L3511BC_2024_S1_FO (Constitutional Law) Topic 7/11 - The Legislative Branch of the State

Lesson 7: The Legislative Branch of the State

Opened: Thursday, 2 May 2024, 12:30 PM
Overview
In this topic constitutional provisions regarding the legislative branch of the state including the
National Assembly and the National Council are introduced which include, but is not limited to:
 Composition of the legislative branch of the state.
 Functions, powers and duties of the legislative branch of the state.
 The legislatures role to check on the exercise of power by the executive and the judiciary.
 The legislative branch is one of the three branches of government. It is responsible for making
laws and overseeing the actions of the executive and judicial branches.
The legislative branch has many important responsibilities, including creating and passing laws,
approving the state budget, and conducting investigations. To accomplish these tasks, legislators
often form committees and subcommittees to specialise in certain areas of policy and oversee specific
issues.
The legislative process typically begins with the introduction of a bill. The bill then goes through a
series of hearings, debates, and votes before it can become law. If the bill is passed by both chambers
of the legislature, it goes to the President for signature or veto.
Overall, the legislative branch plays a crucial role in shaping the laws that affect the lives of citizens
in the state. By working together to address the needs of their constituents, legislators can help ensure
that the state continues to thrive and prosper.
Learning Outcomes

 Discuss provisions of the Constitution of the Republic of Namibia relating to the legislative
branch of the state.
 Discuss the constitutional provision relating to the National Assembly and the National
Council with reference to the founding principles of the Constitution of the Republic of
Namibia in Article 1.
 Restate relevant concepts and principles from decided cases and literature relating to the
legislative branch of the state.
 Apply relevant laws in a factual scenario relating to the legislative branch of the state.
Terminologies:
 Locus standi- right of a party (to bring a lawsuit/ action or appear in court)
 Sub judice - "under judge", a matter that is currently being considered by a judge or court
[Link] List: Books / Book Chapters / Book Sections
 Akweenda, S. 2023. Constitutional Law of the Republic of Namibia. Juta & Company,
Limited, Ch. 6-7.
 Bishop, M. & Raboshakga, N. 2014. National Legislative Authority. In S. Woolman, & M.
Bishop (Eds.), Constitutional Law of South Africa (Vol. 1, pp. 17-i - 17-115). Cape Town:
Juta & Company (Pty) Ltd.
 De Vos P., Freedman W., (Eds.) 2021. South African Constitutional Law in Context second
edition. Cape Town: Oxford University Press Southern Africa (Pty) Limited, pp. 105-179.
[Link] List: Legislation and Regulations
 Constitution of the Republic of Namibia, Chapters 7-8.
L3511BC_2024_S1_FO (Constitutional Law) Topic 7/11 - The Legislative Branch of the State

 Powers, Privileges and Immunities of Parliament Act 17 of 1996.

