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desert-carhire.Desert Car Hire Namibia Offering great car rental service and support in an amazing country.com NAMIBIA LAW JOURNAL Volume 02 – Issue 01 JANUARY–JUNE 2010 NAMIBIA LAW JOURNAL Trustees of the Namibia Law Journal Trust Chairperson Honourable Justice JDG Maritz Judge of the Supreme Court of Namibia Prof.com Namibia. Legal Practitioner of the High Court of Namibia Editorial Board Editor-in-Chief Prof. Maryland University . Nico Horn Dean. Professor of Law. University of Cape Town Prof. Barbara Olshansky Professor of Law. Esi Shimming-Chase Council Member of the Law Society of Namibia Legal Practitioner of the High Court of Namibia Prof. Faculty of Law. University of Dar es Salaam Prof.SunbirdTours. University of Namibia Mr Karel Danhauser Council Member of the Law Society of Namibia. Chris Maina Peter Professor of Law. www. Pamela J Schwikkard Dean. Nico Horn Dean. Zambia Fly-in Safaris and individual Tours since 1976 experience in s. Manfred Hinz UNESCO Professor of Human Rights and Democracy. Tousy Namiseb Chief of Law Reform. Namibia Advisory Board Honourable Justice GJC Strydom Retired Chief Justice of the Republic of Namibia and Acting Judge of the Supreme Court of Namibia Honourable Justice J van der Westhuizen Judge of the Constitutional Court of South Africa Prof. University of Namibia Editors Adv. Konrad Adenauer Foundation. Raymond Heathcote Legal Practitioner of the High Court of Namibia Adv. University of Namibia Adv. Africa www. Faculty of Law. Secretary to the Law Reform and Development Commission Legal Practitioner of the High Court of Namibia Ms Isabella Skeffers Programme Officer and Researcher. Botswana. Faculty of Law.

de/namibia Konrad Adenauer Foundation PO Box 1145 Windhoek Tel. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. 2010 ISSN: 2072-6678 © Namibia Law Journal Trust All rights reserved. This publication is also available online atwww. No reproduction. Please note that the views expressed herein are not necessarily those of the Konrad Adenauer Foundation.: (+264 61) 225 568 info@kas-namibia. tralac Associate Adv.org www. Volume 02.de/namibia Namibia Law Journal.Prof. Cover design: John Meinert Printing (Pty) Ltd Editor-in-Chief: Nico Horn Language editor: Sandie Fitchat Layout: The Word Factory ISBN 978 0 409 03272 7 Publisher: Namibia Law Journal Trust PO Box 27146 Windhoek Namibia . Issue 01. Dave Smuts Legal Practitioner of the Republic of Namibia This publication would not have been possible without the generous financial support of the Konrad Adenauer Foundation. No paragraph of this publication may be reproduced. copy or transmission of this publication may be made without written permission. Gerhard Erasmus Emeritus Professor University of Stellenbosch.kas. Director of the Rule of Law Programme for Sub-Saharan Africa Prof. copied or transmitted save with written permission. Christian Roschmann Harz University of Applied Sciences Konrad Adenauer Foundation.kas.

