IN
THE SUPREME COURT OF NAMIBIA CASE NO.: SA 2/92

In the matter
between

THE GOVERNMENT OF
THE REPUBLIC OF NAMIBIA 1ST APPELLANT

THE MINISTER OF
FINANCE 2ND APPELLANT

and

CULTURA 2 000 J J
BRANDT

Coram: Mahomed,
C.J.

Dumbutshena, A.J.A.
Chomba, A.J.A.

Heard on:
1993/04/05 Delivered on: 1993/10/15

JUDGMENT

MAHOMED, C. J. :
The Respondents in this appeal were the Applicants in an application
brought against Appellants before a full Bench of the High Court of
Namibia for an Order inter alia declaring the State Repudiation
(Cultura 2000), Act 32 of 1991, ("The Act") to be
unconstitutional, null and void. The Court a quo granted this
declaration and directed the

- 2 -

Appellants to pay
the costs of the Respondents including the costs of two Counsel.

The First Respondent
is said to be an association not for gain incorporated in terms of
the Companies Act of 1973 and the Second Respondent, who brought the
application in his personal capacity, was the chairman of the Board
of Directors of the First Respondent.

The First Respondent
was incorporated on the 28th February 1989 and according to its
memorandum of association its main object was the preservation of the
culture of "The Afrikaans, German, Portuguese, English and other
communities of European descent as represented by the founding
members". In his founding affidavit the Second Respondent
alleged that the main object in forming the First Respondent was the
"Maintenance, development and promotion of the culture of the
West European cultural groups", but in a letter addressed to the
"Administration for Whites" on the 25th of March 1989, the
Second Respondent (in his capacity as chairman of the Board of
Directors of the First Respondent) informed Mr. Odendaal (in his
capacity as member of the Executive Committee for the Administration
for Whites) that the Second Respondent had decided first to
"establish a privatised cultural centre for the Whites"
with the available funds which included certain contributions from
the "Administration for Whites". In various other documents
emanating from this Administration for Whites the First Respondent
is also often treated as being a body

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established for the
cultural activities of the "Whites" and the allocation of
assistance to it is similarly justified as being for the activities
of "Whites".

It is common cause
that during March 1989, just one year before the independence of
Namibia and during transitional period leading to such independence,
the First Respondent was the recipient of a number of very valuable
assets from the "Representative Authority for Whites¹¹
in the territory. On the 23rd March 1989 the farm "Regenstein"
was sold to the First Respondent for a consideration of R318 000,00
and on the 28th March 1989 the same Representative Authority for
Whites donated to the First Respondent a sum of R4 million on the
condition that it was to be applied for the purposes set out in the
memorandum of association of the First Respondent. On the same date a
further sum of R4 million was paid by the same Authority to the First
Respondent as a loan carrying interest at 1% per annum re-payable in
76 equal installments half yearly on the 31st March and 3 0th
September of each year.

On the 28th February
1990, just three weeks prior to the formal independence of Namibia
and after the results of the general election were therefore known,
this loan of R4 million was converted into an outright donation by
the then Administrator-General appointed by the South African
Government. Mr. Gerhardus Hanekom, the Minister of Finance, in the
First Appellant, claimed that these payments to the First Respondent
were made "as a deliberate stratagem to support the

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operation of the
apprehended new Constitution", to "frustrate the
anticipated results of the election" and "because of the
apprehension of a new democratic society in which privilege on a
racial basis would not be permitted". He said that these
payments were the "dowry" which was "secured"
before independence. These conclusions are denied by the Respondents,
although no convincing reasons were suggested particularly for the
timing of the conversion of the loan to a donation so shortly before
the imminent formal independence of Namibia.

The Appellants also
rely on the fact that the allocations, to which I have referred, were
all made to the Respondent pursuant to a policy of compulsory, pseudo
- ethnic and racial classification which was imposed upon the people
of Namibia before independence in terms of Proclamation AG 8 of 1980
enacted by the Administrator-General. This was not in dispute.

Our attention was
further drawn to the judgment of the Court in ex parte Cabinet for
S.W.A. : in re Advisory Opinion 1988 (2) SA 832 (SWA) at 865 G in
which it was said:

"...members of
the White population group receive substantially bigger advantages
and privileges on account of their membership in that population
group than do the members of the remaining population groups.
Furthermore, they receive those advantages as a result of a group
clearly being established (within the context of the proclamation) on
either ethnic, racial or colour grounds, and therefore fall squarely
within the unqualified prohibition set out in art. 3 of the Bill of
Rights". (c/f Hollinqton v Hewthorn Co. Ltd., 1943(2) AER
35.)

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Relying inter alia
on these circumstances the Court a quo referred to the policy
of racial discrimination followed under the previous administration
and concluded that

"First
Applicants¹ roots and the roots of some of those
responsible for the establishment and functioning of the first
Applicants, originate in the murky depths of such policy"

Levy, AJP (as he
then was) giving judgment on behalf of a unanimous Court also stated
that:

"... with the
background which existed in Namibia and considering the part played
by the Representative Authority for Whites in the formation of first
Applicants and considering the highly suspect motives of the
Administrator-General in converting a R4 million loan into a donation
three weeks before independence, it can be understood that
Respondents may well use harsh and critical tones when referring to
Applicants or to those responsible for the formation of first
Applicants".

The Constituent
Assembly of Namibia adopted the Namibian Constitution on 9th February
1990. This Constitution was published in the Government Gazette of
the 21rd March 1990. Namibia became an independence State on that
day.

The Constitution of
Namibia articulates a jurisprudential philosophy which, in express
and ringing tones repudiates legislative policies based on the
criteria of race and ethnicity, often followed by previous
administrations prior to the independence of Namibia.

"Throughout the
preamble and substantive structures of the Namibian Constitution
there is one golden and unbroken thread - an abiding 'revulsion' of
racism and

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apartheid. It
articulates a vigorous consciousness of the suffering and the wounds
which racism has inflicted on the Namibian people 'for so long' and a
commitment to build a new nation 'to cherish and to protect the gains
of our long struggle¹ against the pathology of apartheid.
I know of no other Constitution in the world which seeks to identify
a legal ethos against apartheid with greater vigour and intensity".
(S v Van Wvk. 1992(1) SACR 147 (Nm. SC) at 172 - 173) .

This basic temper of
the Constitution appears throughout from the terms of the Preamble
itself which provide inter alia that:

"Whereas
recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is indispensable for
freedom, justice and peace;

Whereas the said
rights include the right of the individual to life, liberty and the
pursuit of happiness, regardless of race, colour, ethnic origin, sex,
religion, creed or social or economic status;

Whereas these rights
have for so long been denied to the people of Namibia by colonialism,
racism and apartheid;

Whereas we the
people of Namibia -

have finally emerged
victorious in our struggle against colonialism, racism and apartheid;

are determined to
adopt a Constitution which
expresses for ourselves and our
children our
resolve to cherish and to protect the gains of
our
long struggle;

Now therefore, we
the people of Namibia accept and adopt this Constitution as the
fundamental law of our Sovereign and Independent Republic."

The same temper is
manifest in Art. 10(2) which provide that no persons may be
discriminated against on the grounds of sex, race, colour, ethnic
origin, religion, creed or social or

7 -

economic status and
in the pungent terminology of Article 23(1) which provides that

"The practice
of racial discrimination and the practice and ideology of apartheid
from which the majority of the people of Namibia have suffered for so
long shall be prohibited and by Act of Parliament such practices, and
the propagation of such practices, may be rendered criminally
punishable by the ordinary Courts by means of such punishment as
Parliament deems necessary for the purposes of expressing the
revulsion of the Namibian people at such practices."