[Link] List: Judgments (Namibia)
When reading the following judgments focus particularly on how provisions in the Constitution of the
Republic of Namibia and other statutes relating to the duties, functions and powers of the legislature
are interpreted and applied and how same is shaped by and relate to principles of constitutionalism
(founding principles of the Constitution).
1. Federal Convention of Namibia v Speaker, National Assembly of Namibia and Others 1991
NR 69 (HC).
2. S v Carracelas and Others (1) 1992 NR 322 (HC).
3. Cultura 2000 and another v Government of the Republic of Namibia and Others 1992 NR 110
(HC).
4. Myburgh v Commercial Bank of Namibia 2000 NR 255 (SC).
5. S v Nghitukwa 2005 NR 116 (HC).
6. Maletzky and Others v Electoral Commission of Namibia and Others 2015 (2) NR 571 (HC).
7. S v Hangue 2016 (1) NR 258 (SC).
8. Communications Regulatory Authority of Namibia v Telecom Namibia Ltd and Another 2018
(3) NR 664 (SC).
9. Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands and Resettlement
and Others 2018 (3) NR 800 (SC).
10. Minister of Trade and Industry and Others v Matador Enterprises (Pty) Ltd and Others and a
Similar Matter 2020 (2) NR 362 (SC).
11. Theron v Village Council of Stampriet and Another 2020 (2) NR 524 (HC).
12. Tjirare and Another v Chairperson of the Electoral Commission of Namibia and Others 2020
(3) NR 627 (HC).
13. Kruger v Minister of Finance of the Republic of Namibia and Others 2020 (4) NR 913 (HC).
14. Swartbooi v The Speaker of the National Assembly: Katjavivi 2021 (3) NR 652 (SC).
15. Masule v Prime Minister of the Republic of Namibia and Others 2022 (1) NR 10 (SC).
16. Popular Democratic Movement v Chairperson of the Electoral Commission (SA 59 and 65-
2020) [2022] NASC (30 May 2022).
4. Reading List: Judgments (Foreign)
South Africa: (Reading strongly recommended, but not compulsory.)
1. Ex Parte President of the Republic of South Africa_ In Re Constitutionality of the Liquor Bill
2000 (1) SA 732 (CC).
2. Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580
(CC).
3. Chairperson, National Council of Provinces v Malema and Another 2016 (5) SA 335 (SCA).
4. Minister of Justice and Constitutional Development and Others v Prince; National Director of
Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others
v Acton and Others 2018 (6) SA 393 (CC).
[Link]
[Link]
HOW ADMINISTRATIVE NOTICES ARE MADE OR NOTIFIED IN THE GAZETTE IN
NAMIBIA
HOW BILLS BECOME LAW IN NAMIBIA
L3511BC_2024_S1_FO (Constitutional Law) Topic 7/11 - The Legislative Branch of the State

HOW SUDSIDIARY LEGISLATION IS MADE IN NAMIBIA

POLICY BRIEF REQUIREMENTS FOR PROPOSALS TO MAKE LAWS
REQUIREMENTS FOR SUBMISSION OF INSTRUCTIONS FOR BILLS TO DRAFTING
DIRECTORATE NAMIBIA
REQUIREMENTS FOR SUBMISSION OF INSTRUCTIONS TO DRAFT SUBSIDIARY
LEGISLATION AND ADMIN NOTICES
THE OFFICIAL GOVERNMENT PUBLICATION GAZETTE OF NAMIBIA

Activities contributing to the CA mark:

1. Summary: Article 47 of the Constitution
2. Summary: Chapters 7 and 8 of the Constitution
3. Workshop: Topic 7 Workshop

Summary: Article 47 of the Constitution

Article 47 set out condition for disqualifications of individuals from becoming members of the
National Assembly if they have been convicted of an offense and have been sentenced to death or
imprisonment for more than twelve months without a fine, unless pardoned or the imprisonment
expired ten years before election, exemption to those sentenced for acts related to Namibia's struggle
for independence and no active appeals. Unrehabilitated insolvents, those declared of unsound mind
by a competent court and remunerated members of the Namibian public service and National and
Regional Councils or Local Authorities.

[Link] Convention of Namibia v Speaker, National Assembly of Namibia and Others 1991 NR 69
(HC).
This case dealt with the Namibian Constitution and the power of the High Court to review
decisions made by government officials.
Key Points:
1. Constitution and Jurisdiction: The High Court has the power to enforce the written
provisions of the Namibian Constitution, even when those provisions relate to internal matters
of the National Assembly.
2. Review of Decisions: The Court can review decisions made by government officials,
including the Speaker of the National Assembly, under Rule 53(1) of the Uniform Rules of
Court. This applies even if there's a dispute about facts. However, in cases with substantial
factual disputes, the Court might require a different procedure than a simple notice of motion.
3. Political Parties and Legal Action: While a political party's constitution might say legal
actions are brought "through" its management committee, it's still the party itself that sues or
is sued. Decisions about litigation are made by the management committee.
4. Speaker's Decision: The Speaker of the National Assembly had delayed acting on a request to
remove a member based on incorrect information about a legal challenge to their expulsion
from a political party.
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5. Court's Decision: The Court ruled that the Speaker's decision was based on incorrect
information and ordered him to reconsider the request to remove the member from the
National Assembly according to the Constitution.
This case clarifies the following:

 The High Court's role in upholding the Constitution.

