CODeL ASSIGNMENT TEMPLATE

2021 ACADEMIC YEAR

Student Name Unomasa Uanivi
Student number 221234152
Email Address [email protected]
Cell/Tel no 0815591433
CODeL Centre Windhoek Centre

Course/Module Name Course/Module

Code
Administrative Law JAD3360

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Table of contents Page

1. Introduction……………………………………………………………………2

2. What is parliamentary sovereignty?.........................................................2

2.1 Administrative Law Before Independence in Namibia: The role of Parliamentary

sovereignty in the sphere of administrative law………………………………2-3

3. How does parliamentary sovereignty compare with the doctrine of constitutional

supremacy…………………………………………………………………………4-5

3.1 What is the relevance of constitutional supremacy in administrative law?

......................................................................................................................5-6

4. Administrative law then: settled jurisprudence on administrative law before 1990

……………………………………………………………………………………….6

4.1 Free Press of Namibia v Cabinet, Interim Gov…………………………….6-8

5. Administrative law now: settled jurisprudence on administrative law after 1990

………………………………………………………………………………………9

5.1 5.1 President of the Republic of Namibia and Others v Anhui Foreign Economic
Construction Group Corporation Ltd and Another ……………………………10

6. References……………………………………………………………………..11-12
 1. Introduction
The paper will go over the definition of parliamentary sovereignty. In addition, the
paper will consider what, if any, role parliamentary sovereignty played in the area of
administrative law before independence. In addition, the presentation will compare and
contrast parliamentary sovereignty with the doctrine of constitutional supremacy. In
addition, the paper will address the significance of constitutional supremacy in
administrative law. The paper will also juxtapose parliamentary sovereignty and
constitutional supremacy in the context of upholding administrative justice as directed
by the Namibian Constitution.

2. What is parliamentary sovereignty?

According to the UK parliament, parliamentary sovereignty is a fundamental principle
of the UK constitution.1 It establishes Parliament as the supreme legal authority in the
United Kingdom, with the power to make and repeal any legislation.2 In general, the
courts cannot overturn its legislation, and no Parliament can pass laws that cannot be
changed by future legislatures.3

2.1 Administrative Law Before Independence in Namibia: The role of

Parliamentary sovereignty in the sphere of administrative law

Before March 21, 1990, the legislative branch of the Namibian government was
sovereign over the other branches, and parliament had the authority to limit the power
of the judiciary. This meant that the decisions of the State's legislative branch were
considered definitive. Even though courts could rule on the legality of administrative
measures, Parliament had the last say on what was and wasn't permissible. As a result
of parliamentary sovereignty, any law passed by Parliament before the country's
independence was valid.

According to Bangamwabo4 (2010), Namibia applied the Westminster system of

government, which was parliamentary sovereignty. Furthermore, Bangamwabo

1 UK Parliament. Glossary. Parliamentary Sovereignty. Available at https://www.parliament.uk/site-

information/glossary/parliamentary-sovereignty/; last accessed on [17 April 2022].
2 (ibid.).
3 (ibid.).
4 Bangamwabo, F-X. 2010. Constitutional supremacy or parliamentary sovereignty through back

doors: Understanding Article 81 of the Namibian Constitution. Available at

http://www.kas.de/upload/auslandshomepages/namibia/HumanRights/bangamwabo.pdf; last
accessed on [17 April 2022].
elucidated that this system was imported from South Africa into South West Africa by
the Administration of Justice Proclamation5. Under parliamentary sovereignty, the
legislature was empowered to make or repeal any law whatsoever on any subject, with
no corresponding competence on the courts to question the validity of any laws so
made.6

Administrative justice did not exist before the adoption of the Namibian Constitution,
which transformed administrative law. The administrative law system was founded on
a culture of authority rather than a culture of justification, according to Mureinik (1994).7
This meant that public officials and public entities executing public responsibilities or
exercising public authority were not required to make administrative judgments in a
legitimate, equitable, or reasonable manner. Because of this culture of authority, those
who were wronged had no right to seek redress from a tribunal or the courts.

Parliamentary sovereignty meant that lawmakers could enact whatever laws they
deemed fit as long as the necessary procedures were followed, regardless of whether
the constitution was violated. The courts lacked the authority to investigate and reject
laws that violated human rights at the time, and no such rights were codified in the
constitution.

