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CONSTITUTIONAL RIGHTS & HUMAN RIGHTS

LITIGATION -CURRENT AND ENVISAGED

MEDICAL NEGLIGENCE
HURICON is litigating in several medical negligence cases with the aim of holding the Ministry of Health and Social Services accountable for the lowered standards observed in public hospitals.
Two of these matters relate to complications during childbirth – a most vulnerable time in a woman’s life. One of the babies subsequently passed away. In another medical negligence case, a child’s feet were negligently burnt by a nurse. The defendant admitted liability and out-of-court settlement negotiations are ongoing.
In two other medical negligence cases, it would appear that the client’s HIV status had an effect in respect of the treatment provided. In one matter, the client was left with an external faecal bag hanging around his waist for over two years after an operation and was denied treatment. These matters are ongoing.

HIV/AIDS STIGMA AND DISCRIMINATION
HURICON is dealing with two cases involving HIV/AIDS stigma and discrimination in the workplace. In one case, an otherwise physically fit employee was dismissed from work because he is HIV positive. The matter may go for hearing in 2014.
In the other case, the two clients were not recruited into the Namibian Police due to their HIVpositive status. Out-of-court settlement negotiations are underway in this case.

PROPERTY GRABBING
Litigation is being conducted in relation to the discriminatory practice of property grabbing.
The first instance focuses on whether a customary marriage can be said to be a tacit universal partnership which would entitle the parties to equal shares of the joint estate upon the dissolution of the customary marriage. The current trend is definitely for a woman to be disadvantaged when her customary marriage ends.
GR&AP published research on cohabitation in 2010 (A Family Affair: The Status of Cohabitation in Namibia and Recommendations for Law Reform), and the report has provided the necessary research for this litigation. This report also provides a prime example of how thework of different projects/units at the LAC interlinks, and conveys how much of our work is conducted with the long-term view of assisting multiple clients who experience the same or similar problems.

CAPRIVI TREASON TRIAL
In 2013 HURICON continued its work on the Caprivi treason civil matters. Thirteen cases were settled out of court to the clients’ satisfaction, five cases were voluntarily withdrawn, four have been set down for hearing in 2014, and one appeal case was argued in the Supreme Court. In the latter matter, the issue before the court is what level of responsibility is required on the part of law enforcement officials to ensure that arrested persons are brought before court before 48 hours have expired, as is required constitutionally. Judgement was reserved.

DICRIMINATION DUE TO PREGNANCY
Legal advice and support were provided to two trainee nurses who were not allowed to return to the training college for their scheduled examinations after becoming pregnant. The students were initially told that they were required to remain home with their children for a year – based on a policy similar to an old policy for school learners who become pregnant. (In 2008 the LAC assisted the Ministry of Education to develop a new policy that focuses on helping learners to finish their schooling while also giving attention to the best interests of the baby). Due to HURICON’s intervention, the Health Training Centre was led to understand that this amounted to discrimination on the basis of sex, and the students were then permitted to write their examinations.

FORCED STERILIZATION
HURICON is anxiously awaiting the hearing of the appeal noted by the government in the well-publicised forced sterilisation matters. The appeal is due to be argued in the Supreme Court in March 2014.

LAND DISPOSESSION
The LAC continued working with the Legal Resources Centre in South Africa to formulate a possible court case to compel the government to recognise the ancestral land rights of the Hai||om San residing in Etosha National Park, or alternatively to provide for their security of tenure.
In 2013, consultations and a number of community meetings were conducted with the Hai||om communities to provide for a deeper understanding of the Hai||om people’s attachment to Etosha and their former land-use patterns. It was agreed that the claim would be two-fold: the first stage of litigation would focus on the assertion and recognition of the cultural and traditional rights of the Hai||om; and the second stage would focus on ownership rights based on the question of aboriginal title.

LEGAL ADVICE AND ASSISTANCE

ILLEGAL LAND INVASION, GRAZING AND FENCING
The LAC is assisting the N‡a Jaqna Conservancy to prepare eviction orders. In addition, the LAC prepared a one-page outline of suggested roles for the members of a patrol group (e.g. one member seizes and records information on livestock, one records information on owners of livestock and one determines and records the location) so that each member knows immediately what to do upon discovering illegal grazing/fencing/settlers in the conservancy, with a view to supporting possible prosecution. In September 2013, NAMPOL served court applications on 30 respondents. Some of them have informed the LAC that they removed the illegal fences and have vacated the area, and four respondents have opposed the application.

CORPORAL PUNISHMENT IN SCHOOLS
The LAC continued to monitor a court case which began in 2012, involving assault charges against several teachers in respect of the illegal use of corporal punishment in a private school.
The case concluded in 2013, with all of the teachers convicted of assault. This judgement provides unequivocal clarification that corporal punishment may not be used in either private or state schools.
The teachers will appeal the conviction in 2014 and will be monitored further.