 The process for reviewing decisions by government officials.
 How political parties can take legal action.
 The Speaker's responsibility in responding to requests for member removal.
Specific Case: In the case mentioned, the Speaker of the National Assembly deferred a decision to
remove a member based on incorrect information about a political party's internal dispute. The court
set aside the Speaker's decision and returned the matter to the Speaker to act in accordance with the
constitution.
The background information
1. Applicant: Federal Convention of Namibia (political organization)
2. Respondents: Dr. Mose Tjitendero (Speaker of the National Assembly)
Kerina (Member of the National Assembly)
Kephas Conradie (described as a professional politician)
3. Reason for Application: Applicant requests the court to review and potentially reverse the
Speaker's decision regarding the removal of Kerina from the National Assembly.
Legal basis/ facts of the case
 J G A C Diergaardt, originally chosen by the applicant, resigned. The applicant then
nominated Kerina (second respondent) to fill the vacancy in the Constituent Assembly.
 A disagreement arose between the applicant and Kerina, with the applicant claiming Kerina
no longer represented their interests.
 The applicant attempted to remove Kerina from the Constituent Assembly and replace him
with Kephas Conradie (third respondent) but Namibia became independent before action was
taken.
 With the new Namibian Constitution, removing Kerina from the National Assembly
(successor to the Constituent Assembly) required following Article 48(1)(b). This article
states that a member vacates their seat if their nominating party informs the Speaker they are
no longer a party member.
 The applicant claims to have expelled Kerina (second respondent) from the party at a special
congress on June 6, 1990 and informed the Speaker (first respondent) through a letter on June
8, 1990, that Kerina was no longer a member and should vacate his seat according to Article
48(1)(b). The letter also mentioned that Kerina challenged the validity of the applicant's
decision to expel him.
 The Speaker did not take any action to remove Kerina despite the notification.
 The applicant considers the Speaker's inaction a breach of duty and asks the court to review
the Speaker's decision through a notice of motion.
 The Speaker made an announcement on June 12th, 1990, acknowledging the applicant's
notification about Kerina's expulsion but also mentioning Kerina's dispute and the ongoing
court case. The Speaker decided to wait for the court's decision before taking any action.
 The notice of motion filed on behalf of Kerina (challenging his expulsion) wasn't actually
served on the parties involved at the time the Speaker was informed about it. Additionally,
one affidavit supporting the motion wasn't even attested. The lawyer representing Kerina
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convinced the Registrar to date-stamp the notice of motion before it was served, which gave
the impression the case was more advanced than it was.
 The applicant argues that the Speaker's decision was based on a misunderstanding caused by
this misrepresentation. They believe the Speaker should have followed the Constitution and
removed Kerina from the National Assembly upon receiving notification of his expulsion,
regardless of the ongoing legal dispute.
 After the applicant's supplementary affidavit, the Speaker, through a government attorney,
indicated they would abide by the court's decision but requested no cost orders to be made
against them. The attorney explains the Speaker's inaction resulted from believing the matter
was sub judice based on the information from Kerina's side.
Kerina argues that the applicant (political party) doesn't have the right to bring this case against
him (locus standi).

