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566 S., brosch.

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Aus der Bibliothek von Hans Jörg Sandkühler. Mit farbigen Anstreichungen. Vorsatzseite leicht gelöst. - Preface: By the same stroke of the proverbial pen with which our Constitution was written, both customary law and common law became part of the greater body of laws constitutionally applied to Namibia upon its Independence. Article 66(1) of the Constitution declares that both customary and common law in force on the date of Independence shall remain valid to the extent to which they do not conflict with the Constitution or any other statutory law. However, whereas the common law finds consistent and continued application in virtually every sphere of human endeavour throughout Namibia and is well entrenched in our jurisprudence, customary law is yet to find proper application and its rightful place in regulating the conduct of Namibians, particularly those in traditional communities. There may well be multiple reasons for this disparity in application. Some may argue that it is because the customs of different traditional communities which later attained the Status of law were unique to each of those communities, thus resulting in the development of many different sets of customary laws on the same subject matter applicable to the various communities indigenous to Namibia. Each set of customary laws, therefore, was of limited territorial or jurisdictional application. Others may blame the lack of adequately empowered and recognised judicial structures within those communities to which regulär recourse may be had to resolve issues in accordance with customary law. There are those that contend that some of those laws are so antiquated that they have been abrogated by disuse and that they do not have any place or application in more progressive communities. Then there were also customary law provisions or practices which derogated ffom the principles and values entrenched in the Constitution and which, by reason of Article 66(1), were not subsumed in the body of law which became enforceable in Namibia after Independence and the attendant uncertainty of which provisions survived and which did not. Whatever the other reasons may be, it is beyond doubt that one of the primary difficulties in the judicial application of customary law is - and always has been - the absence of accurate, comprehensive and authoritative written recordals thereof. The rule of law - one of the fundamental constitutional principles upon which Namibia is founded as a state - demands, amongst other things, that the law should be certain and be ascertainable in advance by the persons to whom it relates so as to be predictable and allow them to regulate their affairs in conformity therewith. Without books or other written instruments recording the customary laws applicable to the different traditional communities in Namibia, their tenets remain locked in the minds and pronouncements of those who claim to know. This constitutes a severe restriction on the accessibility of customary law provisions and, in certain instances, casts doubt on their certainty. Kaputuaza v Executive Committee of the Administration for the Hereros & Others 1984 (4) SA 295 and other cases on point inform us that different factions in the same Community may hold differing views on what the customary law on a particular issue is. The differences may be the result of differing recollections about the laws orally passed on from one generation to another, but in some instances may also be constrained and intended to best serve the interests of a particular section or group in that community. Oral evidence of the customary law applicable to a particular issue aside, the principal written references currently available to courts are a few historical books and notes of missionaries, merchants and anthropologists who have made cursory and, sometimes, fragmented reference to its application in some traditional communities. If it is not redressed, this undesirable - if not impermissible - state of affairs is likely to impact detrimentally on the preservation, application and development of customary law. These concems, I must add, are apparently also shared by the Legislature if one considers the provisions of section 3(l)(a) of the Traditional Authorities Act, 2000 (No. 25 of 2000). The section obliges traditional authorities to ascertain the customary law applicable in their respective communities after consultation with the members of that community and to assist in the codification thereof. To that end, the Council of Traditional Leaders passed a resolution urging all traditional communities to embark on projects to that effect. It is with these concems and considerations in mind that the initiative taken by the Human Rights and Documentation Centre of the University of Namibia, the leamed editor and his assistant to record and discuss the ascertained customary law of traditional communities in Namibia must be commended. Vital to the value and reliability of this work will be the accuracy of the English translation of the written restatement of customary law from the local languages. It is highly likely that the contents of this ground-breaking work will receive judicial scrutiny in future proceedings and that it will be referred to by courts at all levels in Namibia, including community courts as contemplated by the Community Courts Act, 2003 (No. 10 of 2003). In doing so, the courts will be mindful that, as is the case with common law, the customary law ascertained herein is of application only to the extent to which it does not conflict with the Constitution or other statutory law. Moreover, court proceedings involving the application thereof will have to conform to the constitutional and other legal requirements of a fair hearing. I am convinced that an accurate and reliable documentation of customary law will inform the public generally and traditional communities in particular; contribute to a meaningful discussion thereof and create a solid foundation for its development; assist the courts and traditional authorities in its application; and, in general, give effect to the constituent elements of the rule of law. ISBN 9789991640969