Section A Chapter 2 14

CHAPTER 2
OBJECTIVES

After completing this chapter you should be able to:

 Briefly distinguish between a criminal and civil case

 Explain the course of a criminal case
 Explain the course of a civil case
 Explain how judgments are enforced
 Explain the structure of the courts in Namibia
 Name the different sentences that can be imposed
by the court in a criminal action
 Define the term “jurisdiction”
 What is meant by “the independence of the courts”?
 Distinguish between the different courts in Namibia
 Explain how a person can become a legal practitioner
in Namibia
 Explain the respective roles of different players in the
legal profession
 Explain arbitration and mediation as methods of
alternative dispute resolution

Contents Page

1. The administration of justice 15

2. Distinction between criminal and civil court proceedings 15-16
2.1. Criminal proceedings 17-19
2.2. Civil proceedings 19-21
2.3. Enforcement of judgments 22
3. The Namibian Court system 22
3.1. Jurisdiction 22-23
3.2. The independence of the Courts 23
3.3. The structure of the Courts 23-25
4. The Legal Profession 27
4.1. Officers of court 27-28
4.2. Other court officials 28-29
5. Alternative Dispute Resolution (ADR) 30
5.1. Mediation 30-31
5.2. Arbitration 31-32
1. THE ADMINISTRATION OF JUSTICE
Section A Chapter 2 15

In primitive communities aggrieved persons could not call on the

State for legal aid but had to resort to self-help. This was an
unsatisfactory state of affairs. In a developed community, with
any organised constitutional dispensation, the State assumes
the function of the administration of justice.

When a wrongdoer harms the interest of the community as a

whole, the State penalizes him (criminal case). When harm is
done to the private interests of an individual, compensation is
awarded (civil case). This leads us to the distinction between
criminal and civil procedure.

2. DISTINCTION BETWEEN CRIMINAL AND CIVIL COURT

PROCEEDINGS

Criminal law is concerned with the relationship between the

Government and the subject as well as the upholding of the
Government’s authority. When an individual’s behaviour violates
public order, it is seen as a crime and the State, acting on behalf
of the community, imposes a punishment. The punishment can
take the form of a fine, imprisonment or even community
service. The State will prosecute the accused, irrespective of
whether or not the victim or aggrieved party wants him/her to be
prosecuted.

The terminology used will also be an indication of the type of

case we are dealing with, as, in criminal cases, a person is
accused of having committed a crime and the State conducts the
case against the accused in court and does so by means of the
Public Prosecutor, while, in civil cases, the aggrieved party who
approaches the court for assistance, is known as the plaintiff (or
applicant), whilst the opposing party is called the defendant (or
respondent).

In the event of a civil dispute, a difference of opinion develops

between two or more individuals concerning a matter that affects
only themselves. The community as such does not have an
interest in this dispute. The aggrieved party has a choice
whether or not he/she wants to approach the court for
assistance. There is also no punishment, but the person who
loses the case has to compensate the person in whose favour the
judgment was made. In addition, the person who loses can be
expected to pay the legal costs of the successful party.
 Section A Chapter 2 16

In some instances, however, the same action can give rise to

both a criminal and civil action. An example is in the event of a
motor vehicle collision where one of the drivers is guilty of
reckless and negligent driving (criminal action) and the innocent
party also wants the guilty one to pay for the damages caused to
his/her vehicle as a result of the collision (civil action).

Burden of In conclusion, in a criminal case the State has to prove beyond

proof reasonable doubt that the accused is guilty, while, in civil
litigation, the party bearing the proof must prove his case on a
balance of probabilities. The standard of proof required in civil
cases is lower than in criminal cases1.

 ACTIVITY 12

Decide what type of action (criminal or civil) will be initiated in

each of the following instances:

