Investigating the powers of the Supreme Court of Namibia to reverse its own decisions: A case for balancing the interest of justice and the doctrines of judicial precedent and res judicata
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Date
2019
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Publisher
University of Namibia
Abstract
The rule of law informs acts and decisions according to prescribed rules and procedures to promote certainty, uniformity and consistency in the application of the law. This is expanded by the demands of the interest of justice and the well-entrenched common law doctrines of stare decisis (stand by the decided) and res judicata, which dictates that a competent court cannot revisit issues already determined. Article 81 of the Namibian Constitution, read with section 17 of the Supreme Court Act 15 of 1990, provides that all decisions of the Supreme Court are binding on all other courts of the land, unless set aside or reversed by the Supreme Court itself or is contradicted by an Act of Parliament lawfully enacted. The prima farcie view is that there is conflict between the exercise of the court’s power in terms of Article 81 and the rule of law as well as the application of the common law doctrines. The research investigates the extent and magnitude of the powers of the Supreme Court of Namibia to reverse its own decisions and to what extend the reversal affects the demands of the rule of law and common law doctrines. The research includes a comparative study from various common law jurisdictions to indicate the legal basis and extent to which an apex court reverses its own judgments. The comparative study reveals that there is a plethora of grounds justifying a reversal of an apex court’s decision, as an exception to the rule of law and the common law doctrines of stare decisis and res judicata in order to do justice. The thesis embraces these new additional grounds on which the Namibian Court may exercise its powers in terms of Article 81 and highly recommends that the process and procedure in terms of which the litigants may approach the Supreme Court, on the basis of Article 81, be part of the clearly defined court rules of process and procedure.
Description
A research proposal submitted in fulfillment of the requirements for the Degree of Master of Laws
Keywords
Justice