1.

Introduction
It has been said that some Namibian judicial decision making contain aspects of Natural law. But what is Natural law? This essay aims to answer that question. What follows are the definitions of Natural law and the concept of public policy or value judgements. Following thereafter a discussion a discussion of the relationship between them and linking them to the Namibian legal system.

2. Definition of Natural law

Jurists from this school contend that law consists of a hierarchy of norms and that at the top of this hierarchy is an ultimate or omnipotent norm that all manmade law, including positive law, must conform to.1 The classic saying that law is not what it is but what it ought to be, as opposed to positivists who contend that law is what it and not what it ought to be, is a cornerstone in this school and generally jurists from this school contend that no difference exists between law and principles of morality and justice. Thus, St Thomas Aquinas defined law in the following terms: ... nihil est aliud quaedam rationis ordination ad bonum commune, ab eo qui curam communitatis habet promulgata, this is to say that law is a rational ordinance made for the good of the community and promulgated.2 Over the generations it is remarkable that all scholars from this school agree that natural law is based on contentment of some external criteria for the validity of law and dependence on the concept of reason. The main criticism though is that most of them differ in essence from what the ought constitutes. Therefore a judge applying natural law in applying and interpreting the law will look at standards or aspects of morality and ethics, not only at the law as it is laid down in statutes, when making a judgement.

3. Definition of Public Policy or Value judgements

Diaz defined value judgements by saying that it is the values covering all considerations that shaped the provisional decisions or judgements of a court in guiding its handling of rules by

1 2

S.K. Amoo. 2008 .An Introduction to Namibian Law. Windhoek: Macmillan Education Namibia, p2 H. McCoubrey. 1987. The Development of Naturalist Legal Theory. New York: Croom Helm, p2

providing the yardsticks for measuring the conflicting interests that are involved. By value judgement he signified the choice of a particular value as well as the result of measuring interests with reference to chosen values.3This basically means a case before a court may involve conflicting interests4 and these may be between two people or an individual and the state or a society. The courts will then a particular value or set of values to guide it balance the two competing interests. In the case of Sasfin (Pty) Ltd v Beukes5 the Judge of Appeal Smallberger J.A. stated the following: The doctrine of public policy does not admit of any precise definition. In other words it is an imprecise and an elusive concept...However the concept is often employed to strike down private dealing inimical to the interests of the community. Judges here want to link the concept with the boni mores6of the community. But questionable actions may also run counter to social or economic expedience. Public policy is most certainly one of the desiderata which judges have on necessity to consider in the process of law-making. It is therefore safe to say that the above concepts are linked to the theories of natural law as they act outside the realm of our law.

4. Relationship between abovementioned concepts and how they can be linked to the Namibian Judicial system
The general characteristics of natural law7, which will indicate its relation to value judgements, are: 1. Natural law is based on value judgements, which comes from an absolute source. 2. These absolute value judgements reflect the essential nature of the universe and are immutable and eternally valid. 3. They can be understood by proper employment of human reason. 4. When perceived they must overrule all positive law.
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R.W.M Diaz. 1970. Jurisprudence. London: Butterworths. Port Elizabeth Municipality v Peoples Dialogue and Shelter and Others 2000 (2) SA 1074 (SE) 5 1989 (1) SA 1 p9 6 Morals and values 7 Finnis (1980)

5. Law is a fundamental requirement of mans life in society. Relating Natural law to the Namibian Judicial system its evident that the Namibian Constitution not only contains principles and values that have a moral consent but that the jurisprudential basis can be traced to the theories of Natural law. Our courts have used principles of morality and the values of the Namibian people as the cornerstones of public policy and have therefore given moral interpretations to some of the provision of the constitution, thus making morality and value judgements a fundamental part of our law.8 Considering the aspect that our constitution in fact acknowledges public policy as a part of our law a prominent judge the late Mohamed, C.J. in the Government of the Republic of Namibia & Another v Cultura 20009 interpreted the constitution by saying: A constitution is an organic instrument. Although it is enacted in the form a statute, it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid 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 the nation, in the articulation of the values bonding its people and disciplining its Government. It has been evident that Namibian as well as foreign judges has adopted the naturalist ideology and this will be justified in the analysis of the cases that follow.

a. Ex Parte Case: Corporal Punishment10

In this case the Supreme Court, as a court of first instance, was requested to determine whether the imposition and infliction of corporal punishment11 by or on the authority of any organ of State contemplated in legislation was1. per se; or 2. in respect of certain categories of persons; or 3. in respect of certain crimes or offences or misbehaviours; or

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Amoo (2009) 1993 NR 328 (SC) at 340 B-D; 1994 (1) SA 407 NmSC at 418 F-G 10 Ex Parte Attorney General, Namibia: In Re Corporal Punishment 1991 (3) SA 76 11 At this time corporal punishment was being practised by Government schools and was also used as a method of punishing felons.