 Applicant doesn't have individual members, so Freygang (who submitted the affidavit on
behalf of the applicant) isn't a valid member.
 Only a meeting of the six leaders from the parties that formed the applicant can authorize
legal action, and such a meeting didn't happen.
 He denies being a member of the applicant itself.
 He claims to be the president of a separate party (NUDO Progressive Party) that is a
member of the applicant (a "convention of parties").
 He says the applicant wasn't a unified party but rather a group of collaborating parties
("exploratory discussions" to form a "political block").
Contradictions in Kerina's Arguments:

 Despite claiming the applicant's constitution isn't valid, Kerina admits:

 He helped draft the applicant's election manifesto.
 The applicant contested the election using the constitution in question.
 He (before his expulsion) tried to amend the same constitution he claims doesn't exist.
 The applicant accused Kerina of misrepresenting facts and abusing legal processes. Kerina didn't
adequately address these accusations in his affidavit.
 He never denied his lawyer's actions (filing a notice of motion with misrepresentations) or offered
an apology for them.
 never explained why the legal challenge he threatened never materialized after initially claiming
urgency.
 downplays the potential impact of the misleading notice of motion on the Speaker's decision.
 Van Wyngaardt (the lawyer) initially claimed the case was sub judice due to a filed motion, then
later contradicted himself by saying they were considering legal action but hadn't decided.
 He offers no explanation for the deliberate untruth in the notice of motion (about an affidavit that
wasn't ready).
 He waits until a much later stage in the proceedings to explain why the court action wasn't
pursued.
The judge criticise Keina and his lawyer for lack of transparency and for misleading the speaker (by
claiming the issue was subjudice while it was not- the motion was filed later) seems skeptical of their
explanations but acknowledges that, at this point, he has to accept them as true. However, the judge
highlights the contradiction between the lawyers' claims and the Speaker's actions (which suggest the
Speaker was indeed misled).
Arguments for No Jurisdiction:
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Kerina's lawyer (Du Toit) argued the court lacks jurisdiction because disqualifying a member is an
internal privilege of the National Assembly. He cited a Zimbabwean case (Chikerema) to support this
claim.
Court's Reasoning for Jurisdiction:
1. Different Constitution: The Zimbabwean case involved a different constitution with a distinct
structure.
2. British Parliamentary Practices Not Applicable: Namibia's constitution isn't based on
unwritten practices like the UK Parliament.
3. Internal Matter vs. Inaccurate Information: The court wasn't interfering with internal
proceedings; it was addressing the Speaker's decision based on incorrect information.
4. Speaker Agrees to Jurisdiction: The Speaker himself accepts the court's authority in this
matter.
5. Upholding the Constitution: Courts have jurisdiction to ensure compliance with written
constitutional provisions, even if they relate to internal parliamentary matters.
6. Precedents for Judicial Review:
The judge cites a South African case (Harris) where the court intervened to ensure a law
followed the specific requirements of the constitution, even though it involved internal
parliamentary procedures
Du Toit argued that the applicant should have used a different procedure (summons) because there
were potential factual disputes. He cited a South African case (Johannesburg) to support this.
The judge rejects this argument for several reasons:
 The court rule (Rule 53) allowing review through notice of motion applies to officers like the
Speaker.
 The common law right to review wasn't intended to be limited by this rule.
 Even with factual disputes, courts in South Africa have allowed review by notice of motion
(Deputy Minister case).
 Kerina claims one can represent a party in the legislature without being a member of that party.
 The judge rejects this argument, noting it contradicts the spirit of the Namibian Constitution.
 Kerina's own membership card confirms his membership in the applicant party.
Judgement and order
 The applicant (political party) followed proper procedures and had legal standing to bring this
case.
 The court has the authority to review the Speaker's decision based on principles established in
previous cases.
 The Speaker's decision to defer action due to misinformation was wrong. The information
about a court challenge to the applicant's decision to expel Kerina was inaccurate.
 The Speaker's decision is set aside.
 The Speaker must now act according to the Namibian Constitution regarding Kerina's seat in
the National Assembly.
 The court declines to order Kerina to vacate his seat; that's for the National Assembly to
handle based on its rules.
 Kerina must pay all court costs, including the costs of having two lawyers represent the
applicant.