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Key Judgments 2001-present

Since 2001, the LAC has successfully litigated the following landmark human rights cases.

Himba chief loses official status / Werner Menges as in the Namibian:
CASE NO: HC-MD-CIV-MOT-REV-2016/00331

VETERAN Ovahimba traditional leader Hikuminue Kapika has lost his official designation as chief of his community in the Epupa area of the Kunene region.

Kapika lost his official status as a traditional leader recognised by government through a judgement that was handed down in the Windhoek High Court on Friday.

In the judgement, judge Shafimana Ueitele reviewed and set aside former minister of urban and rural development Sophia Shaningwa's decision in early 2016 to approve the designation of Kapika as chief of the Ombuku traditional community.

Judge Ueitele found that Shaningwa failed to give Kapika's half-brother and leadership rival Mutaambanda Kapika an opportunity to be heard before she decided to approve the elder Kapika's designation as traditional leader of their community. 

In his view, judge Ueitele stated, that failure by the minister to first hear Mutaambanda Kapika on an issue affecting him was fatal, and the then minister's decision could not be allowed to stand.

He also found that when Shaningwa relied on a report of a committee that had to investigate if an application to have Hikuminue Kapika officially recognised as traditional leader of his community, she could not have concluded that his designation as chief was in accordance with the customary laws of his community, as required in terms of the Traditional Authorities Act.

Judge Ueitele further found that the application to get official recognition for the elder Kapika's status as traditional leader did not comply with the Traditional Authorities Act because it was not shown that the traditional councillor who made the application to the minister had been authorised by the Ombuku community's customary law to make such an application.

The judgement was given in a case in which Mutaambanda Kapika sued Hikuminue Kapika, the Kapika Traditional Authority, the minister of urban and rural development, and the chairperson of the Council of Traditional Leaders to have the minister's decision to recognise the elder Kapika's designation as chief of the Ombuku traditional community reviewed and set aside.

Mutaambanda Kapika, aged 64, informed the court in an affidavit that the Ombuku traditional community, which has been led by Hikuminue Kapika (84) since the death of his father in 1982, had lost trust in the elder Kapika's leadership after he made a U-turn on his resistance to a plan to build a new Kunene River dam and hydroelectricity plant on ancestral Ovahimba land near the Epupa Falls.

The elder Kapika used to be a leading opponent of the controversial proposed dam project, which the Ovahimba people consider a major threat to the survival of their customs, culture, traditions and their very identity, but his opposition was dropped after he had made a visit to China near the end of 2013, and then disappeared from his community for about three months, Mutaambanda Kapika said in his sworn statement.

It was also stated in the affidavit that the Ombuku community decided at a community meeting held in March 2014 that the aged chief was incapable of continuing to be their leader, with Mutaambanda Kapika then elected as chief in his place.

Mutaambanda Kapika further stated that his half-brother announced in July 2014 that he had joined the Swapo Party. This was followed the next year by Shaningwa's decision to formally recognise him as chief – after two previous applications to have him designated did not succeed.

By the time that Shanginwa decided to recognise the elder Kapika's leadership of his community, an application to have Mutaambanda Kapika recognised as chief of the Ombuku community had also been made in March 2015, judge Ueitele noted in his judgement. 

Despite the fact that she had received two competing applications for the designation of a traditional leader for the Ombuku community, the minister decided to recognise Hikuminue Kapika without having given Mutaambanda Kapika an opportunity to be heard on the issue at hand, the judge also recounted.

That went against the legal rule requiring public authorities and officials to afford a person who may be affected by a decision of the public authority a chance to be heard before such a decision is taken, judge Ueitele remarked.

Mutaambanda Kapika was represented by Legal Assistance Centre lawyers Willem Odendaal and Corinna van Wyk when oral arguments in the matter were heard by judge Ueitele in August last year. Government lawyer Margaret Malambo-Ilunga represented the minister, while Hikuminue Kapika was represented by Elize Angula.

 

Meintjies v Joe Gross T/A Joe’s Beer House [2004 - Supreme Court]

Mr. Meintjies was terminated from his employment by the way of a written notice in terms of the Labour Act No. 6 of 1992. He however argued that he was terminated unfairly and no valid reason was provided for his termination. His employer argued that according the Labour Act, all the necessary requirements were met.

