Ubi Jus, Ibi Remedium: Class Action in Namibia

• PHIL YA NANGOLOH

IN ONE OF ITS latest judgements – the case of Tsumib and Others v Government of Republic of Namibia and Others (SA 53 of 2019) [2022] NASC 6 (16 March 2022) at paragraph 74 – the Supreme Court of Namibia advanced that “Namibian law does not permit class action” and that “class action is not recognised in our law”.

I respectfully beg to differ, vehemently.

The Legal Information Institute (LII) defines a “class” as “a group of people who are in the same category having the same type of rights or who have suffered from the same incident”.

“Class action” is defined as a court action instituted by or on behalf of a group or class of people or business entity who have suffered a common injury or damage caused by someone else’s conduct.

The above Supreme Court judgement is fatally flawed for several constitutional reasons, including the fact that:

• Article 1(6) of Namibia’s Constitution says the Constitution “shall be the Supreme Law of Namibia”.

• Article 21(1)(e) guarantees the right of all persons in Namibia to freedom of association, which includes freedom to form and join groups or classes of people.

• Article 7 guarantees the right to liberty and it also outlaws deprivation of liberty, save in accordance with procedures established by law.

• Articles 12, 18 and 25(2) guarantee the right of all persons, including classes of persons, who are aggrieved by the conduct of any other persons to approach courts or tribunals to obtain appropriate remedy.

• Paragraph 5(5) of the preamble to the Constitution says the Namibian people have resolved to constitute the Republic of Namibia as a democratic state securing for all its citizens – including classes of people – justice, liberty and equality.

• Article 1(1) describes the Republic of Namibia as, among others, a democratic state founded upon the principles of democracy, the rule of law, and justice for all.

• Futhermore, Articles 5 and 25(2) require and enjoin, among others, the Namibian judiciary to respect and uphold all basic human rights and freedoms enshrined in Chapter 3 of the Constitution.

• Paragraph 2 of the preamble and article 10(2) also outlaw discrimination on, inter alia, grounds of social or economic status.

In light of these constitutional provisions, it is vigorously, though respectfully, submitted that the Supreme Court’s averments that Namibian law does not allow class action, or that it does not recognise class action, are fatally flawed in law.

As a well-known Latin maxim goes: Ubi jus, ibi remedium, which means “where there is a right, there is a remedy”.

* Phil ya Nangoloh is a Namibian human rights practitioner and executive director of NamRights

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