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This advisory opinion focuses on the prevailing environmental laws in Namibia and a
comparative overview from countries which contains similar constitutional values like ours. All
laws in Namibia must conform to the constitution based on

 1. Namibia by virtue of


   2, is entitled to enforce international instruments, and this article à
 obliges
Namibia to internalize these international instruments. It is vital in these introductory remarks
that this paper defines environment. It is further noted for the benefit of the reader that
communal land vests in the community not an individual; therefore any damage to the
environment is damage to commonage. Commonage is defined as that portion of the communal
area of a traditional community which is traditionally used for the common grazing of stock3.
Based on this definition it is logical therefore to note that disturbed environment is a disturbance
to the community at large.

The O  

 

 
 
, provides that environment means the complex of
natural and anthropogenic factors and elements that are mutually interrelated and affect the
ecological equilibrium and the quality of life, including (a) the natural environment that is the
land, water and air, all organic and inorganic material and all living organisms, and, (b) the
human environment that is the landscape and natural, cultural, historical, aesthetic, economic and
social heritage and values. This definition is quite wide and encompasses a lot of aspects. It is
crucial to define sustainable development, means human use of a natural resource, whether
renewable or non-renewable, or the environment, in such a manner that it may equitably yield
the greatest benefit to present generations while maintaining its potential to meet the needs and
aspirations of future generations including the maintenance and improvement of the capacity of
the environment to produce renewable resources and the natural capacity for regeneration of
such resources.





 

 



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 , titled ³principles of environmental management´, provides that:

(a)Y èenewable resources must be used on a sustainable basis for the benefit of present and
future generations;
(b)Y««..
(c)Y «..
(d)YEquitable access to environmental resources must be promoted and the functional
integrity of ecological systems must be taken into account to ensure the sustainability of
the systems and to prevent harmful effects;
(e)Y «.
(f)Y ««
(g)Y«..
(h)Y««
(i)Y ««.
(j)Y A person who causes damage to the environment must pay the costs associated with
rehabilitation of damage to the environment and to human health caused by pollution,
including costs for measures as are reasonably required to be implemented to prevent
further environmental damage;
(k)YWhere there is sufficient evidence which establishes that there are threats of serious or
irreversible damage to the environment, lack of full scientific certainty may not be used
as a reason for postponing cost-effective measures to prevent degradation, and
(l)Y Damage to the environment must be prevented and activities which cause such damage
must be reduced, limited or controlled.

It is clear therefore that the legislature viewed the environment as an integral part of human
survival and placed such emphasis on the protection and continued sustainability. Given the
scenario therefore it is vital that the courts should send a strong message out there to insure the
protection of the environment. In (a) above the underline is the authors way of emphasizing the


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language used by the legislature, which indicates how the environment must be protected.
Members of the community are obliged by law to promote good use of the environment. This
judicial message is further strengthened by (K) . A person who causes damage to the
environment must pay the costs associated with rehabilitation of damage to the environment and
to human health caused by pollution, including costs for measures as are reasonably required to
be implemented to prevent further environmental damage  shows the legislature holds the
environment. It was the intention of the legislature to impose a penalty on environmental damage
culprits and such an intention should not be defeated.

The preamble of the å

    

 
 
Ô, provides for the management,
development, protection, conservation, and use of water resources.  
 7, provides for the
objectives of the act which is to ensure that Namibia¶s water resources are managed, developed,
protected, conserved and used in ways which are consistent with or conducive to the
fundamental principles.  
  8, provides for the fundamental principles, the act must be
interpreted, and reasonably and fairly applied, in a manner that is consistent with and promotes:
(a)Y Equitable access to water resources by every citizen, in support of a healthy and
productive life;
(b)Y««..
(c)Y Essentiality of water in life, and safe drinking water a basic human right
(d)YHarmonization of human needs with environmental ecosystems and the species that
depend upon them, while recognizing that those ecosystems must be protected to the
maximum extent

Having specified the objectives of the act, it is therefore crucial to ascertain jurisdiction of the
court, whether a criminal court or civil court has jurisdiction.  
  o, provide for the
establishment of the water management tribunal.
(1) There is established a special court to be known as the Water Tribunal, which
(a) has jurisdiction over the whole of Namibia and its seat in Windhoek;

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(b) may -
(i) hear and decide matters relating to a water resource anywhere in Namibia;
(ii) summon any person to its hearings, either as a party or witness to the matter; or
(iii) hear and decide appeal matters referred to it under section 120.
(2) Subject to subsection (), the Water Tribunal consists of not less than five and not more
than seven members appointed by the Minister in a part-time capacity on the recommendation of
the Judge President.
() In recommending persons for appointment, or appointing persons, as members of the
Water Tribunal, the Judge President or the Minister, as the case may be, must consider gender
balance.

