Republic Of Namibia Ministry of Lands and Resettlement

Guidebook on Laws Relating to Immovable Property in Namibia 1

GUIDE BOOKLAWS RELATING

TO IMMOVABLE PROPERTY IN NAMIBIA

Republic Of NamibiaMinistry of Lands and Resettlement

Supported by:

Guidebook on Laws Relating to Immovable Property in Namibia


Compiled by P J HARMSE

B. Iuris, LL.B (UFS, Bloemfontein)

Commissioned by the Ministry of Lands and Resettlement

(Directorate of Valuation and Estate Management)

with the assistance of GIZ Namibia

Guidebook on Laws Relating to Immovable Property in Namibia2

The impetus for the development of the Guidebook on Laws relating to Immovable Property was borne out of the need to have a single point of reference for valuation practitioners. As Namibia moves towards full regulation of the valuation profession and aligns itself with global trends in the valuation profession, it has become imperative for the Government of the Republic of Namibia to develop instruments that enhance the skills and competencies of valuers. This Guidebook responds to the endeavour of the Ministry of Land and Resettlement to establish a professional regulatory body through the passing of the Property Valuers Profession Act, Act No. 7 of 2012.

The Guidebook was developed as a desk global reference document for those providing valuation services and to augment their understanding of the implications of various laws on their work. The Guidebook is also intended for use by students who are pursuing studies in property valuation at tertiary level. This Guidebook is an invaluable resource for anyone who is keen to get an in-depth understanding of laws governing immovable property in Namibia.

The Guide book contains all laws relating to immovable property in Namibia that has been passed by Parliament and promulgated until 14 November 2013.

The Guidebook is an effort of the Ministry to ensure that the Government achieves its objective of regulating the valuation profession and enhancement of the competencies of property valuers and also to ensure the promotion of protection of public in Namibia. The development of the Guide book is result of collaborative efforts between the Directorate of Valuation and Estate Management in the Ministry of Lands and Resettlement and the Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ). The development of this Guidebook could not have been possible without the commitment of our development partners, and dedicated staff members.

Therefore, I not only view with pride the achievement in publishing this Guide Book on “Laws relating to immovable property in Namibia,” 1st Edition, but also look forward to future editions of the Guide Book responding to the future demands thereof.

____________________Alpheus G. !Naruseb, MPMINISTER

FOREWORD

Alpheus G. !Naruseb, MPMinistry of Lands and Resettlement


FOREWORD .................................................................................................................................................................. 2

CHAPTER 1 .................................................................................................................................................................... 7

INTRODUCTION ................................................................................................................................................................. 7

CHAPTER 2 .................................................................................................................................................................... 9

CONSTITUTIONAL FRAMEWORK .................................................................................................................................... 9

1. THE NAMIBIAN CONSTITUTION 9

CHAPTER 3 ................................................................................................................................................................. 11

THE RIGHT TO PROPERTY IN INTERNATIONAL HUMAN RIGHTS LAW AS CONTAINED ........................................ 11IN INTERNATIONAL AGREEMENTS AND TREATIES AND IN COURT CASES BY THE INTERNATIONAL COURT OF JUSTICE

1. THE RIGHT TO PROPERTY IN INTERNATIONAL HUMAN RIGHTS LAW 11 2. UNIVERSAL DECLARATION OF HUMAN RIGHTS 11 3. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 11 4. CONVENTION CONCERNING THE PROTECTION OF THE WORLD CULTURAL AND NATIONAL HERITAGE, 1972 12 5. CONVENTION ON BIOLOGICAL DIVERSITY, 1992 14 6. UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION IN THOSE COUNTRIES EXPERIENCING 15 SERIOUS DROUGHT AND/OR DESERTIFICATION, PARTICULARLY IN AFRICA, 1994 7. AGREEMENT BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF ANGOLA, THE REPUBLIC OF 16 BOTSWANA AND THE REPUBLIC OF NAMIBIA ON THE ESTABLISHMENT OF A PERMANENT OKAVANGO RIVER BASIN WATER COMMISSION (OKACOM), 1994 8. AGREEMENT BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF BOTSWANA, 17 THE KINGDOM OF LESOTHO, THE REPUBLIC OF NAMIBIA AND THE REPUBLIC OF SOUTH AFRICA ON THE ESTABLISHMENT OF THE ORANGE-SENQU RIVER COMMISSION 9. INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE 1810. CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA/NAMIBIA) BY THE INTERNATIONAL 19 COURT OF JUSTICE

TABLE OF CONTENTS


CHAPTER 4 ................................................................................................................................................................. 21

STATE LAND ..................................................................................................................................................................... 21

1. CROWN LANDS (TRESPASS) PROCLAMATION, 1919 (PROCLAMATION NO. 7 OF 1919) .................................................... 21 2. CROWN LAND DISPOSAL PROCLAMATION, 1920 (PROCLAMATION NO. 13 OF 1920) ........................................................ 22 3. THE LAND TENURE ACT, 1966 ..................................................................................................................................................... 27

CHAPTER 5 ................................................................................................................................................................. 29

FORMALITIES IN RESPECT OF IMMOVABLE PROPERTY OWNERSHIP .................................................................. 29

1. DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937) 29 2. FORMALITIES IN RESPECT OF LEASES OF LAND ACT, 1969 (ACT NO. 18 OF 1969) ........................................................... 35 3. PRESCRIPTION ACT, 1969 (ACT NO. 68 OF 1969) ..................................................................................................................... 36 4. FORMALITIES IN RESPECT OF CONTRACTS OF SALE OF LAND ACT, 1969 (ACT NO. 71 OF 1969) .................................. 39 5. SUBDIVISION OF AGRICULTURAL LAND ACT, 1970 (ACT No. 70 OF 1970) ............................................................................ 40 6. SALE OF LAND ON INSTALMENTS ACT, 1971 (ACT NO. 72 OF 1971) ...................................................................................... 44 7. REGISTRATION OF DEEDS IN REHOBOTH ACT, 1976 (ACT NO. 93 OF 1976) ....................................................................... 49

CHAPTER 6 ................................................................................................................................................................. 53

QUASI PROPERTY RIGHTS ............................................................................................................................................ 53

1. SECTIONAL TITLES ACT, 1971 (ACT NO. 66 OF 1971) ............................................................................................................... 53 2. SECTIONAL TITLES ACT, 2009 (ACT NO. 2 OF 2009) ................................................................................................................. 60 3. FLEXIBLE LAND TENURE ACT, 2012 (ACT NO. 4 OF 2012) ....................................................................................................... 67

CHAPTER 7 ................................................................................................................................................................. 69

LAND REFORM ................................................................................................................................................................. 69

1. AGRICULTURAL (COMMERCIAL) LAND REFORM ACT, 1995 (ACT NO. 6 OF 1995) ............................................................... 69 2. COMMUNAL LAND REFORM ACT, 2002 (ACT NO. 5 OF 2002) .................................................................................................. 88


CHAPTER 8 ................................................................................................................................................................. 99

SECURITY OF TENURE ................................................................................................................................................... 99

1. EXPROPRIATION ORDINANCE, 1978 (ORDINANCE NO. 13 OF 1978) ..................................................................................... 99 2. THE AGRICULTURAL LAND REFORM ACT .............................................................................................................................. 102

CHAPTER 9 .............................................................................................................................................................. 103

PROFESSIONALS IN THE IMMOVABLE PROPERTY INDUSTRY .............................................................................. 103

1. ESTATE AGENTS ACT, 1976 (ACT NO. 112 OF 1976) ............................................................................................................... 103 2. PROPERTY VALUERS PROFESSION ACT, 2012 (ACT NO. 7 OF 2012) .................................................................................. 107

CHAPTER 10 ............................................................................................................................................................ 113

FINANCIAL OBLIGATIONS ............................................................................................................................................. 113

1. MORATORIUM ON THE PAYMENT OF STAMP DUTY OR TRANSFER DUTY IN RESPECT OF ...................................... 113 RATIONALISATION SCHEMES ACT, 1993 (ACT NO. 13 OF 1993) 2. TRANSFER DUTY ACT, 1993 (ACT NO. 14 OF 1993) ................................................................................................................ 116 3. STAMP DUTIES ACT, 1993 (ACT NO. 15 OF 1993) .................................................................................................................... 119

CHAPTER 11 ............................................................................................................................................................ 123

LAND PLANNING, TOWNSHIPS AND DIVISION OF LAND AND SURVEY OF LAND ............................................... 123

1. TOWN PLANNING ORDINANCE, 1954 (ORDINANCE NO. 18 OF 1954) .................................................................................. 123 2. TOWNSHIPS AND DIVISION OF LAND ORDINANCE, 1963 (ORDINANCE NO. 11 OF 1963) ................................................ 128 3. LAND SURVEY ACT, 1993 (ACT NO. 33 OF 1993) ..................................................................................................................... 132


CHAPTER 12 ............................................................................................................................................................ 139

IMMOVABLE PROPERTY BELONGING TO REGIONAL COUNCILS AND LOCAL AUTHORITY COUNCILS ........... 139

1. THE REGIONAL COUNCILS ACT, 1992 (ACT NO. 22 OF 1992) ................................................................................................ 139 2. THE LOCAL AUTHORITIES ACT, 1992 (ACT NO. 23 OF 1992) ................................................................................................. 141 3. DECENTRALISATION ENABLING ACT, 2000 (ACT NO. 33 OF 2000) ....................................................................................... 145

CHAPTER 13 ............................................................................................................................................................ 147

MISCELLANEOUS LEGISLATION RELATING TO IMMOVABLE PROPERTY ............................................................ 147

1. BIOSAFETY: THE BIOSAFETY ACT, 2006 (ACT NO. 7 OF 2006) .............................................................................................. 147 2. COMMUNICATIONS: THE COMMUNICATIONS ACT, 2009 (ACT NO. 8 OF 2009) .................................................................. 148 3. ELECTRICITY: THE ELECTRICITY ACT, 2007 (ACT NO. 4 OF 2007) ....................................................................................... 149 4. ENVIRONMENT: THE ENVIRONMENTAL MANAGEMENT ACT, 2007 (ACT NO. 7 OF 2007) ................................................. 151 5. EXECUTION OF IMMOVABLE PROPERTY: THE AMENDMENT OF EXECUTION .................................................................. 152 (MORTGAGED PROPERTIES) PROCLAMATION, 1933 (PROCLAMATION NO. 6 OF 1933) 6. EXTRADITION: THE EXTRADITION ACT, 1996 (ACT NO. 11 OF 1996) ................................................................................... 153 7. FENCING OF IMMOVABLE PROPERTY: THE FENCING PROCLAMATION, 1921 .................................................................. 153 (PROCLAMATION NO. 57 OF 1921) 8. GAME, NATURE CONSERVATION AND TOURISM ................................................................................................................... 155 9. GENDER: THE MARRIED PERSONS EQUALITY ACT, 1996 (ACT NO. 1 OF 1996) ................................................................ 15810. HOUSING ...................................................................................................................................................................................... 15911. MINERALS ..................................................................................................................................................................................... 16612. NATIONAL HERITAGE: THE NATIONAL HERITAGE ACT, 2004 (ACT NO. 27 OF 2004) ......................................................... 16913. RACIAL DISCRIMINATION: THE RACIAL DISCRIMINATION ACT, 1991 (ACT NO. 26 OF 1991) ............................................ 17214. RESTRICTIONS ON IMMOVABLE PROPERTY: THE REMOVAL OF RESTRICTIONS ORDINANCE, ................................... 173 1975 (ORDINANCE NO. 15 OF 1975) 15. ROADS ........................................................................................................................................................................................... 17416. SOIL: THE SOIL CONSERVATION ACT, 1969 (ACT NO. 76 OF 1969) ...................................................................................... 18317. TAXATION PROVISIONS OTHER THAN LAND TAX .................................................................................................................. 18518. VETERANS: THE VETERANS ACT, 2008 (ACT NO. 2 OF 2008) ................................................................................................ 18919. WATER ........................................................................................................................................................................................... 18920. WILLS AND SUCCESSION ........................................................................................................................................................... 197


CHAPTER 1

INTRODUCTION

This guidebook deals with Namibian laws relating to immovable property. In contrast to movable property which consists of objects that can be moved from one place to another, whatever their size and weight, immovable property cannot be moved from one place to another and includes land, as well as the surface soil; things attached to the soil by natural means such as plants, trees and crops, and permanent improvements to land, such as houses, blocks of flats and dams, together with permanent fixtures.

The various pieces of legislation are classified and discussed according to the subjects and matters they deal with. Apart from this chapter containing the Introduction, the guidebook consists of 12 other chapters, dealing with:

(a) The Constitutional Framework, being the provisions of the Namibian Constitution relating to immovable property (Chapter 2).

(b) The Right to Property in International Human Rights Law as contained in International Agreements and Treaties and in Court Cases by the International Court of Justice (Chapter 3).

(c) State Land (Chapter 4).

(d) Formalities in Respect of Immovable Property Ownership (Chapter 5).

(e) Quasi Property Rights Legislation, in other words legislation which deals with property rights that differ from traditional property rights such as free hold title in terms of the Deeds Registries Act and the Registration of Deeds in Rehoboth Act (Chapter 6).

(f) Land Reform (Chapter 7).

(g) Security of Tenure (Chapter 8).

(h) Professionals in the Immovable Property Industry (Chapter 9).

(i) Financial Obligation (Chapter 10).

(j) Land Planning, the Establishment of Townships and the Division of Land and the Survey of Land (Chapter 11).

(k) Immovable Property Belonging to Regional Councils and Local Authority Councils (Chapter 12).

(l) Miscellaneous Legislation Relating to Immovable Property (Chapter 13).


Professionals who work and are interested in the property sector, or who do other work but have a keen interest in the property sector, especially the immovable property sector, such as property valuers, lawyers, estate agents, public servants, academics and some of the general public may find this guidebook useful. In their everyday work valuers, as the primary target group, are confronted with various questions relating to the property they have to valuate. Many of these questions can have a great impact on the value of a specific property; the fact whether or not a property can be used for certain purposes and under which conditions, manifestly determines its value. As the level of awareness and understanding of the legislation and its impact on the day-to-day operations of valuers are currently not uniform, the capacity of the valuers and other staff members should be enhanced so that they may understand the implications of all immovable property related legislation concerning their mandate to deliver valuation services. In order to ensure compliance of valuations with the various pieces of legislation and to introduce a regulatory framework for the valuation profession in Namibia, the guidebook should be used as a desk reference manual for valuers to give them an overview of all the laws relating to immovable property in Namibia and to indicate which parts or sections of the respective laws are relevant for immovable property.

In the legislation discussed, reference has been made to the existing functionary according to Namibian law. According to this principle it would appear that in some legislation [i.e. legislation where the original functionary was the Executive Committee constituted under section 4 of the South West Africa Constitution Act, 1968 (Act No. 39 of 1968), or the Administrator of the then South West Africa] the President of Namibia is the current functionary to administer that legislation and to exercise, perform and carry out the powers, functions and duties provided for therein.

According to section 3(1) of the Assignment of Powers Act, 1990 (Act No. 4 of 1990), the President may assign the administration of any provision in any law which entrusts -

(a) to the President any power, duty or function, to the Prime Minister or any Minister; or

(b) to a Minister any power, duty or function, to the Prime Minister or any other Minister,

either specifically or by way of a general assignment of the administration of any law or of all such laws entrusting powers, duties or functions to the President or to such first-mentioned Minister, as the case may be. It is however not always clear how to determine which provisions of laws have been assigned as contemplated in the Assignment of Powers Act. It might therefore be that some legislation in which the President is now the functionary has indeed been assigned to the Minister responsible for the matters contemplated therein.

All amendments to legislation have been incorporated into the legislation concerned, and Amendment Acts, Amendment Ordinances and Amendment Proclamations are not discussed separately from the main law, but are discussed as part of the main law concerned. If any amendment is relevant it will be discussed and put into context when the main provision is discussed.

Although original research has been done with regard to the legislation concerned, NAMLEX provided valuable information regarding some of the legislation and the applicability thereof.

All relevant legislation which has been passed by Parliament and has been promulgated (published in the Gazette) up to the 14th of November 2013 has been included in this guidebook.


