Namibia: LGBTQ+ Rights – Who will have the final say?

A recent Supreme Court judgement has renewed hope for the recognition of LGBTQ+ rights in Namibian law. The Digashu judgement, read with the dissenting judgment, has demonstrated that recognition of LGBTQ+ rights in Namibia is increasingly becoming a matter that can no longer be ignored by the legislature.

This article briefly highlights the findings of the Supreme Court in Digashu and illustrates that, although the judgment is a step in the right direction, it still leaves much room for the development of law in this area, in as far as the recognition of LGBTQ+ rights are concerned. It also touches on certain statements made in Parliament by the Honourable Prime Minister on 6 June 2023, showing that the Government aims to have the final say on the issue.

The Consolidated appeal

The judgment considers a consolidated appeal on two matters involving foreign nationals legally married to Namibian citizens in same-sex marriages outside of Namibia, with one couple having solemnised their union in South Africa and the other in Germany.

Essentially, the appellants sought declaratory orders, recognising their same-sex marriage as valid marriages. Both appellants had applied for permanent residence permits under the Immigration Control Act (Act) and were denied such application by the Ministry of Home Affairs on the basis that the unions so relied on, were not recognised in Namibia as valid marriages for purposes of the exemption in section 2(1)(c).

A ‘key question’ considered by the Court was whether the refusal by the Ministry of Home Affairs to recognise same sex marriages from foreign jurisdictions involving a Namibian and a non-Namibian is compatible with the Constitution. Amongst other human rights violations, the appellants argued against the infringement of their right to dignity and their right to equality before the law.

Their arguments were premised on the fact that their marriages were validly entered into in foreign jurisdictions, and thus falling within the definition of a ‘marriage’ in its ordinary meaning and in the context of the Act. In particular, the appellants sought an order recognising them as being ‘spouses’ in validly concluded marriages, so as to be included in the interpretation of the word ‘spouse’ in section 2(1)(c) of the Act, exempting such spouses from applying for permanent residence and/ or work permits in terms of the Act.

The benefit of such recognition is obvious. Indeed, a spouse of a Namibian citizen is entitled to reside in and to work in Namibia without the need to obtain the permits otherwise subject to application by non-citizens in terms of the Act.

As alluded to above, the Supreme Court Judgement is split, having concurring and dissenting arguments. The majority, concurring judgement opined as follows:

  • In interpreting the rights in the Namibian constitution, the courts are tasked with affording them the widest possible meaning for purposes of protecting the greatest number of rights.
  • Where a marriage (irrespective of its Sapphic/ Achillean nature) is validly concluded in foreign jurisdictions, it stands to be recognised for purposes of the Act, as the Act fails to define the word marriage/ spouse, leaving its interpretation open to the ordinary meaning of the word.
  • If such marriages stand to be recognised, then the parties to such marriages are spouses for purposes of  section 2(1)(c) and are exempt from applying for permits as required by the Act.

The scope of the judgment

As a settled principle in law, the Supreme Court was only duty bound to determine the issues that were before it. Accordingly, as far as developing the law is concerned, the judgment is restricted to the application of the word ‘spouse’ under section 2(1)(c) of the Act. The LGBTQ+ community remains without the recognition and protection that can arguably be required by a broad and purposive interpretation of our Bill of Rights.

Consequently, the judgement does not necessarily speak to the recognition of same-sex marriages in general, but makes such marriages applicable for purposes of section 2(1)(c) of the Act.

Additionally, despite declaring that same-sex couples, who have concluded a valid marriage outside of Namibia are regarded as spouses for purposes of section 2(1)(c), the majority judgment failed to address whether sexual orientation is included in the prohibited grounds of discrimination in terms of article 10(2), as it relates to equality – leaving that up for determination in another constitutional challenge.

What does this mean for the LGBTQ+ community?

It means nothing has changed in respect of the recognition of the LGBTQ+ community and the recognition of their right to establish a family and have that family recognised and protected by law.

However, where a marriage is concluded in a foreign jurisdiction, the spouses in such a marriage (where one is a peregrines of Namibia) would by virtue of Digashu, be exempt from applying for any permits required by the Act, and would be entitled to the exemption afforded by section 2(1)(c) of the Act.

The Government fights back

A fundamental component of any democratic government is the exercised principle of separation of powers, which requires that one branch of government refrain from interfering in the functions of another.

On 6 June 2023 the Prime Minister, Honourable Saara Kuugongelwa- Amadhila announced that Parliament intends to table a bill which will effectively try to nullify what the Supreme Court found in its majority judgment.