..................................................... ii Introduction.......... 152 ii Guide to contributors The Namibia Law Journal (NLJ) is a joint project of the Supreme Court of Namibia......................................................................................................................................................................................... Clever Mapaure......................... The Editorial Board will accept articles and notes dealing with or relevant to Namibian law............. 103 Manfred O Hinz............................................................................................................................................: (+264 61) 206 3622 E-mail:nami bialawjournal@gmail................................. the Law Society of Namibia and the University of Namibia...................................... ........................... 32 of 1944)...................................................................................................................................... 58 N v UK: No duty to rescue the nearby needy?............ ............................... 2 The status of international law in Namibian national law: A critical appraisal of the constitutional strategy... A.....................................com i Contents Guide to contributors....................................... E Ndateelela Namwoonde and P Nangoma Anyolo.................................................. 1944 (No............................................................................................ 152 Nico Horn.............................. 116 Manfred O Hinz.................................................................................................... 1 ARTICLES........... ............................................................................................................................................................................................. 125 Africa Personnel Services (Pty) Ltd v The Government of the Republic of Namibia & Others......................................... 103 NOTES AND COMMENTS....................................................................................................................... ............................................................................. 58 Francois-X Bangamwabo and Clever Mapaure.................... 78 Virginia Mantouvalou.................................................................................... 2008......................................................................................... 31 The constitutionality or otherwise of section 66(1) of the Magistrates’ Courts Act.......................................... Durban: Lexis Nexis.................... 145 Adda K Angula & Others v The Board for Legal Education & Others............H i e ms t r a ’s Criminal Procedure........................127 JUDGMENT NOTES.................................Tel........................................................................... 146 BOOK REVIEWS................................................. 151 Kruger........... 116 RECENT CASES................................................... 1 Nico Horn....................... .................................................... Case No........ 3 Onkemetse Tshosa.............................................................................................................................................. 31 Dunia P Zongwe................. 78 Sixty years of a social market economy in Germany – Legal sociological observations........... loose-leaf and online............................................................................. A 348/2009.. 146 Fritz Nghiishililwa..... 115 The protection of natural resources and biodiversity: Work in progress in three Master’s theses in the Faculty of Law of the University of Namibia........... 3 The contribution of Campbell v Zimbabwe to the foreign investment law on expropriations...............................

not merely summaries of them.000 words. Windhoek.000 and 10.com or on the website <http://www.com in the form of a file attachment in MS Word.000 words.000 words. Submissions can be made by E-mail to namibialawjournal@gmail. All submissions need to comply with the following requirements: • Submissions are to be in English. submissions on Namibian or southern African legal books should not exceed 3. Contributions with a constitutional theme are encouraged for the next edition. the editors will also accept typed copies mailed to PO Box 27146. • The “Judgment Notes” section contains discussions of recent cases. Submissions for the January 2010 edition need to reach the editors by 15 September 2009. • The “Recent Cases” section contains summaries of no longer than 4. s/he should acknowledge such prior publication in the submission. Namibia. submissions should be between 4. the author transfers copyright of the submission to the Namibia Law Journal Trust. • Only original. • By submitting an article for publication. Submissions in this category should not exceed 10.The discussion of Namibian legislation and case law are dealt with as priorities. All submissions will be reviewed by one of the Advisory Board members or an expert in the field of the submission. Although not preferred.namibialawjournal. unpublished articles and notes are usually accepted by the Editorial Board.000 words. • In the “Book Reviews” section. The article should be accompanied by a letter stating that the author has copyright of the article. • For the “Articles” section.e. including footnotes.org/>. not longer than 4. 1 Introduction Nico Horn ∗ . i.000 words. • The “Notes and Comments” section is for shorter notes. iii The NLJ style sheet can be obtained from the Editor-in-Chief at namibialawjournal@gmail. If a contributor wishes to submit an article that has been published elsewhere.