DOMESTIC AND FAMILY ISSUES
Every year the LAC assists a wide range of clients with queries, in person and/or via sms, telephone and email. Questions from clients in 2013 concerned domestic violence, maintenance, marriage and numerous other issues – e.g. one client asked whether a person can require her domestic worker to be tested for HIV, and another asked for information about discrimination in the workplace as she wanted to continue breastfeeding her baby once she returned to work.

GENERAL
In general, legal advice is dispensed on a daily basis to walk-in clients. The majority of these matters concern issues which do not fall under the LAC’s constitutional and human rights mandate, but in such cases, every effort is made to refer the client to an organisation or government ministry that can assist, or alternatively, advice is given to empower the clients to deal with the issues themselves.

BELOW SOME OLDER INFORMATION:

PRISONER RIGHTS
This case relates to whether the Ministry of Safety and Security is responsible for prison inmates when they are out on work duty. Summons has been issued and both the Ministry and the farm manager have defended the matter. The farm manager has also entered a counter-claim to the effect that client used abusive language and insulted him. Client denies this. 

The contention is that the Ministry of Safety and Security have a heightened duty of care towards inmates since they are not at liberty to remove themselves from the situation in which they find themselves. The Ministry must take responsibility for their safety in circumstances where the inmates leave the prison enclosure. Since the assault was perpetrated by a private person (who has also been sued as the Second Defendant), the Ministry denied liability. This matter was to proceed to trial in 2007 but was subsequently settled when the Defendants made an acceptable offer to client.

SEXUALITY
Huricon received instructions from one of the local legal practitioners’ firms to assist these clients. The two men were caught in a sexual act in a toilet in a private bar and arrested. They were charged with, among other charges, also sodomy. There is an international move towards abandoning sodomy as a criminal offence and we agreed to bring an application on behalf of the men to also declare it unconstitutional in Namibia.

Before the application could be filed however, the prosecutor withdrew the sodomy charges against the men and the application became irrelevant. The file is kept in abeyance however, as the lawyer acting for them in the criminal matter believes that they might again be charged with sodomy at a later stage.

SEXUAL HARASSMENT
With the assistance of funding from the Gender Research and Advocacy Project, Huricon was able to solicit the services of outside Counsel to deal with a matter of sexual harassment. This is a fairly new field of law and the first time that the Legal Assistance Centre has commenced with legal proceedings in such an issue. The pleadings have essentially been finalized and the matter proceeded to trial in 2007. The Plaintiff finalised its case and the matter was then postponed to February 2008 for the Defendants to place their case before the court. This case could have important ramifications for employers in Namibia since it would give an indication of the level of care expected from them in cases of sexual harassment.

CUSTOMARY MARRIAGE
In a matter relating to the rights of women in a customary divorce, much time was spent consulting with client and the legal practitioner of the other side as well as Counsel. An application for interim maintenance in the customary divorce action was also drafted but subsequently client’s husband divorced her in the traditional manner by returning her to her parents over the holiday season. It is not apparent at this time whether client wishes to pursue her options. This is another matter that was referred to Huricon by the Gender Research and Advocacy Project.

IMMIGRATION & CITIZENSHIP
Client has been so married to a Namibian for more than 10 years and has fathered 4 children in Namibia. In April 2005, an application was brought in the High Court requesting the Ministry of Home Affairs to grant client citizenship on the basis of client’s marriage to a Namibian citizen. The reason for the rejection was that client had been found guilty of using forged documentation, which Huricon asserts should be irrelevant in relation to an application based on marriage. The matter was argued and after further Heads of Argument on the concept of being ‘ordinarily resident’ were filed, judgment was reserved.

The favourable judgment obtained in this matter has been appealed by Government. The appeal should be heard in 2008 and will centre around the difference between the definitions of ordinary and lawful residence.

STATE PRESIDENT’S PATIENTS (SPD’S)
The SPD issue is an ongoing one. Currently SPD’s are kept incarcerated for inordinately long periods of time, often long after they are ready to be released, due to the fact that there is no proper review process in place.

Summons was issued on behalf of a client who was previously held at the forensic psychiatry section of the Mental Health Unit after having been declared a State President’s Patient. Client was ready for release and from the time that the Hospital Board confirmed this until the time when client was actually released, some 18 months passed. Huricon contends that this is an unreasonable administrative delay and a substantial sum of damages was claimed. Government defended stating that the incarceration was lawful since it was ordered by a court of law. Huricon does not agree with this contention but, nevertheless, Counsel’s opinion was requested and same vindicated Huricon’s stance.

This matter proceeds to trial in March 2008, possibly on the basis of a stated case. In addition hereto, Huricon is in constant contact with the head of the Mental Health Unit in an attempt to find ways in which to expedite the release of those patients who are ready to re-enter society. This involves providing legal advice and attending meetings of the task force assigned to review legislation as well as liaising with the Office of the Prosecutor-General who acts as the official curator-ad-litem for state president’s patients.

 

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