1. Policeman shot by diamond dealers. _______________

2. Same policeman owned a vehicle, furniture, clothing and his family can
not decide how his property must be divided. _______________
3. Mrs. X wants to divorce Mr. X._______________
4. Before the finalisation of the divorce, Mr. X came home one night under
the influence of alcohol, assaulted Mrs. X and his three children, including
a baby of 3 months. _______________
5. Mr. A promised to marry Ms. B. He failed to turn up at the church on his
wedding day. _______________
6. Mr. A and Ms. B did get married, but after a year Mr. A decided to get
married to Ms. C, while he is still legally married to Mrs. B._______________
7. Mr. D, a building contractor, agreed to build houses for the Government at
the Single Quarters. Mr. D agreed to have the project finished by 31
December 2018, but by that time he only completed up to the halfway
mark. _______________
8. Mr. D, when tendering for the contract with the Government, entered into
an agreement with one of the Board members to give him 10% of the
contract price if the said Government official ensures that the contract is
awarded to D._______________
9. Mr. Naughty goes to Shoprite and pays for his groceries with a cheque he
had stolen from his grandmother’s handbag. _______________
10. Mr. Innocent took some of his child’s pocket money out of the piggy bank
to buy bread and milk for the family. He will refund his child again when he
receives his salary at the end of the month. _______________
11. Two adults make a video recording of their lovemaking process.
_______________

1
An example is the American case of O.J. Simpson where the State was unable to convict the accused on a
charge of murder, but the family of the deceased subsequently succeeded with a civil claim against him.
2
Answers below additional reading on page 33.
Section A Chapter 2 17

12. The above recording is sold to a sex shop. ________________

2.1. Criminal proceedings

Criminal law is concerned with the relationship between the
Government and the subject as well as upholding the Government’s
authority.

When an individual’s behaviour violates public order, it is seen as a

crime and the State, acting on behalf of the community, imposes a
punishment. The punishment can take the form of a fine, imprisonment
or community service.

The State will prosecute the accused, irrespective of whether or not

the victim or aggrieved party wants him/her to be prosecuted.

The following is a course of a criminal case

Crime report

A crime can be reported by a member or members of the public. Thus,

a member of the public may report a crime to the police or sometimes
the victim may lay a charge.

Investigation

Investigation by the police involves the processes of recording the

complaints, gathering evidence. The investigating officer opens a
docket (a file) and gathers information

Arrest or summons

The criminal procedure is set in motion the moment a person is

arrested or summoned to appear in court. At arrest an accused should
be explained of his rights (judges rules) ie the right to remain silent,
right to a lawyer, to apply for bail etc.

Charge

After the arrest, the arrested person may be charged (the accused is
formally accused of the commission of a crime). This usually happens
at the police station.

Appearance in court

An accused person must be brought before the court within 48 hours

after having been arrested. At first appearance, the accused is
Section A Chapter 2 18

explained of his or her rights to legal representation and the offence

charged with. This includes the right to apply for bail.

Plea

At first appearance, the accused may be asked to plead to the charge.

Pleas often encountered are guilty or not guilty. If the accused pleads
guilty and admits all the elements of the offence, the case may be
finalised or if the accused pleads not guilty, the case may be remanded
either for further investigation or legal representation or for trial.

Bail

Bail is an amount that is paid to secure the accused’s attendance at

court. The court has a discretion whether to grant bail or not. Bail can
be opposed by the prosecution on several grounds, such as possibility
of the accused interfering with witnesses, skipping bail or if it is not in
the public interests or the interest of the administration of justice. Bail
allows the accused to keep his life intact, maintain his freedom, job
and family ties etc.

Trial

A trial can take place once investigation has been completed. At the
trial, the prosecution leads evidence to prove a case against the
accused. This is done by calling witnesses and handing in to court
some other forms of evidence, such as real evidence (example a knife
used in the commission of a crime) and documentary evidence. The
accused can remain silent or lead evidence by testifying in his or her
own defence and calling witnesses.

Judgment

After the prosecution and the accused have led evidence, the court
must give a verdict. A verdict can be guilty or not guilty.

Sentence

If the accused has been found guilty, the prosecution proves or does
not prove previous convictions record. The accused presents evidence
in mitigation of sentence The prosecution will then submit factors in
aggravation of the sentence. The court will pass the sentence after
having considered the seriousness of the offence, the personal
circumstances of the accused and the interests of the society.

Appeal and review

Section A Chapter 2 19

Once a case is finalised, depending on the experience of the

magistrate and the seriousness of the sentence, the case is either sent
on automatic review or not. An accused person who is convicted of an
offence and not happy with the sentence or conviction can appeal on
both sentence and conviction or on either. The prosecution can also
appeal an acquittal or a sentence which it considers too lenient.