Whether the Government can lawfully legislate on an issue which would conceivably be unconstitutional is unlikely. What is most telling about the statements made by the Honourable Prime Minister is that the Government is desirous of legislating on an issue that is seemingly contrary to a finding of the Supreme Court when interpreting our Bill of Rights, specifically the rights to dignity and equality.

This would threaten the separation of powers in Namibia, a foundation principle of our democracy.
The heated debates speak to the contemporary nature of the issues raised in Digashu.

Africa: Private Equity takeaways from the recent AVCA and SAVCA Conferences

During May 2023, members of our Bowmans’ Private Equity Practice attended the annual African Private Equity and Venture Capital Association (AVCA) Conference held in Cairo, Egypt, and the annual Southern African Venture Capital and Private Equity Association (SAVCA) Conference held in Stellenbosch, South Africa. The AVCA conference delved into the challenges and success of investing in Africa. The SAVCA conference highlighted the resilience of the South African private equity landscape.

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Namibia: Are employees always entitled to severance pay upon resignation?

Severance payment to employees is regulated under Section 35 (1) of the Labour Act, 11 of 2007 (Act).

The Act sets out three specific instances when an employer must pay severance pay to an employee, namely:

  • where the employee is dismissed, unless the dismissal was on grounds of misconduct, poor work performance or if the employee unreasonably refuses to be reinstated;
  • where the employee dies while employed; or
  • where the employee resigns or retires on reaching the age of 65 years.

As a condition precedent to receiving severance pay, the Act prescribes that an employee is only entitled to severance pay where they have completed 12 months of continuous employment with the employer.

Severance pay to an employee, as a statutory minimum, comprises an amount equal to one week’s remuneration for every 12 months of continuous employment with the same employer. Where an employee is lawfully dismissed for a valid and fair reason and in terms of a valid and fair procedure a dismissed employee is not entitled to severance pay. However, where the employee is dismissed on a non-fault basis, such as when they are retrenched or dismissed for incapacity due to ill health, an employer must pay severance.

In the case of a death of an employee, their family is entitled to receive severance pay from the employer. In the absence of a will, the employer must pay the severance to the employee’s surviving spouse; or to the employee’s children if there is no spouse; and lastly to the employee’s estate, as outlined in section 35 (6) of the Act.

Under section 35 (1)(c) an employee is entitled to severance pay if at the age of 65 they resign or retire.

The Gibeon matter and severance pay upon resignation

Certain interpretations given to section 35(1)(c) of the Act view the inclusion of the word ‘or’ undersection 35(1)(c) to indicate that an employee is entitled to severance pay if the employee resigns, regardless of age.

This interpretation may derive from a reading of the Namibian Labour Court case of Gibeon Village Council vs Uaaka as authority to support the view that any employee is entitled to severance pay upon resignation, regardless of age.

Upon a proper consideration of the appeal record, the papers filed in the matter as well as the judgment, it is seen that the employee filed a dispute against her erstwhile employer for unfair labour practices and severance pay.

Upon further consideration it is noted that the ‘severance’ that the employee claimed was for the payment of ‘leave gratuity’ that she believed she was entitled to upon her resignation. The employee in this instance was not 65 years of age. The Labour Court ordered that the employee was to be paid ‘severance pay that is due to her in terms of section 35 of the Labour Act 11 of 2007’.

We are of the considered view that the substance of the Gibeon matter did not concern the payment of severance pay as contemplated under section 35 of the Act, and that the payment which the employee sought was for her ‘leave gratuity’ as provided for under section 37 of the Act. Respectfully so, we do not believe that the Gibeon matter is authority for the position that all employees are entitled to severance pay upon resignation from employment.

Applying the canons of statutory interpretation, ‘the cardinal rule of construction is that words of a statute must be given their ordinary, literal or grammatical meaning if the words are clear and unambiguous, unless it is apparent that such literal construction would lead to manifest absurdity, inconsistency, injustice or would be contrary to the intention of the legislature’.

In our view an ordinary, literal and grammatical reading of section 35(1)(c) of the Act does not result in an absurdity, inconsistency or injustice. The sub-section must be read as a whole, and the word ‘resignation’ must be read as linking to the condition that the employee must be 65 years of age. We are of the considered view that an employee is not entitled to severance pay if the resignation or retirement takes place before the age of 65.

