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Key Judgments 2001-present

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

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.