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No. 185 | Promulgation of Community Courts Act, 2003 (Act No. 10 of 2003), of the Parliament ........................................................................................................... _______________ | 1 |
Government Notice |
No. 185 2003
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 10 of 2003: Community Courts Act, 2003.
ACT
To provide for the recognition and establishment of community courts; to provide for the appointment of Justices and for clerks and messengers of court; to provide for the application of customary law by community courts; to provide for the jurisdiction of and procedure to be adopted by community courts; to provide for appeals from community courts to other courts; and to provide for connected and incidental matters.
(Signed by the President on 31 July 2003)
BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:
1. In this Act, unless the context indicates otherwise
“area”, in relation to a traditional community, means the geographic area habitually and predominantly inhabited by that traditional community;
“area of jurisdiction”, in relation to a court recognized or established under this Act, means the area for which that court has been so recognized or established;
“assessor” means an assessor who has been appointed as such under this Act;
“community court” means a community court recognized under section 2 or established under section 4;
“customary law” means the customary law, norms, rules of procedure, traditions and usages of a traditional community in so far as they do not conflict with the provisions of the Namibian Constitution or any other statutory law applicable in Namibia;
“financial institution” means a financial institution authorized to conduct banking business under the Banking Institutions Act, 1998 (Act No. 2 of 1998), or a building society finally registered as such under the Building Societies Act, 1986 (Act No. 2 of 1986);
“Justice” means a Justice appointed in terms of section 8;
“magistrate” means the magistrate of a district and includes an additional magistrate of that district;
“magistrate’s court” means the magistrate’s court of a district in which the community court concerned is situated;
“Minister” means the Minister responsible for Justice;
“prescribe” means prescribe by regulation under this Act;
“this Act” includes any regulation made under section 32;
“traditional authority” means the traditional authority referred to in section 2 of the Traditional Authorities Act, 2000 (Act No. 25 of 2000);
“traditional community” means an indigenous, homogenous, endogamous social grouping of persons comprising of families deriving from exogamous clans which share a common ancestry, language, cultural heritage, customs and traditions, recognises a common traditional authority and inhabits a common communal area; and includes the members of that community residing outside the common communal area;
“traditional leader” means a traditional leader as defined in section 1 of the Traditional Authorities Act, 2000 (Act No. 25 of 2000).
2. (1) Where immediately before the commencement of this Act
and one or more traditional authorities have been established and recognized in accordance with the Traditional Authorities Act, 2000 (Act No. 25 of 2000) for that traditional community, such authority or authorities may apply in writing to the Minister for recognition in respect of the area of the traditional community of a court (hereinafter referred to as a community court).
(2) An application referred to in subsection (1) shall be made within such period as may be determined by the Minister by notice in the Gazette and shall contain the following particulars:
(a) | The name of the traditional community in respect of which a court is to be recognized; |
(b) | the area of such traditional community in respect of which jurisdiction is to be exercised by such court; |
(c) | whether a body of appeal contemplated in subsection (1)(b) existed in such area before the commencement of this Act; |
(d) | the names of the persons who in terms of this Act are qualified to be appointed as Justices or assessors; |
(e) | such further information as the Minister may require. |
(3) | If on receipt of an application referred to in subsection (1) the Minister is |
satisfied that the requirements referred to in that subsection have been met and that the application contains all the particulars required by subsection (2), the Minister shall in respect of the area to which the application relates recognize by notice in the Gazette a community court for that area.
3. (1) A traditional authority of a traditional community may apply in writing to the Minister for the establishment of a community court in respect of the area of that traditional community, but only if no court has been recognized or established under this Act for that area.
(2) An application referred to in subsection (1) shall contain the following particulars:
4. (1) If on receipt of an application referred to in section 3 the Minister is satisfied that such application contains the required particulars and that no court has been recognized or established under this Act in respect of the area to which the application relates he or she shall by notice in the Gazette establish a community court for the area mentioned in the notice, and such community court shall within that area exercise the jurisdiction conferred on it by or under this Act.
5. The Minister with the concurrence of the Minister of Finance shall, subject to such conditions as the Minister acting with such concurrence may determine or prescribe, at any time grant to a community court out of moneys appropriated by Parliament such financial assistance as may be necessary for defraying expenses in connection with the administration of such community court.
6. (1) A traditional authority shall on behalf of the community court in its area open and operate a revenue account with any financial institution into which shall be paid all moneys accruing to such court in terms of this Act.
7. (1) A community court shall be presided over by one or more Justices appointed by the Minister in accordance with the provisions of section 8 for such community court.
8. (1) Subject to subsection (2), the Minister shall for each community court in writing appoint as Justices the persons who in are in terms of section 3(2)(c) named for appointment as Justices, and shall cause any such appointment to be made known by notice in the Gazette.
9. A community court shall appoint a clerk of the court and a messenger of the court to exercise such functions as may be conferred or imposed upon such clerk or messenger by the community court or in terms of this Act.