Namibia: Bail – An assessment of the Fishrot accused

Pre-trial detention refers to the practice of depriving individuals of their fundamental freedoms because they are accused of committing an offence or because they are merely suspected of being involved in a crime. In this article two themes will be addressed: police bail vs formal bail and a brief analysis of the infamous Fishrot bail applications.

Police bail vs formal bail applications

Bail may in certain limited circumstances be granted by the police. This kind of bail is referred to as ‘police bail’. Police bail may only be granted for very minor offences, such as driving under the influence of alcohol. If police bail cannot be granted in terms of section 59 of the Criminal Procedure Act, Act 51 of 1977 (Act), or if it can be granted but is refused, an accused has every right to apply to a lower court for bail at their first compulsory appearance.

An accused who is in custody in respect of any offence, other than an offence referred to in Part II, Part III or Part IV of Schedule 2 may, before their first appearance in a lower court be released on police bail.

Police bail is not possible in respect of offences referred to in Part II or Part III of Schedule 2 of the Act. Parts II and III include virtually all serious crimes, for example, treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud, and assault (when a dangerous wound has been inflicted).

Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit this, subject to reasonable conditions. An accused is, in the absence of a conviction by a court of law, also constitutionally presumed to be innocent. The purpose of bail is to strike a balance between the interests of society and the liberty of an accused.

An analysis of the Fishrot bail applications

On 1 April 2022, six applicants who had been arrested during different times and detained for periods of between one and two years on charges of corruption, money laundering and fraud, applied for bail pending trial.

The State opposed their application, contending that there was a strong prima facie case against them; that the applicants would abscond and interfere with the case and witnesses; and that it was not in the interests of justice that they be released on bail.

The Court further held that the applicants were facing serious charges involving more than NAD 317 million and that, if they were found guilty, the sentence to be imposed would be severe and there was a likelihood that they would abscond in order to avoid serving long custodial sentences.

The State had led evidence that four of the applicants were facing charges of obstructing the course of justice and had tried to interfere with witnesses and, in the circumstances, the applicants had not satisfied the Court that, if they were released on bail, they would not distort or suppress evidence, and therefore the likelihood that they would interfere with the evidence was reasonably real.

The applicants also failed to place sufficient information before the Court to enable the Court to make a proper assessment of the merits and demerits of admitting them to bail. The applicants had simply stated that they were businessmen, they supported their families, and that they would stand trial and would not interfere with witnesses.

The Court was satisfied that they had failed to prove that it would be in the interests of justice to grant them bail. The applications were accordingly dismissed. The six have since appealed these findings to the Supreme Court and it remains to be seen if a different conclusion will be reached by the Supreme Court.

Contrary to the findings of the Court in the aforementioned matter a different judge of the High Court arrived at a different conclusion in the bail application of Mr Ricardo Jorge Gustavo around 21 December 2021.

The successful application was Mr Gustavo’s second application. The first application was made around December 2019 in the Magistrate’s Court. This was about two years before the second application was made. The first bail application was refused on the basis that it was not in the interest of the public or administration of justice that Mr Gustavo be released on bail.

The successful application was based on new facts, being that the investigations were complete with no threat of interference, additional evidence, medical reasons, changed personal circumstances and infringement of constitutional rights, amongst others. In the successful matter the judge held that the interest of the administration of justice was always a factor which the courts have considered in bail applications under section 60 of the Criminal Procedure Act. The public interest for consideration by the courts in bail applications is the common law as pronounced by the courts and the provisions of the Constitution and legislature.

The Court in this matter held that a public outcry which fell foul of the above principles deserves no accreditation or consideration by our courts and that social media opinions, public gatherings and public demonstrations are not barometers of public interest a court should consider.

In this context the Court held that while strict bail conditions serve the public interest, the proper administration of justice, the constitutional values and the general tenets of allowing an accused out on bail in order that he can properly prepare for trial, consult freely with his lawyers and take care of his own health, saved the State unnecessary expenses and a duty to take care of him while incarcerated. It also allowed the accused under the circumstances to take care of himself and the needs of his children and family members. Mr Gustavo was granted bail in the amount of NAD 800 000.

The State has launched an appeal to the Supreme Court to overturn this ruling.

Conclusion

An application to be released on bail is an ancient, traditional procedure and a fundamental right. Where it was established above that bail in itself is not a right, an accused person has the right to apply for bail and to be granted bail when the interests of justice so dicate. The varying decisions discussed in this article demonstrate that a court may apply different interpretations of what constitutes the ‘interests of justice’ based on the facts of each case.