On Sunday, 26 February 2023, news broke that some employees at Rundu service station were beaten by their ‘boss’ in exchange for loans. Videos later emerged showing some employees getting whipped by one person, the apparent boss.
Two of these employees were clearly elderly men. According to the Namibian of 27 February 2023, one employee anonymously said that being beaten was the only way to borrow the much-needed money to support his kids. The beatings were allegedly done daily to ‘put the employees’ hearts in the right place’ – from the buttocks to the chest. The employer in question denied these allegations.
In a twist of cinematic proportions, two videos emerged in which the employees who were seen in the earlier video said that it was all a joke. Another video showed the same employees, according to my observations, taking turns to beat the ‘boss’. But was this a joke? Perhaps, but I submit it was a joke of a thousand constitutional violations due to the dynamics of the people involved and the legal implications of their employment relationship as well as the legal dispensation that Namibia entered into after independence (which cannot be divorced from the historical realities it was in before). I wish to borrow the language of Berker, CJ in one of the first constitutional interpretation cases the Supreme Court dealt with just after independence – Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991] NASC 2 (05 April 1991) that:
‘These experiences generally, but in particular with regards to the infliction of punishment by judicial and quasi-judicial organs in accordance with South African legislation introduced into the country during the colonial rule, and even more so by the arbitrary extra-judicial infliction of corporal injuries as a result of physical treatment meted out by the officials of the ruling administrative power and which were in many cases of an extreme nature, such as torture, inhuman and excessive beatings, left an indelible impression on the people of Namibia. It is not surprising that a deep revulsion in respect of such treatment, including corporal punishment, has developed, which ultimately became articulated in the Bill of Fundamental Human Rights enshrined in the Constitution, and in particular in Article 8 thereof, which protects absolutely the dignity of every person, even in the enforcement of a penalty legally imposed, and further absolutely prohibits torture or cruel, inhuman, or degrading treatment or punishment.’
The actions of the ‘boss’ and his employees had legal consequences and claiming that it was a joke did not absolve them from scrutiny. As the saying goes, every action has consequences. According to Ex Parte: Attorney-General In Re: Corporal Punishment by Organs of State, Article 8 operates against physical punishment imposed by law and there is a consensus from other jurisdictions that the imposition of corporal punishment on adults by organs of the State is indeed degrading or inhuman and inconsistent with civilized values pertaining to the administration of justice and the punishment of offenders. This is based on several considerations, one of which is that the dignity of a human being is simply inviolable. On that basis, I submit that Article 8 operates against the application of physical force even if it was ‘agreed’ upon because adult people in a civilized society cannot lawfully agree to violate the Constitution.
The Constitution of the Republic of Namibia is the supreme law. it repudiates the practices and ideology of apartheid. It creates a democratic society based on respect for human dignity, protection of liberty, and the rule of law and rejects any practices and values which are inconsistent with, or which might undermine this commitment. Article 8(1) declares the dignity of all persons inviolable. Article 8(2)(b) states that no person shall be subject to torture or to cruel, inhuman, or degrading treatment or punishment. Article 9(1) states that no person shall be held in slavery or servitude. Article 10(1) and (2) states that all persons shall be equal before the law, and no person may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed, or social or economic status. Article 5 requires that these fundamental rights and freedoms be respected and upheld by all natural and legal persons in Namibia, failure to which they shall be enforceable by the Courts in the manner prescribed in Article 25.
Article 25(2) stipulates that aggrieved persons whose fundamental rights or freedoms have been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such rights or freedoms and may approach the Ombudsman to provide them with legal assistance or advice as they require. The Courts shall have the power to make all such orders as shall be necessary and appropriate to secure such applicants the enjoyment of the rights and freedoms conferred on them under the provisions of the Constitution, including monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms.
I am of the view that beating an employee or employer, or subjecting oneself to beatings, for whatever reason, is not legally justifiable. It is degrading in nature and thus violates Article 8 of the Constitution which is inviolable. In Ex Parte: Attorney-General In Re: Corporal Punishment by Organs of State, the Supreme Court adopted the Oxford English Dictionary definitions of the words “inhuman” and “degrading: “inhuman” means “destitute of natural kindness or pity; brutal, unfeeling, cruel; savage, barbarous”. “To degrade” means “to lower in estimation, to bring into dishonour or contempt; to lower in character or quality; to debase”. The actions of the employer, and indeed the employees fit these definitions. Fooling around, as it were, is not a legal justification and so were the explanations given. This rather violated and made a mockery of the constitutional dispensation in which Namibia operates, 33 years after independence.
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