attained independence in 1990. formerly South West Africa. 2 ARTICLES 3 The status of international law in Namibian national law: A critical appraisal of the constitutional strategy Onkemetse Tshosa ∗ Introductory remarks The Republic of Namibia. While the journal is brimful of interesting articles. rather. Virginia Mantouvalou of Leicester University (with a postscript by the Editor-in-Chief on the Zimbabwean issue). While we have already received several articles for the next edition.The first edition of the second volume of the Namibia Law Journal marks the beginning of its second year in existence. Comparing South Africa and Namibia with Germany. within the national legal sphere. From the letters and proposed articles on the Editor-in-Chief’s table. New York. Manfred Hinz uses the recent German elections to look at the changed responsibility the German Constitutional Court assigns to the Government to take care of its subjects. the practitioners remain silent. ∗ Editor-in-Chief. it is clear that the NLJ is becoming a household name in African legal circles and well known internationally. whereasProf. University of Namibia. I trust that 2010 will be flooded with articles written from the point of view of practical experience in the field.1 Thereupon Namibia adopted a national Constitution that not only embraces general international law – or. There is also an article on migration policies in the United Kingdom and the European Union by Prof. Faculty of Law. 1944 (No. is international-law-positive2 – but also regulates the relationship between international law. Judge (Dr) Onkemetse Tshosa of the Southern African Development Community (SADC) Tribunal and Visiting Scholar at Fordsham Law School. This is good news for a small country like Namibia. both customary and conventional. contributes to the debate on the incorporation of international law in Namibian domestic law. Hinz alerts us that the development of social rights has just begun. 32 of 1944) against the Namibian Constitution.3 In a broader . This edition expresses these sentiments. Dean. contributes an article on the Campbell case decided by the SADC Tribunal. it remains a concern for the Editorial Board that the contributors are still legal scholars. while Francois Bangamwabo andClev e r Mapaure weigh the controversial section 66(1) of the Magistrates’ Courts Act. Dunia Prince Zongwe. an LLB cum laude University of Namibia (UNAM) alumnus currently doing his doctorate at Cornell.

1991. 1988. It is argued that assigning international law in the Constitution is just one step in the domestic translation process. Jenny Lindsay & Brian Mopokagkosi. Katjavivi. 1989/1990. A history of resistance in Namibia. the Constitution lays down conditions and circumstances under which international legal rules may operate within Namibian municipal law. ∗ PhD. Paris: United Nations Educational. Gerhard. “The Namibian Constitution and the application of international law”. Cottrell. 19:14. For a general discussion of the interrelationship between international law and Namibian national law. University of Fordham. Southern African Development Community Tribunal.sense. 1 The Republic of Namibia attained its independence on 21 March 1990. Jill. “International human rights norms and the South African Interim Constitution”. Journal of African Law. Thus. The aim of this article is to examine the position of international law in Namibian municipal law in light of the country’s Constitution and the general role of international law in the national legal system. the article investigates the extent to which the Namibian judiciary has given effect to the constitutional clause domestically incorporating international law. NY. See also Maluwa. Article 144. 15:81. The paper also examines the role of international law in Namibian national legal sphere. 1990/1991. 4 In order to place the discussion in its proper historical context. see generally Cliffe. Tiyanjana. Scientific and Cultural Organisation. 1991. the judiciary plays a major role not only in the application of international normative standards in national law. New York. Comparative and International Law of Southern Africa. Lionel. Visiting Scholar. “The Namibian Constitution and the application of international law – A comment”. 24:341. Boulder: Lynne Reinner Publishers. but also in their domestication. This provision is discussed in detail below. has thereby been made clearer. Fordham Law School. Arnold M. 3 Constitution of the Republic of Namibia. “The Constitution of Namibia: An overview”. The transition to independence in Namibia. therefore. South African Year Book of International Law. Van Wyk. International law in Namibian national law Conceptual context: Monism and dualism . Furthermore. South African Year Book of International Law. For a discussion of the historical developments leading up to this historical change. the enterprise examines both the pre-independence and post-independence positions in order to find out whether the legal position has undergone any fundamental changes at independence and. 35:56. The judiciary also determines the length and breadth if not even the contours of the application of international legal rules and principles in national law. Judge. “The making of the Namibian Constitution: Lessons for Africa”. H Peter. 1993/1994. Ray Bush. Dawid. 2 Erasmus. South African Year Book of International Law. 16:105. 1994. see Mtopa.