CHAPTER 2

This chapter deals with the provisions of the Namibian Constitution, being the supreme law of Namibia, relating to -

(a) the right to acquire, own and dispose of property, more particularly, immovable property; and

(b) property vesting in the Government of Namibia in respect of property of which the ownership or control immediately prior to the date of Independence vested in previous government organs or in other bodies, statutory or otherwise, constituted by or for the benefit of any such government organs immediately prior to the date of Independence, or which was held in trust for or on behalf of the Government of an independent Namibia, and the transfer thereof to the Government of Namibia.

1. THE NAMIBIAN CONSTITUTION

1.1 The Right to Property

Article 16 of the Namibian Constitution deals with the right to property.

1.1.1 According to Article 16(1) all persons, in other words, everybody has the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others, and to bequeath their property to their heirs or legatees. However Article 16(1) contains a proviso that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.

According to the unius inclusio est alterius exclusio-rule (the inclusion of the one is the exclusion of the other) in the interpretation of statutes, the proviso to Article 16(1) would mean that Parliament may not by legislation prohibit or regulate the right to acquire property by Namibian citizens. An example of legislation that prohibits or regulates the right to acquire property by persons who are not Namibian citizens is the Agricultural (Commercial) Land Reform Act, 1995 (Act No. 6 of 1995) (the “Agricultural Land Reform Act”), but that Act at the same time regulates (and actually prohibits in some cases) the right of Namibian citizens to acquire property where it provides that a certificate of waiver is required if agricultural land is to be alienated – even to Namibian citizens.

1.1.2 According to Sub-Article (2) of Article 16 the State or a competent body or organ authorised by law may expropriate property in the public interest and subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament. (Legislation dealing with the expropriation of immovable property and the payment of just compensation are discussed later in the text).

CONSTITUTIONAL FRAMEWORK


1.2 Property vesting in the Government of Namibia

Schedule 5 to the Namibian Constitution deals with property vesting in the Government of Namibia, in other words property which is State land.

1.2.1 Paragraph (1) of Schedule 5 provides that all property of which the ownership or control immediately prior to the date of Independence vested in -

(a) the Government of the Territory of South West Africa; or

(b) any Representative Authority constituted in terms of the Representative Authorities Proclamation, 1980 (Proclamation AG 8 of 1980); or

(c) the Government of Rehoboth; or

(d) any other body, statutory or otherwise, constituted by or for the benefit of any such Government or Authority immediately prior to the date of Independence, or which was held in trust for or on behalf of the Government of an independent Namibia,

shall vest in or be under the control of the Government of Namibia.

1.2.2 Paragraph (2) of Schedule 5 states that “property” means and includes for the purposes of that Schedule, without detracting from the generality of that term as generally accepted and understood, movable and immovable property, whether corporeal or incorporeal and wheresoever situate, and includes any right or interest therein.

1.2.3 According to -

(a) paragraph (3) of Schedule 5 all the immovable property concerned must be transferred to the Government of Namibia without payment of transfer duty, stamp duty or any other fee or charge, but subject to any existing right, charge, obligation or trust on or over the property and subject also to this Constitution;

(b) paragraph 4 of Schedule 5 the Registrar of Deeds concerned must -

(i) upon production to him or her of the title deed to any immovable property mentioned in paragraph (1) endorse the title deed to the effect that the immovable property therein described is vested in the Government of Namibia; and

(ii) make the necessary entries in his or her registers,

and thereupon the title deed concerned serves and avails for all purposes as proof of the title of the Government of Namibia to the property concerned.


CHAPTER 3

In this chapter International Agreements and Treaties and a court case decided by the International Court of Justice relating to the right to property in international human rights law are discussed. There have not been many international disputes regarding Namibian land, in fact only the case concerning the Kasikili/Sedudu Island (Botswana/Namibia) by the International Court of Justice in 1999 determined the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island.

1. THE RIGHT TO PROPERTY IN INTERNATIONAL HUMAN RIGHTS LAW

The implementation of the right to property in the Namibian Constitution corresponds to Namibia’s international obligations.

2. UNIVERSAL DECLARATION OF HUMAN RIGHTS

2.1 Namibia’s admission to the United Nations on April 23, 1990, is generally understood to include the endorsement of the Universal Declaration of Human Rights (the “Universal Declaration”).

2.2 Article 17 of the Universal Declaration deals with property, and sub-article (1) provides that “Everyone has the right to own property alone as well as in association with others”, while sub-article (2) states that “No one shall be arbitrarily deprived of his property”.

2.3 The power to deprive an individual of his right to property may only be granted by law and the law concerned must state justifiable grounds therefore.

2.4 Article 17 corresponds in general with Article 16 of the Namibian Constitution. However, the Universal Declaration is not legally binding.

3. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

3.1 The African states who are members of the Organization of African Unity are parties to the convention entitled African Charter on Human and Peoples’ Rights (the ACHPR).

3.2 The ACHPR also includes a guarantee of the right to property very similar to the one in Article 16 of the Namibian Constitution.

THE RIGHT TO PROPERTY IN INTERNATIONAL HUMAN RIGHTS LAW AS CONTAINED IN INTERNATIONAL AGREEMENTS AND TREATIES AND IN

COURT CASES BY THE INTERNATIONAL COURT OF JUSTICE


3.3.1 Article 14 of the ACHPR provides that “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”.

3.3.2 According to the second sentence of Article 14 governments have a relatively broad right to encroach upon the right of property if it is in the public interest and prescribed by law. According to some analysts the wording of the second sentence is somewhat indefinite and open for abuse by relevant authorities, because the encroachment on property rights is not bound to strict conditions. Furthermore, Article 14 does not make any reference to the legal consequences of a violation of property rights. Unlike other international human rights conventions, the ACHPR does not state that compensation is necessary in the case of expropriation. This is especially problematic in the light of the fact that Article 21, paragraph 2, of the ACHPR explicitly grants victims of spoliation the right to a lawful recovery of the lost property and to adequate compensation. However, it is fair to assume that the general property guarantee contained in Article 14 of the ACHPR means that the rights of the owner are in principle given preference over the rights of the public to the property in question. This would mean that the ACHPR only allows the expropriation of property, if in the public interest, based on law, and provided that adequate compensation is paid. On the other hand, note must be taken that some African countries carried out expropriations without paying compensation, or otherwise encroached upon the property rights of aliens and of their citizens. One example is the recent land reform in Zimbabwe which was accompanied by the violent expulsion of white farmers. Women’s rights to property either do not exist or are violated in many African countries.

3.4.1 Up to now the African Commission has not decided many applications concerning the right to property, but in the case against Nigeria (The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, Communication 155/96) it found that the corollary of the combination of the provisions protecting amongst others the right to property, forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected.

3.4.2 In the case Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97 -196/97 and 210/98, the Commission found that the confiscation and looting of the property of black Mauritanians and the expropriation or destruction of their land and houses before forcing them to go abroad constituted a violation of the right to property.

4. CONVENTION CONCERNING THE PROTECTION OF THE WORLD CULTURAL AND NATIONAL HERITAGE, 1972

4.1 The General Conference of the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) adopted on the 16th of November 1972 the abovementioned Convention (the “Protection of the World Cultural and National Heritage Convention”).

4.2.1 Article 1 of the Protection of the World Cultural and National Heritage Convention provides a definition of cultural heritage and states that for the purposes of that Convention the following is considered as “cultural heritage”, namely -

(a) monuments, as being architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;


(b) groups of buildings, as being groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; and

(c) sites, as being works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.

4.2.2 Article 2 of the Protection of the World Cultural and National Heritage Convention provides a definition of “natural heritage” and states that for the purposes of that Convention the following is considered as “natural heritage”, namely -

(a) natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

(b) geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; and

(c) natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.

4.2.3 According to Article 3 of the Protection of the World Cultural and National Heritage Convention each State Party to that Convention must identify and delineate the different properties situated on its territory as contemplated in Articles 1 and 2.

4.2.4 Article 4 of the Protection of the World Cultural and National Heritage Convention states that each State Party to that Convention recognises that -

(a) the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State; and

(b) the State concerned will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

4.2.5 Article 5 of the Protection of the World Cultural and National Heritage Convention provides that to ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to that Convention must endeavour, in so far as possible, and as appropriate for each country -

(a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;


(b) to set up within its territories, where the services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;

(c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and

(e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

4.2.6 Article 6 of the Protection of the World Cultural and National Heritage Convention states that -

(a) whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to that Convention recognise that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate;

(b) the States Parties undertake, in accordance with that Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request;

(c) each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

4.2.7 Article 7 of the Protection of the World Cultural and National Heritage Convention provides that for the purpose of that Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.

4.3 The Protection of the World Cultural and National Heritage Convention came into force in 1975.

5. CONVENTION ON BIOLOGICAL DIVERSITY, 1992

5.1 Signed by 150 government leaders at the 1992 Rio Earth Summit, the Convention on Biological Diversity is dedicated to promote sustainable development, and it recognises that biological diversity is about more than plants, animals and micro-organisms and their ecosystems – it is about people and our need for food security, medicines, fresh air and water, shelter, and a clean and healthy environment in which to live.

5.2.1 Article 1 of the Convention on Biological Diversity contains the objectives thereof, which, to be pursued in accordance with its relevant provisions, are -


(a) the conservation of biological diversity;

(b) the sustainable use of its components; and

(c) the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and technologies, and by appropriate funding.

5.2.2 Article 3 deals with the principle thereof, and provides that States have, in accordance with the Charter of the United Nations and the principles of international law, the -

(a) sovereign right to exploit their own resources pursuant to their own environmental policies; and

(b) the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

5.2.3 Article 5 deals with cooperation, and states that each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organisations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.

6. UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION IN THOSE COUNTRIES EXPERIENCING SERIOUS DROUGHT AND/OR DESERTIFICATION, PARTICULARLY IN AFRICA, 1994

6.1 The United Nations Convention to Combat Desertification (the “Desertification Combat Convention”) endeavours to mitigate the effects of drought through national action programs that incorporate long-term strategies supported by international cooperation and partnership arrangements, and was adopted in Paris on 17 June 1994, coming into force in December 1996.

6.2.1 Article 2 of the Desertification Combat Convention contains the objective thereof, namely to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels, supported by international cooperation and partnership arrangements, in the framework of an integrated approach with a view to contribute to the achievement of sustainable development in affected areas.

6.2.2 Article 3 of the Desertification Combat Convention states that in order to achieve the objective of that Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following -

(a) the Parties should ensure that decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels;

(b) the Parties should, in a spirit of international solidarity and partnership, improve cooperation and coordination at sub-regional, regional and international levels, and better focus on financial, human, organizational and technical resources where they are needed;


(c) the Parties should develop, in a spirit of partnership, cooperation among all levels of government, communities, non-governmental organisations and landholders to establish a better understanding of the nature and value of land and scarce water resources in affected areas and to work towards their sustainable use; and

(d) the Parties should take into full consideration the special needs and circumstances of affected developing country Parties, particularly the least developed among them.

7. AGREEMENT BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF ANGOLA, THE REPUBLIC OF BOTSWANA AND THE REPUBLIC OF NAMIBIA ON THE ESTABLISHMENT OF A PERMANENT OKAVANGO RIVER BASIN WATER COMMISSION (OKACOM), 1994

7.1.1 The Agreement between the Governments of the Republic of Angola, the Republic of Botswana and the Republic of Namibia on the Establishment of a Permanent Okavango River Basin Water Commission (“OKACOM” or “the Commission”) which was entered into in Windhoek on 16 September 1994 (the “OKACOM Agreement”), commits the member states to promote coordinated and environmentally sustainable regional water resources development, while addressing the legitimate social and economic needs of each of the riparian states. The three countries recognise the implications that developments upstream of the Okavango River can have on the resources downstream. Most of the river is currently undeveloped and is recognized as one of the few “near pristine” rivers in the world.

7.1.2 OKACOM advises the three riparian states about the best possible use of the river’s natural resources.

7.2.1 The objective of OKACOM is to act as technical advisor to the Contracting Parties (the Governments of the three states) on matters relating to the conservation, development and utilisation of the resources of common interest to the Contracting Parties (basin member states) and to perform such other functions pertaining to the development and utilisation of such resources as the Contracting Parties may from time to time agree to assign to OKACOM.

7.2.2 The role of OKACOM is to anticipate and reduce those unintended, unacceptable and often unnecessary impacts that occur due to uncoordinated resources development. To do so it has developed a coherent approach to manage the river basin. The approach is based on equitable allocation, sustainable utilisation, sound environmental management and the sharing of benefits.

7.2.3 The OKACOM Agreement gives OKACOM legal responsibility to -

(a) determine the long term safe yield of the river basin;

(b) estimate reasonable demand from the consumers;

(c) prepare criteria for conservation, equitable allocation and sustainable utilisation of water;

(d) conduct investigations related to water infrastructure;

(e) recommend pollution prevention measures;


(f) develop measures for the alleviation of short term difficulties, such as temporary droughts; and

(g) address other matters determined by OKACOM.

8. AGREEMENT BETWEEN THE GOVERNMENTS OF THE REPUBLIC OF BOTSWANA, THE KINGDOM OF LESOTHO, THE REPUBLIC OF NAMIBIA AND THE REPUBLIC OF SOUTH AFRICA ON THE ESTABLISHMENT OF THE ORANGE-SENQU RIVER COMMISSION

8.1.1 The Agreement between the Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia and the Republic of South Africa on the establishment of the Orange-Senqu River Commission (“ORASECOM”) was entered into on the 3rd of November 2000 in Windhoek (the “ORASECOM Agreement”).

8.1.2 The ORASECOM Agreement refers to and recognises the following agreements -

(a) the Helsinki rules (1966);

(b) the UN Convention on Non-Navigational Uses of International Watercourses (1997); and

(c) the SADC Revised Protocol on Shared Watercourse Systems (2000).

8.2.1 ORASECOM -

(a) promotes the equitable and sustainable development of the resources of the Orange-Senqu River;

(b) provides a forum for consultation and coordination among the riparian states of Botswana, Namibia, Lesotho and South Africa to promote integrated water resources management and development within the basin; and

(c) is expected to strengthen regional solidarity and enhance socio-economic cooperation within the region.

8.2.2 The goals of ORASECOM are to -

(a) develop a comprehensive perspective of the basin;

(b) study the present and planned future uses of the river system; and

(c) determine the requirements for flow monitoring and flood management.

8.3.1 Article 1 of the ORASECOM Agreement establishes the ORASECOM as an international organisation that possesses an international legal personality within the legal systems of each member country, and has the capacity to enter into international agreements, while Article 2 thereof establishes the institutional arrangement of the Commission. The highest body of the Commission is the Council, consisting of one delegation per Party. A delegation shall include not more than 3 permanent members, one of whom will be the delegation leader.


8.3.2 Article 7 of the ORASECOM Agreement outlines the obligations of the parties, and states that Parties shall -

(a) fully cooperate with and support the implementation of that Agreement and recommendations of the Council;

(b) parties shall utilise resources of the River System in an equitable and reasonable manner;(c) take all appropriate measures to prevent causing significant harm to any other Party;

(d) exchange available information and data on the River System; and

(e) notify the Council of any project, programme or activity related to the River System which may adversely affect other Parties.

9. INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE

9.1 The International Treaty on Plant Genetic Resources for Food and Agriculture (popularly known as the “International Seed Treaty”) came into force on 29 June 2004.

9.2.1 The International Seed Treaty is a comprehensive international agreement which aims at food security through the conservation, exchange and sustainable use of the world’s plant genetic resources for food and agriculture, as well as the fair and equitable benefit sharing arising from its use. It also recognises certain farmers’ rights, namely to freely access genetic resources, unrestricted by intellectual property rights; to be involved in relevant policy discussions and decision making, and to use, save, sell and exchange seeds, subject to national laws.

9.2.2 The International Seed Treaty was negotiated by the Food and Agriculture Organisation of the United Nations (FAO) Commission on Genetic Resources for Food and Agriculture (CGRFA) and since 2006 has had its own governing body under the aegis of the FAO.

9.3 The International Seed Treaty aims at -

(a) recognising the enormous contribution of farmers to the diversity of crops that feed the world;

(b) establishing a global system to provide farmers, plant breeders and scientists with access to plant genetic materials;

(c) ensuring that recipients share benefits they derive from the use of these genetic materials with the countries where they have been originated.


10. CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA/NAMIBIA) BY THE INTERNATIONAL COURT OF JUSTICE

10.1 This case was heard by the International Court of Justice in order to determine, on the basis of the Anglo-German Treaty of 1 July 1890 [which is an agreement between Great Britain and Germany respecting the spheres of influence of Namibia and Botswana] and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island. The Court gave its decision on the 13th of December 1999.

10.2 By joint letter dated 17 May 1996 Botswana and Namibia transmitted to the Registrar the original text of a Special Agreement between the two States, signed at Gaborone on 15 February 1996 and entered into force on 15 May 1996, in which the Court was in Article I asked to determine the answer to the question referred to in paragraph 10.1 above.

10.3.1 The Court recounted the history of the dispute between the Parties which is set against the background of the nineteenth century race among the European colonial powers for the partition of Africa. In the spring of 1890, Germany and Great Britain entered into negotiations with a view to reach an agreement concerning their trade and their spheres of influence in Africa. The resulting Treaty of 1 July 1890 delimited inter alia the spheres of influence of Germany and Great Britain in the then South West Africa, and that delimitation lies at the heart of the present case.

10.3.2 In the ensuing century, the territories involved experienced various mutations in status. The independent Republic of Botswana came into being on 30 September 1966, on the territory of the former British Bechuanaland Protectorate, while Namibia (of which the Caprivi Strip forms part) became independent on 21 March 1990, on the territory of the former South West Africa.

10.3.3 Shortly after Namibia’s independence, differences arose between the two States concerning the location of the boundary around Kasikili/Sedudu Island, and in May 1992, it was agreed to submit the determination of the boundary around the island to a Joint Team of Technical Experts. In February 1995, the Joint Team Report, in which the team announced that it had failed to reach an agreed conclusion on the question put to it, was considered and it was decided to submit the dispute to the International Court of Justice for a final and binding determination.

10.4.1 In Botswana’s final submissions it requested the Court -

(1) to adjudge and declare -

(a) that the northern and western channel of the Chobe River in the vicinity of Kasikili/Sedudu Island constitutes the ‘main channel’ of the Chobe River in accordance with the provisions of Article III(2) of the Anglo-German Agreement of 1890; and

(b) consequently, sovereignty in respect of Kasikili/Sedudu Island vests exclusively in the Republic of Botswana; and further

(2) to determine the boundary around Kasikili/Sedudu Island on the basis of the thalweg in the northern and western channel of the Chobe River.


10.4.2 In Namibia’s final submissions it requested the Court to reject all claims and submissions to the contrary and to adjudge and declare -

1. The channel that lies to the south of Kasikili/Sedudu Island is the main channel of the Chobe River.

2. The channel that lies to the north of Kasikili/Sedudu Island is not the main channel of the Chobe River.

3. Namibia and its predecessors have occupied and used Kasikili Island and exercised sovereign jurisdiction over it, with the knowledge and acquiescence of Botswana and its predecessors since at least 1890.

4. The boundary between Namibia and Botswana around Kasikili/Sedudu Island lies in the centre (that is to say, the thalweg) of the southern channel of the Chobe River.

5. The legal status of Kasikili/Sedudu Island is that it is a part of the territory under the sovereignty of Namibia.

10.5 Conclusion of the Court

10.5.1 The Court’s interpretation of Article III(2) of the 1890 Treaty has led it to conclude that the boundary between Botswana and Namibia around Kasikili/Sedudu Island follows the line of deepest soundings in the northern channel of the Chobe. Since the Court has not accepted Namibia’s argument on prescription, it follows that Kasikili/Sedudu Island forms part of the territory of Botswana.

10.5.2 The Court observes, however, that the Kasane Communiqué of 24 May 1992 records that the Presidents of Namibia and Botswana agreed and resolved that -

(a) existing social interaction between the people of Namibia and Botswana should continue;

(b) economic activities such as fishing should continue on the understanding that fishing nets should not be laid across the river;

(c) navigation should remain unimpeded including free movement of tourists.

10.5.3 The Court, which by the terms of the Joint Agreement between the Parties is empowered to determine the legal status of Kasikili/Sedudu Island concludes, in the light of the above-mentioned provisions of the Kasane Communiqué and in particular its subparagraph (e) and the interpretation of that subparagraph Botswana gave before the Court in this case, that the Parties have undertaken to one another that there shall be unimpeded navigation for craft of their nationals and flags in the channels of Kasikili/Sedudu Island. As a result, in the southern channel of Kasikili/Sedudu Island, the nationals of Namibia, and vessels flying its flag, are entitled to, and shall enjoy, a treatment equal to that accorded by Botswana to its own nationals and to vessels flying its own flag. Nationals of the two States, and vessels, whether flying the flag of Botswana or of Namibia, shall be subject to the same conditions as regards navigation and environmental protection. In the northern channel, each Party shall likewise accord the nationals of, and vessels flying the flag of, the other, equal national treatment.


CHAPTER 4

Chapter 4 discusses legislation dealing with and referring to State land (or crown land, as it was initially known) and some old pieces of legislation, such as the Crown Lands (Trespass) Proclamation, 1919 (Proclamation No. 7 of 1919), and the Crown Land Disposal Proclamation, 1920 (Proclamation No. 13 of 1920), as well as other provisions relating to land tenure in respect of the acquisition and development of land for, or for use in connection with farming purposes.

1. CROWN LANDS (TRESPASS) PROCLAMATION, 1919 (PROCLAMATION NO. 7 OF 1919)

1.1 The Crown Lands (Trespass) Proclamation, 1919 (Proclamation No. 7 of 1919) (the “Crown Lands Trespass Proclamation”):

(a) Makes provision for the prevention of trespass on crown land in Namibia.

(b) Came into operation on the 30th of September 1919.

(“Crown land” is not defined in the Crown Lands Trespass Proclamation, but it is given for consideration that it means and includes all unalienated land within Namibia, which is the property of the Government of Namibia, in other words “State land”.)

1.2 Provisions of the Crown Lands Trespass Proclamation

1.2.1 Section 1 of the Crown Lands Trespass Proclamation deals with the unauthorised or unlawful loitering in or upon or taking up of residence whether permanently or temporarily upon any crown land, and states that any person doing so is deemed to be guilty of an offence, while section 2 deals with the unauthorised or unlawful cutting, injuring or removing of trees, shrubs, bushes, saplings or reshoots, timber, fire-wood, wattles, kraalwood or grass of any kind whatsoever in or upon any crown land, and states that any person doing so without a permit from the military magistrate of the district in which the crown land is situate, is deemed to be guilty of an offence.

It is not clear who is the equal or compeer of “the military magistrate of the district in which the crown land is situate” referred to in section 2 who must issue the permit concerned.

1.2.2 According to section 3 of the Crown Lands Trespass Proclamation any person depasturing or causing to be depastured in or upon any crown land ostriches and livestock, except upon a permit from the military magistrate of the district in which the crown land is situate, is deemed to be guilty of an offence.

STATE LAND


1.2.3 Section 4 of the Crown Lands Trespass Proclamation provides that nothing in the foregoing provisions thereof is deemed to apply to anything otherwise contrary thereto, done by any person, lawfully upon any journey in order to meet his or her reasonable requirements for the purpose of the journey, provided that nothing herein contained is deemed to exempt from criminal proceedings any person contravening in any respect any other provision of the existing law in force in Namibia so far as it is applicable to the person.

1.2.4 Section 5 of the Crown Lands Trespass Proclamation states that any person who alters, counterfeits or substitutes any permit issued thereunder or knowingly makes use of a permit so altered, counterfeited or substituted, or forges any permit purporting to be used thereunder, or knowingly makes use of any permit so forged or infringes any condition of a permit issued thereunder is guilty of an offence.

1.2.5.1 Section 6 of the Crown Lands Trespass Proclamation provides for the penalties in respect of the offences, and states that any person found guilty of an offence against any provision thereof is liable to a fine not exceeding N$100 or in default of payment to imprisonment with or without hard labour for a period not exceeding 6 months.

1.2.5.2 It would appear that the amount of the fine and the period of imprisonment should be increased if the Proclamation is still to be enforced.

1.2.6 The Crown Lands Trespass Proclamation would appear to be obsolete, and it is an open question whether, especially with regard to crown land or State land which is communal land, that Proclamation is not deemed to be repealed or by implication repealed, in as much as it relates to communal land, by the Communal Land Reform Act, 2002 (Act No. 5 of 2002) (the “Communal Land Reform Act”).

2. CROWN LAND DISPOSAL PROCLAMATION, 1920 (PROCLAMATION NO. 13 OF 1920)

2.1 Provisions of the Crown Land Disposal Proclamation, 1920 (Proclamation No. 13 of 1920)

Section 1 of the Crown Land Disposal Proclamation, 1920 (Proclamation No. 13 of 1920) (the “Crown Land Disposal Proclamation”) provides that, subject to the amendments set forth in the Schedule thereto, the Crown Land Disposal Proclamation, 1903 (Transvaal) (Ordinance No. 57 of 1903), as amended by the Crown Land Disposal Amendment Ordinance 1906 of the Transvaal shall have effect in the Protectorate of South West Africa (now Namibia).

2.2 Provisions of the Crown Land Disposal Ordinance 1903, as amended by the Crown Land Disposal Amendment Ordinance 1906 of the Transvaal, and made applicable to Namibia and amended by the Crown Land Disposal Proclamation, as well as the Crown Land Disposal Amendment Ordinance, 1958 (Ordinance No. 36 of 1958) and the Crown Land Disposal Amendment Ordinance, 1965 (Ordinance No. 17 of 1965)

2.2.1 Section 4 of the Crown Land Disposal Ordinance 1903 provides that the President (of Namibia) may for the purposes of the administration of that Ordinance consult the board as defined in section two of the Land Settlement Consolidation and Amendment Proclamation, 1927 (Union Proclamation 310 of 1927) (hereafter referred to as “the Union Proclamation”). Section 2 of the Union Proclamation defines the board or the Land Board as the Land Board appointed by the Administrator under that Proclamation in respect of the territory (now Namibia).


Section:

(a) 1 of the Land Settlement Further Amendment Ordinance, 1965 (Ordinance No. 28 of 1965), has amended the definition of the board or the land board as defined in section 2 of the Union Proclamation, and states that “the board” means the State Settlement and Farmers’ Assistance Board constituted under section two of the Farmers’ Assistance Ordinance, 1962 (Ordinance 11 of 1962) as substituted by section one of the Farmers’ Assistance Amendment Ordinance, 1965.

(b) 20(1) of the Agricultural Credit Amendment Act, 1970 (Act No. 66 of 1970), has repealed the Union Proclamation, as well as the Land Settlement Further Amendment Ordinance, 1965, without providing how the reference to the board in section 4 of the Crown Land Disposal Ordinance 1903 should now be construed.

(c) 10 of the Land Tenure Act, 1966 (Act No. 32 of 1966) (the “Land Tenure Act, 1966”), which was substituted by section 5 of Act No. 67 of 1970), deals with the interpretation of certain references to the State Settlement and Farmers’ Assistance Board in certain laws, and provides that any reference to the “State Settlement and Farmers’ Assistance Board” in any law not repealed by the Agricultural Credit Amendment Act, 1970, must be construed as a reference to the board established by section 2 of the Agricultural Credit Act, 1966 (Act No. 28 of 1966). (The Crown Land Disposal Ordinance 1903 is a law which has not been repealed by the Agricultural Credit Amendment Act, 1970). The board established by section 2 of the Agricultural Credit Act, 1966, is the Agricultural Credit Board, and the effect of section 10 of the Land Tenure Act, 1966, is that the Agricultural Credit Board was the board contemplated in section 4 of the Crown Land Disposal Ordinance 1903, with whom the Administrator should have consulted at that time.

(d) 23(1) of the Agricultural Bank Amendment Act, 1991 (Act No. 27 of 1991), has repealed the whole of the Agricultural Credit Act, 1966, as well as all amendments thereof applicable to Namibia. However, that Act does not provide how the reference to the board in section 4 of the Crown Land Disposal Ordinance 1903 should now be construed. It would therefore appear that when no further provision has been made for the construction of references to the Agricultural Credit Board, the power of the President to consult with the board contemplated in section 4 of the Crown Land Disposal Ordinance 1903 has lapsed. (However, please consider the discussion of the Land Tenure Act, 1966, below).

(According to the actual wording of the Crown Land Disposal Ordinance 1903 the powers contemplated in that ordinance vest in the Administrator (of the territory of South West Africa). As a result of various pieces of transfer legislation which are now not relevant, those powers had vested in the Administrator-General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference to the Administrator-General in laws in force in Namibia must be construed as a reference to the President of Namibia. If the provisions of the Crown Land Disposal Ordinance 1903 had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, 1990 (Act No. 4 of 1990) (the “Assignment of Powers Act”), then the powers in that Ordinance would vest in the Minister responsible for land. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act.)


2.2.2 Section 5 of the Crown Land Disposal Ordinance 1903 states that the [President] may dispose of Crown lands within Namibia by grant, sale, lease or otherwise in the manner and on the conditions as he or she may deem advisable not repugnant to that Ordinance: provided that particulars of every grant, sale or lease must immediately after it is effected be published in the Gazette: provided further that fifty per cent of all moneys received from the sale of Crown lands in a township for which no local authority council has been constituted, must be held in trust by the Government for a local authority council which may be established. The words or otherwise in section 5 would include to donate Crown land.

Apart from section 16(1)(a) and (b) of the Communal Land Reform Act which deals with -

(a) the declaration by the President, with the approval of the National Assembly, of any defined portion of unalienated State land to be a communal land area;

(b) the incorporation by the President, with the approval of the National Assembly, of any defined portion of unalienated State land as part of any existing communal land,

[and the Land Tenure Act, 1966, which deals with the alienation and allocation of State land as being land of the Government of Namibia placed at the disposal of the Ministry of Agriculture for the purposes of the application of that Act or the Agricultural Credit Act, 1966 (Act No. 28 of 1966), and which will be discussed later - see pages 27-28 and 90-91], I am not aware of any other legislation which provides for or deals with the disposal of Crown lands (State land) in general as provided for in section 5 of the Crown Land Disposal Ordinance 1903.

2.2.3 Section 6 of the Crown Land Disposal Ordinance 1903 provides that the [President] may grant any Crown land in exchange for any other land if it appears to the President advisable to do so in the public interest.

2.2.4 According to section 7(3) of the Crown Land Disposal Ordinance 1903, the President has the right to resume for public purposes the whole or any portion of any land alienated under the Crown Land Disposal Ordinance 1903. On the resumption of the land for public purposes under that section, compensation must be paid by the Government to the grantee or lessee as may be agreed upon, or in default of agreement, as may be determined by arbitration in accordance with the law for the settlement of differences by arbitration which is in force in Namibia.

It would appear that the Arbitration Act, 1965 (Act No. 42 of 1965), which provides for the settlement of disputes by arbitration tribunals in terms of written arbitration agreements and for the enforcement of the awards of the arbitration tribunals, is the law referred to in subsection (3).

2.2.5 Section 8 of the Crown Land Disposal Ordinance 1903 provides that all grants and leases of state lands must be signed by the [President]. The date of signature of any such grant or lease is deemed to be the date of its issue and every such grant or lease must be registered in the Deeds Office at Windhoek.

2.2.6 Section 9 of the Crown Land Disposal Ordinance 1903 deals with the keeping of special registers by the Registrar of Deeds, and provides that the Registrar must open and keep special registers wherein all leases and licences issued under that Ordinance must be registered. Notwithstanding anything contained in any law the leases and licences need not be drawn before a notary public nor shall they be subject to transfer duty or stamp duty, except in the case of a subsequent transfer or cession when the transfer or cession is in the


ordinary form and subject to the duties prescribed by law. If the Government is not in possession of a written title to any land leased, the entry in the special register concerned is regarded as effective registration. The President must on the termination or cancellation of any such lease or licence forward to the Registrar a notification to that effect duly signed by the President and the lessee or licensee together with copies of the deeds held by them, and the Registrar must thereupon cancel the registration of the lease or licence without payment of any fee for the cancellation. If the consent of the lessee or licensee cannot be obtained a certificate to that effect by the President and his or her consent is deemed sufficient authority to the Registrar to cancel the registration concerned.

2.2.7 Section 10 of the Crown Land Disposal Ordinance 1903 provides that in the case of an improper description of the boundaries or a diagram of land granted or leased, the President may recall the grant or lease and an amended grant or lease may be issued in lieu thereof.