Similarly Art.
63(2)(i) gives the National Assembly the power

"to remain
vigilant and vigorous for the purposes of ensuring that the scourges
of apartheid, tribalism and colonialism do not again manifest
themselves in any form in a free and independent Namibia and to
protect and assist disadvantaged citizens of Namibia who have
historically been the victims of these pathologies."

It is manifest from
these and other provisions that the Constitutional jurisprudence of
a free arid independent Namibia is premised on the values of the
broad and universalist human rights culture which has begun to emerge
in substantial areas of the world in recent times and that it is
based on a total repudiation of the policies of apartheid which had
for so long dominated lawmaking and practice during the
administration of Namibia by the Republic of South Africa.

Article 144 of the
Constitution sought to give expression to the intention of the
Constitution to make Namibia part of the international community by
providing that unless the

1

- 8 -

Constitution
otherwise stipulated, "the general rules of public
international. law and international agreements binding upon Namibia
under this Constitution shall form part of the law of Namibia"
and further providing in Article 145 that

"(1) Nothing
contained in this Constitution shall be construed as imposing upon
the Government of Namibia:

2. 
   any obligations to
   any other State which would not otherwise have existed under
   international law;

   
   

3. 
   any obligations to
   any person arising out of the acts or contracts of prior
   Administrations which would not otherwise have been recognised by
   international law as binding upon the Republic of Namibia.

   
   

(2) Nothing
contained in this Constitution shall be construed as recognising in
any way the validity of the Administration of Namibia by the
Government of the Republic of South Africa or by the
Administrator-General appointed by the Government of the Republic of
South Africa to administer Namibia."

What is the effect
of Articles 144 and 145, regard being had to the fact that under
international law, the administration of Namibia by South Africa, at
all times relevant to this appeal, was illegal whilst its acts and
laws performed in the territory continued nevertheless to be regarded
as lawful and enforceable by the municipal Courts? (see Binaa v
Administrator-General South West Africa and Others,
1984(3) SA 949 (SWA); Duqard: The South Africa - Namibia Dispute
p. 477 -• 479) .

Clearly many of
the laws enacted by the South African Government during its
administration of Namibia and many of the

- 9 -

acts performed by
that administration during that time were plainly inconsistent with
both the ethos and the express provisions of the new Constitution and
therefore unacceptable to the new Namibia. But there were clearly
other acts with no ideological content such as the registration of
births, deaths and marriages for example, which did not fall into
that category and there would clearly be chaos in the administration
of the Country by a future government, if all such acts, regardless
of the their character or content, were to be considered invalid
simply on the "logical" ground that they were performed by
an administration considered to be illegal, (see: Dugard The South
Africa - Namibia dispute p. 477 - 479). On the other hand acts of
the previous Administration, which might appear on the face of it to
be purely administrative and ideologically colourless and
unobjectionable, might on proper investigation be discovered to be
hopelessly unacceptable and entirely motivated by policies plainly
inconsistent with the express and clear intention of the
Constitution.

The Constituent
Assembly applied its mind to these problems by enacting Art. 140
which provides as follows:

2. 
   Subject to the
   provisions of this Constitution, all laws which were in force
   immediately before the date of Independence shall remain in force
   until repealed or amended by Act of Parliament or until they are
   declared unconstitutional by a competent Court.

   
   

3. 
   Any powers vested
   by such laws in the Government, or in a Minister or other official
   of the Republic of South Africa shall be deemed to vest in the
   Government of the Republic of Namibia or in a corresponding Minister
   or official of the

   
   

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Government of the
Republic of Namibia, and all powers, duties and functions which so
vested in the Government Service Commission, shall vest in the Public
Service Commission referred to in Article 112 hereof.

2. 
   Anything done under
   such laws prior to the date of Independence by the Government, or by
   a Minister or other official of the Republic of South Africa shall
   be deemed to have been done by the Government of the Republic of
   Namibia or by a corresponding Minister or official of the Government
   of the Republic of Namibia, unless such action is subsequently
   repudiated by an Act of Parliament, and anything so done by the
   Government Service Commission shall be deemed to have been done by
   the Public Service Commission referred to in Article 112 hereof,
   unless it is determined otherwise by an Act of Parliament.

   
   

3. 
   Any reference in
   such laws to the President, the Government, a Minister or other
   official or institution in the Republic of South Africa shall be
   deemed to be a reference to the President of Namibia or to a
   corresponding Minister, official or institution in the Republic of
   Namibia and any reference to the Government Service Commission or
   the government service, shall be construed as a reference to the
   Public Service Commission referred to in Article 112 hereof or the
   public service of Namibia.

   
   

4. 
   For the purposes of
   this Article the Government of the Republic of South Africa shall be
   deemed to include the Administration of the Administrator-General
   appointed by the Government of South Africa to administer Namibia,
   and any reference to the Administrator-General in legislation
   enacted by such Administration shall be deemed to be a reference to
   the President of Namibia, and any reference to a Minister or
   official of such Administration shall be deemed to be a reference to
   a corresponding Minister or official of the Government of the
   Republic of Namibia."

   
   

Article 140(1) deals
with laws which were in force immediately before the date of
independence and which had therefore been enacted by or under the
authority of the previous South African Administration exercising
power within Namibia. Such laws are open to challenge on the grounds
that they are unconstitutional

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in terms of the new
Constitution. Until such a challenge is successfully made or until
they are otherwise repealed by an Act of Parliament, they remain in
force.

Article 140(3) deals
with actions done by the Government or Administration or other
officials of the Republic of South Africa prior to the date of
Namibia's independence under such laws. Such actions were not and
could not have been performed by the Government of Independent
Namibia or any official of the Republic of Namibia because at the
time when they were performed, Namibia was not yet independent, but
the effect of Section 140(3) is to create a fiction that they were
deemed to be done by the Government of Namibia or a
corresponding minister or official of the Republic of Namibia. That
fiction is however, a reversible fiction and can be so reversed by an
Act of Parliament.

Purporting to act
under Article 140(3) of the Constitution Parliament enacted the Act
in 1991, in which it sought to address itself to the allocation of
monies and the sale of property to the First Respondent which I have
previously described. This Act consists of seven short Sections and
its full text reads as follows:

- 12 -

ACT

To provide for the
repudiation of certain actions done under laws in force prior to the
date of independence of Namibia by the Government or a Minister or
other official of the Republic of South Africa pursuant to Article
140(3) of the Namibian Constitution; and to provide for matters
incidental thereto.

(Signed by the
President on 12 December 1991)

BE IT ENACTED by the
National Assembly of the Republic of Namibia, as follows:-

1. In this Act,
unless the context otherwise indi­cates -

"date of
independence" means 21 March 1990;

"Minister",
in any provision of this Act, means the Minister to whom, or the
Minister to whom acting in consultation with another Minister, the
adrninistration of that provision has been assigned by proclamation
issued under section 5;

"the
Association" means Cultura 2 000 incorporated as an association
without gain in terms of section 21 of the Companies Act, 1973
(Act 61 of 1973), and includes its directors, agents, successors or
assigns, as the case may be.