Before independence, the only way to check administrative power was through judicial
review. Under common law, courts examined delegated legislative and administrative
action. This was demonstrated by the courts in the Johannesburg Consolidated
Investment8 case when Innes CJ described this common-law jurisdiction as follows:9

“Whenever a public body has a duty imposed by it by statute, and disregard important
provisions of the statute, or is guilty of gross irregularity, or clear illegality in the
performance of the duty, this Court may be asked to review the proceedings complained
of and set aside or correct them. This is no special machinery created by the Legislature;
it is a right inherent in the Court….”

5 Proclamation No. 21 of 1919.

6 Bangamwabo (2010: p251).
7 Mureinik, E. 1994. “A bridge To Where? Introducing the Interim Bill of Rights of South African”,

Journal on Human Rights, Vol. 31, pp. 31-48.

8 Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903 TS 111.
9 Hoexter, C. (Ed). 2012. Administrative Law in South Africa. Cape Town: Juta & Co, p14.
 3. How does parliamentary sovereignty compare with the doctrine of
constitutional supremacy?

Constitutional supremacy is the polar opposite of parliamentary sovereignty.10 The

supremacy of the Constitution requires that any exercise of power (whether by the
executive or legislative) that does not follow the established manner and form or is
otherwise in violation of the Constitution from which the power derives be declared
void by the court.11 While the Constitution's supremacy and Parliament's sovereignty
can coexist, the former always excludes the latter.12

Namibia abandoned Parliamentary Sovereignty after gaining political independence,

opting instead for the supremacy of the Constitution. The Constitution of the Republic
of Namibia, under Article 1(6), declares the Constitution to be supreme over all other
legislation. 13 The supremacy clause implies that every law passed by the legislature
or any action made by the administration must adhere to the Constitution's mandates.
As the organic basic law, the Constitution is the apex norm, the Grundnorm, within the
hierarchy of laws.14

Democracy is described as "government by the people, for the people".15 Because a

huge number of people cannot make every decision, representative democracy
creates various institutions to determine laws and other decisions that are critical to
the state's day-to-day functioning. The two basic types of representative democracy,
parliamentary democracy and constitutional democracy, have different institutional
designs. 16

The doctrine of Constitutional Supremacy stipulates that the Constitution supersedes

all other laws in a country, including legislation and case law. It is then critical to ensure
that a Constitution has legal supremacy, because if a government passes a law that
violates the Constitution - that is not by or contradicts a constitutional provision - such
a law could be challenged in court and overturned because it is "unconstitutional."

10 Bangamwabo (2010: p251).

11 (ibid.).
12 (ibid.).
13 (ibid.).
14 (ibid.).
15 Centre for Constitutional Studies.2020. Supremacy of Parliament. Available at

https://www.constitutionalstudies.ca/2019/07/supremacy-of-parliament/; last accessed on [18 April

2022].
16 (ibid.).
According to Hoexter17 (2012), the legislative branch of government could simply
authorise administrative officials to interfere with people’s rights, either in so many
words or by conferring such wide discretionary powers on officials that it was difficult
for the court to fault the exercise of the discretion – assuming that it had the will to do
so.18

3.1 What is the relevance of constitutional supremacy in administrative law?

Administrative law is founded on the idea that government actions must be legal in the
strictest sense, and that citizens who are harmed by illegal government actions must
have adequate remedies. A good administrative law system contributes to public trust
in government authorities.

Administrative law is based on the principles of the rule of law, the prohibition of abuse
of power, access to justice, accountability, openness, and accountability. Because the
principles on which administrative law is based are closely tied to the principles on
which the Constitution was created, constitutional supremacy becomes relevant in
administrative law.

Constitutional Supremacy is reflected in Article 1819 of the Namibian Constitution.

Everyone has the right to administrative justice under this provision. It also means that
anyone who has been wronged can seek restitution through the courts or an impartial
tribunal. This clause is "peremptory" because it imposes a duty on administrative
bodies and officials to act fairly and reasonably; this duty is not optional and must be
followed by the letter. Furthermore, Article 18 is found in Chapter 3 of the Constitution,
which is a permanent chapter.