2.2 Civil proceedings

In the event of a civil dispute, a difference of opinion develops between
two or more individuals concerning a matter that affects only them.
The community as such does not have an interest in this dispute. The
aggrieved party has a choice whether or not he/she wants to approach
the court for assistance.

There is also no punishment, but the person who loses the case can be
ordered to compensate the person in whose favour the judgment was
made. In addition, the person who loses can be expected to pay the
legal costs of the successful party.

In a civil case, there are two types of proceedings, namely action and
application proceedings. Action proceedings are used when there is a
material dispute of fact. This means there is an important factual
question which the parties to the dispute disagree on and which the
court is going to have to decide. Witnesses are going to testify.
Application proceedings on the other side is when there is no material
dispute of fact. The application is based only on paper and therefore do
not require witnesses to testify in court.

Below is a course of a civil case, in which action proceedings are

instituted:

Written demand

The first step is usually a written demand. If there is no action, this is

usually followed by summons.

Summons

Summons is the initiation of proceedings in which the plaintiff informs

the defendant of the action with a stated time after service to answer
to the claim of the plaintiff and to also inform the defendant of the
consequences of the failure to do so. Summons are signed by the clerk
of court and are used by the sheriff or the deputy sheriff or messenger
of court to inform the defendant of the claim against him or her and
the steps that the defendant may take in response to the claim.
Section A Chapter 2 20

Notice of intention to defend

If the defendant wishes to defend the claim, the defendant has to file a
notice of intention to defend with a certain time limit.

Plea

After delivering the notice of intention to defend, the defendant has to

reply to the claim of the plaintiff with a certain time limit.

Replication/reply

After receipt of the plea of the defendant, the plaintiff can reply to the
plea by means of replication (in the case of the High Court) or a reply
(in case of a magistrates court).

Claims in reconvention

A defendant who has a claim against a plaintiff may link his or her
claim to the action of the plaintiff. In this regard a claim in
reconvention is delivered with the plea.

Judgment by default

If a defendant fails to deliver his or her notice of intention to defend,

the plaintiff may set aside the matter down for judgemnt by default.

Special pleas

The defendant can answer to the claim set out in the particular of
claims by means of a special plea which must be included in the plea
of defence. Examples of special pleas are the court does not have
jurisdiction, the claim has prescribed, that the case has been dealt with
in a court of law before and is finalised.

Exceptions/striking out

Instead of replying to a particular of claims on the merits, a party may

except to the pleading, that its vague and embarrassing or it does not
disclose a course of action or defence. A pleading is vague and
embarrassing if it is capable of more than one meaning.

Summary judgement

This procedure is employed to dispose of a defence which has no

substance.
Section A Chapter 2 21

Close of pleadings

This procedure is employed to serve a reply to a plea, but it is very

rarely necessary. Formerly, this is a stage in the course of pleading in
an action in the High Court that occurred 14 days after service of the
reply, defence to counterclaim, or defence.

Trial preparation stage

Here, the notice is given by the plaintiff to enrol the matter for trial.
Notices to discover are sent and received, discovery affidavits are sent
and received, notices to inspect and sent and received and notice of
intention to present expert evidence and summary of expert evidence
is employed and pre-trial confence is held where applicable. The trial
date is allocated and notice of set down is served.

Trial

At trial each party is given a chance to present evidence . The plaintiff

first presents evidence by calling all witnesses. Evidence is given in
chief and then cross-examination by the defendant follows and the re-
examination. This procedure is followed in respect of all witnesses that
are called to testify on the plaintiff’s case. After all witnesses are
called, the plaintiff closes his or her case.

Absolution from the instance

After the plaintiff has closed his or her case, the defendant then can
apply for absolution from the instance. If successful, the case is
finalised. If not successful, or if thedefendant did not apply for
absolution from the instance, then the case proceeds for the defendant
to present evidence.

Defendant presents evidence

The defendant calls all witnesses. The procedure for examination in

chief of each witnesses is followed. Each witness is cross-examined in
chief by the plaintiff and re-examined by the defendant. The defendant
closes its case

Judgment

The court will consider the evidence before it, that of the plaintiff and
the defendant and decides on a balance of probabilities of the case as
to who to find in favour of.
Appeal and review
Section A Chapter 2 22

If either party is not satisfied with the court’s decision, they can take
the decision on appeal. If a party believes that an irregularity occurred
during the trial, for example the magistrate or judge was biased,
admitted inadmissible evidence or excluded admissible evidence, they
can take the case on review.

