful patriot during the American Revolution, Justice Chase was a legend well before

he was elevated to the Supreme Court in 1796. Nevertheless, prodded by the newly elected

President Jefferson, the Republican Congress set out to topple Justice Chase from his seat on

the High Court.

The House passed eight articles of impeachment against Justice Chase, nearly all of which

related to his performance of his judicial office. The Senate entered the fray in grand fashion

and the trial began. Many believed that Justice Chase would be convicted. Yet after the final

votes were tallied, Justice Chase was acquitted of all articles of impeachment.

As one scholar put it, during the 1804 impeachment hearings, “judicial independence was on

trial more than Samuel Chase.” Had the Senate convicted Chase, it would have dealt a

crippling blow because it would have established the precedent that judges could be

impeached for their ordinary performance of judicial functions. To this day, the acquittal of

Justice Chase serves as a guarding reminder in the United States that “a judge’s judicial acts

may not serve as a basis for impeachment.”

The early impeachment of Justice Chase may well have been the first overt attack on the

judiciary, but it was certainly not the last. In the shadows of the Great [economic] Depression

that ravaged America in the early Twentieth Century, President Franklin Delano Roosevelt

renewed the fight. Frustrated by the steady line of Supreme Court decisions striking down his

economic-oriented “New Deal” legislative agenda, the President hatched a “frontal attack” on


73 UNAMLR vol. 2(2)

the Court. In 1937, in a message he termed “a turning point in our modern history,”

Roosevelt proposed a judicial reorganization bill that would have allowed him to appoint a

new Justice to the Supreme Court for every member over seventy years of age who refused to

retire. Since six of the nine Justices already met that criterion, the plan would have

empowered the President to expand the High Court to fifteen members. Packing the Court

with supportive Justices would have bolstered the President’s legislative agenda, but it also

would have thwarted the ideal of an independent judiciary.

The defining battle once again gravitated to the United States Senate. Critics of the bill issued

the ominous warning that its “ultimate operation would be to make this Government one of

men rather than one of law, and its practical operation would be to make the Constitution

what the executive or legislative branches of the Government choose to say it is—an

interpretation to be changed with each administration.”

President Roosevelt steadfastly responded that he had to “take action to save the Constitution

from the Court and the Court from itself.” Well, to the surprise of many, the battle came to an

anticlimactic end when Justice Owen Roberts provided the “switch in time that saved nine”

in a case called West Coast Hotel Co. v. Parrish, a narrow 5-4 decision that upheld crucial

pieces of the President’s New Deal legislation, much of which the Supreme Court had

recently invalidated. In a move calculated to save face, the President gracefully allowed his

plan to die in committee and thus, his forceful assault on judicial independence passed to the

pages of history.

Scholars disagree on the role that the scheme played in realigning the Court. President

Roosevelt believed, at least, that “the [switch] would never have come, unless this frontal

attack had been made.” Modern scholarship, however, has argued that Justice Roberts’s

famous “switch” was actually made for legal reasons, independent of political pressures.

Thus, as with the impeachment of Justice Chase, President Roosevelt’s Court-packing

scheme demonstrates the enduring political pressures on judicial independence. However, a

full appreciation for the saga also demonstrates that such pressure can be resisted—indeed

overcome—and the Rule of Law can win out.


74 UNAMLR vol. 2(2)

Judicial independence ultimately requires respect for judges as faithful and impartial arbiters

of the law. But judicial independence is not an end in itself. Rather, it is the means by which

individuals protect themselves against government overreach, arbitrary rule, and unequal

justice.

To preserve judicial independence as a bulwark for the Rule of Law requires generations of

faithful guardians who are committed to protecting this central ideal from relentless attack.

Indeed, while both Namibia and the United States have demonstrated their commitment to

judicial independence in their written constitutions, court decisions, and legal ethos, we must

mutually encourage each other to remain vigilant in our efforts to protect judicial

independence from enduring outside political pressures.

With an independent judiciary, the Rule of Law, domestic tranquillity, and individual liberty

become more than mere aspirations. Indeed, judicial independence gives such terms real

world meaning. But, as my own country’s history demonstrates, judicial independence can

never be taken for granted.

I hope and pray that all of us, especially those of us in legal academia, the legal profession

and the judiciary, will remain steadfast in our commitment to preserving this noble ideal.

Thank you.


75 UNAMLR vol. 2(2)

Climate change crisis and Global Governance:

Reflections from the Climate change Conference on challenges

and opportunities for Law, Policy and Development

J.D. Kennedy Kariseb & McLean M. Handjaba

Introduction1

The world―more particularly Africa is in a dire climate change crisis. Scientific research and

evidence made in the last decade or so, sternly reflects that the earth’s surface is warming,2

and that climate change is, and prospectively will continue to pose challenges to human

livelihood, security and development the world over. Climate change is therefore, a global

phenomenon that humans cannot afford to ignore. Notwithstanding the serious nature of

climate change there is relatively very little allegiance and academic production devoted to

the role of law, policy (and development) as instruments of social change in relation to the

climate change dilemma.

The recently held Conference on the Challenges and Opportunities for law, policy and

development for Climate Change, by the Konrad Adenauer Stiftung (KAS) and the

Development and the Rule of Law for Sub-Saharan Africa Programme (DROP) of the

University of Stellenbosch, in Windhoek from 9-10 September 2014, is one of few attempts

devoted to discussions concerning the role of law, policy and development in the context of

BJuris; LLB (Honours) (University of Namibia); Teaching and Research Assistant; Faculty of Law

(University of Namibia). B Juris; LLB (Honours) (University of Namibia); District Public Prosecutor; Walvis Bay (Ministry of

Justice). 1 This note is a compilation of the conference notes and commentaries of the recently held Conference

on climate change by the Konrad Adenauer Stiftung and the Development and the Rule of Law for

Sub-Saharan Africa Programme (DROP) of the University of Stellenbosch that was held in Windhoek,

Namibia from 9-10 September 2014. We remain deeply indebted to Prof. Oliver C. Ruppel and Dr.