2.2.8 According to section 11 of the Crown Land Disposal Ordinance 1903 the [President] may insert in any grant or lease all such conditions as he or she may deem necessary to secure the beneficial occupation of the land granted or leased, including a clause permitting the lessee to cut timber on Crown lands as may be required for domestic uses for the construction of buildings, fences, stockyards or other improvements on the lands so occupied, but not for any other purpose.

2.2.9 Section 12 of the Crown Land Disposal Ordinance 1903 deals with the making of reserves. The President may, on the conditions and limitations as he or she may think fit, reserve or dispose of in such other manner as may seem best for the public interest, except by way of sale, any Crown lands that may be required for the objects and purposes mentioned therein, such as -

(a) for the use or benefit of aboriginal natives, coloured persons and Asiatics (sic);

(b) for the use or requirements of the Government, or for military or police purposes;

(c) for railways and railway stations, roads or canals or other internal communication;

(d) for landing places on rivers, ferries and bridges;

(e) for sites for schools and other buildings for the purpose of education;

(f) for state forest areas for the conservation of timber and indigenous flora and fauna;

(g) for saltpans;

(h) for sites for chapels and churches;

(i) for sites for cities, towns, villages, residence and business areas;

(j) for cemeteries;

(j) for any other purposes of public health, safety, utility, convenience or enjoyment for otherwise facilitating the improvement and settlement of Namibia.


Much of what is provided for in section 12 appears to have become obsolescent due to later laws which have been enacted, but which however have not repealed these provisions explicitly, such as provisions dealing with or relating to military and police matters, educational matters, forestry matters, establishment of towns and local authority matters and health and safety matters. For example, paragraph (a) above appears to authorise the creation of new communal land, but it seems to have been repealed by the Communal Land Act.

2.2.10 According to -

(a) section 13 of the Crown Land Disposal Ordinance 1903 a full and complete description of every reserve referred to in section 12 and the purposes for which it is made must as soon as possible be published in the Gazette;

(b) section 14 of the Crown Land Disposal Ordinance 1903 the President may cancel or amend or change the specified purposes for which any reserve is made and notice of the cancellation, amendment or change must be published in the Gazette;

(c) section 15 of the Crown Land Disposal Ordinance 1903 the President may by proclamation in the Gazette place any reserve under the control of any municipality, urban district board or other person or persons as a board of management for any of the purposes referred to in section 12, and may empower the municipality, board or other person to make, repeal and alter bye-laws for the control and management of the reserve or prescribing fees for depasturing thereon;

(d) section 16 of the Crown Land Disposal Ordinance 1903 all reserves made for any purpose under that Ordinance must be set forth on the authenticated maps in the office of the Surveyor-General, and a duly approved diagram must be annexed to each such deed of reserve and the deed must be registered in the office of the Registrar of Deeds.

2.2.11 Section 17 of the Crown Land Disposal Ordinance 1903 provides for the delegation of powers by the [President] to any staff member in the Government or the board referred to in section 4.

2.2.12 According to section 18 of the Crown Land Disposal Ordinance 1903 the President may from time to time make regulations for the establishment and proclamation of towns and the proper layout and survey of erven therein for any object or purpose that may be deemed necessary for the efficient administration of that Ordinance. However, it would appear that section 18 has, at least by implication, been repealed by the Townships and Division of Land Ordinance, 1963 (Ordinance No. 11 of 1963), in so far as it relates to the establishment and proclamation of towns and the proper layout and survey of erven.


3. THE LAND TENURE ACT, 1966

The Land Tenure Act, 1966:

(a) Provides -

(i) for the establishment of a Land Tenure Board and to define its functions;

(ii) for the acquisition and development of land for, or for use in connection with farming purposes; and

(iii) for incidental matters.

(b) Was made applicable in Namibia with effect from 1 April 1971 by the Land Tenure Amendment Act, 1970 (Act No. 67 of 1970).

(c) Has been amended by the Land Tenure Amendment Act, 1970 (Act No. 67 of 1970), the Land Tenure Amendment Act, 1972 (Act No. 16 of 1972), and the Expropriation Act, 1975 (Act No. 63 of 1975).

3.1 Provisions of the Land Tenure Act, 1966

3.1.1 Section 1 of the Land Tenure Act, 1966, contains the definitions.

3.1.2 Section 2 of the Land Tenure Act, 1966, establishes a board to be known as the Land Tenure Board and further provides for the composition of the board, the appointment of additional members to the board, the term of office of members of the board, the vacation of office by members of the board and the remuneration, allowances, leave or other privileges and conditions of service of any member of the board or his or her alternate, not being in the full-time employment of the State.

3.1.3 Section 3 of the Land Tenure Act, 1966, states that the functions of the board are to advise the Minister responsible for agriculture in regard to:

(a) The value of land and any rights in or over land. The question immediately arises in what respect this paragraph has been repealed by the applicable provisions of the Agricultural Land Reform Act in so far as that Act relates to the valuation of “agricultural land” contemplated therein?

(b) The alienation and allocation of State land. “State land” is defined in section 1 of the Land Tenure Act, 1966, as to mean, in the application of this Act in Namibia, land of the Government of Namibia placed at the disposal of the Ministry of Agriculture for the purposes of the application of this Act or the Agricultural Credit Act, 1966 (Act No. 28 of 1966). As pointed out above, the Agricultural Credit Act, 1966, has been repealed, and land can no longer be placed at the disposal of the Ministry of Agriculture for the purposes of the application of that Act.

(c) Any other matter which the Minister responsible for agriculture may refer to the board.


3.1.4.1 According to section 4(1) of the Land Tenure Act, 1966, the Minister responsible for agriculture may -

(a) out of moneys appropriated by Parliament for the purpose, purchase any land which the Minister considers suitable for or for use in connection with farming purposes;

(b) exchange any State land for any other land which the Minister considers suitable for, or for use in connection with farming purposes, and issue a deed of grant in respect of any land so exchanged.

3.1.4.2 According to subsection (4), land acquired under subsection (1) in Namibia must be transferred to and registered in the name of the Government of Namibia.

3.1.4.3 The question immediately arises in what respect paragraph (a) of subsection (1) has been repealed by the applicable provisions of Agricultural Land Reform Act No. 6 of 1995 in so far as that Act relates to the purchase of land suitable for or for use in connection with agricultural purposes as contemplated in that Act?

3.1.6 Section 6 of the Land Tenure Act, 1966, provides that the Minister responsible for agriculture may develop for or for use in connection with farming purposes any State land which in the opinion of the board is suitable for or for use in connection with any such purposes, or construct any works thereon.

3.1.7 Section 7 of the Land Tenure Act, 1966, creates offences and prescribes penalties in respect of the offences, while section 8 provides that the Minister responsible for agriculture may make regulations relating to -

(a) the calling of, procedure and quorum at meetings of the board and the appointment of alternates to members of the board;

(b) any other matter in respect of which the Minister deems it necessary or expedient to make regulations in order to achieve the objects of that Act.

3.1.8 Section 9 of the Land Tenure Act, 1966, provides for the delegation of powers by the Minister to staff members in the Government.

3.1.9 Section 10 of the Land Tenure Act, 1966, contains the interpretation provision which was referred to and discussed in subparagraph (c) of paragraph 2.2.1(d) on page 23, while section 10A provides that that Act and any amendment thereof which may be made from time to time, with the exception of section 5, apply also in Namibia.

3.2 Application of the Land Tenure Act, 1966

It is an open question whether the Land Tenure Act, 1966, should still apply in Namibia.


CHAPTER 5

This chapter deals firstly with the Deeds Registries Act, 1937 (Act No. 47 of 1937), as the main law dealing with the registration of ownership by virtue of deeds of transfer in Namibia, excluding the Rehoboth Gebiet, and with other legislation relating to prescription, formalities in respect of leases and contracts of sale of land, subdivision of agricultural land, sale of land in instalments, and lastly with the Registration of Deeds in Rehoboth Act, 1976 (Act No. 83 of 1976).

A new Deeds Registries Bill providing for a uniform system of deeds registries and the registration of deeds in the whole of Namibia is in the process of finalisation.

1. DEEDS REGISTRIES ACT, 1937 (ACT NO. 47 OF 1937)

The ownership of land by virtue of freehold title as contemplated in the Deeds Registries Act, 1937 (Act No. 47 of 1937) (the “Deeds Registries Act”) is, other than in the case of the Communal Land Act, connected to surveyed pieces of land set out in diagrams contemplated in the Land Survey Act.

The Deeds Registries Act:

(a) Consolidates and amends the laws in force in Namibia relating to the registration of deeds.

(b) Is divided into eight chapters, providing for Administration, Registration, Registration of Land, Townships and Settlements, Bonds, Rights in Immovable Property, Antenuptial Contracts and Miscellaneous, respectively.

(c) Was made applicable in Namibia on 1 June 1972 by the Deeds Registries Amendment Act, 1972 (Act No. 3 of 1972), of South Africa.

(d) Has been amended by the Deeds Registries Amendment Act, 1953 (Act No. 15 of 1953), the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), the General Law Amendment Act, 1956 (Act No. 50 of 1956), the Deeds Registries Amendment Act, 1957 (Act No. 43 of 1957), the Deeds Registries Amendment Act, 1962 (Act No. 43 of 1962), the General Law Amendment Act, 1964 (Act No. 80 of 1964), the Deeds Registries Amendment Act, 1965 (Act No. 87 of 1965), the Mining Titles Registration Act, 1967 (Act No. 16 of 1967), the Deeds Registries Amendment Act, 1969 (Act No. 61 of 1969), the Deeds Registries Amendment Act, 1972 (Act No. 3 of 1972), the Land Survey Amendment Act, 1972 (Act No. 71 of 1972), the General Law Amendment Act, 1973 (Act No. 62 of 1973), the General Law Amendment Act, 1974 (Act No. 29 of 1974), the General Law Amendment Act, 1975 (Act No. 57 of 1975), the Expropriation Act, 1975 (Act No. 63 of 1975), the Registration of Deeds in Rehoboth Act,

FORMALITIES IN RESPECT OF IMMOVABLE PROPERTY OWNERSHIP


1976 (Act No. 93 of 1976), the Deeds Registries Amendment Act, 1977 (Act No. 41 of 1977), the Deeds Registries Amendment Act, 1978 (Act No. 92 of 1978), the Executive Powers (Justice) Transfer Proclamation, 1985 (Proclamation No. AG 32 of 1985), the Deeds Registries Amendment Act, 1985 (Act No. 26 of 1985) and the Deeds Registries Amendment Act, 1996 (Act No. 2 of 1996).

1.1 Provisions of the Deeds Registries Act

1.1.1 Chapter I: Administration

Chapter I of the Deeds Registries Act deals with administration, and provides for:

(a) Deeds registries (section 1). There is in Namibia a deeds registry in Windhoek, which must serve Namibia, excluding the Rehoboth Gebiet as described in section 6 of the Rehoboth Self-Government Act, 1976 (Act No. 93 of 1976).

(b) The appointment of a registrar of deeds, one or more deputy registrars of deeds and an acting registrar of deeds by the Minister of Lands and Resettlement (section 2).

(c) The duties of the Registrar (section 3).

(d) The powers (discretions) of the Registrar (section 4).

(e) Transactions affecting land in areas served by different deeds registries (section 5).

(f) The cancellation of registered deeds (section 6).

(g) The inspection of records by members of the public and the supply of information to same (section 7).

(h) The establishment, composition, meetings and quorum of a deeds registries regulations board (“the Board”) and the terms of office of members thereof (section 9). Regulations made by the Board must be approved by the Minister and be published in the Gazette at least one month before the date specified in the relevant notice as the date of commencement thereof, [section 9(9)].

(i) The making of regulations by the board (section 10).

1.1.2 Chapter II: Registration

Chapter II of the Deeds Registries Act deals with registration, and provides:

(a) For when registration of deeds executed or attested by a registrar, and deeds, documents or powers of attorney lodged for registration takes place and for when endorsements or entries made on deeds, documents or powers of attorney or in registers are effected (section 13);

(b) That deeds follow the sequence of the successive transactions in pursuance of which they are made (section 14);


(c) For the preparation by a conveyancer of deeds of transfer, mortgage bonds, grants or deeds or certificates of title or registration (section 15);

(d) For the proof of certain facts in connection with deeds and documents by means of certain certificates (section 15A);

(e) For how real rights shall be transferred (section 16); and

(f) For the registration of property in the name of married persons (section 17).

1.1.3 Chapter III: Registration of land

Chapter III of the Deeds Registries Act deals with registration of land, and provides for:

(a) The manner of dealing with State land (section 18). The ownership of unalienated State land may be transferred from the State only by a deed of grant issued under proper authority and, save as hereinafter provided, having a diagram of the land annexed thereto. In the case of surveyed unalienated State land represented on a diagram the registrar must enter particulars of the land in the appropriate registers and execute in the prescribed form and in accordance with the diagram, a certificate of registered State title thereof prepared by a conveyancer.

(b) The form and manner of execution of deeds of transfer (section 20).

(c) Transfer -

(i) from a joint estate;

(ii) of two or more pieces of land by one deed;

(iii) of undivided shares in land by one deed;

(iv) of shares in properties to more than one transferee in one deed;

(v) of undivided shares;

(vi) from a firm or a partnership;

(vii) to unascertained children (sections 21 to 25).

(d) Deeds of partition transfer (section 26).

(e) Transfer of expropriated land or land vested by statute (section 31).

(f) Registration of expropriated servitudes or servitudes vested by statute (section 32).

(g) Certificates of registered title -


(i) of undivided share;

(ii) of aggregate share;

(iii) of one or more properties held under one deed;(iv) taking the place of a lost or destroyed deed;

(v) to correct error in registration;

(vi) of portion of a piece of land;

(vii) in respect of land previously held under registered sectional title (sections 29, 34-36, 38, 43 and 43A).

(h) Conditions governing the issue of certificates of registered title (section 37).

(i) Certificates of consolidated or amended title of two or more pieces of land (section 40).

(j) Certificates of uniform title (section 42).

(k) Rectification of title by endorsement (section 44).

(l) Transfer or cession by means of endorsement (section 45).

(m) Endorsement of deeds -

(i) on divorce (section 45bis);

(ii) where a spouse is entitled in terms of section 8 of the Married Persons Equality Act, 1996, to immovable property forming part of the joint estate (section 45ter).

1.1.4 Chapter IV: Townships and settlements

Chapter IV of the Deeds Registries Act deals with townships and settlements, and provides for:

(a) Requirements in the case of subdivision of land into lots or erven (section 46).

(b) Transfer of a township or a portion thereof (section 47).

1.1.5 Chapter V: Bonds

Chapter V of the Deeds Registries Act deals with bonds, and provides for:

(a) The execution of bonds (section 50).

(b) The cession of a bond to secure future advances (section 52).


(c) The exclusion of the general clause in mortgage bonds (section 53).

(d) No bond to be passed in favour of an agent (section 54).

(e) Requirements in case of bonds passed by or in favour of two or more persons (section 55).

(f) Transfer of hypothecated immovable property (section 56).

(g) Substitution of debtor in respect of a bond (section 57).

(h) Powers in respect of certain property in insolvent and certain other estates (section 58).

(i) Consent of bondholder to registration of merger of rights of mortgagor (section 60).

(j) Registration of notarial bonds (section 61).

(k) Where notarial bond is to be registered (section 62).

1.1.6 Chapter VI: Rights in Immovable Property

Chapter VI of the Deeds Registries Act deals with rights in immovable property, and provides for:

(a) A restriction on the registration of rights in immovable property (section 63). No deed, or condition in a deed, purporting to create or embodying any personal right, and no condition which does not restrict the exercise of any right of ownership in respect of immovable property, is capable of registration, but a deed containing such a condition as aforesaid may be registered if, in the opinion of the Registrar, the condition is complementary or otherwise ancillary to a registrable condition or right contained or conferred in the deed. Subsection (1) does not apply with reference to any condition in a mortgage bond or lease or in a deed referred to in section 3(1)(c), (i), (m), (p) or (q).

(b) Certificates of registered real rights (section 64).

(c) The registration of a notarial deed creating a personal servitude (section 65).

(d) A restriction on the registration of personal servitudes (section 66).

(e) A reservation of personal servitudes (section 67).

(f) The registration of lapse of a personal servitude (section 68).

