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Namibia Law Journal NAMIBIA LAW JOURNAL Trustees of the Namibia Law Journal Trust Chairperson Honourable Justice JDG Maritz Judge of the Supreme Court of Namibia Trustees Professor Nico Horn Associate Professor of Law, University of Namibia Ms Karin Klazen Legal Practitioner of the High Court of Namibia Editorial Board Editor-in-Chief Professor Nico Horn Associate Professor of Law, University of Namibia Content editors Advocate Esi Schimming-Chase Law Society of Namibia Legal Practitioner of the High Court of Namibia Acting Judge of the High Court of Namibia Professor Manfred O Hinz UNESCO Professor of Human Rights and Democracy Emeritus Professor of Law, University of Namibia Co-opted Members Advocate Raymond Heathcote Legal Practitioner of the High Court of Namibia Acting Judge of the High Court of Namibia Advocate Tousy Namiseb Chief of Law Reform, Public Service of Namibia Secretary, Law Reform and Development Commission Legal Practitioner of the High Court of Namibia Ms Isabella Skeffers-Nowases Legal Advisor, University of Namibia Advisory Board Honourable Justice GJC Strydom Retired Chief Justice of the Republic of Namibia Acting Judge of the Supreme Court of Namibia Honourable Justice J van der Westhuizen Judge of the Constitutional Court of South Africa Professor Pamela J Schwikkard Dean, Faculty of Law, University of Cape Town Professor Chris Maina Peter Professor of Law, University of Dar es Salaam Professor Barbara Olshansky Maryland, United States of America Professor Christian Roschmann Harz University of Applied Sciences Director of the Rule of Law Programme for Sub-Saharan Africa Konrad Adenauer Foundation Professor Gerhard Erasmus Emeritus Professor, University of Stellenbosch tralac Associate Justice D Smuts Judge of the High Court of Namibia Namibia Law Journal i This publication would not have been possible without the generous financial support of the Konrad Adenauer Foundation. Please note that the views expressed herein are not necessarily those of the Konrad Adenauer Foundation. Konrad Adenauer Foundation PO Box 1145 Windhoek Tel.: (+264 61) 225 568 [email protected] www.kas.de/namibia Namibia Law Journal, Volume 06, Issue 01, 2014 ISSN: © Namibia Law Journal Trust and Konrad Adenauer Foundation All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Cover design: Gavin Damon Editor-in-Chief: Nico Horn Language editor: Sandie Fitchat Layout: The Word Factory Publisher: Namibia Law Journal Trust PO Box 27146 Windhoek Namibia Tel.: (+264 61) 225 568 E-mail: [email protected] ii Volume 6 Issue 1 August 2014 CONTENTS GUIDE TO CONTRIBUTORS ..................................................iii INTRODUCTION .......................................................................1 Nico Horn ARTICLES .................................................................................3 Litigating with class: Considering a potential framework for class actions in Namibia...................................................................................................... 3 Diane R Hazel The need to reform the Namibian public procurement system: A comment on the Neckartal Dam saga ...................................................... 41 Anne Schmidt Accountability (or the absence thereof) in the Namibian public sector: A look at legislation and policies in place .................................................... 51 Dennis U Zaire JUDGMENT NOTES ...............................................................69 Melancholic medical law: Namibian medical practitioners may get away with homicide – The story of Mr H ...................................................... 69 Clever Mapaure Determining reasonable possibility of compliance with the ‘48 hours rule’: An analysis of Minister of Safety and Security v Kabotana............... 103 Ndjodi ML Ndeunyema BOOK REVIEW ..................................................................... 111 Beyond the law: Multi-disciplinary perspectives on human rights. Frans Viljoen, assisted by Jehoshaphat Njau (Eds); Pretoria: Pretoria University Law Press, 2012, 295 pages........................................111 Johannes DK Kariseb Namibia Law Journal i ii Volume 6 Issue 1 August 2014 GUIDE TO CONTRIBUTORS The Namibia Law Journal (NLJ) is a joint project of the Supreme Court of Namibia, the Law Society of Namibia and the University of Namibia. The Editorial Board will accept articles and notes dealing with or relevant to Namibian law. The discussion of Namibian legislation and case law are dealt with as priorities. Submissions can be made by e-mail to [email protected] in the form of a file attachment in MS