2. (1) Subject to
the pt) visions of subsection (2), the following actions done under
laws in force prior to the date of independence by the Government or
a Minister or other official of the Republic of South Africa as
contemplated in Anicle 140 of the Namibian Cojistitution, are hereby
repudiated, namely -

- 13 -

2. 
   the sale, donation
   or other alienation of movable or immovable property, whether
   corporeal or incorporeal, including any right in or over such
   property;

   
   

3. 
   the entering into
   any lease;

   
   

4. 
   the granting of any
   loan or subsidy;

   
   

5. 
   the rendering of
   any other form of financial assistance,

   
   

whether in money or
in kind, and of whatsoever nature, to or in respect of or with the
Association.

(2) For the
purposes of subsection (I), but subject to the provisions of this Act
-

2. 
   any transaction or
   agreement entered into be­t ween the said Government or Minister
   or other official of the Republic of South Africa and the
   Association or any offer of settlement made or accepted by the said
   Government or Minister or official and the Association, as the case
   may be, by virtue of any action so repudiated, shall be null and
   void; and

   
   

3. 
   any obligation of
   whatever nature of the Govern­ment or any Minister or official
   of the Republic of Namibia arising from or related to any action so
   repudiated is hereby terminated.

   
   

3.(1)
Notwithstanding anything to the contrary in any law or the common law
or any agreement or other document contained -

2. 
   in the case of any
   action repudiated under paragraph (c) or (d) of subsection (1) of
   section 2, the whole amount owing in respect of any financial or
   other assistance already rendered by virtue of such action shall,-
   subject to the pro­visions of subsection (2), on the date of
   com­mencement of this Act, become due and repay­able;

   
   

3. 
   in the case of any
   aaion repudiated under paragraph (a) or (b) of subsection (1) of
   that section, any movable or immovable property

   
   

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transferred, as the
case may be, under any'Iaw by such Government, Minister or official
of the Republic of South Africa to the Association, shall, subject to
the provisions of subsection (2), on the date of commencement of this
Act, vest from such date in the Government of Namibia, and any lease
in respect of any such property shall on such date be regarded as
cancelled.

(2) For the purposes
of subsection (1)-

2. 
   in the case of
   paragraph (a) of that subsection, any amount so due and repayable
   may be recovered by the institution of legal proceedings;

   
   

3. 
   in the case of
   paragraph (b) of that subsection -

   
   

(i) the officer in
charge of the deeds registry shall, without payment of transfer duty,
stamp duty or any other fee or charge and upon production to him or
her of the title deed of any immovable property which vests in terms
of the provisions of this Act in the Government of Namibia, endorse
such title deed to the effect that the immovable pro­perty
described therein is vested in the Government of Namibia, and sh»H
make the necessary entries in his or her registers, and thereupon the
said title deed 5h*n serve and avail forall purposes as proof
of the title of the Government of Namibia in respect of the said
property; or

(ii) if the
owner of the property in question fails to produce the title deed
thereof or if the holder of any mortgage bond over such property
fails to consent to the cancellation of the bond or the release of
the property from the operation of the bond, such officer shall
nevertheless pass transfer of the property and note the transfer on
the duplicate title filed in his or her office and in the appropriate
registers.

(3) Notwithstanding
anything to the contrary in this Act or in any other law contained,
the Minister may in his or her discretion on application by a person
concerned determine the. terms and conditions subjea to which any

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amount recoverable
from such person under this Act shall be repayable.

4. (1) The
President may by proclamation in the
Gazette assign the
adWnistration of the provisions of this
Act to any Minister, or
partly to one Minister and partly to
another Minister, or assign
to different Ministers the
administration of any of the said
provisions in so far as they
relate to different specified
actions, and may in such
proclamation prescribe the powers and
functions which
shall be exercised and performed by the several
Ministers,
and may further prescribe that any power or duty
conferred
or imposed by this Act upon the Minister *han be
exercised
or performed by one Minister airing in consultation
with
another Minister.

(2) The President
may from time to time vary or amend any such proclamation.

5. No action shall
lie against the State, or any
Minister or official of any Ministry
as H*fin>*H in section 1 of
the Public Service Act, 1980 (Act 2
of 1980), arising from
or in consequence of anything done in good
faith under this
Act

2. 
   This Act shall
   also apply in respect of actions repudiated under section 2 which
   may be the subject matter of pending legal proceedings, or in
   respect of which judgment may have been delivered
   prior to the date of commencement of this Act.

   
   

3. 
   This Act shall be
   called the State Repudiation (Cultura 2 000) Act, 1991, and shall
   come into operation on a date to be determined by the President by
   procla­mation in the Gazette.

   
   

- 16 -

The proceedings
in the Court a quo.

The Respondents
applied for and obtained from the Court a quo an order
declaring unconstitutional the whole of the Act.

The grounds upon
which the Respondents in the present appeal sought to attack the Act
in the Court a quo are summarised in six paragraphs in the
judgment of Levy, A.J.P., as follows, in which he refers to the
present Respondents as the Applicants before him.

"1. The Act,
particularly Section 2 and 3, constitutes a statutory expropriation
of First Applicant's property in conflict with Article 16, read with
Articles 5 and 63 of the Constitution;

2. 
   constitutes a
   'statutory derogation' of First Applicant's right to practise,
   profess, maintain and promote the culture, language or traditions of
   certain persons or groups in conflict with the provisions of Article
   19 read with Articles 5 and 63 of the Constitution; and

   
   

3. 
   constitutes a
   derogation of Second Applicant's right to profess, maintain and
   promote his own culture, language or traditions, alone or in
   association with others in conflict with the provisions of Article
   19 read with Articles 5 and 63 of the Constitution.

   
   

4. 
   Applicants allege
   furthermore that the Repudiation Act (particularly sections 2 and 3
   thereof) discriminates against Applicants and those sections are
   arbitrary and unequal in their content and operation and therefore
   conflict with the provisions of Article 10 read with Articles 5 and
   63 alternatively Article 22 of the Constitution.

   
   

5. 
   Applicants also
   allege that the provisions of the Repudiation Act in general but
   particularly Sections 2 and 3, 'violate the cultural rights promoted
   by First Applicant and practised, professed, enjoyed, maintained and
   promoted' by Second Applicant in association with others,

   
   

- 17 -

which are protected
by International Law and discriminate in an arbitrary and/or racial
and/or impermissible manner between persons in violation of
International Law as incorporated in Namibian law under Article 144
of the Constitution.

6. Finally
Applicants allege that the provisions of Section 3 and 5 of the
Repudiation Act derogate from the First Applicant's right to have its
rights and obligations determined in a fair trial by a competent
Court as contemplated in Articles 1, 12, 78 and 80 of the
Constitution."

The real ground on
which the Court a quo declared the Act to be unconstitutional,
was however, different from these submissions and was based on an
argument apparently not articulated in the Court a quo and not
supported before us on appeal by any of the parties. This ground,
crisply stated, is based on two propositions:

The first
proposition is that all the actions of the previous Administration in
selling property and donating monies to the First Respondent were
"completed" or "implemented" acts leaving the new
State upon its independence with no further obligations to perform;
and the second proposition is that upon a proper construction of
Article 140(3) of the Constitution the legislature is only entitled
to "repudiate" acts which had not been "completed"
by the previous Administration and which would therefore otherwise
have saddled the new State with obligations, (in the absence of a
repudiation in terms of Article 140). This reasoning appears from the
following passages in the judgment of Levy, A.J.P.

