Current Judgments 2001 onwards
Since 2001, the LAC has successfully litigated the following landmark human rights cases.
Shalukeni v Damaseb (SA 21-2019) [2020] NASC (4 December 2020) or signed copy in pdf here.
This appeal deals with how a 99 year leasehold granted to Daniel Shalukeni (the deceased) in 2006 pursuant to s 37 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the ACLRA) should be dealt with.
The parties in dispute are, the first appellant (Maria/the executrix) and her children with the deceased and the first respondent (Johannes), the son of the deceased, but not of Maria. The executrix and Johannes, independent of each other approached the Land Reform Advisory Commission (the Commission) for a recommendation to the Minister of Land Reform (the Minister) to approve each one of them as the sole assignee in respect of the leasehold.
The Minister declined to approve either of them and withdrew the lease on the basis of the unresolved dispute in the family as to whom the lease should be assigned. Read on…
Also read more of the preceding issues in the Namibian Newspaper 2017
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.
Further developments in June 2020 where published in The Namibian (or pdf) with Kapika winning the appeal.
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.
Key Judgments 1990-2000
The LAC was successful in the following landmark human rights cases from Namibia’s Independence in 1990 to 2000.
Namunjepo and Others v Commanding Officer, Windhoek Prison and Another [2000]
Prison warders put Thomas Namunjepo and four other awaiting trial prisoners in chains (or “leg irons”). The chains consisted of two metal rings with a fastener that is usually welded closed or sealed in such a way that the prisoner cannot remove the ring. A metal chain connects the two rings. A warder puts a ring on each leg, just above the ankle. The chains restrict the person’s movements and are uncomfortable.
The prisoners were chained because one of them was allegedly planning to escape from prison and the others had previously escaped from prison. They remained in chains for approximately six months. The prison authorities removed the chains after Namunjepo and the others applied to the High Court. The applicants said that being thus chained was contrary to Article 8 of the Constitution.
The High Court decided in favour of the Commanding Officer, Windhoek Prison and the Minister of Prisons and Correctional Services.
Namunjepo and the others then appealed to the Supreme Court.
The Supreme Court noted that imprisonment necessarily affected some a prisoner’s rights, including the right to dignity. This did not, however, mean that a prisoner did not have the right to dignity. To chain a person “was a humiliating experience which reduces the person placed in irons to the level of a hobbled animal whose mobility is limited”. It was also a strong reminder of the time when Africans were sold into slavery in chains.
The court therefore decided that it was at least degrading treatment to put chains on prisoners and was therefore contrary to Articles 8(2)(a) and (b) of the Constitution. The effect of this ruling was that prison authorities could not in future chain prisoners.
Müller v The President of the Republic of Namibia and Another [2000]
Mr Müller married Ms Engelhard during 1996. Mr Müller wished to use his wife’s surname as his surname, rather than his own surname. In other words, they would have become Mr and Mrs Engelhard. To do this he would have to comply with the formalities prescribed by Section 9 of the Aliens Act. A woman on marriage is not obliged to comply with any formalities, but may elect to use her husband’s surname as her surname (section 9(1 )(a)).
Mr Müller applied to the High Court for on order that Section 9(1)(a) was unconstitutional. His main argument was that the section infringed his rights under the Constitution to equality before the law and freedom from discrimination on the grounds of sex (Article 10). He also asked that he be allowed to assume his wife’s surname. Mr Müller’s application was dismissed by the High Court. He then appealed to the Supreme Court.
The Supreme Court mode a number of important findings. Under Article 10(1), legislation may treat persons differently if there is a sensible or rational reason for the difference in treatment. The legislation must also have been enacted for a legitimate purpose. An example of a legitimate purpose, in this case, is to prevent persons changing their surnames to avoid detection by the police.
The test under Article 10(2) is, however, much stricter. If the legislation treats persons differently on one of the grounds referred to in Article 10(2) (for example, sex or race), and this difference in treatment is discriminatory, then the legislation is contrary to Article 10{2). The only exception is if it is covered by Article 23 i.e. “affirmative action” legislation.
To be discrimination, the different treatment must also have on element of unjust or unfair treatment. The court will look at the effect of the discrimination on the person. Relevant factors include the person’s position in society, whether he or she was disadvantaged by racial discrimination in the post, whether the, discrimination is based on a specified ground or not and whether the discrimination affected the person’s dignity.
In applying the law to the facts, the court concluded that the different treatment did not affect Mr Müller’s dignity. He was also not a member of a previously disadvantaged group, because he was a white male. The legislation was also necessary to establish a person’s identity for various purposes. The different treatment also reflected the tradition that a wife used her husband’s surname on marriage. Mr Müller was therefore not the victim of discrimination and the Supreme Court ruled against Mr Müller.
Julius v Commanding Officer, Windhoek Prison and Others; Nel v Commanding Officer, Windhoek Prison and Others [1996]
Mr Nel and Mr Julius were sentenced to a term of imprisonment. This was because they did not appear at a magistrate’s court inquiry into the payment of a judgment debt in installments. A judgment debt is an order of court that a person pay a specified amount of money to another person. A court could order imprisonment in the person’s absence without giving him or her the opportunity to give reasons for not being imprisoned.
The High Court held that the system of imprisonment violated the right to personal liberty protected by Article 7 of the Constitution. This right was not absolute. In other words, a person’s liberty can be taken away, but only by a legal procedure. The legal procedure cannot, however, be contrary to the Constitution.