Arne Wulff, who were the Coordinators of the Conference, for their comments and suggestions on an

earlier draft of this paper. Notwithstanding their comments, the authors take sole responsibility for any

errors/omissions and none of these may be attributed to any one of the above stated individuals or

institutions they may be affiliated to. 2 See generally IPCC. 2007. Climate change 2007: Synthesis Report. Contribution of Working Groups I,

II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.

Geneva: IPCC. It is recorded that during the last century, the global average temperatures has increased

around about 0,75* C and most probably on the rise. Human induced global warming is caused by the

emission of greenhouse gases, which trap heat in the atmosphere, causing gradual warming of the

earth’s surface. Of these emissions, methane (CH4) and nitrous oxide are the leading contributors with

rises forecasted at 150% and 18% respectively. The intergovernmental Panel on Climate Change

(IPCC) predicts that by the year 2100, the earth’s surface average temperature will increase by 1.4 C to

5.8 C. See also WTO-UNEP. 2009. Trade and Climate Change: A report by the United Nations

Environment Programme and the World Trade Organisation. Geneva: WTO.


76 UNAMLR vol. 2(2)

climate change. Although a stern scientific basis has been established in relation to climate

change and weather variances, the role that law and policy development can play in the

context of climate change is relatively unfounded. A clear legal framework including law

reform (where there are gaps and shortcomings), sanctioned by political structures will have

to permeate and support the scientific evidence related to climate change.

In light of this pertinent role of law as an instrument of change, the climate change

conference aimed at stirring the debate on the interwoven link between selected themes that

are closely related to major challenges and opportunities for law, policy and development in

the light of climate change. Besides all on-going efforts related to scientific evidence related

to climate change, the debate on the role of law and policy, existing gaps and future

challenges is still in its infancy and needs to be discussed continuously. The conference t

therefore, called together international and national experts with a predominantly legal

background, in exchanging views and experiences and to explore the challenges and

opportunities for law, policy and development related to the impact and risks of climate

change. It created an atmosphere of purposive dialogue as it joined stakeholders from a

plethora of disciplines all ideologically aligned with the ultimate aim of preservation and

protection of the environment. Several discussions emanated from the conference guided by

presentations from disciplines covering scientific, legal, political and institutional ideals. The

themes discussed predominantly took a tripartite form encompassing:

Climate change: international law and global governance;

The impact of climate change on human systems, migration and disaster

prevention; and

Climate change and development.

This paper is a terse reflection on the proceedings that ensued from this conference; outlining

the broader themes and ideas covered as well as the main recommendations taken. Although

the conference covered a wide spectrum of topics,3 two topics stirred consensus, discussion

and unanimity amongst the conference delegates. These include the need for continued

3 The topics included: climate change in the context of international law and global governance; impacts

of climate change on human systems, migration and disaster prevention; climate change and regional

integration; National policy and sectoral related legislation dealing with climate variances; and climate

change and development (especially sustainable development on the livelihoods of indigenous

communities).


77 UNAMLR vol. 2(2)

regional integration in addressing climate change issues, especially in the “South-South”

domain and the need for participatory governance in issues relating to climate change.

Although this paper will reflect on the themes discussed at the conference, these two themes

will be mainly highlighted in what follows below.

Climate Change: International law and Global governance

International climate change law and global climate change governance deals with

international law and the multiple regulatory regimes reflecting fragmentation in the absence

of a universal climate change regime. International (environmental) law and (good) global

governance are central themes to the climate change issue. In the last decade or so, there has

been growing consensus amongst scholars for an autonomous branch of law devoted to the

study of climate change. A cursory reading of the general prospectus of several universities

and institutions of higher learning reflect some degree of reluctance on this proposition.

There seems to be some justification for such an approach, taking into account that such a

unique branch on the study of climate change can have on the upliftment of environmental

law, a branch of law that is slowly phasing out in many legal circles.

International climate change law, global climate governance and diplomacy are interrelated

and extremely complex. Climate change should, thus, be addressed from a variety of

doctrinal, trans-disciplinary and thematic perspectives. This requires a thorough international

environmental framework and political will. Climate change concerns have to be integrated

into developmental, foreign and security policies with the aim to ultimately negotiate a

comprehensive global climate agreement. Environmental law conventions and regional

Courts such as ECOWAS and EAC tribunal – which fall under international law, can also be

used as an aid for environmental protection and other climate change related issues.

The Rule of Law is needed in the environmental arena. The nexus between the Rule of Law

and sustainable development has been well documented and recognised generally under

international law.4 Despite this recognition, crimes and violations to the environment are still

perceived as soft crimes. Environmental crimes therefore require serious analysis and better

responses at the national, regional and international level. Lawyers, prosecutors, judges and

research institutions can play an important role in ensuring that there is environmental

4 See, for example, the Rio Conference of 2012. UNEP’s Governing council also adopted decisions

27/9in 2013 on advancing justice, governance and law for environmental sustainability.


78 UNAMLR vol. 2(2)

protection through the rule of law. Environmental protection must be understood as a

prerequisite for the enjoyment of human rights. Therefore, there is a need to address the

relationship between environmental protection and human rights. In addition, the global

community must work towards making an environmental rule of law a reality by realising its

value for environmental justice and sustainable development.

Dr. Wulff gave a background on climate change and its consequences. He further stated that

human rights are based on natural law and also have a moral aspect because the nature of

human rights originates from ethics. Human worth and human rights can be affected by

climate change. The right to life and health can be threated due to flood and water-borne

diseases such as malaria. Personal property can be affected by desertification and floods. And

other climate change effects may threaten the possibility of economic and environmental

development. The most vulnerable group of people when it comes to climate change are

children, women and indigenous people due to inequalities and other practices.