"Both the
donations and the deed of sale were implemented and there were no
further obligations on the State as a result thereof. First
Applicant became

- 18 -

the owner of the
monies donated. It spent some of it, as it was entitled to do, and
also took transfer into its name of the farm Regenstein paying the
State the purchase price. First Applicant has occupied the farm since
such transfer and according to the evidence before us, it has used it
for the purpose intended. Article 140(3) provides that anything done
by the Government or officials of the previous regime will be deemed
to have been done by the Government of Namibia •unless such action
is subsequently repudiated by an Act of Parliament¹...

...the type of
'action' which can be repudiated in terms of Article 140(3) by the
Namibian Parliament is not one which has already been fulfilled and
which is final. The reference in Article 140(3) to 'an action' must
both in its context and as a matter of reasonable practicality, be
construed as an action in consequence of which the previous
administration or its officials bound itself to do or forbear
something in the future... The repudiation is not a denial of the act
itself but is a declaration that the consequences which flow from it
are not binding and will not be performed."

With great respect
to a judgment formulated with considerable care and diligence, I am
unable to agree with this reasoning.

Article 140(3)
contains a deeming provision coupled with the power to reverse such
deeming by an Act of Parliament, if it so wishes in the future. The
effect of the deeming provision is to create a legal fiction as a
substitution for the truth and the purpose of the reversing or
repudiating power is to enable Parliament to enact legislation
through which the fiction introduced by the deeming can be undone and
again substituted with the true position.

As I have previously
stated the actions taken under laws in operation prior to the
independence of Namibia by officials by the previous Administration
were never in truth and never could have been the actions of the
subsequent Government of an

- 19 -

independent Namibia
or by its corresponding minister or official, but they are deemed
fictitiously to have been so. This legal fiction can be reversed
however, by a repudiating act which reverses the fiction. The result
of such an act is simply that the true position is restored and such
acts continue to remain the acts of the previous Government or its
officials and not deemed to be the acts of the new Government after
independence (or its corresponding officials) . This is all that a
repudiation in terms of Article 140(3) means. That this is the proper
approach to the meaning of such a deeming provision appears from the
judgment of Moulton, L.J., in the case of R. v Dibdin. (1910)
P. 57, 125 where he stated that:

"The fallacy of
the proposed method of interpretation is not far to seek. It sins
against the fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it stands
as a proviso. It treats it as if it were an independent enacting
clause instead of being dependent on the main enactment."

This fallacy has
also been pointed out on other occasions:

(Ex parte
Partington (1844) 6 Q.B. 649 and 653;

Re Brocklebank,
(1889) 23 Q.B.D. 461;

Hill v East and
West India Dock Co. , (1884) 9 App.

Cas. 448).

Thus understood,
there is nothing in the language of Article 140(3) of the
Constitution which justifies" the conclusion that the intention
of the Constitution was to limit the power of repudiation conferred
on Parliament by Article 140(3), to "uncompleted" acts or
acts of the previous Administration which

- 20 -

had not been
"implemented". Indeed the opposite is true. As I have
previously indicated, the Constitution expresses" "the
strongest revulsion of the new State to the policies and actions of
the previous Administration based on the policy of apartheid. There
can therefore be no convincing reason why the power given to
Parliament to repudiate, what is after all a reversible legal
fiction, in substitution of the truth, should not be available for
the restoration of the truth whether the act performed by the
previous Administration had been "completed" or
"uncompleted". To hold otherwise would be to oblige the
Parliament of the new State forever to be saddled with imputation,
that the acts of the previous Administration in making the donations
and sales which it did to the First Respondent, are deemed to be the
acts of the new Government and its officials, however, repugnant such
acts might have been in the perception of the new Parliament.

Such a result would
be anomalous and the result of giving to the Constitution a narrow,
mechanistic, rigid and artificial interpretation. This is not the
proper approach to the interpretation of the Constitution of a
Country.

A Constitution is an
organic instrument. Although it is enacted in the form of a Statute
it is sui generis. It must broadly, liberally and purposively
be interpreted so as to avoid the "austerity of tabulated
legalism" and so as to enable it to continue to play a creative
and dynamic role in the expression and the achievement of the ideals
and aspirations of

- 21 -

the nation, in the
articulation of the values bonding its

people and in
disciplining its Government. An interpretation

of Article 140(3)
which limits its potential operation only to

acts by the previous
Administration which were "uncompleted",

would not give to
the clear words of the Article a construction

which is "most
beneficial to the widest possible amplitude"

(James v
Commonwealth of Australia, (1936) AC 578 at 614;

Minister of
Defence. Namibia v Mwandinqhi. 1992(2) SA 355 (Nm

SC) at 361 - 363;
S. v Acheson. 1991(2) SA 803 (nM) AT 813

a-c; S v
Marwane, 1982(3) SA 717 (A) at 748H - 749G; Ex parte

Cabinet for the
Interim Government of South West Africa: In re

Advisory Opinion
in terms of s 19(2) of Proc. R101 of 1985.

(RSA) 1988(2) SA 832
(SWA) AT 853 C - G; Hewlett v Minister of

Finance and
Another_f 1982(1) SA 490 (ZS); Minister of Home

Affairs and
Others v Dabengwa and Another, 1982(4) SA 301 (ZS)

at 306 E - H;
Minister of Home Affairs v Bickle and Others.

1984(2) SA 439 (ZS)
at 447 G - G; Zimbabwe Township Developers

(Pvt) Ltd v Lou's
Shoes (Pvt) Ltd. 1984(2) SA 778(ZS); and

Bull v Minister
of Home Affairs. 1986(3) SA 870 (ZH & ZS) at

872 J - 873 C and at
880 J - 881 C.)

There is nothing in
the ordinary meaning of the word "repudiation" which
justifies giving to that expression the limited construction which
found favour in the Court a quo. To "repudiate"
means simply "to disown; to refuse to acknowledge; to refuse to
recognise the authority of". This is exactly what Section 2(1)
of the Act seeks to do. It simply give power to Parliament to disown
or turn its back upon acts perpetrated by

- 22 -

the previous
Administration before the independence of Namibia, whether such acts
were at the time of their perpetration lawful or unlawful.

It is true that in
the context of contracts, the word "repudiation" is often
used in relation to unfulfilled obligations, but in the context of
Article 140(3) it is quite unnecessary to give it so restrictive a
meaning, particularly having regard to the fact that Section 2(1) of
the Act (as distinct of Sections 2(2) and 3 of this Act) does not,
for the reasons which I have discussed and will again return to
later, purport to undo anything which had been done by the previous
Administration prior to the independence of Namibia: it merely
reverses a legal fiction.

Nothing contained in
the case of Minister of Defence. Namibia v Mwandinghi. 1992(2)
SA 355 (Nm SC) , upon which reliance was placed in argument before us
is inconsistent with the view I have expressed as to the proper
meaning and operation of Article 140(3). The issue' in that case was
whether the Namibian Minister of Defence could be sued for damages
suffered by a plaintiff in consequence of delicts committed in
Namibia by the servants of the previous Administration before Namibia
gained its independence. This Court upheld the submission of the
plaintiff that he could maintain such an action for damages against
the new State in the absence of an Act of the Namibian Parliament,
under Article 140(3) of the Constitution, repudiating the relevant
acts perpetrated by the previous

- 23 -

Administration
before the independence of Namibia. The plaintiff in that case had
not recovered his damages before the date of Namibia's independence
and the Court therefore was dealing with what can be describe as. an
"uncompleted or unimplemented transaction" but the Court
did not say and did not intend to say that if the transaction had
been "completed" or "implemented", a
"repudiation" could not for that reason be enacted in terms
of Article 140(3).