The Constitution was a significant departure from the past. Article 18 established
administrative justice as a fundamental human right. This article, along with numerous
others, is credited with transforming Namibia's administrative law regime from an
authority-based to a justification-based20 one. When making administrative decisions,
anyone performing public functions or using public powers must now behave lawfully,

17 Hoexter, C. 2012. “Introduction to Administrative Law”. Administrative Law in South Africa, Cape
Town: Juta & Co, pp14-15
18 (ibid.).
19 Article 18 of The Namibian Constitution.
20 (ibid.)
fairly, and reasonably. When these rules are broken, the aggrieved party has the right
to seek recourse through a panel or the courts.

Constitutional supremacy is relevant in administrative law as it complements the

doctrine of separation of powers. Checks and balances exist now because the
Constitution ensures that each organ checks other organs and ensure that there is no
abuse or misuse of power.

4. Administrative law then: settled jurisprudence on administrative law

before 1990
4.1 Free Press of Namibia v Cabinet, Interim Gov21

The facts

In 1985, the Free Press of Namibia attempted to register as a newspaper under the
Newspaper and Imprint Registration Act, 1971. The Act requires the newspaper to
disclose information about its projected content as well as the names and contact
information of its editor, proprietor, printer, and publisher. An application fee of R10
was required for each application, according to the application form on which it was
submitted.22

In response to the Namibian's application, the Department of Civic Affairs and

Manpower cited a provision in the Internal Security Act of 1950 that required an
R40,000 registration fee for a newspaper to be registered under the Newspaper and
Imprint Registration Act if the Minister of the Interior believes that a "section 6
prohibition" may be necessary in the case of the newspaper. The section 6 restriction
refers to publications that, among other things, convey opinions that harm the state's
security.23

The Namibian's attorney was then advised by the Department of Civic Affairs and
Manpower that the Cabinet had met and decided that an R20,000 deposit was
necessary before the registration could be completed. The Namibian responded by
stating that the deposit requirement was unlawful and informing the Department that

21 Free Press of Namibia v Cabinet, Interim Gov. SWA 1987 (1) 614.
22 The Free Press of Namibia (Pty) Ltd. v Cabinet of the Interim Government of South West Africa -
Global Freedom of Expression; globalfreedomofexpression.columbia.edu. Available at
https://globalfreedomofexpression.columbia.edu/cases/free-press-namibia-pty-ltd-v-cabinet-interim-
government-south-west-africa/; Last accessed on [19 April 2022].
23 (ibid.).
they intended to file a request for a review of the deposit requirement determination.
The Department responded by requesting an extension to evaluate the matter. The
newspaper agreed but paid the deposit against its will to get registration and publish
its first issue.24

The Free Press of Namibia filed a review application in the High Court three months
after receiving its registration certificate, seeking an order "reviewing and setting
aside” the decision of the Department of Civic Affairs and Manpower to require a
deposit of R20,000 before registration of the Namibian could be effected.

The legal issues

The High Court had to decide whether to examine and overturn the R20,000 deposit
requirement because it violated the right to freedom of expression.

Ratio Decidendi

Levy J went on to state that the South African cases of Publications Control Board v
William Heinemann25 and S v Turrell26 had both underscored the importance of
freedom of speech. Levy J in addition made the following remarks:27

"If the freedom of speech is to have any value in a democratic democracy, its
concomitant, freedom of the press, must be recognized," he says, "since these
freedoms can only be used for the benefit of society if they reach a vast number of
people and gather their support". Article 5 of the Bill of Fundamental Rights of South
West Africa specifically protects the right to freedom of expression.

The findings

Levy J concluded that in light of the Cabinet’s decision to require a R20,000 deposit
on the basis only of Lister’s prior criticism of members of the Cabinet, without any
evidence of other factors that may have influenced their decision, the Court had no
alternative but to set the decision aside.28

4.2 Cabinet, Interim Gov. SWA v Frank Chikane29

24 Supra.
25 Publications Control Board v William Heinemann 1965 (4) SA 137 (A).
26 S v Turrell 1973 (1) SA 248 (C).
27 (ibid.).
28 Supra.
29 Cabinet, Interim Gov. SWA v Frank Chikane 1988 (86) 521 SCAD.
The facts

Mr Frank Chikane's admission into Namibia was barred by the interim government. Mr
Chikane was an anti-apartheid campaigner and former patron of the United
Democratic Front (UDF) in Johannesburg. The judgement came in response to a
challenge to the constitutionality of Section 9 of the SWA Regulation Act 33 of 1985,
which governs the residence of certain persons. On the other hand, the transitional
government was more concerned with suppressing political opponents than defending
the Constitution.