Prof. Ruppel stated that. In the Namibian context, desertification, water scarcity and food are

some of the climate change effects that the country faces. Prof. Ruppel outlined the existing

legal foundations applicable to climate change and environmental law in Namibia. Article 95

of the Constitution protects the environment and legislations such as the Water Act and the

environmental Management Act were enacted in this regard. In addition, Article 144 of the

Constitution makes public international law automatically applicable in Namibia. This shows

Namibia’s commitment to the United Nations (UN) for supporting its independence. There

are other institutions that can be used in combating climate change effects such as the Office

of the Ombudsman and the Anti-corruption commission. There is a need to utilise these

existing regimes to make them effective. Therefore, Namibia can play an exemplary role in

Africa.

Regional integration, migration movements and disaster prevention

The furtherance of economic development, regional integration and the reduction of poverty

go hand in hand. This interrelationship has become closer over the past few years due to

increasing discussions in the international community on the issue, especially in the context

of climate change. Yet, many regional integration processes around the world still face

obstacles and challenges. The fear of losing State autonomy, the fear of losing national

identity, socio-economic disparity among members, historical disagreement, lack of vision,


79 UNAMLR vol. 2(2)

and unwillingness to share resources are some of the obstacles that present themselves with

regard to regional integration.

In terms of climate change related matters, regional economic bodies are of the utmost

relevance, especially when it comes to climate change adaption and mitigation, development

cooperation, conflict prevention, humanitarian assistance, disaster management and

environmentally induced migration.

Climate change is a threat to international peace and security and there is a need for risk

reduction strategies. However, responding to climate change involves making choices. Some

of the approaches that can be used as a solution are to reduce the amount of climate change,

improve the vulnerability of society and making use of regional instruments as a method of

adaption. In addition, traditional knowledge system and practices can be used in the adaption

of climate change. Society’s vulnerability can be reduced by involving both the private and

public sector, including indigenous people as well.

From Global to Local: National Policy and sector related legislation (i.e. Water, Energy,

Land, Legal Pluralism and Indigenous Involvement)

The orientation towards architecture of governance for sustainable development in a

globalising world donates more than an enquiry into functioning of international law,

international policies and their transformation into political and legal instruments of the State.

An architectural approach to global governance as a consortium of governmental entities that

extends from public and private international regimes to public to private local actors is to be

involved with regard to the planet’s protection against the harsh effects of climate change.

In order to effectively combat climate change, the progress of international negotiations has

to be accelerated. The importance to achieve a post-2020 global agreement cannot be

overemphasised. National legislation plays an important role with regards to limiting global

average temperature rise by pulling into place the legal framework necessary to measure,

report, verify and manage greenhouse gas emissions. National legislation can be seen as one

tool to mitigate climate change and strengthening resilience to its impacts, through clean

energy and energy efficiency solutions. National laws can, for example, increase energy

efficiency, or promote domestic, clean sources of energy, which reduces over reliance on

imported fossil fuels.


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Today, it can be observed that there is a stronger emphasis on participation, local

empowerment, supporting local responsibility, and accepting existing local structures.

Traditional authorities take their environmental responsibility seriously and should, thus, be

integrated in the debate to find solutions around negative effects of climate change. Tension

and contradictions between statutory and customary law, including the fragmentation in the

administration of matters, which at the local level, are under the power of traditional

authorities need to be addressed.

As the Honourable Peter Shivute elucidated in his welcoming address at the conference, the

climate change challenges traditionally approached with a “North-South”5

hemispheric

debate, should also encompass a collective “South-South” solution seeking enquiry. At this

junction it is worth adding that integration from global to local denotes a systematic

distribution of scientific or legislative solutions at different stages – be it hemispheric,

continental, regional or domestic.

The role of the Media and Tertiary Institutions in environmental protection

A pivotal role is played by the media in the fight towards environmental wellness and

sustainability of natural resources. Absalom Shigwedha, one of Namibia’s few notable

environmental media journalists, was very vocal at the conference in pointing out that the

media has an almost irreplaceable role to play in climate change as it educates and informs

the hoi polloi, critics the polluting industrialists and lobbies for the protection and

sustainability of natural resources. Like media, educational institutions have also taken on the

challenge to ensure widespread promulgation of the reality of global warming and climate

change through publications and continuous research on various environmental aspects.

Dr. John Mfune of the University of Namibia pinpointed tertiary institutions in Namibia such

as the University of Namibia and the Polytechnic of Namibia and other institutions as

carrying out important roles by providing baseline courses relating to climate change,

5 Discourse following this notion provides that the underpinning headline in climate change debates

points to the Northern hemisphere as being home to the main culprits of global warming with the

Southern Hemisphere states being the ones most affected. Parikh, J. North-South Issues for Climate

Change, Economic and Political Weekly, Vol. 29, No. 45/46 (Nov. 5-12, 1994), pp.2940-2943 -

explains that climate change acquires a different dimension when the disparities between regions is

considered in terms of responsibilities for emissions and concentration of vulnerability to the effects

brought on by climate change.


81 UNAMLR vol. 2(2)

environmental protection and sustainable development. He maintained that a crucial

awareness is raised through educational institutions in various subjects and courses. In the

same light, he reported that student-lecturer centred research approach systems have been

adopted in numerous institutions. In Namibia, this approach has, for instance, culminated

into successful projects such as the Kalimbeza Rice Project as well as the Neudam Farm

Project, to name but a few. Research integration agreements between SADC tertiary

institutions and numerous universities in other regions of the word is said to be a major

achievement and is a commendable addition in answering global climate change research

queries..

Climate Change and Development: Challenges and Opportunities

The 1992 Rio Declaration on Environment and Development urges countries to cooperate

and to strengthen capacity building for sustainable development with an emphasis on

scientific and technological advancement. This general task can be extended to the field of

enhancing knowledge and creating awareness as to challenges related to climate change. The

role of the media in this text must be strengthened. The number of legal disputes related to

climate change which find their way to the courts is increasing and it has become clear that

litigation will become an important tool to achieve climate justice. National and international

courts will have to deal with disputes dealing with the impacts of climate change. It is thus

important to provide more focused education, not only in the legal field. Policymakers,

businesses, civil society and lawyers, including the judiciary, have to be empowered in order

to achieve more environmental justice. Climate finance opportunities are expected to create

more chances for politics and climate resilient pathways at the same time increased financial

grants bear challenges for good governance and accountability.