In this case, the system or legal procedure violated the right to a fair trial guaranteed by Article 12 of the Constitution. This was because an order for imprisonment could be made in the person’s absence. The person would, therefore, not have an opportunity to give reasons to the court why he or she should not be imprisoned. The High Court declared the legislation that created the system of imprisonment unconstitutional and ruled that the legislation had no legal effect.
Kauesa v Minister of Home Affairs and Others [1995]
Mr Kauesa was a warrant officer in the Namibian Police. He appeared on an NBC television panel discussion on the topic of affirmative action in the context of the restructuring of the Namibian Police and the Public Service.
The Namibian Police started disciplinary proceedings against Mr Kauesa because of his remarks during the panel discussion. He was charged with contravening a Namibian Police regulation which prohibited members of the Namibian Police from commenting unfavourably in public on the administration of the Namibian Police or any other government department.
Mr Kauesa applied to the High Court to stop the disciplinary inquiry. He said that the regulation was contrary to the right to freedom of speech and expression (Article 21 (1)(a) of the Constitution). He was unsuccessful in the High Court, but then appealed to the Supreme Court.
The Supreme Court decided in favour of Mr Kauesa. The court noted that the right to freedom of speech in Namibia “is essential to the evolutionary process set up at the time of independence in order to rid the country of apartheid and its attendant consequences. In order to live in and maintain a democratic State the citizens must be free to speak, criticise and praise where praise is due. Muted silence is not an ingredient of democracy, because the exchange of ideas is essential to the development of democracy.”
While the right to freedom of speech could be limited, any limitation had to comply with bothArtides 21 (2) and 22 of the Constitution. Any limitation of a right must be interpreted strictly, so that individuals do not unnecessarily lose the enjoyment of their rights.
In this case, the regulation was arbitrary and unfair. Any unfavourable comment, even if true, was contrary to the regulation. The regulation was also wider than necessary to achieve a legitimate purpose, which was to maintain discipline in the Namibian Police. An unfavourable comment on any government deportment would be contrary to the regulation.
The court therefore declared the regulation invalid. In other words, the regulation no longer had any legal effect and Mr Kauesa could thus not be guilty of contravening the regulation.
Fantasy Enterprises CC t/a Hustler The Shop v The Ministry of Home Affairs and Another; Nasilowski and Others v The Minister of Justice and Others [1998]
The applicants in these cases ran sex shops in Windhoek, Walvis Bay and Swakopmund. The police confiscated magazines and videos at the sex shops because they said that the possession and sale of these items was unlawful. The police said that the magazines and videos were indecent or obscene photographic matter as defined in Section 1 of the Indecent and Obscene Photographic Matter Act, 37 of 1967. Section 2(1) makes it an offence to possess these kinds of photographic matter. The police also confiscated adult toys and novelties. The police said that these items were intended to be used to perform unnatural sexual acts, also unlawful in terms of Section 16(1) of the Combating of Immoral Practices Act, 21 of 1980.
The applicants then applied to the High Court, asking that Section 2(1) of the Indecent and Obscene Photographic Matter Act and Section 17(1) of the Combating of Immoral Practices Act be declared unconstitutional. They also asked that the confiscate items be returned to them.
Regarding Section 2(1) of the Indecent and Obscene Photographic Matter Act, the court recognized that the right to freedom of speech and expression guaranteed by Article 21 (1)(a) was important in an open and democratic society. This right also applied to non-political speech and expression, such as the videos and magazines confiscated by the police. It also protected information and ideas that could disturb, offend or shock people and not only information and ideas that were pleasant or neutral.
Parliament could make laws to uphold standards of decency and morality in society, of the laws complied with Article 21(2) of the Constitution. The problem was that the definition of indecent and obscene photographic matter was too broad. A wide range of photographic material could be indecent or obscene. It also prohibited possession of photographic material that was inoffensive or could be of legitimate interest. Section 2(1) therefore violated Article 21(1)(a) and the court declared the section unconstitutional.
Regarding Section 17(1) of the Combating of Immoral Practices Act, the court held that the section violated the applicants’ freedom to carry on any trade or business guaranteed by Article 21(1)(j). The section prohibited the manufacture, sale or supply of any Article that is intended to be used to perform an “unnatural sexual act.”
What was meant by an “unnatural sexual act”? Was it the opposite of a “natural sexual act”? Was a “natural sexual act” only an act performed between two consenting human being of the opposite sex suitable for producing children? If so, birth control or using a condom to prevent HIV virus infection would be unnatural and therefore unlawful. An “unnatural sexual act” was also very broad and lacked a precise meaning.
The court found that the section was so vague that it was not a reasonable limitation of the applicants’ freedom to carry on any trade or business and was therefore unconstitutional.
S v Kau and Others [1995]
Mr Kau and 15 other persons were convicted in a magistrate’s court of illegally hunting giraffe.
The magistrate did not tell Mr Kau and the others that they had the right to be represented by a lawyer of their choice. The Supreme Court held that this meant that they did not receive a fair trail.
Every person has the right guaranteed by Article 12(1)(e) of the Constitution to be represented by a lawyer of their choice. A person who appears in court should therefore be informed of this right. The only exception to this rule is when it appears that the person already knows that he or she has this right. For example, a lawyer appearing in court would know of this right.
For this reason and other irregularities during the trial, the Supreme Court canceled the conviction and sentence of Mr Kau and the other persons.
Regarding the accused’s right to be informed of the right to legal representation in criminal proceedings, also see S v Bruwer 1993(2) SACR 306 (Nm); S v Mwambazi 1990 NR 353 (HC); 1991 (2) SACR 149 (Nm); Namib Wood Industries (Pty) Ltd v Mutiltha NO and Another 1991 NR 158 (HC).