In my view
therefore, the Court a quo erred in its conclusion that
Article 140(3) of the Constitution precluded Parliament from enacting
an Act which sought to "repudiate" the acts of donation and
sale to the First Respondent which had been made by or on behalf of
the previous Administration of Namibia, and further erred in its
consequential conclusion that the Act was unconstitutional and
invalid for that reason.

This, does not
however, dispose of the issues articulated on appeal before us. What
still remains open is:

firstly, whether or
not Section 2(1) of the Act is unconstitutional on grounds other than
the grounds upon which the judgment of the Court a. quo was
based and

secondly, whether or
not the relevant parts of the Act, other than Section 2(1) are
unconstitutional, even if Section 2(1) itself might be
constitutional.

- 24 -

The issues
narrowed during the appeal.

In the original
Notice of Appeal the Appellants appealed against the whole of the
judgment and order of the Court a quo, but in a letter
addressed to the Registrar on the 2 6th February 1993 the Office of
the Government Attorney indicated that the attack which Appellants
would on appeal make on the order of the Court a quo would be
against the finding that Section 2(1) of the Act was
unconstitutional. When argument in this matter commenced on appeal,
Counsel for the Appellants originally maintained that real
attack was confined to the finding that Section 2(1) of the Act was
unlawful. Later, and in consequence of certain questions from the
Bench, Counsel submitted that Section 2(2) was also constitutional
and even suggested at some stage that Section 3 was constitutional,
but it was eventually conceded by him that his attack was effectively
confined only to the finding in the Court a quo that the
substantive part of Section 2(1) of the Act (read with the defining
and ancillary provisions of Sections 1 and 7) was unconstitutional
and it was formally agreed by all the parties before us that the
Notice of Appeal could be regarded as having been amended so as to
confine the appeal on the merits to the single issue as to whether or
not the Court a quo was correct

in its conclusion
that Section 2(1) of the Act (read with

7 Sections 1 and 4)
was unconstitutional and therefore null and

void. In the
result it is unnecessary for this Court to

express any final
conclusions as to the constitutionality or

otherwise of Section
2(2) or Section 3. (The constitutionality

- 25 -

of the formal
defining and administrative Sections of the Act, contained in
Sections 1, and 7, if Section 2(1) was indeed valid, was never in
real issue in argument before us.)

What therefore
remains to be considered on the merits of this appeal are the attacks
made on the constitutionality of Section 2(1) of the Act on grounds
other than the grounds which found favour with the Court a quo
and which I have, for the reasons previously stated, rejected.

In his very thorough
argument, Mr. Hodes, SC, who appeared for the Respondents in this
appeal (together with Mr. Maritz and Mr. Van Rooyen) vigorously
maintained that what the legislature had sought to do in enacting the
Act was to declare null and void the donations which the First
Respondent had obtained from the previous Administration as well as
the sale of the property to it and effectively to require the return
of these assets to the State, without any compensation whatever and
that this constituted a contravention of Article 16 of the
Constitution which guaranteed to all persons in Namibia the right to
acquire, own and dispose all forms of movable and immovable property
and the right to just compensation if any such property was
expropriated in the public interest. There can, in my view, be no
doubt that the effect of Section 2(2) and Section 3 of the Act is
indeed to declare these transactions between the First Respondent and
the previous Administration

- 26 -

null and void and
that no provision is made for any compensation to be paid to the
First Respondent, but the constitutionality of these Sections is no
longer an issue which this Court is required to determine, for the
reasons which I have already mentioned. For the purposes of this
appeal it must therefore be assumed that Section 2(2) and Section 3
of the Act are indeed null and void. The question which therefore
arises is not whether these Sections of the Act invade Article
16 of the Constitution but whether Section 2(1) does so.

In his powerful
analysis Mr. Kentridge, QC, (who appeared for the Appellants with Mr.
Gauntlett, SC, and Mr. Coleman) contended that it does not.

For the purposes of
resolving this debate it is necessary to examine what the legislature
sought to do in enacting the Act. On a proper analysis of its
provisions, it seems to me to contain three separate objectives
(whatever be the constitutionality or otherwise of any one or more of
such objectives).

In the first place
it seeks to "repudiate" the actions of the previous
Administration, which are detailed in sub-paragraphs (a), (b) , (c)
and (d) of Section 2(1) and which all pertain to the allocation of
funds made to the First Respondent and the sale of the property
effected to it before Independence. This repudiating objective is
expressed in Section 2(1) of the Act. The constitutional authority
for this must ultimately be based on Article 140(3) of the
Constitution;

- 27 -

Secondly it seeks to
define certain statutory consequences and to create statutory
machinery, following upon such repudiation, in terms of which the
monies paid to the First Respondent by the previous Administration
become repayable and the property transferred to it becomes vested in
and retransferred to the Government of Namibian. The Act seeks to
achieve that objective through the provisions of Section 2(2) and 3;

In the third place
the Act makes incidental provisions such as the authority of the
President to assign the administration of the Act from one minister
to another, the regulation of immunity for certain officials
performing act in good faith under the act, the application of the
Act to legal proceedings determined prior to the date of the
commencement of the Act the date upon which the Act came into
operation and the definition of words. These incidental objectives
are contained in Section 1, 4, 5, 6 and 7 of the Act.

It is crucial to
understand the fundamental distinction between the first and the
second objective. The first objective is simply repudiatory. It is
effected in terms of Article 140(3) of the Constitution by Section
2(1). It simply reverses the fiction that the acts of the previous
Administration in allocating monies to the First Respondent and in
selling property to it, were the acts of the new Government or its
officials. The effect of this repudiation is that these acts must, in
law, continue to be regarded as the acts of the previous
Administration as they in fact were. By itself,

- 28 -

Section 2(1) does
not purported to attain any other objectives. It does not purport to
enact that the agreements or transactions between the previous
Administration and the First Respondent, are null and void. Section
2(2)(a) does this. It does not purported to terminate any obligations
of the new Government of any of its officials arising from the
repudiated action. Section 2(2) (b) does. It does not provides that
the monies paid to the First Respondent by the previous
Administration become due and repayable. Section 3(1)(a) does. It
does not provide that the property transferred by the previous
Administration to the First Respondent becomes vested in the
Government of Namibia. Section 3(1)(d) does. It does not create
machinery for the retransfer of the property of the First Respondent
to the Government of Namibia. Section 3(1)(d) does.

Because the
constitutionality of Section 2(2) and Section 3 of the State
Repudiation Act, is not in issue in this appeal, it is unnecessary
for me to consider whether these Sections are open to attack on the
grounds that they invade the right of the First Respondent to
acquire, own and dispose property in Namibia and its right to receive
just compensation in the event of any expropriation of such property
in the public interest. What is clear however, is that if the attack
on the constitutionality of the State Repudiation Act based on
Article 16 of the Constitution is a good attack, it must be an attack
targeted against Section 2(2) and Section 3 of the Act and not an
attack properly targeted against Section 2(1) of the Act, which seeks
to reverse a fictitious deeming and no more.

- 29 -

Although, in
arriving at this conclusion, I have considered only the attack based
on Article 16 of the Constitution dealing with the fundamental right
to property and to just compensation on expropriation, the reasoning
upon which this conclusion is based, would also apply to the attack
based on the proposition that State Repudiation Act invades the
rights of the First Respondent and its members to enjoy, practise,
profess, maintain and promote their culture, language or tradition by
the depriving them of the means with which they can enjoy, practise,
maintain or promote these rights. Even if I were to assume that the
facts adduced in the evidence presented in this case establish such
an attack and even if I were to assume that this would be a good
attack on the Act, it is again an attack which must be targeted
against Section 2(2) and Section 3 of the Act and not Section 2(1).