A plea for global cooperation (including regional integration)

Regional integration, which is the primary engine of Regional Economic Communities,

certainly has the potential to provide an opportunity to enhance political stability by

establishing regional organisations, which play an increasing role in defusing conflicts within

and between countries and in promoting human rights.

There is a lack of global consensus when it comes to the negotiations of instruments.

Although there was an outline on the climate change laws in Nigeria, the focus was SADC

Water Policy, Biodiversity strategy and SADC Climate monitoring are some of the policies


82 UNAMLR vol. 2(2)

taken. ECOWAS policies advocates for good governance and the sustainable use of

resources. ECOWAS Environmental Policy, Cross-Regional Collaboration and Climate

Action Plan Action are examples of policies taken to mitigate the impacts of climate change.

The main challenge relates to the fact that each regional institution has proposals and policies

that suits their own needs. He concludes by calling for the development of global guiding

principles, climate challenge governance, Africa to have collective approach to

environmental issues and for the effective implementations of regional instruments.

Conclusion: The way forward

If law and other legal policies are to be regarded as vital tools in addressing the climate crisis,

the focus should be shifted on the importance of uplifting climate change law and the rule of

law in the context of a changing environment. Public participation and regional integration

will be equally important in addressing these issues.

The Conference made a considerable number of resolutions. These are, inter alia,

States should build and strengthen their Constitutions, of and Rule of Law and

human rights protection systems;

Include climate change issues in primary school curriculums to promote

awareness;

Negotiate a binding global instrument that deals with climate change issues;

Improve efficiency in legal systems;

Reform environmental laws and increase support for legislation on

environmental measures;

Use traditional knowledge systems and practices in the adaptation of climate

change;

Reduce society’s vulnerability by involving both private and public sector

(including indigenous people as well);

Call for the development of global guiding principles in dealing with climate

crisis;

African States should have a collective approach to environmental issues,

including climate related issues;


83 UNAMLR vol. 2(2)

States should effectively implement regional and international instruments

dealing with climate change;

States should further adopt a human rights approach to climate change which

should be in line with the regional and international instruments;

Provide sufficient financial and technical support to indigenous peoples’ own

priorities and initiatives to adapt to climate change;

Carbon structure and storage to be used in Namibia to mitigate climate change

effects;

Increase environmental law penalties in such a manner that future offenders

are entirely deterred;

Develop hydro-electricity generation capacity at the regional level; and

Popular and interactive avenues such as social media can be employed by the

State and different stakeholders as a means of creating awareness in an

attractive and fashionable manner for the youthful and technologically

inclined demographic.

What do these resolutions hold for Namibia? Firstly, one should acknowledge the fact that

Namibia is not exempted from the climate change crisis. In fact, it is one of the main

vulnerable subjects of this global phenomenon. Being one of the numerous States in the

southern hemisphere producing minimal global pollution, in comparison to its northern

hemisphere counterparts, it is more disparaging than it is ironic that Namibia continues to

suffer immensely from the effects of climate change and global warming. Firstly, Namibia is

the driest country in Southern Africa with an adverse variable rainfall patterns. The country is

highly dependent on climate sensitive natural resource-based sectors such as agriculture,

fisheries and mining for its Gross Domestic Product (GDP).6

Notwithstanding these challenges, Namibia has taken some considerable measures

concerning climate change, especially adaptation and mediation measures, as outlined in its

National Policy on Climate Change. Furthermore, Namibia has ratified the United Nations

6 The National Policy on Climate Change for Namibia outlines Namibia’s vulnerability to climate

change as follows: Namibia’s climate change is highly variable. Climate is expected to worsen this

vulnerability and to amplify its adverse impacts. The economy of Namibia is highly dependent on its

endowment of natural resources including diverse rangelands, arable land, mineral deposits,

ecosystems and biodiversity. Adverse impacts of climate change predicted for Namibia pose a great

threat to the economy and sustainable development. This in turn will affect the attainment of national

development goals and plans.


84 UNAMLR vol. 2(2)

Framework Convention on Climate change (UNFCCC) in 1995. It has undoubtedly become

clear to all relevant stakeholders, both at local and international level that a holistic approach,

based on multi-disciplinary perspectives, will be ostensible in addressing the challenges

posed by climate change. The issue cannot be side-lined to scientists alone. If, climate

variation is a ‘global crisis’ and again if as some have hold the world is a ‘global village’, it is

only ripe to argue that the challenges embedded and brought forth by climate change requires

global effort to remedy. Global cooperation, starting with regional integration and good

governance measures will be pertinent in this regard.

In the end, it is only through collective consciousness between environmental scientist,

members of the legal fraternity, politicians, NGO’s, industrialist and multi-national

cooperation and all other commercial stakeholders can a viable and lasting solution be

brought to light for the greater good of all man-kind. As Ban Ki-moon once said;

Saving our planet, lifting people out of poverty, advancing economic growth… these are one

and the same fight. We must connect the dots between climate change, water scarcity, energy

shortages, global health, food security and women’s empowerment. Solutions to one problem

must be solutions for all.7

7 Ban Ki-moon, Address to 66

th General Assembly: “We the Peoples” (21 September 2011).


85 UNAMLR vol. 2(2)

CASE NOTES

Prosecuting International Crimes—‘Sovereign immunity’ vis-à-

vis the obligation erga omnes of States to prosecute international

crimes: An analysis of R v Bow Street Metropolitan Stipendiary

Magistrate exparte Pinochet Ugarte1

Johannes Uusiku

Introduction

The world has recently witnessed dramatic developments and radically different

interpretations of international law. This scenario was necessitated by the growing demand of

the international community to do justice for the victims of brutality and atrocities committed

by State’s agents on the one hand and traditional practice of the principle of sovereign

equality and immunity of heads of state in international law on the other.

