SOME NOTABLE DIVERGENCES IN THE DEVELOPMENT OF SOUTH AFRICAN AND NAMIBIAN INSOLVENCY LAW

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.

THE OFFENCE OF BEING FOUND IN DISGUISE IN SUSPICIOUS CIRCUMSTANCES

The statutory criminal prohibition on the use of disguises in suspicious circumstances has a venerable history in South African law. A form of this offence can be found in the pre-Union legislation (as well as in s 9(2) of Proclamation 27 of 1920 and s 3(2) of Proclamation 5 of 1937 of the former South West Africa). It is noteworthy that there are very few reported cases dealing with the various forms of this offence. Nevertheless it is evident that the offence serves an important function. In its review of various statutes relating to justice, the South African Law Reform Commission comments, in respect of the current formulation of this offence found in section 1 of the Prohibition of Disguises Act (16 of 1969), that “it enables police officers to approach persons in suspicious circumstances, which could prevent crime occurring, for example, masked persons outside a bank”, and consequently it is recommended by the SALRC that the offence should therefore be retained.

THE “WORLD’S GREATEST MINERAL LOCALITY”: HAIǁOM, NDONGA, HERERO, AND THE EARLY COLONIAL HISTORIES OF TSUMEB, NAMIBIA

The Tsumeb copper mine in the Otavi Mountains of Namibia is famous both for its spectacular mineral specimens and for its unparalleled diversity of mineral species. The site was mined for nearly 100 years, first by Anglo-German and then by multinational companies; however, prior to that, the site was central to the economies of the Ndonga, Haiǁom, and Herero, who mined, smelted, crafted, and traded the copper. This paper attempts to fill a major gap in the early history of Tsumeb: how did control of Tsumeb’s copper transfer from local communities to Germany? By synthesizing a wide variety of sources, this paper tells pre-colonial and early colonial histories of copper in the Tsumeb area, focusing on the Haiǁom who mined the copper, the Ndonga who smelted and crafted it, and the Herero who had historical relationships with the land. Throughout, the paper attempts to connect Tsumeb’s local history with the larger regional context of South West Africa (now Namibia), and to provide a more in-depth account of the communities whose roles, in previous mineralogic histories of Tsumeb, have been reduced to: ‘trouble with the natives.’

Sandfontein: An Operational Re-examination of the Battle, Contextualised within General J.C. Smuts’ First Phase of the German South West African Campaign 1914

The battle of Sandfontein November 26, 1914 marked the fledgeling Union Defence Force’s first defeat. Historians have used this long-forgotten battle as a lens to view the divisive political and military aspects of the Union’s early history. Unfortunately, some of their scholarship has passed through a distorted lens. Official histories were the first to obfuscate military and leadership shortcomings and interfere with the operational context surrounding Sandfontein. Theirs was for political reasons—a mission to protect delicate reputations and mollify a divided population. Historians have erroneously assumed that General J.C. Smuts’ initial plan for the invasion of German South West Africa 1914 was modified to exclude Walvis Bay/Swakopmund’s occupation. Instead, delays in occupying Walvis Bay/Swakopmund placed the UDF’s forces at Lüderitzbucht in a precarious position. Sandfontein, a desperate attempt to distract the Schutztruppe, was an operational failure, rather than the tactical faux pas portrayed by historians.

The Concept of “Indigenous Land Tenure” Surfaces in Namibia: A Comparative Overview ‒ Agnes Kahimbi Kashela v Katima Mulilo Town Council (SA 15/2017) [2018] NASC 409 (16 November 2018)

The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the then-South West Africa (now Namibia). In 1985, the Caprivi region fell under the then-South West Africa Administration. Following the independence of Namibia on 21 March 1990, all communal lands became property of the state of Namibia by virtue of section 124 of the Constitution of Namibia Act 1 of 1990, read with Schedule 5 of the Constitution. Paragraph (3) of Schedule 5 of the Constitution states that the afore-mentioned communal lands became property of the state “subject to any existing right, charge, obligation or trust existing on or over such property”.

Disruption of Social Settings in Selected Narratives of Genocide

Social settings are what characterise each society hence they vary from one society to the other. If these social settings are disturbed by any force internally or externally, chaos becomes inexorable. Between 1904-1908 at the dawning of the 20th century, a genocide happened where Herero and Nama people of the then German South West Africa (present day Namibia) were nearly completely exterminated by German soldiers. Through the selected narratives of genocide: Parts Unknown (2018) by Zirk Van Den Burg, The Lie of the Land (2017) by David Jasper Utley, The Weeping Graves of Our Ancestors (2017) by Rukee Tjingaete, The Scattering (2016) Lauri Kubuitsile, and Mama Namibia (2013) by Mari Serebrov, this paper explores the disruption of social settings as represented in the selected texts. Founded within the disruption of social settings of the Herero and Nama people are three key issues namely: interference with family set ups; discounting religion, culture and tradition; and violation of revered places. The article concludes that the presence of the Germans brought with it a miserable overhaul to the indigenous people’s lives.

Competitive Authoritarianism in a Constitutional Democracy

The overwhelming dominance of the former liberation movement the South West Africa People’s Organisation (SWAPO) in terms of electoral support since independence resulted in a de facto one-party rule in Namibia’s democracy for the last 30 years. This has, in democracy theories, been labelled as competitive authoritarianism, and made it easy for SWAPO to fully endorse the democratic principles vested in the country’s Constitution, adopted as the last step to national sovereignty resumed on 21 March 1990. This chapter presents an overview on the SWAPO dominance in Namibia’s political system. It then looks at the degree the party and its leaders recognize and respect the constitutional democracy. It ends with a summary of the last National Assembly and Presidential elections, which suggest a turning point towards a loss of dominance and legitimacy of SWAPO, while still retaining the political control.