(g) The transfer and mortgage of land with a personal servitude thereon (section 69).

(h) Joint transactions by fiduciary and fideicommissary (section 69bis).

(i) The creation of a praedial servitude by notarial deeds (section 75).


(j) The conditions of registration of praedial servitudes (section 76).

(k) The registration of leases and subleases (section 77).

(l) The termination of a registered lease (section 78).

(m) Where a lease is to be registered (section 79).

(n) Cessions of leases and subleases (section 80).

(o) The hypothecation of leases and subleases (section 81).

(p) Notarial bonds hypothecating leases or subleases (section 82).

(q) The hypothecation of and settlement of a lease after the exercise of an option to purchase (section 83).

1.1.7 Chapter VII: Antenuptial Contracts

Chapter VII of the Deeds Registries Act deals with antenuptial contracts, and provides for:

(a) Antenuptial contracts to be registered (section 86).

(b) The manner and time of registration of antenuptial contracts (section 87).

(c) The postnuptial execution of an antenuptial agreement (section 88).

1.1.8 Chapter VIII: Miscellaneous

Chapter VIII of the Deeds Registries Act contains miscellaneous provisions, and provides:

(a) For the cancellation of registration on the lapse of certain registered rights (section 90).

(b) That transfer and cession may not be passed as security (section 91).

(c) That taxes and transfer duty must be paid before the transfer of land (section 92).

(d) For the registration of a change of name (section 93).

(e) For the attestation of powers of attorney executed in Namibia (section 95).

(f) For the execution of deeds by prospective owners (section 96).

(g) For notice to be given to the Registrar of any application to court (section 97).

(h) That a substituted copy of a lost deed supersedes the original which must be surrendered on recovery (section 98).


(i) For exemption from liability for acts or omissions in a deeds registry (section 99).

(j) That no act in connection with any registration in a deeds registry shall be invalidated by any formal defect, whether the defect occurs in any deed passed or registered, or in any document upon the authority of which any such deed has been passed or registered or which is required to be produced in connection with the passing or registration of the deed, unless a substantial injustice has by the act been done which in the opinion of the court cannot be remedied by any order of the court (section 100).

(k) For the definitions (section 102).

(l) In section 102A that this Act and any amendment thereof, except sections 70 to 74bis, inclusive, and sections 84 and 85, shall apply also in Namibia, including the Eastern Caprivi Zipfel, but excluding the Rehoboth Gebiet as described in section 6 of the Rehoboth Self-Government Act, 1976.

1.2 Regulations made under the Deeds Registries Act

1.2.1 Section 10(7) of the Deeds Registries Act provides that the regulations made under the Registration of Deeds Proclamation, 1939 (Proclamation 37 of 1939), of Namibia, and in force at the commencement of the Deeds Registries Amendment Act, 1972, are deemed to have been made under this section in respect of the deeds registry at Windhoek.

1.2.2 Government Notice 180 of 1 July 1996, as amended from time to time, contains the Deeds Registries Regulations.

2. FORMALITIES IN RESPECT OF LEASES OF LAND ACT, 1969 (ACT NO. 18 OF 1969)

2.1 The Formalities in Respect of Leases of Land Act, 1969 (Act No. 18 of 1969) (the “Lease of Land Formalities Act”):

(a) Provides -

(i) for the formalities in respect of leases of land;

(ii) for repeal of section 2 of the General Law Amendment Act, 1956; and

(iii) for incidental matters.

(b) Came into operation on the 1st of January 1970.

2.2 Provisions of the Lease of Land Formalities Act

2.2.1 Section 1 of the Lease of Land Formalities Act deals with formalities in respect of leases of land, and subsection (1) provides that, subject to subsection (2), no lease of land is invalid merely by reason of the fact that the lease is not in writing. According to subsection (2), no lease of land which is entered into for a period of not less than ten years or for the natural life of the lessee or any other person mentioned in the lease, or which is renewable


from time to time at the will of the lessee indefinitely or for periods which together with the first period of the lease amount in all to not less than ten years, is, if the lease is entered into after the commencement of this Act, valid against a creditor or successor under onerous title of the lessor for a period longer than ten years after having been entered into, unless -

(a) it has been registered against the title deeds of the leased land; or

(b) the aforesaid creditor or successor at the time of the giving of credit or the entry into the transaction by which he obtained the leased land or a portion thereof or obtained a real right in respect thereof, as the case may be, knew of the lease.

2.2.2 Section 2 of the Lease of Land Formalities Act states that that Act and any amendment thereof also apply in Namibia.

3. PRESCRIPTION ACT, 1969 (ACT NO. 68 OF 1969)

The Prescription Act, 1969 (Act No. 68 of 1969) (the “Prescription Act”):

(a) Consolidates and amends the laws relating to prescription.

(b) Is divided into four chapters, providing respectively for Acquisition of Ownership by Prescription, Acquisition and Extinction of Servitudes by Prescription, Prescription of Debts and Prescription to be raised in Pleadings.

(c) Came into operation on 1 December 1970.

(d) Has been amended by the General Law Amendment Act, 1973 (Act No. 62 of 1973), the General Law Amendment Act, 1975 (Act No. 57 of 1975), and the Married Persons Equality Act, 1996 (Act No. 1 of 1996).

3.1 Provisions of the Prescription Act

3.1.1 Section 1 of the Prescription Act deals with acquisition of ownership by prescription and provides that, subject to Chapter I and Chapter IV, a person becomes by prescription the owner of a thing which the person has possessed openly and as if the person were the owner thereof for an uninterrupted period of thirty years or for a period which, together with any periods for which the thing was so possessed by his or her predecessors in title, constitutes an uninterrupted period of thirty years.

(According to the normal meaning of “thing” it would include immovable property.)

3.1.2 Section 2 of the Prescription Act deals with involuntary loss of possession and states that the running of prescription is not interrupted by involuntary loss of possession if possession is regained at any time by means of legal proceedings instituted within six months after the loss for the purpose of regaining possession, or if possession is lawfully regained in any other way within one year after the loss.


3.1.3 Section 3 of the Prescription Act provides that the completion of prescription is postponed in certain circumstances. Subsection (1) provides that if -

(a) the person against whom the prescription is running is a minor or is insane, or is a person under curatorship or is prevented by a superior from interrupting the running of prescription as contemplated in section 4; or

(b) the person in favour of whom the prescription is running is outside Namibia, or is married to the person against whom the prescription is running or is a member of the governing body of a juristic person against whom the prescription is running; and

(c) the period of prescription would, but for the provisions of this subsection, be completed before or on, or within three years after, the day on which the relevant impediment referred to in paragraph (a) or (b) has ceased to exist,

the period of prescription is not completed before the expiration of a period of three years after the day referred to in paragraph (c).

Subject to subsection (1), the period of prescription in relation to fideicommissary property is not completed against a fideicommissary before the expiration of a period of three years after the day on which the right of the fideicommissary to the property vested in him or her [subsection (2)].

3.1.4 Section 4 of the Prescription Act deals with the judicial interruption of prescription and according to subsection (1) the running of prescription is, subject to subsection (2), interrupted by the service on the possessor of the thing in question of any process whereby any person claims ownership in the thing. Subsection (2) provides that any interruption in terms of subsection (1) lapses, and the running of prescription is not deemed to have been interrupted, if the person claiming ownership in the thing concerned does not successfully prosecute his or her claim under the process in question to final judgment or if the person does so prosecute his or her claim but abandons the judgment or the judgment is set aside.

If the running of prescription is interrupted as contemplated in subsection (1) a new period of prescription commences to run from the day on which final judgment is given.

3.1.5 Section 5 of the Prescription Act deals with the application of Chapter I to a prescription which has not been completed at the commencement of that Act. This section appears not to be relevant any longer, because thirty years has already lapsed since the date of commencement of that Act.

3.1.6 Section 6 of the Prescription Act provides for the acquisition of servitudes by prescription, and it states that, subject to Chapter I and Chapter IV, a person acquires a servitude by prescription if the person has openly and as though he or she were entitled to do so, exercised the rights and powers which a person who has a right to the servitude is entitled to exercise, for an uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with any periods for which the rights and powers were so exercised by his or her predecessors in title, constitutes an uninterrupted period of thirty years.


3.1.7 Section 7 of the Prescription Act deals with the extinction of servitudes by prescription, and provides that:

(a) A servitude is extinguished by prescription if it has not been exercised for an uninterrupted period of thirty years [subsection (1)].

(b) For the purposes of subsection (1), a negative servitude is deemed to be exercised as long as nothing which impairs the enjoyment of the servitude has been done on the servient tenement [subsection (2)].

(A negative servitude is a servitude permitting a person to prohibit the servient landowner from exercising a right, such as a servitude which prevents a landowner from making any constructions that would block light reaching a neighbour’s land.)

3.1.8 Section 8 of the Prescription Act deals with the application of certain provisions of Chapter I to the acquisition and extinction of servitudes by prescription, and provides that:

(a) Sections 2, 3, 4 and 5 apply with the necessary changes to the acquisition of a servitude by prescription [subsection (1)].

In Minister of Agriculture, Water and Forestry v O’ Linn 2008(2) NR 804 SC the Supreme Court decided with regard to the possible acquisition of a servitude by prescription that, to the extent that the public has a right to use a river bank it is a right that flows from the right to use the river and is confined to certain uses that are incidental to the use of the river.

(b) Sections 3, 4 and 5 apply with the necessary changes to the extinction of a servitude by prescription [subsection (2)].

(c) For the purposes of the application of section 4(1) in relation to the acquisition or extinction of a servitude by prescription, any reference therein to the possessor of the thing is construed as a reference to the person in whose favour the prescription is running; and any reference therein to a claim to the ownership in the thing is construed as a reference to a claim for the termination of the exercise of the rights and powers or of the breach of the servitude, as the case may be, by virtue of which the prescription is running [subsection (3)].

3.1.9 According to section 9 of the Prescription Act, Chapter 2 does not apply to public servitudes. (A public servitude is a servitude that grants certain right in favour of the public at large, or in some class of indeterminate individuals, right to a particular immovable property, such as -

(a) the right of the public to the use of a highway;

(b) the right of a particular class over certain privately owned land;

(c) the right of the public to navigate a river.)

3.1.10 Section 17 of the Prescription Act provides that a court shall not of its own motion take notice of prescription, and a party to litigation who invokes prescription must do so in the relevant document filed of record in the proceedings, and a court may allow prescription to be raised at any stage of the proceedings.


3.1.11 Section 18 of the Prescription Act states that that Act does not affect the provisions of any law prohibiting the acquisition of land or any right in land by prescription, while section 19 provides that it binds the State.

3.1.12 Section 20 of the Prescription Act provides that in so far as any right or obligation of any person against any other person is governed by Bantu law, it does not apply. (Bantu law was the terminology used by the previous regime for the current term customary law).

3.1.13 This Act and any amendment thereof which may be made from time to time also apply to Namibia (section 21).

3.1.14 Section 22 of the Prescription Act repeals amongst others the Prescription Act, 1943 (Act No. 18 of 1943), and the Prescription Proclamation, 1943 (Proclamation No. 13 of 1943), of the Administrator of South West Africa. According to O’Linn v Minister of Agriculture, Water and Forestry & Others 2008 (2) NR 792 (HC) at 797F-G, the South African Prescription Act 18 of 1943 was never applicable to South West Africa or Namibia.

3.1.15 The Prescription Act contains no definitions provision.

4. FORMALITIES IN RESPECT OF CONTRACTS OF SALE OF LAND ACT, 1969 (ACT NO. 71 OF 1969)

4.1 The Formalities in Respect of Contracts of Sale of Land Act, 1969 (Act No. 71 of 1969) (the “Sale of Land Formalities Act”):

(a) Provides for the formalities in respect of a contract of sale of land and certain interests in land and for incidental matters.

(b) According to section 5, came into operation in Namibia on the 1st of January 1970.

4.2 Provisions of the Sale of Land Formalities Act

4.2.1 Section 1 of the Sale of Land Formalities Act deals with formalities in respect of contracts of sale of land and certain interests in land, and subsection (1) provides that a contract of sale of land or any interest in land (other than a lease, mynpacht or mining claim or stand) concluded after the commencement of that Act shall only be of any force or effect if it is in writing and signed by the parties thereto or by their agents acting on their written authority.

The case of Theron & Another v Tegethoff & Others 2001 NR 203 (HC) clarified that when the terms of the relocated option are only orally agreed, the option is void ab initio. The condition that “in order to be of any force and effect all contracts of sale of land have to be reduced to writing and signed by the parties” has also recently been applied in the case Muadinohamba v Katima Mulilo Town Council and Others (Case No. I1690/2010, HC 2011).

According to subsection (2), subsection (1) relating to signature by the agent of a party acting on the written authority of the party, may not derogate from the provisions of any law relating to the making of a contract in writing by a person professing to act as agent or trustee for a company not yet formed, incorporated or registered.


4.2.2 Section 2 of the Sale of Land Formalities Act provides that section 1 shall not apply to a contract of sale of land or any interest in land sold by public auction.

In Mack v Uni-Signal (Pty) Ltd 1993 NR 304 (HC) the court dealt with a case where a purchaser of immovable property (the appellant) had signed the conditions of sale at a later occasion than the public auction on which it was sold (as provided for by the contract), and the court decided that the later signature did not have the effect of removing the sale out of the ambit of section 2, and it still would have remained a sale pursuant to a public auction.

However after the auction was concluded the respondent had raised its offer from R152 000,00 to R155 000,00. This increase of the purchase price did not occur at the public auction so that it cannot be said “that the publicity attendant upon the offer and acceptance could fairly be regarded, and was apparently regarded by the Legislature, as an adequate substitute for the safeguard of writing” (per Coleman, J., in Campbell v First Consolidated Holdings, 1977(3) S.A. 924 (W.L.D.) at 929 E.).

As a result of the aforesaid the court concluded that the offer made by the respondent whereby the purchase price was raised from R152 000,00 to R155 000,00 was a separate transaction which did not form part of the public auction. This being the case, the court decided that the transaction was governed by the provisions of section 1 of the Sale of Land Formalities Act and in order to be valid the contract between the parties had to be in writing.

4.1.3 According to section 3 of the Sale of Land Formalities Act that Act and any amendment thereof also apply in Namibia.

5. SUBDIVISION OF AGRICULTURAL LAND ACT, 1970 (ACT No. 70 OF 1970)

5.1 The Subdivision of Agricultural Land Act, 1970 (Act No. 70 of 1970) (the “Subdivision Act”):

(a) Controls the subdivision and, in connection therewith, the use of agricultural land.

(b) Came into operation in Namibia on the 2nd of January 1971.

(c) Has been amended by the Subdivision of Agricultural Land Amendment Act, 1972 (Act No. 55 of 1972), the Subdivision of Agricultural Land Amendment Act, 1974 (Act No. 19 of 1974), and the Subdivision of Agricultural Land Amendment Act, 1977 (Act No. 18 of 1977).


5.2 Provisions of the Subdivision Act

5.2.1 Section 1 of the Subdivision Act contains the definitions for the purposes thereof.

5.2.2 Section 2 of the Subdivision Act deals with actions which are excluded from the application thereof, and provides that that Act does not apply in respect of -

(a) (i) any subdivision of land for the purpose of transferring a portion thereof to the State or astatutory body;

(ii) the transfer of an undivided share in land to the State or a statutory body;

(iii) the sale or grant of any right to any portion of agricultural land to the State or the statutory body;

(b) any subdivision of, or the passing of an undivided share in, any land in accordance with a testamentary disposition or intestate succession, if the testator died before the commencement of that Act;

(c) the passing of an undivided share in any land in accordance with a contract entered into prior to the commencement of that Act;

(d) any subdivision of any land in connection with which a surveyor has completed the relevant survey and has submitted the relevant subdivisional diagram and survey records for examination and approval to the Surveyor-General concerned prior to the commencement of that Act.

(e) the registration of a lease referred to in section 3(d) in respect of a portion of agricultural land, concluded in writing prior to the commencement of the Subdivision of Agricultural Land Amendment Act, 1974.

(Paragraph (a)(i), (ii) and (iii) of section 2 contains a reference to the administration of the territory of South West Africa. In today’s context the Government of Namibia is the administration of Namibia, which Government is also the State, and the words the administration of the territory of South West Africa are redundant and should now be regarded as pro non scripto.)