Word. Although not preferred, the editors will also accept typed copies mailed to PO Box 27146, Windhoek, Namibia. All submissions will be reviewed by one of the Advisory Board members or an expert in the field of the submission. Submissions for the second semester edition in 2014 need to reach the editors by 15 September 2014. All submissions need to comply with the following requirements: • Submissions are to be in English. • Only original, unpublished articles and notes are usually accepted by the Editorial Board. If a contributor wishes to submit an article that has been published elsewhere, s/he should acknowledge such prior publication in the submission. The article should be accompanied by a letter stating that the author has copyright of the article. • By submitting an article for publication, the author transfers copyright of the submission to the Namibia Law Journal Trust. • Articles should be between 4,000 and 10,000 words, including footnotes. • “Judgment Notes” contain discussions of recent cases, not merely summaries of them. Submissions in this category should not exceed 10,000 words. • Shorter notes, i.e. not longer than 4,000 words, can be submitted for publication in the “Other Notes and Comments” section. • Summaries of recent cases (not longer than 4,000 words) are published in the relevant section. • Reviews of Namibian or southern African legal books should not exceed 3,000 words. The NLJ style sheet can be obtained from the Editor-in-Chief at [email protected]. Namibia Law Journal iii iv Volume 6 Issue 1 August 2014 INTRODUCTION Nico Horn* Although a little late, it is a pleasure to present you with Issue 1 of the Namibia Law Journal for 2014, six years after the publication of the first edition. The NLJ has experienced a little dryness in respect of contributions during the past year or so. However, contributions have picked up in the last few months and there is now more than enough material for Issue 2 this year. It is also time for a review of the present Editorial Board and readers can expect some interesting changes in the months ahead. The contributors to Issue 1 reflect a healthy growth in Namibian academic legal researchers. Clever Mapaure, a PhD Candidate at the University of Namibia (he has meanwhile finished his dissertation), writes on the absence of legal instruments to deal with possible homicide cases against medical practitioners. The first Namibian graduate to receive a Rhodes Scholarship for graduate studies at Oxford, Ndjodi Ndeunyema, contributes a judgment note on The Minister of Safety and Security versus Kabotana. Kennedy Kariseb, an LLB Candidate and Student Assistant at the University of Namibia, adds a review of Frans Viljoen’s book, Beyond the Law: Multi-disciplinary perspectives on human rights. Dianne Hazel, an American lawyer and Fulbright scholar in Namibia, considers a legal framework for class action in Namibia, while Anne Schmidt, a legal researcher from Germany, looks at the reform necessary in the Namibian procurement framework in a comment on the Neckartal Dam saga. Lastly, Dennis Zaire, a regular contributor, looks at the presence (and absence) of legislation to ensure accountability in the Namibian public sector. With this latest issue, a wide variety of practitioners and scholars are at your doorstep once again to enrich and challenge the Namibian legal fraternity. * Editor-in-Chief; Associate Professor, Faculty of Law, University of Namibia. Namibia Law Journal 1 2 Volume 6 Issue 1 August 2014 ARTICLES Litigating with class: Considering a potential framework for class actions in Namibia Diane R Hazel* Introduction Since Namibia gained independence in 1990, the Namibian Parliament has passed various statutes that provide greater rights and protections for Namibians on a range of issues. For example, the Competition Act, 2003,1 came into force in 2008 and seeks to ensure that markets remain competitive so that consumers may purchase better quality goods and services at lower prices. The Environmental Management Act, 2007, promotes sustainable development of natural resources and the environment to protect not only the present generation of Namibians, but also “to meet the needs and aspirations of future generations”.2 In addition, many have passionately advocated for the adoption of an all-encompassing consumer protection statute. Although statutes such as these theoretically offer a number of protections to Namibian citizens, Namibians may not be able to fully enjoy these benefits without a means of enforcing the statutes on a collective basis, particularly through class action lawsuits. A class
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