The case of Pinochet is a landmark decision on the principle of immunity against criminal

prosecution in international law. It is landmark because, Pinochet is the first former head of

State to be convicted in a foreign court, and also the first former head of state whose

immunity has been waive by the foreign national court.

The facts of the case were briefly as follows: Augusto Pinochet was a president of the

military junta which overthrew the government of president Allende and ruled Chile from 11

September 1973 until June 1974. From 1974 until March 1999 Augusto Pinochet, although

unelected, held office as President of Chile. He was at all material times a Chilean national

and citizen of Spain and never held a Spanish citizenship.

Throughout this period Chilean nationals and citizens of Spain, Switzerland, France and other

countries where arbitrarily imprisoned and tortured up to 4000 persons disappeared or were

killed as part of the government policy to eliminate political opposition. In 1998, Pinochet

1 R v Bow Street Metropolitan Stipendiary Magistrate Exparte Pinochet Ugarte (No 1) 1998 3 WLR

1456. LLB Candidate (University of Namibia); Student Research Assistant, Law Reform and Development

Commission of Namibia (LRDC).


86 UNAMLR vol. 2(2)

came to the UK to receive medical treatment. During his stay in the UK, Spain applied for a

warrant to extradite him to face charges of genocide, attempted murder, torture, hostage-

taking and conspiracy.

Two provisional warrants were issued in October 1998 for his arrest in London. The first

warrant related to the event in the period between September 1973 to December 1983. The

second warrant related to events in the period of 1973 until 1983 and concerned allegations of

torture, the taking of hostages and conspiracy to murder. Pinochet asked the divisional court

to judicially review the issue of the warrants on the following grounds:

(i) That the first warrant was bad in law because it did not disclose an extraditable

crime having regard to the provisions of section 2 of the Extradition Act,1989

and section 9 of the Offences Against the Person Act, 1961.

(ii) That in respect of both provisional warrants the issue was unlawful because

the courts in the UK had no jurisdiction to exercise authority over the

applicant, as a former sovereign having regard

On behalf of the crown prosecution services it was argued that immunity under the under the

1978 Immunity Act did not extent to a class of criminal acts contrary to international law and

accepted moral law, namely crimes against humanity, genocide, torture and the taking of

hostages.

The matter was decided by the divisional court, and the applications were granted and relief

given on certiorari to quash both warrants. The crown prosecution service and the Spanish

government appealed in respect of the determination that Augusto Pinochet was entitled to

immunity from proceeding as a former head of State. Prior to the hearing in the House of

Lords, their lordship permitted Amnesty International Law, the medical foundation for the

care of victims for torture and human rights watch to make oral and written representations. It

was broadly accepted that the House of Lords would be required to rule on four legal issues

concerning immunity. These were:

(I) Whether Pinochet was entitled at common law to immunities a former head of

state? This will depend on whether he was entitled to such immunity under the

rules of customary law.


87 UNAMLR vol. 2(2)

(II) Was Pinochet entitled to immunity under part 1 of the State Immunity Act

1978? If not does part 1 restrict any immunity at common law?

(III) Was Pinochet entitled to immunity as a former head of state under the State

Immunity Act 1978?

(IV) Was this a case in which the court ought to decline jurisdiction on the basis

that the issues raised were non justiciable?

Judgment

The majority of the House of Lords held that Augusto Pinochet did not enjoy immunity from

extradition proceeding because:

(I) No immunity arose at common law because no immunity arose under

customary international law in respect of acts torture and hostages taking.

(II) No immunity arose under Part 1 of the State immunity Act 1978 by reason of

the provision of s 16 (4).

(III) No personal immunity arose from the state immunity Act 1978.

(IV) The matter alleged was justifiable in particular because parliament has

legislated to outlaw torture and taking of hostages.

Concluding remarks and comments

The most important contribution of the Law Lords is that until their judgments in this case,

people of the world were convinced that that the political power meant that protection and

immunity. The judgment of the House of Lords has proved that it is possible for those such as

Pinochet to be brought to trial. It has strengthened the movement throughout the world to

end immunity for the worst abuser of human rights and to take steps to enforce those means

which are already legally available.

The removal of immunity of former head of state is unlikely to be extended in practice to

head of state while in office. Whilst in legal context it is quite possible to imagine the

extension of the removal of immunity to serving heads of state, it seems unlikely that this will

substantially change the situation with regard to them as it is improbable that that they would

ever be at a right place at a right time to allow the hands of international justice to fall upon

them.


88 UNAMLR vol. 2(2)

The judgments of the House of Lords in the Pinochet saga established a new restriction on

state immunity. This restriction is based on the violation of a peremptory rule of customary

international law. The majority of the House of Lords found that the Criminal Justice Act

1988 removed immunity from a former head of state in respect of acts carried out in the

exercise of his official functions as a head of state (that is acta jure imperii normally covered

by sovereign immunity irrespective of whether or not a head of state is still in office or has

ceased to be head of state if these acts were in beach of ius cogens.

However , the House of Lords in R v Bow Street Moetropolitan Stipendiary Magistrate, ex

parte Pinochet Ugarte,2 ruled that Pinochet could be extracted only for torture committed in

Chile after 8 December 1988, the date on which the 1984 Torture,. The judgment rendered by

the House of Lords has attracted a wide degree of comment ad attention and have been the

subject of political debates in several countries. It is thus impossible within the confines of

this assignment to analyses in details all the legal questions raised by the decisions of the

House of Lords. For this reason I have limited the treatment of the subject matter to the most

important aspect of the judgment.3 According to Bangamwabo,

4 referring to the famous

Pinochet cases maintained that the House of Lords in England denied immunity to Pinochet

in his capacity as a former head of State of Chile however, their Lordships made it clear that

if he had still been an acting head of State, he would have enjoyed immunity from

prosecution as per international law.