Even though the above section seems to provide that the court has no jurisdiction,  
 
10, seem to provide otherwise. If a court convicts a person of an offence under this Act and
another person has suffered harm or loss as a result of the act or omission constituting the
offence, or damage has been caused to a waterworks or water resource, the court may, in the
same proceedings

(a)Y At the request of the person who suffered the harm or loss; or
(b)YAt the written request of the Minister in respect of the damage caused to waterworks
or water resource owned by the State,

And in the presence of the convicted person, inquire into the harm, or loss or damage and
determine the extent of damages thereof.

(2) after having determined the extent of damages under subsection (1), the court or any
other court of competent jurisdiction ½

  may

(a) award damages for the loss or harm suffered by any person against whom the
office has been committed or who has suffered damage as a result of the offence


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(b) order the offender to pay for the cost of any remedial measures which measures
may be implemented by the offender or the water management institution in whose area
the loss, harm or damage has been suffered.

To confirm further that the court had jurisdiction,  
  11, provides that [a] person
commits an offence, if such person unlawfully and intentionally or negligently commits any act
or omission which pollutes or is likely to pollute a water resource. With the given facts it is clear
therefore that the accused intentionally and knowingly contaminated a waterworks thereby
endangering and disturbing the natural ecosystem. This action is so severe that any person who
endangers or tips the balance ecological equilibrium, concurrently disturbs the fundamental
human rights enshrined in the constitution as contained in many international instruments such as
the universal declaration of human rights.

Namibia is a product of the international community based on the 82 principles upon which the
constitution was drafted and bound by

  12. 
   13, provides that state
parties must promote sustainable management, and promote and corporate in the conservation
and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled
by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial,
coastal and marine ecosystems. ! " 1, provides that states have, in accordance with the
charter of the United Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental and developmental policies and
the responsibility to ensure that activities within their jurisdiction do not cause damage to the
environment. Based on this obligation, it is therefore clear that states must promote sustainability
development and create laws that are binding to the citizens. It should be noted that humans are
part of the environment but not the environment being part of human beings; therefore humans
must respect the environment and avoid damage. If such damage is caused liability must be
imposed on the polluter.



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 #1, provides that, a person is guilty of an offence who dumps or allows to enter or
permits to be dumped or discharged in inland waters anything which is or may be injurious to
fish, or which may disturb or alter the ecological balance in such waters, or hinders the catching
of fish. Principle 1Ô1Ô provides that national authorities should endeavour to promote the
internalization of environmental costs and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost of pollution, with due regard to
the public interest and without distorting international trade and investment. Based on this
principle it is obvious that the polluter who has caused harm to the environment or who has
failed to prevent environmental pollution must be held liable. It has been practiced elsewhere
that the object of environmental legislation is to lay down norms and procedures aimed at
preserving the environment, liability should be as a necessity complement to ensure that persons
responsible for environmental damage must be made to compensate the community for the
damage so caused. It is therefore logical that liability is seen as a mechanism for implementing
the principle of polluter pays.

The objective of the polluter pays principle was meant to ensure that economic instruments for
the provision of incentives to comply with environmental obligations and to avoid damage; and
as a means of penalizing wrongful conduct.

For liability to be imposed a plaintiff should prove liability for environmental damage. There are
three types of civil liability in environmental damage namely:

i.Y Fault liability in which the plaintiff in casu the state has proved wrong doing by
the accused, he acted negligently or without due care. The mere washing and
spraying of the chemical near the waterworks is proof enough that the accused


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should have been more cautious and must have realized that the chemicals could
be washed in the water cause.
ii.Y Strict liability, based on this approach, it does not matter whether the perpetrator
behaved correctly or incorrectly, the decisive factor is that the damage was caused
by the accused. The rationale for this approach which I think the court should
adopt is that the accused had profited from the potential harmful or inherently
dangerous activities should be liable for damage that occurred as a result of his
harmful activities.

The question for liability for environmental damage is crucial and must be given utmost
attention. It is a settled principle that the owner or polluter is liable. This is consistent with the
prevention and polluter pays principle.

This paper has made an attempt to give a brief overview of the national and international legal
framework that governs the management of national and international watercourses and to
present the applicable national laws pertaining to water legislation. Therefore, according to the
international and national legal text all citizens are obliged to coordinate for the management of
shared freshwater resources. All citizens should cooperate, take into consideration the interests of
the others, apply equity and preserve the ecosystem. If these responsibilities are not considered
by the court then sustainable development will be just a dream. It is a settled principle that courts
must apply the law, therefore national laws must be respected by punishing the guilty parties.
Environmental protection is vital for the continued existence of the human race and a strong
message should be sent out by the courts that offenders of environmental offences must be
convicted of such offences.


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Constitution of the èepublic of Namibia

1oo2 èio Declaration

Water èesources Management Act 2 of 200

Inland Fisheries èesources Act 1 of 2003

Environmental Management Act 7 of 2007

Communal Land èeform Act  of 2002