2.3. Enforcement of judgments

Enforcement of judgment in criminal cases

Judgment in criminal cases is executed by the relevant organs of the

State that are authorised to do so. Thus, imprisonment is enforced by
the Department of Correctional Services.

Enforcement of judgment in civil cases

A civil judgment or order of the court directs the person against whom
it has been granted to do something, not to do something, to deliver
something or to pay an amount in money. If the person against whom
judgment (performance other than payment of sum of money) has
been granted, fails to comply with the court order, he or she is guilty of
contempt of court for which he or she could be sentenced to pay a fine
or serve a term of imprisonment.
Where a debtor fails to make payment of an amount of money in terms
of a court order, other judicial proceedings are available to give effect
to the court’s order. These proceedings are a warrant or writ of
execution (in terms of the writ the debtor’s property is attached and
sold in execution. The proceeds are then applied to discharge the writ.
The other option is to hold an enquiry into the financial position of the
debtor concerned. The court after the inquiry then order the debtor to
pay off the debt in instalments.

3. THE NAMIBIAN COURT SYSTEM

The principal organs that enforce the application of the law are the law
courts in Namibia. Chapter 9 of the Constitution of the Republic of
Namibia deals with the administration of justice in Namibia. In terms of
Article 78, the judicial power shall be vested in the courts of Namibia,
Section A Chapter 2 23

which shall consist of a Supreme Court of Namibia, a High Court of

Namibia and Lower Courts of Namibia.

The key difference between the Supreme Court, High Court and the
Lower Courts lies in the nature of their jurisdiction.

3.1 Jurisdiction

Jurisdiction can be defined as the authority which a court has to decide

a case before it and to take cognizance of matters presented for
decision.

The Supreme Court and High Court have inherent jurisdiction, they are
created by the Constitution and therefore derive their jurisdiction from
the Constitution. The Lower Courts’ jurisdiction is derived from the
Magistrate’s Court Act 32 of 1944, as amended. The jurisdiction of a
court is determined by factors such as geographical area, the nature of
the issue and the person. In a criminal case the court’s jurisdiction is
determined by the kind of offence and the possible sentence, while the
amount claimed and the nature of the relief sought are the decisive
factors in a civil case.

3.2 The independence of the courts (the judiciary)

The courts in Namibia are independent from the legislature and the
executive. Article 78(3) of the Constitution provides that no member of
the Cabinet or the Legislature or any other person shall interfere with
SUPREME
Judges or judicial officers COURT
(magistrates) LABOUR
in the APPEALof their judicial
exercise
COURT
functions, and all organs of the State shall accord such assistance as
the Courts may require to protect their independence, dignity and
effectiveness, subject to the terms of the Constitution or any other law.
This simply means that no one may tell a judge or a magistrate how to
HIGH COURT LABOUR COURT
decide a case. ToDivision
further strengthen the independence
(Main and North)
of the judiciary,
the Judiciary Act 11 of 2015 was passed to provide for a separate
dealing of the administrative and financial matters of the office of the
judiciary. LOWER COURTS

3.3 The structure of the courts

DISTRICT REGIONAL
MAGISTRATE’S
The hierarchy COURT
of the courts can be illustrated as follows:
COURT

SPECIAL COURTS CHIEFS,

Domestic Violence HEADMEN’S
Court COURTS
Maintenance Court
Children’s Court
Section A Chapter 2 24

3.3.1 The Supreme Court

The Supreme Court, with its seat in Windhoek, is the highest court in
the country. It consists of a Chief Justice and such additional Judges as
the President, acting on the recommendations of the Judicial Service
Commission, may determine.

The Supreme Court adjudicates upon appeals emanating from the High
Court, including appeals which involve the interpretation,
implementation and upholding of the Constitution and the fundamental
rights and freedoms guaranteed thereunder.

The Supreme Court is only a court of appeal; no trials take place before
this court. The Supreme Court is obliged to hold not less than three
sessions during each year. The decisions of the Supreme Court are
final.

An appeal is lodged when one of the parties to a judgement feels that

the court has erred in its decision. On appeal, the court does not listen
to oral evidence about the facts of the case; it only studies the typed
record of the court from where the appeal is lodged.