The same reasoning
would apply to any other fundamental rights in the Constitution which
could be said to be invaded by the Act.

Mr. Hodes drew our
attention to the judgment of Strydom, AJP, (as he then was) in the
case of Mwandinai v The Minister of Defence - Namibia, 1991(1)
SA 851 (Nm) and more particularly to the following passages at pages
859.

Although sub-art (3)
(of art. 140) reserves the right to repudiate actions for which the
previous Government may be responsible, this repudiation is by Act of
Parliament which must comply with the provisions of the Constitution.
Therefore, if such repudiation should be in conflict with cap 3 of
the Constitution (Fundamental Human Rights and Freedoms), it is bound
to be set aside by the Court."

- 30 -

Strydom, AJP, was
perfectly correct in his observation that a repudiation in terms of
Article 140(3) of the Constitution must be effected by an Act of
Parliament. This is clear from Article 140(3). It therefore follows
that if the Repudiating Act unlawfully invades any of the fundamental
rights and freedoms guaranteed by chapter 3 of the Constitution, it
would be vulnerable to constitutional attack, because in terms of
Article 63 the power of the National Assembly to enact legislation
must always be exercised "subject to (the) constitution".
Strydom, AJP, in Mwandingi's case (supra) did not say however,
that all Acts of Repudiation in terms of Article 140(3) would by
themselves necessarily "be in conflict with chapter 3 of the
Constitution" and therefore "bound to be set aside by the
Court". What he did say was that ".if such repudiation
should be in conflict with chapter 3 of the Constitution" it had
to be set aside by the Court.

I have therefore
carefully considered the terms of Section 2(1) of the Act to examine
whether any of the fundamental rights and freedoms of the Respondents
can be said to be invaded by that sub-section (as distinct from
Section 2(2) or Section 3). For the reasons which I have previously
discussed I have come to the conclusion that Section 2(1) does not in
fact invade the right of the First Respondent in terms of Article 16
of the Constitution, to own the "immovable property" which
it acquired from the previous Administration nor its right to just
compensation in the event of expropriation of any such property nor
its right in terms of Article 19 of the Constitution to

- 31 -

profess, maintain
and promote the culture, languages or traditions of its members,
(upon which reliance was placed on behalf of the Respondents). Was
some other "right" of the Respondents perhaps invades by
Section 2(1)?

The only other such
conceivable right suggested during argument was the loss of the
"right" of the Respondents to continue to regard the
Namibian Government, after independence, or its corresponding
official, to be a party to the original acts by which the First
Respondent acquired the property and the monies which it did. It was
suggested that before the repudiation effected by Section 2(1) of the
Act, the First Respondent would have had the right therefore to hold
the Namibian Government responsible, if for example its enjoyment of
the property transferred to it was being impeded by some fault
attributable to the original transferor, but that the effect of
Section 2(1) of the Act, was to deprive the First Respondent of that
"right" and that for this reasons it invaded the
Constitutional guarantee contained in Article 16 of the Constitution.

I am not persuaded
that there is any merit in these suggestions or that they can be of
assistance to the case for the Respondents. These arguments assume
that Article 140(3) of the Constitution, applied to the case of the
First Respondent, firstly causes the First Respondent to acquire and
to own property within the meaning of Article 16 of the Constitution
and secondly to create machinery for the Namibian Parliament
thereafter to take away that "right". This constitutes a

- 32 -

misinterpretation of
what Article 140(3) of the Constitution seeks to do. It seeks to
confer no "rights" at all. It attempts to deal with the
jurisprudential problem pertaining to the obligation of successor
States by deeming that the Acts performed by the previous
Administration and its officials are fictitiously to be attributed to
the new State or its corresponding officials unless Parliament
repudiates that fiction. As Mr. Kentridge rightly pointed out,
"unless" does not mean "until". The article does
not mean that the Constitution vests a "right" in the First
Respondent until it is taken away. Moreover, it is inherent in the
very quality of this deeming that it is capable of reversal by an Act
of repudiation. In my view the deeming provision in Article 140(3)
which creates the fiction that the acts by which the First
Respondents acquired the assets which it did, were deemed to be the
acts by the Namibian Government or its officials, "unless
repudiated by Parliament", was not a "right" to
property protected by Article 16 of the Constitution.

Mr. Hodes suggested
that this conclusion was inconsistent with the decision of this Court
in the case of Minister of Defence -Namibia v Mwandingi.
1992(2) SA 355 (Nm. SC.)and for that contention he relied on the
following passage in the judgment at 364 D:

"Article 140(3)
of the Constitution gives to the post-independence Government of
Namibia the power to repudiate, by a proper Act of Parliament, any
acts done by the previous administration or its officials. Such a
repudiation would necessarily remove the repudiated act from being
attributed to the Namibian Government in terms of art. 140(3)."

- 33 -

It was suggested
that this passage meant that any act of repudiation in terms of
Article 140(3) of the Constitution would necessarily impact upon the
fundamental rights guaranteed by chapter 3 of the Constitution and
that for this reason it would not be "a proper Act of
Parliament" if just compensation was not paid. In my view the
passage quoted does not bear that meaning and was never intended to
do so. What it means is simply that the power of repudiation in terms
of Article 140(3) must be exercised not through executive decree but
by a "proper act of Parliament" i.e. an Act which satisfied
the procedures by which laws initiated by the National Assembly
acquire the status of being enforceable Acts in law.

In the result I am
unpersuaded by any of the articulated or even suggested attacks on
the constitutionality of Section 2(1) of the State Repudiation Act
itself.

Severability.

Mr. Hodes contended
that even if Section 2(1) of the Act otherwise survives the attacks
which he made on its constitutionality, it must be struck down simply
on the ground that it is not severable from the remaining parts of
the Act and more particularly Section 2(2).

In support of that
submission he relied on a large number of Australian, American,
Indian, English and South African authorities. (R.M.D.
Chamarbauowalla v Union (1057) SCR 930 at

- 34 -

945; Bank of New
South Wales & Others v the Commonwealth & Others. 76 CLR
1 at 369* Corpus Juris Secundum, Vol. 82, par. 93, p. 159-160;
Seervai: Constitutional Law of India, 3rd ed, vol. 1, at 126 -
130; 16 Am Jur 2d, p. 737, par. 261; p. 741 - 745, par. 265;
p. 743.)

The test to be
applied is set out as follows in the judgment of Centlivres, CJ, in
the case of Johannesburg City Councel v Chesterfield House (Ptv)
Ltd, 1952(3) SA 809 (A):

"...where it
is possible to separate the good from the bad in a Statute and the
good is not dependent on the bad, then that part of the Statute which
is good must be given effect to, provided that what remains carries

out the main object
of the Statute Where,

however, the task
of separating the bad from the good is of such complication that it
is impractical to do so, the whole Statute must be declared ultra
vires. In such a case it naturally follows that it is impossible
to presume that the legislature intended to pass the Statute in what
may prove to be a highly truncated form: this is a result of applying
the rule I have suggested and is in itself not a test."

