Namibia, Supreme Court of Namibia, 2 September 2022, SA 53/2020
Case overview
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Link to the full text of the decision
General Summary
An appeal by the Government to the Supreme Court against the orders of the High Court declaring the President’s suspension of certain provisions of the Labor Act 11 of 2007 (the Labor Act) and his delegation of directive-making powers to Cabinet Ministers unconstitutional.
Facts of the case
After declaring a State of Emergency during the outbreak of the Covid-19 pandemic, the President of Namibia proceeded to impose a nationwide lockdown restricting the movement of people save those performing ‘essential services.’ The President purported to do so in accordance with the terms of Art. 26(5)(b) of the Constitution. The lockdown affectively stopped all economic activity and workers were required to remain at home with the likelihood they would lose income. To protect workers’ salaries, the President suspended certain provisions of the Labor Act 11 of 2007 (ss 12, 23 and 34) which employers relied upon to mitigate losses due to the pandemic and the imposition of a lockdown. These provisions, if not suspended, allowed employers to retrench workers, reduce their working hours at reduced remuneration, or compel them to take leave without pay. The President also instituted Regulations 14 and 15 to delegate his regulation–making power to ministers under Art. 26(5)(b) of the Constitution. Two employers’ organisations challenged Reg. 19 on the basis that it was aimed solely at protecting workers’ livelihoods and did not meet the constitutional threshold of being ‘reasonably justifiable’ to deal with the situation that gave rise to the State of Emergency. The employers’ organisations also challenged the President’s delegation of directive-making power to ministers on the basis that it was ultra vires Art. 26(5)(b), as only the President was authorised to make regulations. The High Court sided with the employers’ organisations and struck down the suspension regulations as well as the President’s delegation of directive-making powers. The Government appealed to the Supreme Court, arguing that the High Court had failed to interpret Art. 26(5)(b) ‘broadly and purposively’ and that Art. 26(5)(b) must be interpreted to contain the implied power of the President to make regulations to mitigate the consequences of measures he takes to deal with a SOE (in this case the pandemic). With regard to striking down delegation regulations, the Government maintained that the challenge was premature as the President had not actually delegated any power to ministers.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
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Private collective
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Reasoning of the deciding body
The Court noted that Art. 26(5)(b) of the Namibia Constitution must be interpreted to include the implied power of the President to make regulations to deal with the situation that created the State of Emergency, but that such regulations must themselves be reasonably justifiable for the stated purpose. The further removed a regulation from the situation, the higher the burden of justification required; such regulations must also be reasonable and rationally connected to the legitimate objective of arresting the spread of the pandemic.
Conclusions of the deciding body
The Court held that Regulation 19 19(1)(a), (1)(b), 19 (1)(c), 19(2), 19(4), 19(6), 19(8); and 25, in as much as it relates to the impugned provisions of Proclamation No. 16, contained in the “State of Emergency Covid-19 Regulations, Proclamation No. 16 of 2020,” were declared unconstitutional and thus invalid. The Court also held that the above provisions were both unreasonable and irrational and therefore that the High Court’s order invalidating them was correct; It also held that the challenge to the directive–making power was premature and thus that the High Court’s order regarding Regulations 14 and 15 must be set aside.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Supreme Court stated that the High Court had erred in declaring the evidence from the Minister of Labor and the Attorney General to be hearsay. The Ministers of Health and Labor, as experts on the issues at stake, and the A-G as the government’s principal legal advisor, played a key role in the formulation of policy related to the declaration of a SOE and passing associated regulations. They therefore bore direct, first-hand knowledge of the reasons that prompted the President to declare the SOE and order the regulations in question. The matters they deposed to therefore fell within their personal knowledge as members of the Cabinet on whose behalf and at whose behest the President acted.
Impact on Legislation/Policy
Declared provisions of the State of Emergency - Covid-19: Suspension of Operation of Provisions of Certain Laws and Ancillary Matters Regulations: Namibian Constitution (Suspension Regulations) to be unconstitutional.
Impact on national case law
Complementary