3.3.2 The High Court

The High Court is seated in Windhoek and in Oshakati since 2009. It is
the highest trial court in the country and also has the jurisdiction to
hear and adjudicate upon appeals from Lower Courts and also
reviewing proceedings of such courts.
Section A Chapter 2 25

It consists of a Judge-President and such additional judges as the

President, acting on the recommendation of the Judicial Service
Commission, may determine and has jurisdiction to hear and
adjudicate upon all civil disputes and criminal prosecutions, including
cases which involve the interpretation, implementation and upholding
of the Constitution.

The High Court is the only court which has jurisdiction on divorce
proceedings; the status of a person in respect of mental capacity;
applications for the sequestration of a person’s estate; the liquidation
of a company or the validity or interpretation of a will. The High Court
is also the upper guardian of all minors.

3.3.3 The Lower Courts

The Lower Courts are presided over by magistrates or other judicial
officers appointed in accordance with procedures prescribed by Act of
Parliament.

The Lower Courts may be divided into two main groups, namely
District Courts or Magistrates’ Courts (civil and criminal jurisdiction)
and Regional Courts (only criminal jurisdiction).
Magistrates’ Courts
Magistrates’ Courts are to be found in most towns in Namibia and have
both civil and criminal jurisdiction.

 Civil jurisdiction of the Magistrate’s Court

Magistrates’ Courts cannot hear certain types of cases such as divorce

cases, disputes in which the validity and interpretation of a will are at
stake and cases in which someone’s mental status is to be determined.

The Magistrate’s Court is further limited with regard to the monetary

scope or quantum of the claim or cause of action.

At present, the maximum amount in respect of illiquid claims (amount

of claim not determined) is N$ 25 000, but when the claim is based on
a liquid document (such as a cheque) or actions arising out of the
Credit Agreements Act 75 of 1980, the maximum is raised to N$ 100
000.

 Criminal jurisdiction of the Magistrate’s Court

The criminal jurisdiction of a Magistrate’s Court is also limited. It may

not hear criminal cases in which the accused is on trial on charges of
crimes such as murder, rape and high treason. In addition, the
Section A Chapter 2 26

maximum sentence that a Magistrate’s Court can impose is limited to 5

years imprisonment or a fine of N$ 20 000 per charge.

There are also Special Lower Courts such as Maintenance Courts,

District Labour Courts, Children’s Courts (for matters such as adoption
of children) and Juvenile Courts (for juvenile offenders).
Regional Courts
A Regional Court can try any criminal offence, such as murder and
rape, but not high treason. It can impose a maximum jail term of 20
years and a maximum fine of N$ 100 000 per charge.
Other courts
The chiefs and headmen of certain communities have their own courts
where they apply the customary law (indigenous law) recognised by
that specific community. The courts are referred to as community
courts.

Let’s do the following activity.3

ACTIVITY 2
In each of the following cases name the court/s that will
have jurisdiction to hear the matter:
a A Policeman is shot by diamond dealers.
b Mrs. X wants to divorce Mr. X.
c Mr. X owes his local shebeen owner N$1000 and is
refusing to pay the account.
d The Magistrate’s Court in Oshakati convicted Mr
Innocent of theft and imposed a prison sentence of 5
years. Mr innocent wants to appeal against the
judgement.
e Mr. D was seriously involved in a car accident. He
institutes a claim for N$500 000 against Mr. E, the
driver of the vehicle.

3
Answers below additional reading on page 33.
Section A Chapter 2 27

4. THE LEGAL PROFESSION

There are people with legal qualifications in many careers, for example
in the business world as legal advisers, in local management bodies, in
journalism, in the diplomatic service, etc. However, professions such as
judge, magistrate, public prosecutor and legal practitioner are
traditionally considered to be branches of the legal profession and
these persons are regarded as officers of the Court.

In terms of Article 12(1)(e) of the Namibian Constitution “all persons…

shall be entitled to be defended by a legal practitioner of their choice.”

Due to the high costs of legal assistance, not everyone who needs
legal aid is able to afford it. The State therefore has a duty to provide
legal representation under certain circumstances.

4.1 Officers of the Court

In the Supreme Court and High Court the presiding officers are known
as judges and in the Lower Courts as magistrates.

Public Prosecutors act on behalf of the State in criminal prosecutions.