The legal issues

The Supreme Court had to decide if section 9 of the SWA Regulation Act 33 of 1985's
Residence of Certain Persons conflicted with the interim government's Bill of Rights.

Ratio Decidendi

The Supreme Court of Appeal applied a purposeful interpretation of the Constitution,

basing its conclusions on the fact that the Bill of Rights was designed to be protected
by the Constitution.

The findings

The Supreme Court declared the Act unconstitutional, invalid, and unenforceable
since it did not comply with the Bill of Fundamental Rights.

5. Administrative law now: settled jurisprudence on administrative law after

1990

5.1 President of the Republic of Namibia and Others v Anhui Foreign Economic
Construction Group Corporation Ltd and Another30

The facts

The Permanent Secretary in the Ministry of Works and Transport wrote to Anhui on
December 3, 2015, informing it that it had been awarded a tender to upgrade and

30
President of the Republic of Namibia and Others v Anhui Foreign Economic Construction Group
Corporation Ltd and Another 2017 (2) NR 340 (SC).
expand the Hosea Kutako International Airport near Windhoek for a sum of over U$
447 million. 31

Within a week, a succession of news items came in the print media alleging anomalies
on the part of the Namibia Airports Company, as well as bribery and corrupt practices,
as well as general questions about the magnitude of expenditure. Following these
reports, on December 22, 2015, the President of Namibia issued a media statement
referring to the allegations and stating that the award had been terminated and that he
would instruct the Minister of Works and Transport to invoke Section 9 of the Airports
Company Act, 25 of 1998 to order the NAC to cease all project activities.

The legal issues

The Supreme Court had to determine whether the High Court was right to set aside
the Minister’s decision to direct the discontinuation of all activities relating to the
project.32

The Ratio Decidendi

According to the Supreme Court, the default position is to put an invalid act on hold
and return the case back to the responsible functionary. Furthermore, the court
determined that there were no compelling reasons to overturn the erroneous directive.
The fact that it was a public interest case involving large-scale public procurement
needed rigorous attention to statutory obligations. This was required for good
governance and transparency. The court went on to say that maintaining the
Constitution and the rule of law by reversing unconstitutional government actions is in
the public interest.

The findings

The court found that the High Court was correct in setting aside the Minister’s directive.

31 (ibid.).
32 (ibid.).
 6. References and bibliography

Books

Hoexter, C. 2012. “Introduction to Administrative Law”. Administrative Law in South

Africa (2nd edition), Cape Town: Juta & Co, pp14-15

Cases

Cabinet, Interim Gov. SWA v Frank Chikane 1988 (86) 521 SCAD.

Free Press of Namibia v Cabinet, Interim Gov. SWA 1987 (1) 614.

Johannesburg Consolidated Investment Co Ltd v Johannesburg Town Council 1903

TS 111.

Publications Control Board v William Heinemann 1965 (4) SA 137 (A).

President of the Republic of Namibia and Others v Anhui Foreign Economic

Construction Group Corporation Ltd and Another 2017 (2) NR 340 (SC).

S v Turrell 1973 (1) SA 248 (C).

Journal article

Mureinik, E. 1994. “A bridge To Where? Introducing the Interim Bill of Rights of South
African”, Journal on Human Rights, Vol. 31, pp. 31-48.

Legislation

Administration of Justice Proclamation No. 21 of 1919.

The Constitution of Namibia, 1990.

Internet references

Bangamwabo, F-X. 2010. Constitutional supremacy or parliamentary sovereignty

through back doors: Understanding Article 81 of the Namibian Constitution. Available
at
http://www.kas.de/upload/auslandshomepages/namibia/HumanRights/bangamwabo.
pdf; last accessed on [17 April 2022].
Centre for Constitutional Studies.2020. Supremacy of Parliament. Available at
https://www.constitutionalstudies.ca/2019/07/supremacy-of-parliament/; last
accessed on [18 April 2022].

Global Freedom of Expression; globalfreedomofexpression.columbia.edu. Available

at https://globalfreedomofexpression.columbia.edu/cases/free-press-namibia-pty-ltd-
v-cabinet-interim-government-south-west-africa/; Last accessed on [19 April 2022].

UK Parliament. Glossary. Parliamentary Sovereignty. Available at

https://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/; last
accessed on [17 April 2022].