HOW TO SERVE LEGAL PAPERS IN NAMIBIA

A member of the UN, SADC, the African Union, and the Commonwealth of Nations, Namibia is also part of the Southern African Development Community (SADC). The Namibian War of Independence ended on March 21, 1990, when the country became independent from South Africa. Windhoek is Namibia’s capital and biggest city.

Namibia is a semi-presidential democratic republic with a unitary structure. A five-year term is allotted to the President of Namibia, who is also the head of government and the head of state. The legislature holds each member of the government personally and collectively accountable. 

BACKGROUND

The government of Namibia is outlined in the country’s constitution with the president and the government having executive authority, the National Assembly serves as the lower chamber of the bicameral parliament of Namibia, while the National Council serves as the upper house.

Namibia has a system of courts that interpret and apply the law on behalf of the country.

Even though Namibia’s constitution calls for a multi-party system, the SWAPO party has held sway since the country gained independence in 1990.

The foreign policy of Namibia is generally autonomous, with the country maintaining ties with countries that helped in the country’s independence war, such as Cuba. When it comes to foreign policy, the Namibian government is focused on strengthening its connections in the Southern African area. In the Southern African Development Community, Namibia plays a leading role in advocating for stronger regional cohesion. On 23 April 1990, it became the United Nations’ 160th member state. When it gained its independence, it joined the Commonwealth of Nations as the 50th nation to do so.  

how to serve DOMESTIC legal PAPERS IN NAMIBIA

Filings served by Namibia process servers include anything from summons and complaints to divorce papers to family court documents to subpoenas and citations to small claims court proceedings to orders to show cause.

The Hague Service Convention does not apply to Namibia. Regardless of whether a country is a signatory of the Hague Service Convention, private process servers may nonetheless serve papers. The way Namibia Process Service is delivered is quite similar to how they are in the United States, although the turnaround time is somewhat greater. Informal service, on the other hand, is usually far quicker than the official technique. Off-duty police officers and other government officials may be permitted to use their official status to finish the service in certain situations.

WHO SERVES legal PAPERS IN NAMIBIA?

Deputy sheriffs must be served with any court papers or documents, as well as documents beginning application or action procedures. Namibia Process Service may be done by handing over a copy of the process to an employee of the company or other body corporate at its registered offices or its principal place of business in Namibia, or, in the event that no such person is willing to accept the service, by affixing a copy to the main gate or door of such office or place of business.  Either the Attorney General’s office (or the appropriate ministry or state institution) receives an official copy from the minister, deputy minister, or other State officials in their official role in compliance with Namibia Process Service. 

The person to be served with any Namibia Process Service or document initiating application proceedings may be served by the party initiating the proceedings on the legal practitioner, and if that legal practitioner is a registered user of e-justice, service must be effected via e-justice. However, no Namibia Process Service of a civil summons or order, or any proceedings or act required in any civil action may validly be carried out on a Sunday except for the issuance or execution of an arrest warrant unless otherwise directed by the court or judge may be validly carried out by the deputy-sheriff between 07h00 and 19h00.

As part of the Namibia Process Service, the deputy-sheriff should inform the person being served of the type and contents of what they are being served and should include this in his or her return of service and on the signed receipt.  The court may, on the application of the person wishing to have service effected, give directions in regard to such Namibia Process Service, and where such directions are sought in regard to service on a person known or believed to be within Namibia, but whose whereabouts therein cannot be ascertained,  the Namibia Process Service rule applies with the necessary modifications required by the context.

PROOF OF SERVICE

Namibia Process Service by the deputy-sheriff, if it includes an affidavit of the person who carried out the Namibia Process Service or, in the absence of such, through electronic means with e-justice, an electronic print-out of service, is proof of service in Namibia. The evidence of service must be sent to the person who requested it as soon as possible, together with the served document or Namibia Process Service.

After receiving the evidence of service and the procedure or document mentioned, the person on whose behalf service was performed should submit each of these documents with the registrar within five days. Any additional actions that the court believes possible and reasonable may be taken if it is not satisfied with the Namibia Process Service. The registrar must transmit to a deputy-sheriff two copies of the process or citation to be served, the process or citation to be served, together with a copy of the translation, must be delivered to the person to be served in accordance with Namibia Process Service rules.

In order to return a copy of the Namibia Process Service or citation, a sheriff, deputy sheriff, or a person appointed to serve it must submit an affidavit to a magistrate or justice of the peace stating that the process was served and that the person who served it was sworn in by the person who served it, and that the person who served the process or citation was verified. Taxing officers in courts are required to authenticate the accuracy of any fees charged or other amounts owed for the expense of effecting service before they can accept them as payment.

A request for service of civil process or citation should be returned to the Permanent Secretary for Justice, together with the proof of service and an appropriate certificate duly sealed with the seal of the court for use beyond its jurisdiction.

HOW TO SERVE LEGAL PAPERS OUTSIDE NAMIBIA

If there is no law prohibiting Namibia Process Service or any document in that country, or if the authorities of that country have not objected to such service, Namibia Process Service must be made by  [A.] the head of any Namibian diplomatic or consular mission in that foreign country authorized to serve such process or document; or [B.]  any foreign diplomatic or consular officer of that country to Namibia.

Second, in order for a Namibia Process Service of court or document to be served in a foreign country to be valid, the process or document must be accompanied by an official translation of that process or document into an official language of the country where the process or document is to be served, as well as a certified copy and the translation. No revenue stamps are needed for service on behalf of the Namibian government if the process or document is to be served and is presented to the registrar with N$250 revenue stamps attached.