In the Chesterfield
House case an Ordinance had created a compensation Court and
further provided for a right of appeal from that Court to the Supreme
Court. It was held that the provision pertaining to the right of
appeal to the Supreme Court was ultra vires, but the Court
nevertheless upheld the remaining parts of the ordinance. That case
was also applied in S. v O'Mallev, 1976(1) SA 469 (N) in which
a certain notice had purported to prohibit meetings "convened,
supported or approved" by certain organisations. It was
successfully contended that the words "supported or approved"
came "close

- 35 -

to being an
unintelligible jumble of words". The Court nevertheless held
that the word "convened" was not open to that objection and
could properly be severed from the remainder.

Mr. Kentridge drew
our attention to Article 25(1) of the Constitution which provides
inter alia that Parliament shall not make any law which
abolishes or abridges the fundamental rights and freedoms conferred
by Chapter 3 and "any law or action in contravention thereof
shall to the extent of the contravention be invalid". I do not
think that this Article in itself resolves the problem raised by Mr.
Hodes. It is perfectly true that a law which includes a part which
contravenes Chapter 3 of the Constitution is only invalid to the
extent to which it does so, but if the parts which do not constitute
such a contravention are not properly severable from the parts that
do, the whole provision may be struck down.

From the analysis
which I made previously it is clear however, that the Act consists of
three separate objectives set out in different parts. The first
objective is to "repudiate" the acts of the previous
administration which in terms of Article 140(3) were otherwise
attributable to the Government of Namibia or its corresponding
officials. That objective is attained by Section 2(1) and is clearly
separable from the second objective which was to set out certain
statutory consequences following upon such repudiation and the
machinery to secure the return of the assets which the First
Respondent had acquired from the previous Administration. This
second objective was sought to

- 36 -

be attained by
Section 2(2) and Section 3 of the Act. The third objective was
incidental to these objectives and was sought to be attained by
Sections 1, 4, 5, 6 and 7.

In my view
therefore Section 2(1) represents a substantive act of repudiation,
which is conceptually and linguistically clearly distinct from
Section 2(2) and the other sections of the Act which seek to define
the statutory consequences following upon such a repudiation and the
machinery for the purposes of obtaining a return of the assets which
the First Respondent had acquired before the independence of Namibia.
I therefore see no reasons why Section 2(1) cannot properly be
separated from Section 2(2) or any of the other Sections which follow
thereupon. I am fortified in this view by the long title to the Act
which states that it is an Act

"to provide
for the repudiation of certain actions done under laws in force prior
to the date of independence of Namibia by the Government or a
Minister or other official of the Republic of South Africa pursuant
to Article 140(3) of the Namibian Constitution; and to provide for
matters incidental thereto."

The long title of
the Act as distinct from the marginal notes, form part of the Act,
and can in these circumstances be properly considered in ascertaining
the proper intention of Parliament (Chotabahi v Union Government
and Another, 1911 AD 13 at 24; Durban Corporation v Estate
Whittaker, 1919 AD 195 at 201 - 2; Fielden v Morlev
Corporation, (1899) 1 Ch. 1 at 4.

There appears to be
nothing in the scheme of the Act, its

- 37 -

language, or the
authorities relied upon by the Respondent, which compels me to the
conclusion that Parliament would not have wanted to enact the
"repudiation" contained in Section 2(1) of the Act if it
was aware that the Courts might declare invalid, in their present
form, those provisions which seek to declare as null and void the
agreements in terms of which the First Respondent obtained its assets
from the previous Administration or if it was aware that the
machinery which it sought to create in terms of Section 3 of the Act
to recover these assets was unenforceable in law.

It was argued that
there would be no purpose in a substantive Act of repudiation by
itself without the consequence and machinery set out in Section 2(2)
and Section 3. There are two answers to that submission. In the first
place there may very well be reason for a Parliament operating in
free and independent Namibia to wish to repudiate a fiction in terms
of which an Act of the previous Administration, to which it might
have the most fundamental objections, continues to be attributed to
it. Secondly it is certainly not self-evident that the Act of
repudiation in Section 2(1) by itself and without Section 2(2) or
Section 3 would have no consequences for any of the parties. There
may be very important consequences flowing from such an Act of
repudiation. In view of the fact that there might possibly be further
litigation between the parties in this matter, following upon this
judgment, it is neither necessary nor desirable for me to deal at
this stage with what these consequences might precisely be,

- 38 -

in the absence of
full argument by or on behalf of the parties affected thereby.

Mr. Hodes relied
strongly on the fact that Section 2(1) of the Act is expressly stated
in the sub-section to be "subject to the provisions of
sub-section 2". It was contended that this phrase made Section
2(1) effectively inseparable from Section 2(2).

Clearly there is no
difficulty in the linguistic treatment of Section 2(1) so as to
delete the words "subject to the provisions of sub-section 2"
and to leave the rest of Section 2(1) intact. The objection to
separating the two sub-sections would therefore have force if the
phrase "subject to the provisions of sub-section 2" were to
be interpreted as a pre-condition so that Section 2(1) would not be
operative unless the relevant transactions or agreements, were in
terms of Section 2(2) declared to be null and void.

It would be
artificial and contrived to give to the phrase "subject to the
provisions of sub-section 2" the meaning of a precondition. I do
not think it properly bears that meaning. It is unnecessary to decide
what it does mean but it probably represents a not very elegant or
crisp effort by the legislature to make clear that the use of the
words "sale", "donation", "lease", or
"loan", in sub-section (1) was not intended to mean that
there had been a proper "sale", "lease",
or "loan", from the previous Administration to the First

- 39 -

Respondent; and that
all these transactions were in fact to be regarded as null and void
as provided in Section 2(2).

Whatever be the
real reasons of the insertion of the phrase "subject to the
provisions of sub-section 2" in Section 2(1), I am satisfied
however, that it is not intended to be a precondition for the
operation of Section 2(1) and is therefore severable from Section
2(2).

It was also
contended that because Section 2(2) of the Act started with the
phrase "for the purposes of sub-section (1)", this rendered
it inseparable from Section 2(1). I think that submission is without
substance. The phrase simply means that following upon the
repudiation contained in Section 2(1) the transactions or agreements
referred to in Section 2(1) are declared null and void and any
obligation of the Government of Namibia or its officials was
consequentially terminated.

It follows that
Section 2(1) of the Act does not need to be struck down on the basis
of the argument premised on invisibility.

There is also no
suggestion that the purely formal provisions of Section 1 of the Act
dealing with definitions and the administrative provisions contained
in Section 7 need to be struck out. They are clearly separable.

- 40 -

Costs.

The Court a quo
made the following order:

(The present
Respondents being the Applicants before it and the present Appellants
being the Respondents before it.)

"(a) The State
Repudiation (Cultura 2000) Act, 1991 as promulgated in Government
Gazette No. 334 on 31 December 1991 is declared unconstitutional,
null and void.

2. 
   The First and
   Second Respondents shall pay the Applicants' costs excluding the
   final day of the hearing.

   
   

3. 
   The First and
   Second Respondents shall pay the Applicants' costs of opposition to
   the filing of the affidavit of B.A. Liebenberg.

   
   

4. 
   Costs of two
   counsel only allowed."

   
   

The Appellants
thereafter noted its appeal against the whole of this order and
persisted with that attitude until the 26th February 1993 when its
attorneys wrote as follows to the Registrar and to the attorneys for
the Respondents:

"... To assist
their Lordships in their consideration of the record we wish to
advise at this stage already that the appeal will be prosecuted on
behalf of the Government of Namibia on a limited basis. It will
namely be contended that the High Court erred in holding (vol. 5, p.
414 (judgment)) that article 140(3) is confined to obligations as yet
unfulfilled.