“Modern Constitutions and international law”. L Joseph. 1985. Kenwyn: Juta. Recueil Des Cours. 1970.7 Dualism – or. 51:24. O’Connell. rather. For the more recent discussion of the theories. JG. Cambridge: Harvard University Press. JL. Oxford: Clarendon Press. who have invoked a consensual approach to international law to argue that the two legal systems are distinct in nature. the two legal systems are different in the particular relations that they govern: State law deals with the social relations between individuals. international law and national constitute aspects of a single universal system. British Year Book of International Law. 5 rationalist school of natural law. 1935. “Monism and dualism in the theory of international law”. This view has been propounded by positivist theorists such as Hegel. The theory posits that all rules of law ultimately regulate the behaviour of the individual. Butler. John. 47:662. but. Hans. Anzilotti and Triepel. “Comparative approaches to international law”. Kunz. Recueil Des Cours. 192:331. a Dutch scholar and diplomat who is generally regarded as the father of the 4 Early treatises on these theories include Brierly. the two systems are interrelated parts of a single legal structure.At a theoretical level. WE.8 The two legal orders are separate and self-contained spheres of legal action. Firstly. 2006. national legal orders take a subordinate position. International law (Second Edition). Cassese. 1966. see Brownlie. the interrelationship between international law and municipal law is regulated by two rival theories: monism and dualism. international law would as such not form part of the municipal law of the State. Rinehart & Winston. General theory of law and state. the doctrine of transformation – for its part perceives international aw and national law as two distinct and independent legal orders. 190:9. and theoretically there should be no point of conflict between them.Law Quarterly Review.4 According to monism. and Dugard. “International law in England”. The monists. 1990. Principles of International law (Second Edition). 16:66. International law: A South African perspective (Third Edition). most of whom belong to the natural law school. 1936. Hans. whether those rules emanate from international or national law. include Hugo Grotius. “The nature of customary international law”. and international law . Kelsen. in cases of conflict. Derek. Since they are separate legal systems. each having an intrinsically and structurally distinct character. 1953. London: Steven & Sons. New York: Holt. Kelsen. Thus.5 Hans Kelsen. Principles of public international law (Fourth Edition). and Hersch Lauterpacht – all of whom have argued that the international legal order is significant only as part of a universal legal order which comprises the national legal order as well. and Starke.6 The monist school argues that not only do international legal rules and various national legal orders constitute a single universal system. American Journal of International Law. A. 1945. 1985. Ian.

6 Thirdly. see Maluwa. Tiyanjana. Firstly. In case of any conflict. The basic principle in most legal systems is that the internal application of treaties is governed by domestic constitutional law. “Judicial practice and the supremacy of international law”. p 64. see Lindholt. 8 Generally. national law prevails. in practical terms. and underlies the basis for performance of treaty obligations. 53. London: Butterworths. who alone are subject to it. which gives the right to the State to determine which rules of international law are to have effect in a municipal sphere. they may not purely determine the relationship between national and international law. African Year Book of International Law. 1994. Shaw (2003:102). 7 Brownlie (1990:33). JG & Shearer. while the source of international law is the common will of States (Gemeinwille). “The role of international law in the protection of human rights under the Malawian Constitution”. Questioning the universality of human rights: The African Charter on Human and Peoples’ Rights in Botswana.9 In the second sense. see also Kelsen (1945. 1997. 10 Starke. British Year Book of International Law. International law (Fifth Edition). where national law operates with individual subjects while international has the states as its subjects”. Lone.11 Municipal law is conditioned by the norm that legislation is to be obeyed. Onkemtse. Triepel argues – and is widely supported by other dualists – that the two systems have different juridical origins. “Sources”. Dartmouth: Ashgate.Stark e ’s International Law. This is posited on a number of reasons. pp 100–101. 1950. IA. 2003. 27:42. National law and international human rights law: Cases of Botswana. This is because. Shaw. according to Anzilloti. 1966) and Tshosa. Cambridge: Cambridge University Press.regulates the social relations between States. Morgenstern. The source of municipal law is the will of the State itself. especially treaty law. 6 Kunz (1953:662–669). the two legal systems are differentiated by the fundamental principles by which each is conditioned.13 However. Aldershot: Ashgate. Anzilloti concludes that the two systems are so distinct that no possible conflict is possible. this is predicated on State sovereignty.14 . 9 Lindholt has noted that the classical dualist theory is “based on the perception that the two types of law regulate different subjects. the internal application of international law in general and treaties in particular is always conditioned by a rule of municipal law. 1996. Felice. these theories need to be approached with caution. Namibia and Zimbabwe. Because of this conditioning factor. This principle is at the heart of modern international law. pp 84–85. 2001. Malcolm.12 The latter principle commands that agreements between States are to be respected. whereas international law is conditioned by the pacta sunt servanda principle. Malawi and Mozambique.10 5 Dugard (2006:53–58). O’Connell (1970).

