History and Current Structure of Roman-Dutch or Common Law in Namibia

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Roman-Dutch / Common law

The introduction of Roman-Dutch law into Namibia is closely interconnected with the political and historical advancement of Namibia, after the occupation of the territory by South African troops in 1915, German law continued to be in force except for such laws as were found obligatory to be retracted under martial law. Roman-Dutch law was officially acquainted as the common law of the territory by Proclamation 21 of 1919, (S.W.A Gazette, No. 25 of 1919) which provided inter alia that Roman-Dutch was to be pragmatic as in the Province of the Cape of Good Hope until the promulgation of the territory. As the Republic of Namibia attained liberation in 1990 the common law remained valid in accordance with the constitution [Amoo, 2008] [Geraldo, 2007].

Common law rules are to a high gradation today, derived from proceeding pronouncements of courts in similar past cases, when a Judge or person wants to determine the riposte to a legal question he analyses past judicial decisions and analogies from them to the facts of the current case. If conversely the court finds that the current dispute is profoundly dissimilar from all aforesaid cases (called a “matter of first impression”), and legislative statutes are either silent or ambiguous on the question, judges have the power and duty to resolve the issue (one party or the other has to win, and on divergences of law, judges make that verdict). The courts might also look at cases from other countries with constitutions or principles of government similar to those in Namibia, a member of the public who is trying to foresee what the Namibian courts might decide in a new circumstance might want to read cases on comparable issues from other countries [Amoo, 2008, p. 62)] [lac.org.na].

Common law includes the Supreme court, the High Court, the Labour Court as well as regional Lower Courts, district and sub district level magistrate’s courts, which most engender past written rulings in Court decisions which are all communal documents and give the judge who resolves the case to provide a motive for the verdict as well as the outcome of the case [Canada: Immigration and refugee Board of Canada, 2012] [Ibid. lac.org.na].

To conclude unlike other laws the common law must follow the Namibian constitution and can be overruled by legislation ratified by Parliament as long as the statute is in line with the Namibian constitution [Ibid. lac.org.na].

References:

Amoo, S. 2008.”Sources of Law” In Amoo, S (Ed.) An Introduction to Namibian Law, Windhoek: Macmillan Education Namibia Publishers, p. 60
Geraldo, G. 2007. Researching Namibian Law and the Legal System. Available at www.nyulawglobal.org; last accessed on [16 February 2020]
https://www.lac.org.na; [accessed 19 February 2020
Canada: Immigration and refugee Board of Canada, Namibia: customary and common law including matters of inheritance; how conflict between the two systems of law are resolved, 14 August 2012, NAM104143.E, available at: https://www.refworld.org/docid/5053390d2.html

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History and Current Structure of Roman-Dutch or Common Law in Namibia

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