2 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR

827. 3 Kaczorowska, A. 1998. Public International Law. London: Old Bailey Press, p. 145.

4 Bangamwabo, F-X. 2009. International Criminal Justice and the Protection of Human Rights in Africa.

Available at www.kas.de/upload/auslandshomepages/namibia /Human;rights;in Africa/5;

Bangamwabo.pdf . Last accessed on 5 May 2014, p. 121.


89 UNAMLR vol. 2(2)

Westcoast Fishing Properties v Gendev Fish Processors Ltd &

Another—A tenet of “judicial nationalism”?

J.D. Kennedy Kariseb

The recent skeletal judgment of Geier J, in Westcoast Fishing Properties v Gendev Fish

Processors Ltd & Another,1 (herein after referred to as the Gendev case) is indeed a force to

reckon with! It, like the Chingufo case,2 makes interesting reading because the significance of

the judgment is not rooted in the ruling itself, but somewhat sandwiched in the tacit (or even

explicit) arguments of the Court. The case is in din a brisk judgment with no fascination or

ground breaking precedent. However, it reiterates a significant point; that is the growing

syndrome of “judicial nationalism” in the Namibian legal system.

By way of background, in this case, counsel for both parties filed their Heads of Argument

with the Court relying exclusively on South African authorities. Although both counsels were

foreign to the Namibian legal system, they engaged the services of Namibian legal

practitioners, albeit on a correspondence basis. The Court thus raised the issue of the non-

compliance with Consolidated Practice Directive 37 of the High Court of Namibia with

counsel at the hearing of the matter. Basing the matter ‘not ripe’ in the words of Geier J, the

Court struck the matter from the roll and ordered parties to pay its own costs.

At the core of this matter was the controversial Consolidated Practice Directive 37 of the

High Court Practice Directives (herein after referred to as Directive 37).3 In terms of this

directive, legal practitioners are reminded to in the first instance refer to and rely on

Namibian decisions and authorities in respect of a particular subject. Where such authority is

lacking, counsel are expected to attest to the Court that he or she is unable, after diligent

search, to find Namibian authority on the proposition of law under consideration.

BJuris; LLB Candidate (University of Namibia). Assistant to the Coordinator of the Academic Tutorial

Programme of the Faculty of Law, University of Namibia. 1 2013 (4) NR 1036 (HC). See also A 228/2012 [2013] NAHCMD 185 (28 June 2013).

2 See generally, Ex parte Chingufo. In re E Semente; E Semente v Chingufo (A16/2012) NHCMD,

unreported judgment of the High Court. Cf Horn, N. 2013. “Ex parte Chingufo. In re E Semente; E

Semente v Chingufo: Another unfortunate victory for formalist law”. In Namibia Law Journal, vol.

5(1), pp. 107-112. 3 The Judge President of the High Court of Namibia issued Consolidated Practice Directives for court

protocol and procedure on 2 March 2009.


90 UNAMLR vol. 2(2)

For starters it must be generally stated that one is not always able to account with a fair

degree of precision the rationale behind Directive 37. It seems however, as if the Namibian

Courts are taking cognisance of its unique jurisprudence that has evolved slightly around

different values and legal arrangements compared to other common law jurisdictions.

Namibia is relatively young amongst the nations of the world. It attained independence on 21

March 1990.4 This attainment of statehood introduced a new legal culture now largely

informed by a supreme Constitution that has been hailed internationally.5 Although Namibia

shared at the date of independence, a common law heritage with most Southern African

countries, some antinomies in legal practice and judicial structural arrangements are visible.

Judicial independence,6 endowed on the Namibian judiciary, which over the past years have

become racial and gender representative, has as a matter of fact led to the development of a

home grown jurisprudence by the superior courts of Namibia. Namibian law has therefore,

safely said, accumulate a national character and identity which must be captured and given

due recognition in both legal practice and literature of the country.

In light of the growing syndrome of “judicial nationalism” one is tempted to ask whether the

Namibian jurisprudence has reached a stage that it can claim autonomy? Or is it still as some

argue in a state of infancy? It is oft-said ours is a ‘Roman-Dutch Law’ jurisdiction fused in

legal pluralism with inroads from English law. Namibia falls therefore in a classification,

Zimmermann and Visser,7 describe as ‘historical experiences of mixed legal systems’.

8 It is

also trite that our legal system is a resemblance of the South African legal system owing

4 For the political history of Namibian independence See generally Katjavivi, P. 1988. A History of

Resistance in Namibia. London: James Currey; Du Pisani, A. 1986. SWA/Namibia-The politics of

continuity and change. Johannesburg: Jonathan Ball; Kaire, M. 1986. Namibia: The Broken Shield.

Anatomy of Imperialism and Revolution. Lund: Liberg verlag; Mdeah, AT. 1983. Namibia-The

Struggle for Liberation. Wilmington: Disa Press; Nujoma, S. 2001. Where others wavered: The

Autobiography of Sam Nujoma. London: Panaf Books. 5 See in general van Wyk, D. 1991. “The making of the Namibian Constitution: Lessons for Africa”. In

Comparative and International Law Journal of Southern Africa (CILSA), pp. 341-351; Diescho, J.

1994. The Namibian Constitution in perspective. Windhoek: Gamsberg Macmillan; Erasmus, G. 1991.

“The Namibian Constitution and the application of international law in Namibia”. In D van Wyk et al.

(Eds). Namibia—Constitutional and international law issues. Pretoria: VerLoren van Themaat Centre

for Public Law Studies, pp. 81-110; Tshosa, O. 2010. “The application of international law in

Namibian national law: A critical appraisal of the Constitutional strategy.” In Namibia Law Journal,

vol. 2 (1); pp. 3-27. 6 See Article 78(2) of the Namibian Constitution.

