Priced out of justice: Namibia's 30-year wait for Small Claims Courts

In Namibia, justice is not supposed to be a privilege. It is a constitutional right. Yet for many ordinary Namibians, justice remains something they hear about but cannot afford.

One day, my Friend Nande lent his neighbour N$1 500 during a difficult month. He promised to pay him back after payday. Payday arrives, but instead of returning the money, the neighbour avoids him.

When Nande finally confronted his neighbour at the local bar, the neighbour asked him to explain why he needed his money back. Nande ended up punching him and forfeited his N$1 500.

Another friend paid N$2 000 to someone running an online “order with me” business. They promised to deliver some clothing within two weeks. Months passed. Excuses piled up: “The container is still in Walvis Bay.” “Customs delayed it.” Eventually, they stopped answering calls.

His money was gone. He considered going to court. But lawyers’ fees alone can cost more than the money he tried to recover. Filing fees, consultations, and the complexity of legal procedures made justice unaffordable.

The examples are many: a tenant seeking the return of a rental deposit from the landlord; a customer claiming a refund for defective goods; a small business recovering unpaid invoices, and so on.

These cases often involve small amounts, but they matter deeply to ordinary people whose livelihoods depend on every dollar. This is the painful reality for many Namibians today.

Constitutional provisions

The injustice faced by ordinary Namibians is unfortunate and contradicts the provisions of the Constitution of Namibia, which is the supreme law of the land. Article 10 (1) of the Constitution, for example, clearly states that all persons are equal before the law.

This means justice must not depend on how much money you have. When only the rich can afford lawyers, then justice is not equal for everyone.

Similarly, Article 12(1) (a) guarantees every person the right to a fair hearing before a competent court. This applies not only to criminal cases but also to civil disputes, such as unpaid wages for semi-skilled workers and disputes between students and young professionals with limited income.

The Constitution goes further. Article 25 (2) gives every aggrieved person the right to approach a court to enforce their rights. Most importantly, Article 83 (4) allows for the creation of additional courts or commissions by Act of Parliament.

This provision empowers the Government to establish courts such as Small Claims Courts to serve the needs of the people.

Finally, Article 95 obliges the State to promote the welfare and dignity of its citizens actively. Access to justice is central to human dignity. A system that excludes people with low incomes cannot claim to uphold the Constitution fully.

Small Claims Courts are the solution.

Namibia urgently needs to operationalise the Small Claims Courts, which exist precisely to address situations like those alluded to above. A small claim is a civil dispute involving a relatively modest amount of money, such as unpaid debts, defective goods, unpaid wages, or rental deposit disputes.

These courts are designed to resolve such disputes quickly, cheaply, and without the need for lawyers. They provide ordinary citizens with a practical way to enforce their rights.

Namibia recognised the importance of small claims courts long ago.

In the 1990s, the then Minister of Justice, Dr Ngarikutuke Tjiariange, tabled the Small Claims Court Bill, and the Law Reform and Development Commission subsequently produced a detailed report recommending their establishment.

The Commission noted that these courts would help resolve minor civil disputes in a simple and accessible manner. Yet, nearly three decades later, small claims courts remain a promise on paper rather than a reality on the ground.

The absence of small claims courts disproportionately affects ordinary Namibians and small businesses. A tenant whose landlord refuses to return a N$5 000 deposit may find that hiring a lawyer would cost more than the deposit itself.

A small business owner who a client owes N$3 000 may choose not to pursue the matter due to the legal costs involved. In both cases, the individuals suffer financial losses not because they lack legal rights, but because enforcing those rights is expensive to them.

Small claims courts would change this dynamic. The framework is already designed.

Under the proposed framework, these courts would be established by the Minister of Justice in various districts, making them accessible to communities across the country.

Cases would be presided over by magistrates, legally trained commissioners and experienced individuals tasked with ensuring fairness and efficiency.

The procedures would be simple and informal, allowing individuals to present their own cases without legal representation. This approach reduces costs and removes the intimidation often associated with formal courtrooms.

Importantly, small claims courts are designed to deliver swift outcomes. The process focuses on resolving disputes efficiently, often within weeks rather than months or years.

Proceedings would be open to the public, and judgments would carry legal force throughout Namibia. In other words, decisions of the small claims court will be legally binding.

This means the person who was ordered to pay must comply with the judgment.

If they refuse to pay, the court will have the power to enforce its decision, including attaching the defaulting party's property or assets to recover the money owed.

Beyond individual disputes, the introduction of small claims courts would strengthen Namibia’s economy. Small businesses, which form the backbone of the country’s economy, often struggle to recover unpaid debts.

Without an effective and affordable legal mechanism, businesses absorb losses that can threaten their survival. Small claims courts would provide a reliable avenue for recovering money, thereby improving confidence in commercial transactions and encouraging entrepreneurship.

Other countries have already proven it works

Namibia would be joining a proven global system.

In South Africa, Small Claims Courts help citizens resolve civil disputes up to R20 000 without a lawyer. Located in local Magistrate’s Courts, they handle cases like contract breaches, debt recovery, and property damage. The process involves sending a 14-day letter of demand, followed by a hearing.

In Botswana, Small Claims Courts allow citizens to resolve disputes efficiently and affordably. Cases are often resolved within weeks, not years.

In the United Kingdom and the United States, millions of ordinary citizens use Small Claims Courts every year. These courts have empowered citizens, strengthened trust in the legal system, and discouraged fraud and dishonesty.

The Justice Ministry must urgently prioritise the operationalisation of Small Claims Courts across Namibia. Justice must not only be reserved for corporations and the wealthy.

It must also belong to a domestic worker in Babilon, a kapana vendor at Single Quarters, a pensioner in Odayafingwa, a student in Rundu, and a cattle holder in Omangeti.

When people know they can easily be taken to court, they think twice before cheating others.