“Statutory body” is defined in section 1 of the Subdivision Act as -

(a) any board or body which has been established by or under any law and whose funds consist wholly or partly of moneys appropriated by Parliament in aid of the board or body;

(b) any local authority;

(c) any other board or body, or any board or body belonging to a class of boards or bodies, which the Minister of Agriculture may by notice in the Gazette declare to be a statutory board or body or statutory boards or bodies for the purposes of that Act.


5.2.3 Section 3 of the Subdivision Act prohibits certain actions regarding agricultural land and states that, subject to section 2 -

(a) agricultural land may not be subdivided;

(b) no undivided share in agricultural land not already held by any person, shall vest in any person;

(c) no part of any undivided share in agricultural land shall vest in any person, if the part is not already held by any person;

(d) no lease in respect of a portion of agricultural land of which the period is 10 years or longer, or is the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than 10 years, shall be entered into;

(e) no portion of agricultural land, whether surveyed or not, may be sold or advertised for sale, and no right to the portion may be sold or granted for a period of more than 10 years or for the natural life of any person or to the same person for periods aggregating more than 10 years, or advertised for sale or with a view to any such granting;

(f) no area of jurisdiction, local area, public health area, peri-urban area or other area referred to in paragraph (a) or (b) of the definition of “agricultural land” in section 1, may be established on, or enlarged so as to include, any land which is agricultural land;

(g) no public notice to the effect that a scheme relating to agricultural land or any portion thereof has been prepared or submitted under the ordinance which provides for the scheme, may be given,

without the written consent of the Minister of Agriculture.

The most current case concerning the Subdivision Act is Theron & Another v Tegethoff & Others 2001 NR 203 (HC). This case clarified that in view of constitutional developments, every registered unit or “portion” of agricultural land constitutes “agricultural land” for purposes of the Act and that the lack of ministerial consent makes the contract void ab initio. In addition, the Court found that an oral relocated lease agreement terminable on 12 months’ notice by either party in respect of a portion of agricultural land does not represent a lease agreement indefinitely renewable from time to time at the will of the lessee and therefore does not conflict with section 3(d) of that Act and is not void for that reason.

5.2.4 Section 4 of the Subdivision Act deals with applications for the consent of the Minister, and the imposition, enforcement or withdrawal of conditions by the Minister, and, according to:

(a) Subsection (1), any such application for the purposes of section 3 must be lodged with the Permanent Secretary of the Ministry responsible for agriculture and must be in the form and be accompanied by the plans, documents and information determined by the Permanent Secretary.


(b) Subsection (2), the Minister may at his discretion refuse or grant the application subject to conditions imposed.

5.2.5 Section 5 of the Subdivision Act deals with succession, and subsection (1) provides that if the Minister does not in terms of section 4 consent to the subdivision of any particular agricultural land in accordance with any testamentary disposition or intestate succession or to the vesting of any undivided share in the land in accordance therewith, and no agreement is reached as to a subdivision or vesting in respect of which the Minister grants his or her consent in terms of section 4, the executor of the estate concerned must realise the land or undivided share concerned, as the case may be, and dispose of the net proceeds thereof in accordance with the testamentary disposition or intestate succession, as the case may be.

According to subsection (2) of section 5, section 12 of the Expropriation Act, 1965 (Act No. 55 of 1965), applies with the necessary changes in respect of any net proceeds of land or an undivided share in any land contemplated in subsection (1), and in the application of section 12 a reference therein to a Minister is deemed to be a reference to an executor referred to in subsection (1). It would however appear that the Expropriation Act, 1965 (Act No. 55 of 1965), never applied in Namibia.

5.2.6 Section 6 of the Subdivision Act prescribes the duties of the Surveyor-General and the Registrar of Deeds in the application thereof, and according to subsection (1), subject to section 2 -

(a) a Surveyor-General may only approve a general plan or diagram relating to a subdivision of agricultural land, and

(b) a Registrar of Deeds may only register the vesting of an undivided share in agricultural land referred to in section 3(b), or a part of any such share referred to in section 3(c), or a lease referred to in section 3(d) or, if applicable, a right referred to in section 3(e) in respect of a portion of agricultural land,

if the written consent of the Minister in terms of that Act has been submitted to the Surveyor-General or the Registrar of Deeds, as the case may be.

5. If the consent concerned has been granted subject to a registrable condition, the condition must, on the approval or registration, be endorsed on the title deed of the land concerned [subsection (2)].

5.2.7 Section 6A of the Subdivision Act deals with the registration of servitudes. Subject to the Water Act, 1956 (Act No. 54 of 1956), a servitude in respect of agricultural land, except -

(a) a right of way, aqueduct, pipe line or conducting of electricity with a width not exceeding 15 metres;

(b) a usufruct over the whole of agricultural land in favour of one person or in favour of the person and his or her spouse or the survivor of them if they are married in community of property,

may only be registered by a Registrar of Deeds with the written consent of the Minister [subsection (1)].

Sections 4 and 6(2) apply with the necessary changes in respect of the granting of consent for the purposes of subsection (1) of this section, and in respect of such consent [subsection (2)].


5.2.8 According to section 7 of the Subdivision Act, the Permanent Secretary of Agriculture may either generally or in any particular case authorise any person to enter upon any land at all reasonable times and to carry out thereon the investigations or to perform thereon the other acts as are necessary or expedient for achieving the objects of that Act.

5.2.9 Section 8 of the Subdivision Act provides for the delegation of powers, except the power to make regulations, by the Minister to the Permanent Secretary of Agriculture or any other staff member in the Public Service.

5.2.10 According to section 9 of the Subdivision Act no duties or fees of office are payable in respect of any document drawn up for the purposes of that Act and lodged in a registration office for registration or filing.

5.2.11 Section 10(1) of the Subdivision Act provides that, subject to subsection (2), the Minister may make regulations with reference to any matter which may be prescribed under this Act, or in respect of which, in his or her opinion, it is necessary or expedient to make regulations for achieving the objects of this Act. According to subsection (2) any regulation which relates to State revenue or expenditure may only be made after consultation with the Minister of Finance.

5.2.12 Section 11 of the Subdivision Act creates offences and provides for penalties in respect thereof.

5.2.13 According to section 13 of the Subdivision Act, a permit issued under an ordinance of the territory of South West Africa dealing with environmental planning and which relates to -

(a) the use of any particular land for any brick making or sand washing or stone crushing or a quarry, or for the processing of any mineral in any other manner; or

(b) the use of land in a controlled area for a purpose for which it was not being used at the date as from which the area concerned was or is declared a controlled area or part of a controlled area,

prior to the commencement of that Act and still of force and effect at the commencement, is deemed to be a written consent granted by the Minister in terms of section 3 of that Act, and the conditions (if any) subject to which the permit or document was issued in terms of the ordinance in question, are deemed to be conditions imposed by the Minister in terms of section 4(2) of that Act in connection with the consent.

5.2.14 Section 14 of the Subdivision Act provides that that Act and any amendment thereof shall also apply in South West Africa.

6. SALE OF LAND ON INSTALMENTS ACT, 1971 (ACT NO. 72 OF 1971)

The Sale of Land on Instalments Act, 1971 (Act No. 72 of 1971) (the “Instalment Sales Act”):

(a) Regulates contracts of purchase and sale of certain kinds of land under which the purchase price is payable in instalments over a period of one year or longer, and provides for matters incidental thereto.

(b) Came into operation on 1st January 1972.


(c) Has been amended by the Sale of Land on Instalments Amendment Act, 1972 (Act No. 72 of 1972), the Sale of Land on Instalments Amendment Act, 1975 (Act No. 49 of 1975), the Sale of Land on Instalments Amendment Act, 1976 (Act No. 25 of 1976), and the Executive Powers (Commerce) Transfer Proclamation, 1978 (Proclamation AG 28 of 1978).

6.1 Provisions of the Instalment Sales Act

6.1.1 Section 1 of the Instalment Sales Act contains the definitions.

6.1.2 Section 2 of the Instalment Sales Act deals with the application thereof, and states that it -

(a) applies, subject to sections 11 and 14, to a contract under which the purchaser is a natural person or is the estate of the purchaser who has died or is insolvent, and which relates to land which -

(i) is situated in the area of jurisdiction of the council of a municipality or a village management board, and land forming part of the area of jurisdiction of the Peri-Urban Development Board, established by section 2 of the Peri-Urban Development Board Ordinance, 1970 (Ordinance No. 19 of 1970); or

(ii) forms part of any other area subdivided into erven or plots, with or without public open spaces, and in streets bounded by the erven, plots or spaces.

(b) does not apply in respect of a contract relating to land of which the State is the seller or which is held in trust by the State or a Minister for any person.

6.1.3 Section 3 of the Instalment Sales Act confers upon the purchaser the option to choose the official language in which a contract to which the purchaser is a party is to be drawn up. However, it would appear that in an independent Namibia such a contract must only be drawn up in English, the Namibian official language.

6.1.4 Section 4 of the Instalment Sales Act deals with the contents of a contract, and according to subsection (1) a contract must contain -

(a) the names of the purchaser and the seller and their addresses in Namibia;

(b) the description, extent and situation of the land which is the subject of the contract;

(c) if the seller is not the registered owner of the land, the name and address of the registered owner;

(d) if the land is encumbered by a mortgage bond, the name and address of the person, or his or her representative, or, in the case of a participation bond, the name and address of the nominee company, or its representative, in favour of whom the mortgage bond over the land is registered at the time the contract is entered into;

(e) the amount of the purchase price;


(f) the annual rate of interest (if any) to be paid by the purchaser;

(g) the date before which or the period within which payment of the purchase price with interest and all other charges must be effected in full;

(h) the amount (if any) payable by the purchaser before he or she may take possession or occupation of the land;

(i) the date on which the purchaser is entitled to take possession or occupation of the land;

(iA) a reference to the right of the purchaser under section 10 to accelerate payments in terms of the contract and to claim transfer of the land against payment of the amounts referred to in section 4(1) (g);

(iB) a reference to the limitation, in terms of section 13, of the right of the seller to take action by reason of any failure on the part of the purchaser to fulfil an obligation under the contract;

(iC) a reference to the right of the purchaser under legislation relating to insolvency to demand transfer of the land after payment of not less than fifty percent of the purchase price, on condition of registration of a mortgage bond over the land;

(j) the amount of each payment in respect of capital and interest (if any) which is to be paid under the contract;

(k) the due date or the method of determining the due date of each payment;

(l) the place where payments must be made;

(m) the date on which the risk, profit and loss of the land will pass to the purchaser;

(n) a statement of the obligation (if any) imposed by the seller on the purchaser in respect of the insurance of the subject matter of the contract;

(o) an indication of the party who is liable for the payment of the costs incurred in connection with the drafting of the contract and the transfer of the land;

(p) if the seller is unable at the time the contract is entered into to give transfer of the land against payment of the purchase price, the date or event after which the seller will be able to give transfer.

The -

(a) address which is stated in a contract in terms of subsection (1)(a) in respect of the purchaser may not be the same as the address which is stated therein in respect of the seller or his or her agent, unless the last-mentioned address is the address where the purchaser is ordinarily resident [subsection (2)];

(b) date which is stated in a contract in terms of subsection (1)(m) may not be earlier than the date which is stated therein in terms of subsection (1)(i) [subsection (3)].


6.1.5 According to section 5 of the Instalment Sales Act -

(a) the seller must hand to the purchaser or send to the purchaser by prepaid registered post, within one month after the conclusion of a contract, a copy thereof and the seller is not entitled to make any charge for the making of the copy or for complying with this subsection [subsection (1)];

(b) if the seller fails to comply with subsection (1) and if the seller remains in default for more than fourteen days to furnish a copy of the contract to the purchaser after the purchaser has requested the seller in writing therefor, the purchaser is not liable for the payment of interest under the contract from the date of the conclusion thereof to the date of the receipt of a copy thereof by the purchaser [subsection (2)].

6.1.6 Section 6 of the Instalment Sales Act deals with the calculation of interest and limitation of the sum recoverable from a purchaser, and subsection (1) provides that, when interest is payable under a contract, the interest must be calculated, not more often than monthly and not less often than quarterly, on the outstanding balance which is then owing under the contract. No seller may in connection with a contract -

(a) stipulate for, demand or receive interest at a rate which is higher than the rate prescribed by the Minister of Trade and Industry by regulation from time to time for the purposes of this subsection [subsection (2)];

(b) obtain judgment for or recover from a purchaser an amount exceeding the sums referred to in subsection (3).

If a purchaser has paid in full the amounts referred to in section 4(1)(g), no interest is payable in terms of the contract in respect of any period after the date of the payment [subsection (4)].

6.1.7 Section 7 of the Instalment Sales Act deals with the invalidity of certain provisions, and according to subsection (1), subject to subsection (2), no contract entered into after the commencement of the Sale of Land on Instalments Amendment Act, 1975, may contain a provision whereby -

(a) any person who acted on behalf of the seller in connection with the conclusion of the contract or the negotiations which preceded the conclusion of the contract, is appointed or deemed to have been appointed as the agent of the purchaser;

(b) the purchaser, if he or she fails to fulfil any obligation in terms of the contract, forfeits any claim in respect of necessary expenditure he or she has incurred, with or without the authority of the registered owner or seller of the land, in regard to the preservation of the land or any improvement thereon or in respect of any improvement which enhances the market value of the land and was effected by him or her on the land with the express or implied consent of the registered owner or seller concerned;

(c) the liability of the seller to indemnify the purchaser against eviction is restricted or excluded;

(d) the purchaser is obliged to take transfer of the land before the date or the expiry of the period stated in the contract in terms of section 4(1)(g); or


(e) the purchaser is obliged to accept a mortgage bond over the land for the payment of the outstanding balance of the purchase price plus interest and any of the costs referred to in section 6(3)(b), which is arranged on his or her behalf by the seller or his or her agent, on conditions as to the rate of interest and redemption which are more onerous than the terms which at the time when transfer is to be taken, apply in respect of a loan, secured by a first mortgage bond over land, which is granted by a building society.

Subsection (2) provides that subsection (1)(d) does not apply if the seller has arranged for a mortgage bond to be granted to the purchaser on conditions as to the rate of interest and redemption which are not more onerous than the terms which at the time when transfer is or is to be taken, apply in respect of a loan, secured by a first mortgage bond over land, which is granted by a building society, to secure payment of the unpaid balance of the amounts referred to in section 4(1)(g).

6.1.8 Section 8 of the Instalment Sales Act deals with the cession or hypothecation of and authority to collect periodical income, while section 9 provides for statements of account to be furnished by the seller to the purchaser.

6.1.9 Section 10 of the Instalment Sales Act confers upon a purchaser the right to accelerate payments and claim the transfer of land.

6.1.10 Section 11 of the Instalment Sales Act provides for the transfer of land to a purchaser under an intermediate transaction. An intermediate transaction is -

(a) any agreement under which land purchased under a contract is alienated before it is transferred to the purchaser under the contract; or

(b) any contract under which land, of which the right to claim transfer has been acquired under any agreement, is sold before it is transferred to the person who has acquired the right.

6.1.11 Section 12 of the Instalment Sales Act deals with the cession and assignment by the seller of rights and obligations under a contract. If a seller with the consent of the purchaser cedes and assigns his or her rights and obligations under a contract to another person (“the assignee”), the cession and assignment is deemed to be a power of attorney to the assignee to transfer the land in accordance with the conditions of the contract to the purchaser, and the assignee may appoint a conveyancer to execute the deed of transfer.

6.1.12 Section 13 of the Instalment Sales Act provides for a limitation of the right of a seller to take action relating to the termination of a contract or the institution of an action for damages.

6.1.13 Section 14 of the Instalment Sales Act deals with the sale in execution of land which has been sold under a contract and the death or insolvency of the registered owner of the land.

6.1.14 Section 15 of the Instalment Sales Act states that the waiver by any person who has bought land under a contract, of a right which is conferred upon the person by this Act, is null and void.

6.1.15 Section 17 of the Instalment Sales Act deals with the relief that a court may grant in regard to contracts, and subsection (1) provides that, notwithstanding the provisions of any law to the contrary but subject to any other


powers that any court may have, if a contract does not substantially comply with any one of sections 3, 4, 6, 7(1), 10, 12 or 13, a court within whose area of jurisdiction the land referred to in the contract is situated may, if appropriate proceedings are instituted by the purchaser within a period of two years from the date upon which the contract was entered into -

(a) reduce the rate of interest payable by the purchaser in terms of the contract to the rate as it may deem just and equitable in the circumstances;

(b) grant an order for rectification of the contract;

(c) declare the contract to be void ab initio; or

(d) grant the alternative relief as it may deem fit.

