The development of the common law and the stare decisis doctrine as a source of law in Namibia

Abstract

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This dissertation endeavors to trace the evolution of the common law and its related doctrine of stare decisis as a source of law in Namibia. It is wholly directed at articulating a better understanding of how common law has developed and its continued survival vis-a-vis other operative laws of Namibia

It is indispensable to properly determine the development of our common law without first reverting back to its origin that is to carry out a preliminary study of the historical background of Namibia's legal system. This paper would, for this reason, refer back to the origin of the subject matter before expounding on the new developments

Article 140(1)' of the Namibian Constitution preserves the body of common law in Namibia as it stood before 1990(2). This preservation of common law is subject to the proviso contained in Article 66(1), which stipulates that the common law remains valid to the extent to which such law does not conflict with the constitution or any statutory law. With the vast emergence of statutes as a primary source of law, this paper will further evaluate the survival and retention of the common law principles (inter alia, the stare decisis doctrine) as a source of law in this era of statute invasion

What remains speculative, however, is how far this 1920(3) law has developed in Namibia, which parts of this law are still in use and which fell into disuse and are therefore repealed

This research is thus restricted to the development of the common law as a source of law within the Namibian legal system. In brief, the reception, retention and development of the Roman-Dutch law in South Africa and Sri Lanka is analyzed in comparison with that of Namibia. The pivotal question, however, remains: how far has the Namibian common law survived and developed in the in the ge of statutes?

In conclusion the paper will expose how far the common law has developed in Namibia, and attempt to recommend solutions to unsettled issues as identified throughout the study.