10. (1) Subject to subsection (3), there shall be paid from moneys appropriated by Parliament such allowances to Justices and such remuneration to clerks and messengers of court appointed under this Act as may be prescribed under subsection (2).
11. (1) A Justice shall not perform any function as judicial officer of a community court unless he or she has taken an oath or made an affirmation, which shall be subscribed by him or her, in the form set out below, namely:
“I, ........................... (full name), do hereby swear/solemnly and sincerely affirm and declare that I will in my capacity as a judicial officer of a community court administer justice to all persons alike, without fear, favour or prejudice, and as the circumstances in any particular case may require, in accordance with the laws and customs of the Republic of Namibia.”
(2) Any such oath or affirmation shall be taken or made in the official language or in any other language before the magistrate of a district in which the community court in question is situated, who shall at the foot thereof in writing make a statement to the effect that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.
12. A community court shall have jurisdiction to hear and determine any matter relating to a claim for compensation, restitution or any other claim recognized by the customary law, but only if
13. In any proceedings before it a community court shall apply the customary law of the traditional community residing in its area of jurisdiction: Provided that if the parties are connected with different systems of customary law, the community court shall apply the system of customary law which the court considers just and fair to apply in the determination of the matter.
14. If a community court entertains any doubt as to the existence or content of a rule of customary law relevant to any proceedings, after having considered such submissions thereon as may be made and such evidence thereon as may be tendered by or on behalf of the parties concerned, it may, without derogation from any other lawful source to which it may have recourse, consult decided cases, text books and other sources, and may receive opinions, either orally or in writing to enable it to arrive at a decision in the matter: Provided that
15. (1) The official language or any other language including the sign language which a community court may decide upon may be used during any proceedings before that community court.
(2) If the proceedings are conducted in a language with which any party to the proceedings before the community court
a competent interpreter shall be called by the community court in order to translate such evidence into a language with which such party professes or appears to the community court to be sufficiently conversant.
16. Aparty to any proceedings before a community court shall appear in person and may represent himself or herself or be represented by any person of his or her choice.
17. (1) Every process of a community court shall be of force throughout the Republic of Namibia.
(2) A messenger of the court appointed under section 9 shall serve any process of the community court for which he or she was appointed.
18. (1) Every community court shall be a court of record.
19. (1) Subject to this Act, the practice and procedure in accordance with which the proceedings of a community court shall be conducted, including procedures and rules relating to evidence, the manner of execution of any order or decision and the appropriation of fines shall be in accordance with the applicable customary law, but all proceedings shall be in accordance with the principles of fairness and natural justice.
(2) No person shall give evidence or be examined as a witness in a community court unless he or she
“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.”.
20. (1) A community court may issue a summons requiring any person to appear at the time and place mentioned therein to testify to a subject matter before the community court.
21. (1) In any proceedings before a community court, the community court may
at any stage before an order is made, either of its own accord or on application by any interested party, refer the matter to the magistrate’s court for directions as to the transfer of that matter to any other court.
(2) The magistrate’s court to whom a matter has been referred in terms of subsection (1) may
22. (1) Subject to this Act, a community court may in proceedings before it make any or all of the following orders
(a) an order for compensation, damages, restitution or specific performance according to customary law;
(b) any order as to costs, fees or other charges, payable in money or an equivalent amount in kind.
23. (1) If an order of a community court is not satisfied within the period specified by that community court, the person in whose favour it was given may register the order at the magistrate’s court by lodging with the clerk of such magistrate’s court a copy of the order of the community court duly certified as such by the clerk of the community court.
(2) The clerk of the magistrate’s court shall, at the request of a person who has registered an order of a community court as contemplated in subsection (1), issue to such person a writ of execution in respect of the order and such writ shall be executed by a messenger of the magistrate’s court in all respects as if the order were that of the magistrate’s court.
24. (1) Where compensation was awarded by a court other than a community court to an injured person under any law for any damage or loss suffered by such person and the compensation was accepted by him or her, the person against whom such award was made shall not be liable at the suit of the first-mentioned person to any proceedings in a community court in respect of the injury for which the award was made.
(2) Where compensation was in accordance with the customary law awarded by a community court under this Act to an injured person for any damage or loss suffered by him or her, the person against whom the award was made shall not be liable at the suit of the first-mentioned person in any other court (including a community court) for the payment of compensation in respect of the injury for which the award was made.
25. If during proceedings before a community court it comes to the attention of such court that there is already an action pending in another court (including a community court) between the same parties based on the same cause of action, and in respect of the same subject matter, such court shall stay those proceedings until
26. (1) A party to any proceedings in a community court who is aggrieved by any order or decision of that community court may appeal to the magistrate’s court: Provided that where the appeal is lodged against an order or decision of a community court recognized under section 2, and such court is vested with the jurisdiction contemplated in the proviso to subsection (5) of that section, an aggrieved party shall first exhaust his or her rights of appeal existing within such community court: Provided further that if such party is dissatisfied with the decision of such last-mentioned court he or she may appeal against such decision to the magistrate’s court.