American Journal of International Law. 1989. 13(ibid. is how international law standards can be infused or. courts sometimes fail to effectuate treaties which are binding under international law.). they are important. 38:924–925. it is submitted. international law. 223–224). for example. 15Collier. 86:310. pp 983:221. In Kahn. In countries like the UK. the courts may sometimes give limited effect even to unincorporated treaties. 1983. British courts’ use of the European Convention on Human Rights (ECHR) before its incorporation into United Kingdom (UK) law. but not conventional. an example of this is the non- self-executing treaties in United States law. Maluwa (1996). Oftentimes.15 11(ibid. Even in monist countries.Second is the practical approach of national courts. incorporated into State law to reinforce the effectiveness of the national legal system. rather. JG. H John. “Status of treaties in domestic legal systems: A policy analysis”. wherever possible. The real concern. John. “Is international law really part of the Law of England?”. But this is not to say the theories are insignificant: indeed. Fiat iustitia: Essays in memory of Oliver Deneys Schriener. on the contrary. Cape Town: Juta. “International human rights norms in domestic courts: 14 Can South Africa learn from Britain and the United States?”. the theories are relevant only in the specific context of customary.).). Jackson. after which it was occupied by the Union of South Africa at the beginning of . Conversely. The Namibian Constitution and international law The pre-1990 Constitution situation Prior to the adoption of the Namibian Constitution. E (Ed. national legal rules are not well-defined and are sometimes inadequate in respect of addressing practical legal questions. see also Dugard. courts rely on the principle that legislation should. 1992. Most importantly.). International Law and Comparative Law Quarterly. They continue to illuminate the interaction between international law and municipal law. in dualist systems. Erasmus (1989/1990:91– 7 In the final analysis. the country went through German colonial rule from 1884 to 1915. they will increasingly have some impact on efforts to find practical solutions on the role of international law in the municipal legal sphere. 12(ibid. be so interpreted as not to conflict with the international obligations of the State.

if at all. Imishue. 1976.16 Consequently. South West Africa fell into this category.17 The mandate system meant that the country had to be administered under the laws of the mandatory as an integral part of it territory. such as Unity Dow v Attorney General of Botswana (1992) LRC (Const). apply its laws to South West Africa. 1965. see Cliffe (1994). South West African mandate. G Gail-Maryse. at 234. In 1919 the Allied Powers placed Namibia under an international mandate through the mandate system.:3–5). See Imishue (ibid.:2–3). inter alia. 97). . RW. Mharapara v The State (1986) LRC (Const). B or C – based on the stage of development of the inhabitants.18 The mandate for South West Africa was conferred on His Britannic Majesty – but to be exercised on his behalf by the government of the Union of South Africa. Cape Town: Juta. 17 Imishue (ibid. London: Pall Mall. at 623. 18 The League of Nations provided for three types of mandates – A. The C mandates were to be administered under the laws of the mandatory as integral parts of its territory. economic conditions and geographical location. 16 For a general discussion of the German occupation of South West Africa. Germany’s contribution to the development of the Namibian legal system was very insignificant. as a mandatory. A mandate agreement concluded between the Union of South Africa and the Council of the League of Nations empowered the mandatory to. South West Africa: An international problem.the First World War (WWI). See also the jurisprudence from southern Africa. Cockram.