The question the court had to answer in this case was, is it legal to fire an employee by simply issuing him or her a notice of dismissal and provides no further justifiable reason to warrant such dismissal? The employer tried to argue that the word “dismissal “should be interpreted narrowly. They further tried to argue that an employee’s contract of employment can be terminated at his behest.

The judge in his case however argued that a narrow interpretation should not be used. He further argued that the Labour Act should not be read selectively so as to find out the true intention of the legislature. Consequently the court stated that it was not the intention of the legislature to let employers fire employees willy-nilly. The court further argued that a narrow or restrictive interpretation of the particular piece of legislation in question (section 47) leads to an absurdity in which separate fairness regimes are created. It contends that this was not the intention of the legislature when they passed the Labour Act.

The end result of this case is that an employer cannot simply fire or dismiss employees anyhow and argue that notice of an impending dismissal was issued. Notice of termination has to go hand in with a valid or fair reason and fair disciplinary hearing. Therefore an employer cannot simply fire an employee because he feels like it. The court ordered that Mr. Meintjies be paid N$ 33,000 in damages.

Louw v Chairperson, District Labour Court, Windhoek [2001]

This case deals with article 12(Fair trial) of the Namibia Constitution which states that an individual has the right to a free and fair trial. However, in this case, Ms. Louw could not put security for the appeal in accordance with of the Rules of the High Court of Namibia.

The issue the court had to determine was whether the rule compelling an appellant to provide security for the costs of the appeal contravenes the fair trial provision.

Due to Ms. Louw’s financial position she could not raise enough money to have her appeal heard as required by Rules of the High Court of Namibia even though the amount sought was reasonable in her view. The court, in reaching its decision, followed the approach used by a South African court in the case of Shepherd v O’Niell and Others 2000 (2) SA 10066 (N), which dealt with a similar issue. The court argued that the rule on the issue of security did not give it enough room to manoeuvre. For instance the court, according to the rules, cannot reduce or waive or even increase the amount of security being charged. It further argued that this may limit genuine appeals by persons who cannot afford to put up the security. The court further added that it should be able to exercise its discretion in such matters. The court therefore found that the rule that require that security be paid before an appeal can be heard contradicts the enshrined right to fair trail.

S v Ganeb [2001]

In this case Mr. Ganeb was convicted in the Magistrate’s court on charges of stock theft. He sought to have a Judges certificate in terms of section 309(4)(a) read with section 305 of the Criminal Procedure Act No. 51 of 1977. A judge’s certificate was a requirement for any person behind bars and who did not have access to a lawyer to get an appeal or a review. His application was turned down. Mr. Ganeb, not content with this rejection made his views known to the judge president who in turn sought to have the matter weight against the Namibian Constitution.

The main question the court had to answer was, can an inmate without legal representation seek to have an appeal or review of a lower court judgment without procuring a judges certificate?

The court found that section 309(4)(a) to be against article 12( the right to a fair trial) and article 10 (all persons shall be equal before the law) of the Namibian Constitution, the supreme law of the land. The court examined a South African case which dealt with a similar issue.

Counsel for the respondent tried to argue that the Criminal Procedure Act No.51 of 1977 already had provided a solution for people who wanted an appeal or review, However the Legal Assistance Centre appearing as a friend of the court (this is when the court appoints a lawyer to argue a case on behalf of someone, usually for free) argued that this clause in the Criminal Procedure Act not only limited access to a fair trial but was also discriminatory for it discriminated between inmates behind bars and without legal representation and free persons or inmates with legal representation.
The court stated that old laws still tried to enforce the will of apartheid legislators. With a new constitution, which has emphasis on human rights, the right to a fair trial is not fully relevant unless all channels to seek this right are fully available to the accused. A judge’s certificate therefore is an obstacle to an inmate or accused person who wants to exercise this fundamental human right. The court ordered that section 309 (4)(a) be review and amended for it is in contravention of articles 10 and 12 of the Namibian Constitution.

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