27. (1) Notwithstanding the provisions of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), a magistrate’s court shall have jurisdiction to hear and determine any appeal against any order or decision of a community court, and for the purposes of such appeal the magistrate presiding
28. (1) Subject to subsection (2), a magistrate may in determining an appeal against an order or decision of a community court (hereinafter in this section referred to as the court of first instance)
(d) give or make any order which, in accordance with the applicable customary
law, the circumstances may require.
(2) A magistrate shall not on appeal give or make any order that exceeds the jurisdiction of the court of first instance.
29. (1) An appeal against an order or decision made or given by a magistrate’s court under section 28 shall lie to the High Court.
(2) An appeal referred to in subsection (1) shall be noted and dealt with in the same manner as if it were an appeal in civil proceedings referred to in Chapter XI of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).
30. (1) Any person who wilfully
shall be guilty of an offence and upon conviction by the community court be liable to a fine not exceeding N$1 000 or to the payment of an equivalent amount in kind as determined by that community court.
shall be guilty of an offence and may forthwith be removed and detained in custody, as if he or she were a prisoner awaiting trial, until the rising of the community court and shall in addition to such removal and detention be liable to a fine not exceeding N$1 000 or the payment of an equivalent amount in kind as determined by that community court.
31. No person shall act as a member of a community court unless such person has been appointed as a Justice of a community court recognized or established under this Act, and where such person purports to act as a duly appointed Justice without having been so appointed
Regulations
32. (1) The Minister may make regulations in relation to
(a) | the instituting of proceedings in community courts; |
(b) | the procedure to be observed in community courts; |
(c) | the times and places of holding court sittings; |
(d) | the manner in which records shall be kept of evidence and of proceedings in the court and the custody and disposal of such records, and the duties of the clerk of the court in respect thereof; |
(e) | the manner of procuring the attendance of witnesses; |
(f) | the appointment of interpreters and the allowances payable to them; |
(g) | the service or execution of any process of a community court and the fees payable in respect thereof; |
(h) | the hours during which the office of the clerk of a community court shall be open for the transaction of business; |
(i) | the translation of court records by a sworn translator; |
(j) | any matter required or permitted to be prescribed by regulation under this Act or which the Minister may consider necessary or expedient to prescribe in order to ensure the proper dispatch and conduct of the proceedings of a community court. |
33. (1) Subject to subsections (3) and (4), the laws specified in the Schedule are hereby repealed to the extent indicated in the third column of that Schedule.
34. This Act shall be called the Community Courts Act, 2003, and shall come into operation on a date to be determined by the Minister by notice in the Gazette.
LAWS REPEALED (Section 33)
Column 1 No. and year of law | Column 2 Title of law | Column 3 Extent of repeal |
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Proclamation No. 28 of 1923 | Rehoboth Community: Confirmation of Agreement Proclamation, 1923 | The whole |
Proclamation No. R.348 of 1967 | Civil and Criminal Jurisdiction. -Chiefs, Headmen, Chiefs’ Deputies and Headmen’s Deputies, Territory of South West Africa Proclamation, 1967 | The whole |
Proclamation No. R.222 of 1969 | Civil and Criminal Jurisdiction. -Chiefs, Headmen, Chiefs’ Deputies and Headmen’s Deputies, Territory of South West Africa Amendment Proclamation, 1969 | The whole |
Proclamation No. R.320 of 1970 | Jurisdiction of Chiefs, Chief Tribal Councillors (Ngambelas), Tribal Councillors (Kuta Members), Tribal Councils (Kutas), Headmen of Wards (Silalo Indunas) and Representatives of Chiefs. - Eastern Caprivi Zipfel Proclamation, 1970 | The whole |
Proclamation No. R.304 of 1972 | Civil and Criminal Jurisdiction. – Chiefs, Headmen, Chiefs’ Deputies and Headmen’s Deputies, Territory of South-West Africa Amendment Proclamation, 1972 | The whole |
Proclamation No. R.241 of 1973 | Civil and Criminal Jurisdiction. – Chiefs, Headmen, Chiefs’ Deputies and Headmen’s Deputies, Territory of South-West Africa Amendment Proclamation, 1973 | The whole |
Proclamation No. 160 of 1975 | Proclamation to provide for the establishment of a Nama Council, Tribal Authorities and Village Management Boards in Namaland, 1975 | The whole |
Proclamation No. AG. 70 of 1980 | Jurisdiction of Traditional Authorities in Hereroland in respect of Civil and Criminal Amendment Proclamation, 1980 | The whole |
Act No. 27 of 1985 | Native Administration Proclamation Amendment Act, 1985 | The whole |
Ordinance No. 2 of 1986 | Damara Community and Regional Authorities and Paramount Chief and Headmen Ordinance, 1986 | The whole |
Ordinance No. 3 of 1986 | Tswana Chief and Headmen Ordinance, 1986 | The whole |