7 Zimmermann, R & Visser, D. 1996. Southern Cross: Civil Law and Common Law in South Africa.

Oxford: Clarendon Press, p. 2. 8 The historical experiences of mixed legal systems is a portmanteau which refers to Scotland, Quebec,

Louisiana, Sri Lanka, South Africa, Botswana, Lesotho, Swaziland, Namibian and Zimbabwe but may

not in itself be an exhaustive list.


91 UNAMLR vol. 2(2)

largely to the mechanical linkages in the political history of the two countries. In its breadth

and evolution, therefore, the Namibian legal system, consequently, relied heavily on foreign

authorities, especially South African authorities to carve its own jurisprudence.

What Gibson, speaking in the South African context, argues by saying, “[o]ur country has

reached a stage in its national development when its existing law can better be described as

South African [Namibian], than Roman-Dutch…no doubt its roots are Roman-Dutch, and

splendid roots they are…”, is materially true of the Namibian situation too. It is thus not

surprising, that Gibson, in his above cited utterance, relies for support on the Namibian

judgment of Classen JP (as he then was) as authority, in R v Goseb,9 where the following was

said:10

I consider that the term “Roman-Dutch law” is a confusing term, for in fact the common law

of [South Africa] is not Roman-Dutch law. It is [South African] common law. It is true that

Roman-Dutch law forms the basis of our law…The law has been continuously developed and

improved by the courts as well as by legislation. Other systems of law have had a marked

influence, particularly English law…In view of all these influences it seems to me that it is

more correct to speak of [South African] common law rather than of Roman-Dutch law.

Gibson rightly makes the case that there is only one system of law in South Africa; that is

South African law based on Roman-Dutch foundations. The same can be said of Namibia.

We have one system of Namibian law based on Roman-Dutch foundations. Hence, the

practice of law must reflect truly a Namibian legal setting.

Taking heed of Gibson’s argument, it becomes pertinent that the law of a nation is keen to its

socio-economic context and that in the development of law; reliance should firstly be drawn

from the native country itself before preference is given to alien laws or authorities. This is to

prevent the importation of legal principles and values into one legal system that are material

different from the importing legal system. The point made is this; for purposes of legal

cohesion and consistency, the underlying values and settled practices of the legal system

concerned, must be adhered to and legal practitioners and other subjects of the [Namibian]

9 1956 (2) SA 696 (SWA).

10 Ibid at p. 698.


92 UNAMLR vol. 2(2)

legal system must tilt on their own laws and principles before diving into any other alien

laws.11

This is in principle what Geier J, articulates in Gendev.

A considerable number of post-2010 judgments, both in the High and Supreme Courts of

Namibia considered the use of foreign authorities during litigation. Two of these cases, may

justify mentioning here. In Shikongo v Trustco Group International Ltd and Others,12

Muller

J, with reference to the use of foreign authorities in Namibian courts held:13

[I]n Namibia the position was even more complicated. Since Namibia's Independence and the

acceptance of its own Namibian Constitution in 1990, the Namibian courts are not bound by

the decisions of South African courts. Even decisions of the South African appeal court only

have persuasive value. Of course an appropriate South African decision has to be considered,

but it does not bind the Namibian High and Supreme Courts. Since the advent of Namibia's

independence and acceptance of its own Constitution, constitutional rights should be viewed

against Namibian case law. It is of importance that Namibia establishes its own

jurisprudence…

Equally, in S v Malumo and 112 Others,14

the court was faced with a question of law not

previously settled by any court in Namibia. Hoff, J relying on the dictum of Kriegler J, in

Beinstein and Others v Bester and Others,15

held that judgments of foreign jurisdictions have

only persuasive authority especially in cases where no local authority dealt with the matter at

hand before it. It is therefore settled, that foreign authorities are cautiously said only of

persuasive force in Namibian Courts, never binding. Secondly, their use is restricted to

situations where there are no local cases or law dealing with the subject matter before a court.

Constitutional rights must be interpreted against the backdrop of the Namibian Constitution

and no foreign law.

It is only sensible that preference be given to local authorities before any use on foreign laws

or authorities be drawn. Such an approach is sound in law for obvious reasons: Despite

11

By law in this context is broadly meant Constitution, legislation, case law through judicial precedent,

regulations, policies, by-laws, rules and (practice) directives. This list is not exhaustive. 12

2009 (1) NR 363 (HC). 13

At 368. See also Gabriel v Minister of Safety and Security 2010 (2) NR 648 at p. 643. 14

2011 (1) NR 169 (HC) at 182. See also cases such as De Villiers v Axiz Namibia (Pty) Ltd 2012 (1) NR

48 (SC); Goseb and Others v Minister of Regional and Local Government and Housing and Others

2011 (1) NR 224 (HC); Gabriel v Minister of Safety and Security 2010 (2) NR 648 (HC); Nationwide

Detectives and professional Practitioners CC v Standard Bank of Namibia Ltd 2008 (1) NR 290 (SC). 15

1996 (2) SA 751 (CC) at pp. 811-812.


93 UNAMLR vol. 2(2)

resemblances that a particular countries legal system may have to another, their socio-

economic context will always be marked by variances. Equally, what may be legally

reprehensible in one country may not command the dictate of a law in another. Public policy

indifferences mark all legal systems. This is particular true in Southern Africa, despite the

majority of this nations being stranded in Roman-Dutch common law legal traditions.

Consequently, it is only right, to take into account the developing differences between these

countries, so that the general body of jurisprudence of our local courts developed in

accordance and with reference to the particular and often different legal developments which

are occurring in each respective country.

On the other hand, in the process of cementing reliance on indigenous authorities, Courts

should not overlook nor underestimate the immense importance that comparative application

of the law may hold. To be specific, most of the legal systems in Africa have developed into

sound legal systems because of comparisons or rather use of foreign authorities. A blind eye

should therefore not be thrown on the use of foreign material in courts or the academia. The

late renowned comparative lawyer and academic, Walter Kamba, observed in a well-

celebrated paper:16

…[N]ot to travel outside the borders of one’s own law tends to foster the kind of legal

isolation and parochialism which David and Brierley castigate in these terms: “Judicial

nationalism is provincialism and irreconcilable with a truly scientific spirit; it impoverishes

and indeed is dangerous to the development and even application of national law.