A court within whose area of jurisdiction land sold under a contract is situated, may, on the application of the purchaser who, by reason of the fact that any person failed to sign a document relating to the payment of transfer duty in respect of or transfer of the land, is unable to obtain transfer of the land, order the deputy sheriff or messenger of the court concerned, as the case may be, to sign the document on behalf of the person, subject to conditions as the court may determine [subsection (2)]. A magistrate’s court has jurisdiction to grant any relief contemplated in subsection (1) or (2) [subsection (3)].

6.1.16 Section 18 of the Instalment Sales Act states that if in any proceedings it is alleged that land sold under a contract is used or is intended to be used mainly for residential purposes, it is presumed that the land concerned is so used or is intended to be so used until the contrary has been proved.

6.1.17 According to section 19 of the Instalment Sales Act, that Act and any amendment thereof apply also in Namibia.

6.2 Regulations made under the Instalment Sales Act

Government Notice R.81 of 21 January 1977 contains Regulations Relating to the Interest Rate for Purposes of Section 6(2) of the Instalment Sales Act.

7. REGISTRATION OF DEEDS IN REHOBOTH ACT, 1976 (ACT NO. 93 OF 1976)

The Registration of Deeds in Rehoboth Act, 1976 (Act No. 93 of 1976) (the “Rehoboth Deeds Registries Act”):

(a) Provides for the registration of deeds in the Rehoboth Gebiet in Namibia.

(b) Came into operation on the 26th of November 1976.

(c) Has been amended by the Registration of Deeds in Rehoboth Amendment Act, 1981 (Act No. 8 of 1981), the Registration of Deeds in Rehoboth Amendment Act, 1994 (Act No. 35 of 1994), and the Registration of Deeds in Rehoboth Amendment Act, 1996 (Act No. 8 of 1996).


7.1 Provisions of the Rehoboth Deeds Registries Act

7.1.1 Section 1 of the Rehoboth Deeds Registries Act contains the definitions.

7.1.2 Section 2 of the Rehoboth Deeds Registries Act establishes a deeds registry for the registration of deeds in the Rehoboth Gebiet, while section 3 provides for the appointment of a registrar of deeds.

7.1.3 Section:

(a) 4 of the Rehoboth Deeds Registries Act prescribes the duties of the Registrar, while section 5 prescribes the powers of the Registrar.

(b) 6 of the Rehoboth Deeds Registries Act provides for the transfer of certain documents which were kept by the Registrar of Deeds in Windhoek and which relate to land in the Gebiet, to the Rehoboth registry. The rest of the section provides for the issue of a land title to every owner of land in respect of which -

(i) any deed of transfer, certificate of registered title or other title deed has been transferred to the Rehoboth registry;

(ii) an entry appears in the registers of the office of the Rehoboth Baster Community, while provision is also made for endorsement by the registrar on land titles of every mortgage bond, servitude, lease or other right existing in relation to the land in question at the time of the transfer.

(c) 7 of the Rehoboth Deeds Registries Act stipulates that a land title may be issued to one person only and in respect of one piece of land only.

7.1.4.1 Sections 8 to 12 of the Rehoboth Deeds Registries Act deal with registration.

7.1.4.2 Section 10 of the Rehoboth Deeds Registries Act deals with the registration of property in the name of married persons, and according to section 10(1) immovable property, real rights in immovable property and notarial bonds which would upon transfer, cession or registration thereof form part of a joint estate must from the commencement of the Registration of Deeds in Rehoboth Amendment Act, 1996, (i.e. 15 July 1996), be registered in the name of the husband and the wife, unless the transfer, cession or registration takes place only in the name of a partnership, and the husband or wife is involved therein only in the capacity of partner in the partnership. Subsection (2) provides for the information and particulars that must be stated in every deed or other document executed or attested by a registrar or attested by a notary public and required to be registered in a deeds registry, and made by or on behalf of or in favour of any person.

Subsection (3) provides that if a marriage in community of property or governed by the Recognition of Certain Marriages Act, 1991, has been dissolved by the death of one of the spouses before property or a mortgage or notarial bond which on transfer or cession thereof would have formed part of the joint estate could be transferred or ceded, the property, mortgage or notarial bond must be transferred or ceded to the joint estate of the spouses, pending the administration thereof, and is, subject to the provisions of any disposition with regard to the property, deemed to be the joint property of the surviving spouse and of the estate of the deceased spouse.


The case of Eksteen v Registrar of Deeds for Rehoboth & Others 1994 NR 217 HC deals amongst others with section 10(3) of the Rehoboth Deeds Registries Act as it read before section 10 was amended in 1996 by the Registration of Deeds in Rehoboth Amendment Act, 1996. The Court had granted a rule nisi calling upon the respondents to furnish reasons why an order should not be issued declaring that the conditions contained in the will of the late Nicolaas Witbooi and Anna Magritha Witbooi prohibiting the beneficiaries of disposing, burdening or pledging the immovable property inherited in terms of the will except to family members as prescribed by the will, were of no legal force and effect. Counsel for applicant contended that this prohibition on alienation had to be regarded as a nude prohibition (empty prohibition) because no specific sanction was provided for non-compliance and because there was nobody in whose favour the conditions could operate.

It appeared that a portion of the farm inherited by a daughter of the testator was registered from the outset in the name of the applicant, her husband to whom she was married in community of property, as his property, without any qualification or condition. Counsel for the applicant argued that once the property was registered in the name of the applicant, he was the sole and unqualified owner of that portion, which he had later alienated to a third party.

The Court held that there existed a clear rule of law that fideicommissary and usufructuary property and other inalienable assets were excluded from a husband and wife’s joint estate. The Registrar of Deeds of Rehoboth was clearly in error when he registered property in the applicant’s name contrary to the testamentary condition prohibiting transfer thereof to anyone but a family member. The Registrar was apparently under the impression that he was acting pursuant to section 10(3) of the Rehoboth Deeds Registries Act [which stated that “Any immovable property, bond or other real right shall not be transferred or ceded to, or registered, in the name of, a woman married in community of property, except where such property, bond or other real right is by a rule of law or in terms of any condition of a bequest or donation excluded from the community.”]. The Registrar had thus erred on two grounds: the above-mentioned rule of law was applicable and the property in question was in terms of the bequest excluded from the community, so that the exception to section 10(3) was applicable. It followed that the applicant’s purported alienation of that portion of the farm was illegal and voidable, at least in regard to those who were not innocent third parties. As to the validity of the prohibition against alienation, the Court held that the condition did not amount to a nude prohibition because the heirs and their descendants were both the beneficiaries of the prohibition and potential complainants. In addition, the prohibition was of a type traditionally used in the Rehoboth Gebiet and well-known the world over. As a result, the applicant’s alienation of the property to a third party who was not a family member was invalid.

7.1.5 Sections 13 to 25 of the Rehoboth Deeds Registries Act deal with the transfer of land.

7.1.6 Section 26 of the Rehoboth Deeds Registries Act deals with the subdivision of land into erven in the case of townships.

7.1.7 Sections 27 to 31 of the Rehoboth Deeds Registries Act contain provisions relating to bonds.

7.1.8 Sections 32 to 34 of the Rehoboth Deeds Registries Act provide for the rights of mortgagees.

7.1.9 Sections 35 to 37 of the Rehoboth Deeds Registries Act deal with notarial bonds, while sections 38 and 39 deal with personal servitudes.

7.1.10 Section 40 of the Rehoboth Deeds Registries Act provides for the creation, registration and cancellation of praedial servitudes.


7.1.11 Sections 41 to 45 of the Rehoboth Deeds Registries Act deal with leases.

7.1.12 Section 46 of the Rehoboth Deeds Registries Act provides for the registration of antenuptial contracts.

7.1.13 Sections 47 to 60 of the Rehoboth Deeds Registries Act deal with miscellaneous provisions such as -

(a) the inspection of documents and the furnishing of information;

(b) proof of payment of taxes and other moneys;

(c) the payment of certain amounts for the benefit of the Rehoboth Baster Community;

(d) the giving of notice to the registrar in the case of an application to court;

(e) the issue of copies of lost land titles or other documents;

(f) the limitation of liability;

(g) formal defects (section 53);

(h) enquiries and investigations;(i) compliance with provisions of laws;

(j) the making of regulations; and

(k) the repeal of laws.

Section 53 of the Rehoboth Deeds Registries Act deals with formal defects and states

that “No act in connection with any registration in the registry shall be invalidated by any formal defect, whether such defect occurs in any deed passed or registered, or in any document upon the authority of which any such deed has been passed or registered or which is required to be produced in connection with the passing or registration of such deed, unless a substantial injustice has, according to a finding in an enquiry held in terms of the provisions of section 54, occurred and such injustice cannot be remedied by virtue of an order issued in such enquiry.”

In the case of Beukes & Others v Engelbrecht & Others 2005 NR 305 HC (section 53) the court dealt with the question whether the testator intended that her directions created a fideicommissum or not. On the ground that the collateral beneficiaries are not specifically mentioned as being the beneficiaries of the prohibition against alienation, the court came to the conclusion that paragraph 3.4 of the will of the testator does not create a valid fideicommissum and that each of the heirs named under her will inherited their respective portions of the undivided share in the remainder of the farm concerned.

7.2 Regulations made under the Rehoboth Deeds Registries Act

Government Notice R 2372 of 3 December 1976, as amended from time to time, contains Regulations in Connection with the Registration of Deeds in the Rehoboth Gebiet in terms of the Rehoboth Deeds Registries Act.


CHAPTER 6

Chapter 6 deals with quasi property rights legislation such as sectional titles and flexible land tenure, which is similar to traditional property rights such as freehold title in terms of the Deeds Registries Act and the Registration of Deeds in Rehoboth Act.

A new Sectional Titles Act for Namibia has been promulgated in 2009, but that Act has not yet been put in operation, and the (South African) Sectional Titles Act of 1971 is still applicable in Namibia.

1. SECTIONAL TITLES ACT, 1971 (ACT NO. 66 OF 1971)

The Sectional Titles Act, 1971 (Act No. 66 of 1971) (the “1971 Sectional Titles Act”):

(a) Provides for -

(i) the division of buildings into sections and common property and for the acquisition of separate ownership in the sections coupled with joint ownership in the common property;

(ii) the control of certain incidents attaching to separate ownership in the sections and joint ownership in the common property;

(iii) the registration of leases and other real rights in respect of parts of buildings;

(iv) the application of that Act to Namibia; and

(v) incidental matters.

(b) Came into operation on 30th March 1973.

(c) Has been amended by the General Law Amendment Act, 1973 (Act No. 62 of 1973), the Second General Law Amendment Act, 1974 (Act No. 94 of 1974), the General Law Amendment Act, 1975 (Act No. 57 of 1975), and the Sectional Titles Amendment Act, 1977 (Act No. 1 of 1977).

(d) Has been repealed by section 60 of the Sectional Titles Act, 2009 (Act No. 2 of 2009), but the latter Act has not yet come into operation.

QUASI PROPERTY RIGHTS


1.1 Provisions of the 1971 Sectional Titles Act

1.1.1 Section 1 of the 1971 Sectional Titles Act contains the definitions.

1.1.2 Section 2 of the 1971 Sectional Titles Act deals with ownership and real rights in or over parts of buildings and registration of title to ownership or other real rights in or over the parts, and states that, notwithstanding anything to the contrary in any law or the common law, -

(a) a building or buildings comprised in a scheme and the land on which the building or buildings is or are situated may be divided into sections and common property in accordance with that Act;

(b) separate ownership in the sections may be acquired in accordance with that Act;

(c) the owners of the sections own the common property in undivided shares in accordance with that Act;

(d) any real right may be acquired in or over any such section or common property in accordance with that Act; and

(e) a registrar may, in accordance with that Act, register in a deeds registry a title deed whereby ownership in, or any lease of, or any other real right in or over, any such section or common property is acquired.

1.1.3 Section 3 of the 1971 Sectional Titles Act provides that -

(a) save as is otherwise provided in that Act or in any other law or the context otherwise indicates, the Deeds Registries Act applies, in so far as it can be so applied, with the necessary changes with reference to all documents registered or filed or intended to be registered or filed in a deeds registry in terms of the 1971 Sectional Titles Act;

(b) a unit is for all purposes deemed to be land and urban immovable property.

(Urban immovable property is not defined in the 1971 Sectional Titles Act.)

1.1.4 Section 4 of the 1971 Sectional Titles Act deals with the approval of a development scheme and provides that -

(a) a developer who proposes to divide a building situated or to be erected on land within the area of jurisdiction of a local authority, into two or more sections in accordance with a scheme, must apply to the local authority for the approval of the scheme [subsection (1)];

(b) a scheme may relate to more than one building situated or to be erected on the same piece of land [subsection (2)];

(c) the application must be made and in the prescribed form be accompanied by the sectional plan and the other documents and information as may be prescribed [subsection (3)];


(d) at any time after the receipt of an application referred to in subsection (1), the local authority may require the developer to furnish it with the further particulars, information, plans or drawings as it may deem necessary [subsection (5)];

(e) the local authority may not consider an application for the approval of a scheme unless it is satisfied that the scheme is not in conflict with any proposed or approved town planning scheme [subsection (6)];

(f) after consideration of the application the local authority may grant or refuse the application or postpone a decision thereon either in whole or in part [subsection (7)];

(g) when granting an application either in whole or in part the local authority may impose any condition it may deem fit [subsection (8)].

If the applicant feels aggrieved by any decision of the local authority, or if the local authority fails to approve the scheme within sixty days after the application was made to it or after the developer complied with the requirements of the local authority under subsection (5), the developer may appeal to the Minister responsible for local government in accordance with the regulations. The Minister may grant or refuse the application, and if the Minister grants the application either in whole or in part, he or she may impose any condition he or she may deem fit [subsection (9)]. The decision of the Administrator is for the purposes of that deemed to be the decision of the local authority [subsection (10)].

1.1.5 Section 5 of the 1971 Sectional Titles Act deals with the application for the opening of a sectional title register and the registration of the sectional plan relating to the scheme, and provides further for -

(a) the powers and duties of a developer [subsections (1) and (2)]; and

(b) by what documents the application must be accompanied [subsection (3)(a) to (h)].

1.1.6 Section 6 of the 1971 Sectional Titles Act prescribes the manner of preparing a sectional plan.

According to subsection (5) of section 6 it is not necessary in framing a sectional plan to comply with any regulation made under the Land Survey Act, 1927 (Act No. 9 of 1927), while subsection (6) specifies that no sectional plan need to be submitted to or be approved by the Surveyor-General. This is no longer the case with the new Sectional Titles Act, 2009, which per its section 6(1) requires that a developer who intends to establish a scheme must cause a draft sectional plan in respect of the proposed scheme first to be submitted to the Surveyor-General for his or her approval within the meaning of the Land Survey Act.

1.1.7 Section 7 of the 1971 Sectional Titles Act prescribes the duties of an architect or a land surveyor with regard to the preparation of a sectional plan [subsection (1)], while subsection (2) states that neither the State nor any officer thereof is liable for any defective measurement or work appertaining thereto performed by any architect or land surveyor, notwithstanding that the sectional plan relating to the measurement or work has been accepted for registration in a deeds registry.


1.1.8 Section 8 of the 1971 Sectional Titles Act deals with the actual registration of a sectional plan and the opening of a sectional title register [subsection (1)] and prescribes the duties of the registrar to be performed simultaneously with the opening of the sectional title register [subsection (2)]. The registrar must also notify the Surveyor-General and the local authority concerned of the registration of the sectional plan [subsection (3)].

1.1.9 Section 9 of the 1971 Sectional Titles Act provides for the amendment, substitution and cancellation of a registered sectional plan found to be incorrect, and prescribes the powers and duties of the registrar in this regard.

1.1.10 Section 10 of the 1971 Sectional Titles Act deals with the effect of the registration of sectional plan and a sectional title deed, and subsection (1) provides that upon the registration of a sectional plan the building or buildings and the land shown thereon is, subject to that Act, deemed to be divided into sections and common property as shown on the sectional plan.