It follows that the
appeal will relate only to the

finding of the High
Court that subsection (1) of

section 2 of the
Cultura 2000 Repudiation Act is
unconstitutional.

For the rest, the
Supreme Court will be asked - as the High Court was asked in the
alternative in the

- 41 -

opposing affidavit,
in the Heads of Argument filed before it by the Government of
Namibia, and in the oral argument delivered on its behalf - to apply
article 25(a) of the Constitution, and to send the statute back ■
to parliament for revision. The Government shall not of course take
any steps to enforce the Act in the meantime.

We are addressing a
copy of this letter to the respondent's attorneys in order to
ascertain whether (subject to questions of costs being satisfactorily
resolved) they propose to oppose the substantive relief now being
sought in the appeal on the aforesaid restricted basis.

In the event of such
restricted relief not being opposed, we shall advise you
immediately."

The response which
this letter elicited was as follows on the 3rd March 1993:

"In order to
enable us to consider your proposal and to advise our client we shall
appreciate it, if you could clarify whether your said letter is to be
understood that you do not intend to prosecute the Appeal on any
other grounds, and for purposes of the Appeal abandon such grounds."

The reaction on
behalf of the Appellants was that the original letter spoke for
itself, that the Notice of Appeal was directed against the whole
judgment and order of the Court without containing any "grounds
of appeal" and that it was accordingly not possible
"specifically (to) indicate which grounds are thus abandoned".

The matter was not
pursued satisfactorily by either side and in the result the appeal
came to be argued on the basis which I have previously fully
described.

What is clear to me
however, is that until the 26th February

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1993, the
Appellants were still persisting with the submission that all the
provisions of the Act were indeed constitutional. In the result they
were wrong in that attitude, because they had to eventually concede
both in the letter of 2 6th February 1993 and during argument that
the appeal against that part of the Court's finding which declared
that Section 2(2) and Section 3 of the Act were unconstitutional, was
not being pursued. (Although no express reference was made to the
uncontroversial and ancillary machinery in Sections 1 and 7, the
constitutionality of these ancillary Sections was never really an
issue between the parties, the real dispute having centred on
Sections 2(1), 2(2) and 3 of the Act.)

What is equally
clear is that the Respondents in this Appeal also did not take the
opportunity presented by the letter from the Appellants' attorneys
effectively abandoning any defence of Section 2(2) and Section 3, by
abandoning the judgment in its favour in so far as Section 2(1) was
concerned (read with the ancillary and defining machinery in Sections
1, and 7) . What is also clear in my view is that the Appellants
clearly had to persist with the appeal in so far as it involved the
defence of Section 2(1) (read with the defining and ancillary
Sections 1, and 7 to which I have referred) and that they have
obtained substantial success by saving Section 2(1) from the attack
which had successfully been made in the Court a quo. Ordinarily this
would have justified an order of costs in favour of the Appellants
but because, until the 26th February 1993 at least, they had
persisted in other attacks which they

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later abandoned, it
would be fair to direct that the Respondents in this Appeal should
only pay part of the costs of the Appellants on appeal.

As far as the costs
in the Court a quo are concerned there is, in my view, no
reason why I should interfere with the order of costs made by the
Court a. quo. The present Respondents as the Applicants in the
Court a quo were clearly obliged to go to Court to obtain
relief, and the relief which they were entitled to, represents
substantual success. Indeed the attack by the Appellants on some of,
the relief which the Respondents as the Appellants rightly obtained,
in the Court a quo was eventually abandoned by them.

Relief on Appeal.

The real argument
before us was concentrated on the constitutional validity of Section
2(1) of the Act (read with Sections 1 and 7) . The Appellants
contended that it was constitutional. The Respondents submitted it
was not. In my view the Appellants were correct.

As far as Sections 1
and 7 were concerned there was no real dispute. These are simply
defining an administrative Section necessary to give meaning and
effect to Section 2(1) and there is no reason why they cannot
continue to be read and operate with Section 2(1) which I have held
to be valid.

No appeal in respect
of Sections 4, 5 and 6 was pursued and no

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argument addressed
in respect thereof. We are not therefore called upon to deal with
their constitutionality.

Article 25(1)(a)
provides that:

"(a) a
competent Court, instead of declaring such law or action to be
invalid, shall have the power and the discretion in an appropriate
case to allow Parliament, any subordinate legislative authority, or
the Executive and the agencies of Government, as the case may be, to
correct any defect in the impugned law or action within a specified
period, subject to such conditions as may be specified by it. In such
event and until such correction, or until the expiry of the time
limit set by the Court, whichever be the shorter, such impugned law
or action shall be deemed to be valid."

The consequence of
the conclusions to which I have come is that the order of the Court
a quo declaring the whole of the Act unconstitutional has to
be set aside.

There is little
point in referring back to Parliament for possible correction the
Sections of the Act which were declared unconstitutional by the Court
a quo and in respect of which the Appellants did not pursue
any appeal. The cleanest and neatest course would be for Parliament
to consider the enactment of any new legislation, if it is so
advised, in the light of the findings and the reasoning in this
judgment.

In view of the fact
that there may possibly be further litigation between the parties in
this matter I wish to make two things clear. Firstly, this Court
expresses no view as to whether or not Section .2(2) and Section
(3) are indeed

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unconstitutional.
Their constitutionality was not an issue before us because the
Appellant abandoned their appeal in this regard. It also follows that
I express no conclusions on the submission by Mr. Kentridge that
Section 2(2) and Section 3 are unconstitutional because they purport
to determine "civil rights and obligations" alleged in
contravention of Article 12 of the Constitution or on the submission
of Mr. Hodes that they are unconstitutional because they constitute a
breach of fundamental rights and freedoms guaranteed by Chapter 3.
Secondly, I express no views as to what the detailed legal
consequences of the repudiation set out in Section 2(1) are for the
Respondents. That also was not an issue which we were required to
determine in this appeal.

Order.

In the results I
make the following order:

1. The appeal of the
Appellant is upheld and the order made by the Court a quo is
set aside and substituted by the following:

"(a) Save for
Section 2(1) (read with Sections 1 and 7) the "State Repudiation
Cultura 2000 Act 32 of 1991" is declared null and void.

2. 
   The First
   Respondent (The Government of the Republic of Namibia) and the
   Second Respondent shall pay the costs of the Applicants (Cultura
   2000 and J.J. Brand) but excluding the final day of the hearing.

   
   

3. 
   The Respondents.
   aforesaid shall pay the Applicants costs of opposition to the filing
   of the affidavit of B.A. Liebenberg.

   
   

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(d) The costs
directed in terms hereof shall include the costs consequent upon the
employment of two Counsel."

2. The Respondents
in this appeal are directed to pay two thirds of the costs of the
Appellants on appeal such costs to include the costs consequent upon
the employment of two Counsel.

I. MAHOMED
CHIEF JUSTICE OF THE REPUBLIC OF NAMIBIA

I agree.

E. DUMBUTSHENA,
A.J.A.

I agree.

F. CHOMBA,
A.J.A.

- 47 -

FOR THE
APPELLANTS: Adv. S. Kentridge, Q.C;

Adv. J.J.
Gauntlett, S.C. Adv. G.B. Coleman

Instructed by:
Government Attorneys

FOR THE
RESPONDENTS: Adv. P.B. Hodes, S.C.

Adv. J.D.G. Maritz
Adv. R. van Rooyen

Instructed by:
Messrs. Van Wyngaardt, Kock & V/d Westhuizen