4. In respect of the procedure employed during the infliction thereof in conflict with any of the provisions of chapter 3 of the Republic of Namibia and more in particular article 8 12 thereof and, if so, to deal with such laws as contemplated in article 2513(1) of the Namibian Constitution. Had the law been applied as it was at that time (positivist approach) all the statutes that were deemed to be against public policy14 would just be enforced as they were with no heed to be given to the fundamental Human Rights as per Article 8 of our Constitution being violated but Judge Mohamed based his decision on a value judgement and rendered the statutes inhumane and degrading and against Article 8 of the Constitution, thus corporal punishment was abolished.

b. Riggs v Palmer15
Mr. Francis B. Palmer owned a farm and considerable personal property. On 13 August 1880 he made his last will and testament stating that two small portions of his estate were to be given to his two daughters Mrs. Riggs and Mrs. Preston and the remainder of the estate to his grandson Elmar Palmer. The latter was aware of the inheritance he stood to gain if something should happen to his grandfather. Therefore at the age of 16 he wilfully murdered his grandfather by poisoning him and then claimed property. It is believed he committed this act to prevent his grandfather from revoking the provisions granted to him by the will. The legal issue the court was faced here was; whether the property of a testator should or could pass to one who had taken his life for the express purpose of inheriting his property. The brief ratio decidendi the judge stated was firstly a will procured by fraud and deception like any other instrument may be decreed void and set aside. Secondly, the fact that the defendant had made himself an heir by murder. These maxims are dictated by public policy.
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Respect for Human Dignity Enforcement of fundamental rights and Freedoms. 14 Section 112 Of the Criminal Procedure Act 51 of 1977, Act 51 of 1977, Section 276 of act 51 of 1977, Section 290(20) of Act 51 of 1977, Section 292-295 of Act 51 of 1977, Section 302(1), Section 308, Section 309(4), Section 91 of the Magistrates Court Act 32 of 1944, Section 36 and 37 of the Prisons Act 8 of 1959, Section 48(1) of Act 8 of 1959, Section 54(2), Section 56(3) Regulation 100 of Prison Regulations, Section 32 of the Childrens Act 33 of 1960, section 1 of the Criminal Law Amendment Act 8 of 1953, Section 2(1) of the Animals Protection Act 71 of 1962, Section 3(2) of Proc. R348 of 1967 and Section 4(2) of Proc. R348 of 1967 15 Court of Appeals of New York, 1889. 115 N.Y. 506

It was ruled thus that Elmar Palmer could not inherit as per the will and the statute at that time as a sane murderer cannot inherit from his victim.16

5. Conclusion
In conclusion it is clear that Natural Law and Doctrines of Public Policy and Value Judgements are closely interrelated. It can also be accepted that Namibian Courts have taken the Naturalist approach when applying and interpreting the law by taking external factors, outside the boundaries of laid down statutes, into account whilst always attempting to uphold the morals and values of the Namibian People.

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As dictated by public policy

6. Reference List
Books 1. Amoo, SK. (2008) An Introduction to Namibian. Windhoek: Macmillan Education Namibia. 2. Diaz, RWM. (1970) Jurisprudence. London: Butterworths. 3. Finns, J. (1980) Natural Law and Natural Rights. New York: Oxford University Press. 4. McCoubrey, H. (1987) The Development of Naturalist Legal Theory. New York Croom Helm. Statutes 1. Constitution of the Republic of Namibia Cases 1. Ex Parte Attorney General, Namibia: In Re Corporal Punishment 1991 (3) SA 76 2. Government of the Republic of Namibia & Another v Cultura 2000 1993 NR 328 (SC) ;1994 (1) SA 407 NmSC 3. Port Elizabeth Municipality v Peoples Dialogue and Shelter and Others 2000 (2) SA 1074 (SE) 4. Riggs v Palmer Court of Appeals of New York, 1889. 115 N.Y. 506 5. Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1