Any Namibia Process Service or document must be defaced with the revenue stamps affixed and transmitted to the Permanent Secretary for Foreign Affairs or a destination indicated by the Permanent Secretary for Foreign Affairs for Namibia Process Service in the foreign country concerned, and registrars must ensure that the process or document affixed with the revenue stamps is genuine. When serving court papers or documents in another nation, a person must be certain that the law in their own country allows them to do so or that there is no legislation in their own country preventing them from doing so. If the court is not satisfied with the service, it might order any further measures it deems practical and appropriate to be implemented.

Letters rogatory, also known as letters of request, are official requests for judicial aid from one court to another. For the most part, letters rogatory seek Namibia Process Service and the collection of evidence as to the most prevalent remedies. In order to get evidence from a witness, a court may turn to a foreign court for help. This evidence may be used to address inquiries about a factual problem or to make documents publicly available.

However, unless they are assisted by foreign judicial or legislative authorities, courts may only summon witnesses within their own legislative jurisdiction.   Many times, the witness is more than happy to offer an account of their experiences. A witness who refuses to appear in court may, however, be forced to testify by the court.

HOW TO SERVE INTERNATIONAL LEGAL PAPERS in Namibia

Although it was formerly the common practice to use diplomatic or consular channels to send letters rogatory between the relevant courts, this practice has since been abolished. Conventions on Namibia Process Service and the taking of evidence have been ratified by several countries.

The 1905 Civil Procedure Convention, signed in The Hague, was one of the first treaties to streamline the process of a letter rogatory. With just twenty-two nations signing on, it was the first international treaty to be drafted only in French. Later agreements, negotiated in English and French following the establishment of the Hague Conference on Private International Law, had greater support. It was possible for recognized authorities in each of the signatory parties to circumvent diplomatic channels when the Hague Service Convention was approved in 1965. These sixty states, including the UK and US (who had not ratified 1905’s), have signed on to this new agreement. It was not until 1970 when the Hague Evidence Convention was approved that official processes for obtaining testimony were established. In forty-three states, it has been approved. 

In the absence of a treaty or executive agreement, letters rogatory are the traditional technique of receiving aid from outside. Any conduct that would be illegal without the permission of the foreign court is called a ‘letter rogatory,’ which is an official request from an American judge to a foreign judiciary for permission to carry it out. Authorities should plan on the case taking a year or longer to resolve. Customarily, diplomatic channels are used for the sending of letters requesting information. Sending a copy of the request via Interpol or another more direct channel may speed up the process, but even in time-sensitive situations, the request can take over a month. 

To whom it is sent and what aid is being requested determines how a letter rogatory appears. Providing help is governed by the law in several nations. Before writing a letter rogatory, Assistant United States Attorneys should consult with the Office of International Affairs (OIA). All rogatory documents need to be validated by a judge’s signature and either an apostille or one of the other three types of authentication before they may be used. It is advisable to employ an apostille when the requesting state has accepted the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents. Authentication by the Justice Department, the Department of State, and the Embassy of the Foreign Country to whom the Letter of Request is sent is required in order to complete the chain certification procedure. 

Typically, the Foreign Ministry will refer the letter rogatory to the Ministry of Justice, and the Ministry of Justice will then convey it to the competent court body where it will be implemented if OIA communicates the letter rogatory through diplomatic channels. In most cases, evidence is returned using the same method of transmission used to make the request.

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Sources

1. Concessionary may not represent himself or herself in any cause or matter in court unless he or she also files a sworn declaration from the person who ceded the right of action to him (hence ‘the cedent’), the person who gave the right of action to him or her.

To comply, the cedent must make a declaration stating that: (a) the cession is an actual transaction under which the cedent intends to give up his or her rights to the claim to the cessionary, and (b) he or she has not given up the claim to the cessionary so that the latter can represent him in the legal proceeding in return.

2. In the event that the person to be served is a minor or person under legal disability, service must take place on the person’s guardian, tutor, or curator. 

If personal service is not reasonably possible, the process may be left at the person’s residence,  or if personal service is not possible, the process may be served by delivering a copy of it to the person to be served.

3. If two or more people are being sued in their joint role as trustees, liquidators or executors, administrators or curators or guardians, service must be conducted on each of them in the manner specified in this rule.

4. If no one is prepared to receive service at any of the locations listed, service may be carried out by affixing a copy of the process to either the front entrance of the location or, if that is not possible, any other public location.

5. or any other person designated by a judge of the court for service of any civil process or citation received from a State, territory, or court outside Namibia and transmitted under section 29(2) of the Act.

6. To verify service, a sheriff must provide a return of service, and anybody else must follow the procedures outlined to provide proof of service in South Africa’s other jurisdictions.

7. The use of letters rogatory to seek the collection of evidence has been largely superseded by applications under Section 1782 Discovery under 28 USC 1782 in US courts.

8. Regulations 1348/2000 and 1206/2001 override the two Hague Conventions in cases involving only EU member states. Denmark, the only EU member not bound by these rules, is the only one that is exempt from them.

9. Background (who is investigating whom and for what charge) and facts (enough information about the case to allow the foreign judge to conclude that a crime has been committed and see the relevance of the evidence sought) are usually included in letters rogatory; the assistance requested (be specific but include an elastic clause to allow subsequent expansion of the request without filing another letter rogatory).

10. Under cover of an application for letters rogatory and an accompanying note in support, one must send the cleared final document with the signature of the judge to the district court in two originals. The court still has one signed letter rogatory. One should also have a duplicate original and translation sent to OIA so that it can be forwarded to the Department of State, the U.S. Embassy in the target country, or a specific ministry or authority within that country so that the letter rogatory can be translated. 

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