Comparative law liberates one from the confines of individual systems. It is one of the most

effective instruments for gaining a better knowledge and deeper understanding of one’s own

legal system.

The sound evolution and development of the Namibian jurisprudence, at least for the time

being will need the aid of comparative law in the form of case authority and legislation to

ripen. This can be done, as remarked by Kamba,17

in comparison with “systems of law which

are at similar [or advanced] stages of development” than ours.

16

Kamba, W.J. 1974. “Comparative law: A theoretical framework.” In International and Comparative

Law Quaterly, vol. 23 (1), pp. 491-492. 17

Ibid, at p. 508.


94 UNAMLR vol. 2(2)

According to Gutteridge:18

Like must be compared with like; the concepts, rules or institutions under comparison must

relate to the same stage of legal, political and economic development.

Much of what is called “a legal position” in Namibia is a direct result of comparative

authorities. To take a standard example, Namibia’s equality jurisprudence, as envisaged in

Article 10 of the Namibian Constitution, although still under scrutiny, is fairly

understandable today because of the use of comparative authorities.19

In fact what we

celebrate as leading judgments are aftermaths of extensive comparative law usage.20

The

nucleus of a considerable number of post-independent legislation, too, has firmly bred on

foreign legislation as guides.21

Hence, it will be a disgrace if the judiciary wash their hands in

the proverbial Pilate’s bowl, by pretending that foreign law and/or authorities have no use in

our legal system. Strictly speaking, our current Namibian legal system as it stands owes

allegiance to foreign law, especially comparative tenets.

The rationale behind the Gendev judgement may, viewed objectively also pose challenges in

cases of conflict of laws. It may happen in the near future as it did in the past,22

that cases can

arise before a Namibian court in which the application of the Court’s own law, the so-called

lex fori, would be both inappropriate and unjust. A foreign national may be prejudiced greatly

if proverbially speaking a strict approach to lex fori is invoked without harnessing the

aggrieved parties legal background.

18

Gutteridge, S. 1949. Comparative Law. 2nd

Edition. Cambridge: Cambridge University Press. 19

See in general Zongwe, P. D. 2010. “Equality has no mother but sisters: The preference for

Comparative Law over International Law in the Equality Jurisprudence of Namibia.” In M Kilander.

(ed). International Law and Domestic Human Rights Litigation in Africa. Pretoria: PULP. 20

One may only make reference to cases such as: Kauesa v Minister of Home Affairs 1995 NR 175 (SC);

Ex parte, Attorney-General, In Re Corporal Punishment by the Organs of the State 1991 NR 189 (SC);

S v Acheson 1990 NR 1 (HC); Africa Personnel Services (Pty) Ltd v The Government of the Republic of

Namibia & Other; Sikunda v Government of the Republic of Namibia 2001 (3) NR 181 (HC);

Nanditume v Minister of Defence 2000 NR 103 (LC); Müller v President of the Republic of Namibia &

Another 1999 NR 190 (SC), Shikongo v Trustco Group International Ltd and Others 2009 (1) NR 363

(HC); Swart v Minister of Home Affairs 1998 (3) SA 338 (NmHC); and National Detectives and

Professional Practitioners CC v Standard Bank of Namibia Ltd 2008 (1) NR 290 (SC), to illustrate this

point. 21

See in this respect, Companies Act 2008; The Bills of Exchange Act 22 of 2003; The Environmental

Management Act 11 of 2007 Anti-Corruption Act 8 of 2003, Water Resources Management Act 11 of

2013, but to mention a few. 22

See as examples Bourgwells Ltd (Owners of the MFV "Ofelia ") v Vladimir J Shepalov and 43 Others

1998 NR 307 (HC); Impala shipping (Pty)Ltd v H & H Civil CC [2001] NAHC 34 (HC), unreported

Judgement of the High Court of Namibia.


95 UNAMLR vol. 2(2)

Predominantly, cases involving conflict of laws would usually mould a need on counsel to

make use of foreign authorities to meet out their cases. In such cases, the question arises,

whether the Namibian Courts would invoke monolithically the demands of Directive 37? Use

citation in footnotes to use emphasis of the origin of the Directive Such a technical invocation

of Directive 37 would of course lead to absurdities with adverse consequences. Judges should

therefore, in the interest of justice judge each case on its own merits, and at times

compromise on the bar against foreign authority even in the event local content broadly

awaits, especially when the local authorities do not add much value to find a residual

solution. It is unacceptable under Namibian law that any judges judicial oath requires him/her

to adopt a residual lex fori approach when the relevant rules do not provide a ready solution

to the issue before the court.23

In gist, the Gendev case is a sound judgment that should be welcomed. It places a legal

demand on all legal practitioners of the Namibian Courts (and perhaps on the academia) that

the time is ripe to develop and centre attention on our local authorities. However, in this

“project of local autonomy of authorities” sight should not be lost of the importance and utter

advantages of comparative law. A harsh implementation of Directive 37 may not always be

justifiable.

Assuming the court in Gendev allowed counsel to meet their respective cases through the aid

of foreign authorities exclusively, even in the presence of local authorities, what disadvantage

or rather loss, if any, would have this had on our (local) jurisprudence? Seemingly none. It

should thus be borne in mind that to tarnish reliance on foreign authorities would, for logical

purposes be like a fellow attempting to study theology without a Bible. Is that ever possible?

23

Mapaure, C. 2013. “A Comparative discussion of the approach to characterisation in Laconian

Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D); Laurens NO v Van Hohne 1993

(2) SA 104 (W) and Society of Lloyds v Prices; Society of Lloyds v Lee 2005 (3) SA 548 (T).” In

University of Namibia Students Law Review, vol. 1 (1), p. 87.


96 UNAMLR vol. 2(2)

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