4.1.1 Legal practitioners

Section 17(a) of the Legal Practitioners Act 15 of 1995 provides that a
legal practitioner, who is duly admitted and enrolled as such, shall
Section A Chapter 2 28

have the right of appearance in any court or tribunal in which persons

are entitled by law to legal representation.

In terms of this Act the admission requirements for Legal Practitioners

are:

 a recognised legal qualification

 at least 6 months practical legal training

 successful completion of a course presented by the Justice Training

Centre, including the Legal Practitioners’ Qualifying Examination

A legal practitioner does not have the right of audience in the Supreme
Court of Namibia unless he/she has practised as such for a period of at
least one year and holds a certificate to that effect.

Conveyancers
A legal practitioner can become a conveyancer by passing an
additional conveyancing examination. Conveyancers deal with the
transfer (conveyance) of land.
Notaries public
Legal practitioners who have practised as such for a period of at least
five years may apply to be appointed as a notary public by the Chief
Justice. A notary does specific work, which includes the drawing up of
special types of contracts such as antenuptial contracts.
Society of Advocates
Despite the provisions of the Legal Practitioners Act, one still finds
legal practitioners practising as members of the Society of Advocates
(called the “Bar”). The Society of Advocates is an umbrella body, which
regulates the profession. Members of the society do not form part of a
firm or a partnership; they work for their own account.

The members of the Bar are normally specialist litigants. Clients do not
approach members of the society directly; legal practitioners refer
them to him/her.

An aspirant member of the society must do pupilage of at least three

months with a qualified member and then successfully complete the
Bar Council examination.

The Prosecutor-General
Section A Chapter 2 29

The Prosecutor-General is appointed to prosecute in the name of the

Republic of Namibia offenders of the law, to institute and defend
appeals in criminal cases in the High Court and the Supreme Court of
Namibia. The Prosecutor-General appoints prosecutors to conduct
prosecution countrywide in the name of the State. The Prosecutor-
General is the chief of all the prosecutors throughout Namibia and
oversees that prosecutors perform their function competently in the
prosecution of criminal matters.

4.2 Other court officials

The sheriff (and his/her deputies)

The sheriff (and his/her deputies) is responsible for the serving of all
court documents, such as summonses and court orders of the High
Court. The sheriff also attaches property and organises sales in
execution.

The Messenger of Court

The messenger fulfils the same role as the sheriff, but with regard to
Magistrate’s Court matters.

The Clerk of the Court

A clerk of court is the administrative head of the lower courts and deals
with administrative aspects of civil and criminal cases before the lower
courts. The clerk of court can issue summons or applications or issue
warrants of executions, accepts payment of fines etc.

Court interpreters

Because English is the official language used in court and there are
those instances when one of the party or both parties do not
understand and or speak English a court interpreter is used to interpret
from a local or foreign language to the official language mostly in
proceedings inside court or an inquiry outside court.

Court orderly

A court orderly is basically a police officer, in the employment of the

Namibian Police, who is usually present in court. A court orderly is
required to ensure the safety and proper conduct of all persons in
court as well as attend to specific requests by the presiding officer.
Section A Chapter 2 30

The Attorney -General

The Attorney-General is the principal legal advisor to the President and

the Government and takes all action necessary in amongst others to
protection and uphold the Constitution.

5. ALTERNATIVE DISPUTE RESOLUTION (ADR)

Referring a dispute to the courts for adjudication is not the only option
available to the parties to a contract. A dispute may be subjected to
other dispute resolution procedures which function independently from
the courts of law.

There are other different procedures outside the court system that
may be utilised to finalise a dispute. The most important are the
processes of mediation and arbitration.

The processes of mediation and arbitration are the processes which

are considered to be relatively speedy, inexpensive and informal in
nature

In Namibia, alternative dispute resolution is increasingly being used to

finalise disputes. Many institutions in Namibia including NUST, the
Labour Commissioner actively promote private arbitration and private
mediation.

Alternative dispute resolution is particulaly suited for purposes of

reaching solutions for a multiple of disputes. Examples thereof are
disputes resulting from building contracts, contracts pertaining to civil
engineering, insurance, lease and labour disputes.

5.1 Mediation
Section A Chapter 2 31

This is a voluntary procedure whereby a neutral third party (called the

mediator) brings the parties who are involved in a dispute to an agreed
solution. The decision-making lies with the parties to a dispute, the
mediator only assists the parties to arrive at a mutual solution.

