Phil ya Nangoloh
According to at least two recent judgments of the Supreme Court and High Court, in the Tsumib (2020) and NamRights (2019) cases, respectively, class actions, or actios popularis as they are also known in Latin, are not permitted under Namibian law.
The above-mentioned judgments are, in any event, seemingly contradictory to the actio popularis judgments by the very same courts as referred to in paragraphs 19 and 20 below.
By definition, class action or “actio popularis” refers to a legal action in Roman penal law brought by a member of the public in the interest of public order or public interest.
In simple language, class action or actio popularis is a lawsuit instituted by one person or a group of persons on behalf of members of or in the interest of a larger group, such as a human rights organization, a political party, a tribal or ethnic community, a labour union, a business community, a church body or even a country. Hence, class action or actio populsris is also known as a representation action or representation lawsuit.
Roman-Dutch law features or forms part of Namibia’s common law. If indeed, actio popularis is common law, and it is and is not permitted in Namibia, then such prohibition flies straight in the face of inter alia Articles 5, 18 and 25(2) of the Namibian Constitution(NC).
Those constitutional provisions are essential with specific reference to legal standing and the right of natural and legal persons to access the halls of justice to promote and uphold the basic human rights and freedoms as enshrined under Chapter 3 of NC and various international treaties to which Namibia is party.
Articles 5, 18 and 25(2) of NC accord any persons, natural or legal, in Namibia – claiming that a right or freedom conferred by Chapter 3 of NC had been infringed upon or had been threatened – locus standi and the right to approach any Namibian court to seek redress or justice.
Moreover, I advance that Article 25(2) of NC is entirely consistent and identical with Section 38 of the South African Constitution, which affords individuals or groups legal standing to bring inter alia class actions in the courts of that country!
The prohibition of actio popularis or class actions, in any event, also flies in face of Articles 8, 10 and 12(1)(a) of NC on the right to dignity and equality before the law and non-discrimination as well as fair trial and equal access to the halls of justice, respectively.
In particular, actio popularis or class actions are sine qua non to accord legal standing for human rights practitioners and groups or communities seeking justice in case of mass atrocities before inter alia African Court of Human and Peoples Rights, Inter-American Court of Human Rights and European Court of Human Rights or the various supervisory bodies under United Nations human rights system.
Mass atrocities include widespread or systematic acts of discrimination, torture, crimes against humanity and genocide.
For example, in terms of Articles 1 and 2 of the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), individuals or groups claiming to be victims of violations of the human rights enumerated under ICCPR have the right to approach the UN Human Rights Committee to seek justice. ICCPR is part of Namibian law.
Mass atrocities are also strictly prohibited under Chapter 3 of NC and under all other relevant international treaties and general rules of public international law as contemplated by Article 144 of NC.
As a matter of fact, NC is also fully compliant and consistent with customary international law, international humanitarian law and international human rights law. So, in effect, NC is international law!
Moreover, actio popularis or class action practice forms part of customary international law also known as general international law.
Customary international law also forms part of the general rules of public international law, which forms part of Namibian law as contemplated by Article 144 of NC.
One most prominent example of actio popularis or class action is the 1980 US landmark decision in the matter of Filartiga v Pena-Irala, which is also binding upon Namibian courts in terms of Article 144 and which is part of the general rules of law as envisaged under Article 38(1)(a)-(c) of the Statute of the International Court of Justice (ICJ).
The other good example of actio popularis is the matter of South West Africa, Ethiopia and Liberia vs South Africa, in 1966, before ICJ.
In Namibian jurisprudence, the locus classicus example of actio popularis or class action lawsuit is the 1975 Supreme Court case of Wood and Others v Ondangwa Tribal Authority. In this matter, Anglican Bishop Richard Wood and others instituted a lawsuit against Ondonga Traditional Authority on behalf of political prisoners who include members of the Anglican Church.
The other locus classicus example is the June 2020 High Court case of NEF v President of Namibia. This lawsuit was brought by Namibian Employers’ Federation (NEF) on, among others, behalf its members. This case also confirmed that NEF was aggrieved as contemplated by Article 25(2) of NC, although its own rights or those of its members were not (yet) violated.
Finally, I postulate that, since Roman-Dutch law is part of Namibia’s unwritten common law, then the prohibition of actio popularis or class action, also flies straight in the face of the written provisions of especially Articles 66(1) and 25(1)(a) of NC. The former provides that common law or customary law which contradicts NC is ipso facto invalid right away. The latter prohibits parliament from passing any law and Cabinet from taking any action which abolishes any of the basic human rights and freedoms enshrined under Chapter 3 of NC.
I must in any event also invoke the legal principle that in case of conflict, written law (lex scripta) prevails over common law (lex non scripta)!
Therefore, the controversial prohibition of actio popularis by some, not all Namibian courts, which is premised on unwritten law, runs counter to the written provisions of Chapter 3 of NC and relevant international human rights treaties which are binding on Namibia.
*Phil ya Nangoloh is a Namibian human rights practitioner and executive director of NamRights.