Advantages of mediation

(a) is more informal;

(b)can be less expensive in certain instances;

(c) is speedier;

(d)is always better if a negotiated agreement with regard to a

dispute is reached, instead of having an independent third party
make a decision which results in there being a winner and loser
to the dispute; and

(e) does not result in a final decision and therefore other options
such as ongoing mediation, arbitration or even litigation may still
be considered.

Disadvantages of mediation

(a) It is dependant on a measure of co-operation between the

parties;

(b)Certain disputes have passed the point of consensus-finding

processes and mediation would therefore amount to a waste of
time;

(c) A party to a dispute could possibly agree to the suggestions of a

mediator whil all the relevant facts to the dispute have not yet
been disclosed or been subjected to cross-examination;

(d)A perception may be created that the party who recommends

mediation is revealing a lack of confidence in his or her own
case.

5.2. Arbitration

Arbitration is a proceess in terms of an agreement, whereby a chosen

neutral person (called an arbitrator), after a judicial investigation,
makes a final award with regard to an issue outside the ordinary
system of litigation. Private arbitrations are regulated by the
Section A Chapter 2 32

Arbitration Act 42 of 1965. The Labour Act 11 of 2007 makes provision

for arbitration of labour matters in some instances after a failed
conciliation attempt.

Advantages of arbitration

(a) The parties to a dispute can appoint as an arbitrator a specialist

in relation to the dispute at hand. Presiding officers in the courts
are generally knowledgable of the law, but they are not
necessarily specialists in fields such as enginerring and computer
technology;

(b)Arbitration can be an expedient way of finalising a dispute. There

is, for example, no court roll where parties have to await their
cases;

(c) Arbitration is private and confidential. This process does not take
place in open court and in presence of the public and the media;

(d)An arbitration award is final and is not subject to appeal unless

the parties reach such an agreement. In the case of courts,
decisions may be appealable from the magistrate’s court to the
high court and eventually to the supreme court;

(e) Arbitration may in certain instances be less expensive means of

finalising a dispute than court procedures. It must be
remembered that parties themselves are responsible for the
arbitrator’s professional fee. The state is responsible for the
salaries of magistrates and judges.

Disadvantages

(a) A person who is dissatisfied with an arbitration award has no

option to appeal against such a decision;

(b)It may possibly be more expensive than litigation;

(c) Certain disputes are more suited for litigation where, for
example, a court decision must set precedent;

(d)The parties to a dispute may possibly qualify for legal aid from
the state if they litigate, while there are no such possibilities to
receive legal aid in the case of arbitration of a dispute.
Section A Chapter 2 33

 ADDITIONAL READING
1. Amoo, S.K. (2008). Introduction to Law: Cases & Materials
Windhoek: Macmillan Education. (Pages 1-30).
2. Humby, T. Kotze L., & du Plessis A.(ed). (2012). Introduction to
Law and Legal Skills in South Africa. Cape Town: Oxford
University Press. (Pages 1-8; 45-117).
3. Kleyn, D., & Viljoen, F. (2010). Beginner’s Guide for Law
Students. 4th ed. Cape Town: Juta & Co. Ltd.
4. Meintjies, L. Van der Walt et al. (2011). Introduction to South
African Law: Fresh Perspectives. 2nd ed. Cape Town:
Heineman/Pearson Publishers.
5. Namibia: 1990. The Constitution of the Republic of Namibia
(amended).
6. Kelbrick, R., Manamela, T., Stoop, P., Manamela, E., Hurter, E.,
Masuku, B. & Stoop, C. (2014). General Principles of Commercial
Law 9th ed. Cape Town: Juta & Co. Ltd.
7. Sharrock, R. (2017). Business Transactions Law. 9th ed. Cape
Town: Juta & Co. Ltd.

ANSWER: ACTIVITY 1: PAGE 16

1. Criminal
2. Civil
3. Civil
4. Criminal and civil
5. Civil
6. Criminal and civil
7. Civil
8. Criminal and civil
9. Criminal and civil
10. No action
11. No action
12. No action

ANSWER: ACTIVITY 2: PAGE 26

a Regional and High Court

b High Court
c Magistrate’s Court
d High Court
e High Court