1.1.11 Section -

(a) 11 of the 1971 Sectional Titles Act deals with the registration of transfer of ownership and the registration of other rights in respect of parts of buildings when a sectional title register has been opened and the relevant sectional plan has been registered;

(b) 12 of the 1971 Sectional Titles Act deals with the ownership of common property;

(c) 13 of the 1971 Sectional Titles Act provides for dealings with common property, such as that the owners (of the sections) may by unanimous resolution direct the body corporate on their behalf to alienate common property or any part thereof or to let common property or any part thereof under a lease;

(d) 14 of the 1971 Sectional Titles Act provides that sections 56 and 57 of the Deeds Registries Act apply with the necessary changes with reference to the transfer of any mortgaged unit, the cession of any mortgaged lease of a unit, the cession of any mortgaged real right in or over a unit, and the transfer under section 13 or 37 of any mortgaged common property or land or an undivided share therein;

(e) 15 of the 1971 Sectional Titles Act deals with an application to the local authority for the subdivision of a section if the owner of a section proposes to alienate a portion of the section, or to let a portion of the section under a lease or for any other reason to separate a portion of the section from the whole;

(f) 16 of the 1971 Sectional Titles Act states that after approval of the plan of subdivision by the local authority, the owner of the section may apply to the registrar for the registration of the plan of subdivision and further specifies what documents must accompany the application for registration of the plan of subdivision;

(g) 17 of the 1971 Sectional Titles Act deals with the resubdivision of sections;

(h) 18 of the 1971 Sectional Titles Act provides for the extension of a building;

(i) 19 of the 1971 Sectional Titles Act deals with implied servitudes in favour of and against each section, and the servitudes are deemed to be incorporated in the title deeds of the owners affected thereby;


(j) 20 of the 1971 Sectional Titles Act deals with the creation of servitudes and according to subsection (1) owners may by special resolution direct the body corporate to execute on their behalf a servitude or restrictive agreement burdening the land shown on the relevant sectional plan and to accept on their behalf a servitude or restrictive agreement benefiting the land concerned.

(k) 21 of the 1971 Sectional Titles Act states that all ancillary rights and obligations reasonably necessary to make servitudes effective apply in respect of servitudes implied or created under this Act;

(l) 22 of the 1971 Sectional Titles Act provides that the Deeds Registries Act does not apply with reference to servitudes or restrictions as to user implied or created under this Act, and the servitudes and restrictions take effect and are enforceable immediately upon registration of a sectional title deed;

(m) 23 of the 1971 Sectional Titles Act deals with the conversion of certain rights of occupancy into ownership if the right to occupy any part of a building in perpetuity is vested in any person by reason of the fact that the person holds a share or shares in a company.

1.1.12 Section 24 of the 1971 Sectional Titles Act deals with the participation quota of a section or of the owner of a section, and subsection (1) states that that quota is a decimal fraction, correct to three places, arrived at by dividing the floor area, correct to the nearest square metre, of the section by the floor area, correct to the nearest square metre, of all the sections in the building or buildings comprised in the scheme. The quota of a section determines, subject to proviso (ii) to section 23(1) and to subsection (3) of that section -

(a) the value of the vote of the owner of the section in any case where the vote is to be reckoned in value;

(b) the undivided share in the common property of the owner of the section; and

(c) the proportion in which the owner of the section must make contributions for the purposes of section 30(1) or may in terms of section 35 be held liable for the payment of a judgment debt of the body corporate of which the owner is a member [subsection (2)].

According to subsection (3) the members of the body corporate may by unanimous resolution make rules under section 27 whereby -

(a) a different value is attached to the vote of the owner of any section; or

(b) the liability of the owner of any section to make contributions for the purposes of section 30(1) or 35, is modified.

1.1.13 Section -

(a) 25 of the 1971 Sectional Titles Act states that, subject to section 23, nothing in that Act or any other law contained is construed as preventing a developer from selling certain sections in a building and letting other sections therein or from letting all the sections therein;

(b) 26 of the 1971 Sectional Titles Act deals with the share of a developer in a building and land and subsection (1) provides that the developer is the owner of any section in respect of which the ownership


is not held by any other person, and the quota of the section or, if there is more than one section, the total of the quotas of the sections determines the share of the developer in the common property.

1.1.14 Section 27 of the 1971 Sectional Titles Act deals with rules and subsection (1) provides that a building and the land on which it is situated are as from the date of the establishment of the body corporate controlled and managed, subject to that Act, by means of rules.

The rules must provide for the control, management, administration, use and enjoyment of sections and the common property, and must include -

(a) the rules contained in Schedule 1 which may not be added to, amended or repealed except by unanimous resolution of the members of the body corporate;

(b) the rules contained in Schedule 2 which may be added to, amended or repealed by special resolution of the members of the body corporate.

Until such time as special rules are made for the control and management of a building and the land on which it is situated, the rules set forth in Schedules 1 and 2 are, as from the date of the establishment of the body corporate, in force in respect of the building and land. When any special rules have been made, or when any rule has been added to, amended or repealed, the body corporate must lodge with the registrar a notification in the prescribed form of the special rules, addition, amendment or repeal, and the registrar must in the prescribed manner make a reference thereto on the schedule to the relevant sectional plan referred to in section 5(3)(f) [subsection (2)].

No addition to or amendment or repeal of any rule pursuant to subsection (2)(a)(i) is of any force or effect until the body corporate has lodged with the registrar a notification in the prescribed form of the addition, amendment or repeal and the registrar has in the prescribed manner made a reference thereto on the schedule to the relevant sectional plan referred to in section 5(3)(f) [subsection (3)]. Subject to subsection (3), the rules bind the body corporate and the owners and all persons occupying any section.

1.1.15 Section:

(a) 28 of the 1971 Sectional Titles Act deals with the establishment of a body corporate and subsection (1) states that with effect from the date on which any person other than the developer becomes an owner of a unit in a building, there is deemed to be established for that building a body corporate of which the developer and the person are members, and every person who thereafter becomes an owner of a unit in that building, is a member of the body corporate. The body corporate is designated as the “Controlling Body of the (name) Building”, and the body corporate is, subject to that Act, responsible for the enforcement of the rules referred to in section 27, and for the control, administration and management of the common property.

(b) 29 of the 1971 Sectional Titles Act prescribes the duties of a body corporate, namely to carry out the duties assigned to it by or under that Act or the rules, and which duties include the duties mentioned in paragraphs (a) to (m) of subsection (1).

(c) 30 of the 1971 Sectional Titles Act provides for the powers of a body corporate, namely to exercise the powers conferred upon it by or under that Act or the rules, and which powers shall include the powers mentioned in paragraphs (a) to (o) of subsection (1).


(d) 31 of the 1971 Sectional Titles Act provides that the duties and powers of the body corporate must be performed or exercised, subject to that Act and the rules and to any restriction imposed or direction given at a general meeting of the owners of sections, by the trustees of the body corporate holding office in terms of the rules.

(e) 32 of the 1971 Sectional Titles Act prescribes the duties of owners, which are mentioned in paragraphs (a) to (f) thereof.

(f) 33 of the 1971 Sectional Titles Act provides that, notwithstanding the existence of a valid policy of insurance effected by the body corporate pursuant to section 29(1)(a), an owner may effect a policy of insurance in respect of any damage to his or her section arising from risks covered by the policy effected by the body corporate.

(g) 34 of the 1971 Sectional Titles Act deals with the appointment of an administrator.

(h) 36 of the 1971 Sectional Titles Act provides for when the building or buildings comprised in a scheme is or are, for the purposes of that Act, deemed to be destroyed.

(i) 37 of the 1971 Sectional Titles Act states what happens when in terms of section 36 the building or buildings comprised in a scheme is or are deemed to be destroyed.

1.1.16 Section 38 of the 1971 Sectional Titles Act deals with the valuation of land and buildings and the recovery of rates by a local authority, and subsection (1) provides that when a local authority causes land and buildings comprised in a scheme to be valued for any lawful purpose, the land and buildings thereon must be valued as if they were owned by a single owner, and for the purposes of the valuation and all purposes incidental thereto (including an objection to a valuation), the land and buildings thereon are deemed to be owned by the body corporate. A separate valuation must be made of the land and of the building or buildings. Subject to section 35, a local authority may recover any rates and taxes levied by it, from the body corporate [subsection (2)].

1.1.17 According to section 38A of the 1971 Sectional Titles Act a local authority may delegate any or all of the powers, functions or duties conferred upon or entrusted to it by sections 4, 15, 17, 18 or 23, to a committee, or an officer in the service of the local authority.

1.1.18 Section 40 of the 1971 Sectional Titles Act deals with the making of regulations and subsection (1) provides that the Minister may, after consultation with the deeds registries regulations board established under section 9 of the Deeds Registries Act, make regulations in regard to the matters contemplated in paragraphs (a) to (o) thereof. Different regulations may be made in respect of the several deeds registries and the matters to be dealt with therein [subsection (2)].

1.1.19 Section:

(a) 41 of the 1971 Sectional Titles Act provides that before any application is made to the Court for an order affecting the performance of any act in a deeds registry, the applicant must give notice in writing to the registrar concerned at least seven days before the hearing of the application and the registrar may submit to the Court the report thereon as the registrar may deem fit.


(b) 42 of the 1971 Sectional Titles Act states that no act or omission of the registrar or of an official who is employed in a deeds registry, in the course of the administration of that Act, makes the State or the registrar or official liable for damages suffered by anyone in consequence of the act or omission, but if a court finds that the act or omission was mala fide, the State is liable for the damages.

1.1.20 According to section 43 of the 1971 Sectional Titles Act that Act and any amendment thereof also apply in Namibia.

1.1.21 Schedule 1 to the 1971 Sectional Titles Act contains rules relating to -

(a) the trustees of a body corporate;

(b) general meetings;

(c) proceedings at general meetings; and

(d) votes of owners,

while Schedule 2 contains rules relating to what an owner may not do in respect of his or her section.

1.2 Regulations made under the 1971 Sectional Titles Act

Government Notice R.475 of 30 March 1975 contains Regulations made under the 1971 Sectional Titles Act.

2. SECTIONAL TITLES ACT, 2009 (ACT NO. 2 OF 2009)

2.1 The Sectional Titles Act, 2009 (Act No. 2 of 2009) (the “2009 Sectional Titles Act”):

(a) Provides for -

(i) the division of buildings into sections and common property and the acquisition of separate ownership in sections coupled with joint ownership in common property;

(ii) the control of certain rights attaching to separate ownership in sections and joint ownership in common property;

(iii) the transfer of ownership of sections and the registration of sectional mortgage bonds over, and real rights in, sections;

(iv) the conferring and registration of rights in, and the disposal of, common property;

(v) the establishment of bodies corporate to control common property and for that purpose to apply rules;

(vi) the establishment of the Sectional Titles Regulation Board; and

(vii) for incidental matters.


(b) Is divided into 11 Parts, providing for Definitions and Interpretation; Introductory Provisions; Development Schemes, Sectional Plans and Sectional Title Registers; Registration and Common Property; Subdivision, Consolidation and Extension of Sections; Extension of Schemes; Exclusive Use of Common Property and Servitudes; Participation Quotas and Developers; Rules and Bodies Corporate; Owners, Administrators and Buildings and Miscellaneous, respectively.

(c) Repeals the 1971 Sectional Titles Act, but has not yet been put into operation because the regulations and rules to be made in terms thereof have not yet been finalised.

2.2 Provisions of the 2009 Sectional Titles Act

2.2.1 Part I: Definitions and interpretation

Part I of the 2009 Sectional Titles Act deals with definitions and interpretation, and consists of section 1, which contains the definitions. According to subsection (5), the Minister, acting with the concurrence of the Minister responsible for local government and after consultation with the local authority to be affected by a declaration under this subsection, may by notice in the Gazette declare any institution or body established by or under any other law and which exercises powers and performs duties which, in the opinion of the Minister, correspond with the powers and duties ordinarily exercised or performed by a local authority, to be a local authority for the purposes of this Act.

2.2.2 Part II: Introductory Provisions

Part II of the 2009 Sectional Titles Act deals with introductory provisions, and provides:

(a) For ownership and real rights in or over parts of buildings, and registration of title to ownership or other real rights in or over the parts (section 2).

(b) For the application of the Deeds Registries Act in respect of all deeds and other documents registered or filed, or intended to be registered or filed, in the deeds registry in terms of the 2009 Sectional Titles Act, irrespective of where the land to which any such deed or document relates is situated in Namibia (section 3).

(c) For the keeping of records and the reproduction of documents (section 4).

(d) That a unit is deemed to be land (section 5).

2.2.3 Part III: Development schemes, sectional plans and sectional title registers

Part III of the 2009 Sectional Titles Act deals with development schemes, sectional plans and sectional title registers, and:

(a) Provides for the approval of development schemes (section 6). A draft sectional plan in respect of the proposed scheme must first be submitted to the Surveyor-General for his or her approval within the meaning of the Land Survey Act, 1993 (Act No. 33 of 1993), and after being approved by the Surveyor-General, be submitted to the local authority concerned for its approval in terms of section 9. The approval required from the Surveyor-General is a new requirement which was not in the 1971 Sectional Titles Act.


(b) Prescribes the manner of preparing draft sectional plans (section 7).

(c) Prescribes the duties of land surveyors and architects, and provides for the non-liability of the State and local authorities in certain circumstances (section 8).

(d) Deals with the approval of draft sectional plans by local authorities (section 9).

(e) Prescribes the actions which constitute improper or unprofessional conduct of land surveyors and architects (section 10).

(f) Deals with applications for opening of sectional title registers (section 11).

(g) Provides for the registration of sectional plans and the opening of sectional title registers (section 12).

(h) States the effect of registration of a sectional plan (section 13).

(i) Provides for the amendment and cancellation of sectional plans found to be incorrect (section 14).

2.2.4 Part IV: Registration and common property

Part IV of the 2009 Sectional Titles Act deals with registration and common property, and:

(a) Provides that, subject to this Act or any other law, the registrar may not attest, execute or register a deed of transfer, sectional mortgage bond, certificate of title or certificate of registration of any kind whatsoever, unless the deed, mortgage bond or certificate concerned has been prepared and signed by a conveyancer in accordance with that Act (section 15).

(b) Provides for the proof of certain facts in connection with deeds and documents by means of certain certificates (section 16).

(c) Deals with the registration of transfer of ownership and other rights (section 17).

(d) Deals with ownership of common property (section 18).

(e) Provides for alienation and letting of common property (section 19).

(f) States that sections 56 and 57 of the Deeds Registries Act apply with the necessary changes in respect of -

(i) the transfer of a mortgaged unit or undivided share in a unit;

(ii) the cession of a mortgaged lease of a unit or undivided share in a unit;

(iii) the cession of a mortgaged real right in or over a unit or an undivided share in a unit; and

(iv) the transfer under section 19 of that Act of any mortgaged common property or land or an undivided share in common property or land (section 20).


(g) Provides for the expropriation of common property or rights therein (section 21).

2.2.5 Part V: Subdivision, consolidation and extension of sections

Part V of the 2009 Sectional Titles Act deals with subdivision, consolidation and extension of sections and:(a) Provides for the approval by local authorities of a plan of subdivision or consolidation of sections

(section 22).

(b) Deals with application to the registrar for registration of a sectional plan of subdivision of a section (section 23).

(c) Deals with application to the registrar for registration of a sectional plan of consolidation of a section (section 24).

(d) Provides for the extension of sections and application to a local authority for approval (section 25).

2.2.6 Part VI: Extension of schemes

Part VI of the 2009 Sectional Titles Act deals with the extension of schemes and:

(a) Provides for the extension of schemes by the addition of sections and exclusive use areas for the personal account of a developer (section 26).

(b) Provides for the extension of a scheme by a body corporate by the addition of land to common property (section 27).

2.2.7 Part VII: Exclusive use of common property and servitudes

Part VII of the 2009 Sectional Titles Act deals with exclusive use of common property and servitudes and:

(a) Provides for rights of exclusive use of parts of common property (section 28).

(b) Deals with the making of rules by a developer or a body corporate that confer rights of exclusive use and enjoyment of parts of the common property on members of the body corporate (section 29).

(c) Deals with implied servitudes in favour of and against each section (section 30). The servitudes concerned -

(i) are deemed to be incorporated in the title deeds of the owners affected thereby; and

(ii) confer on the owners of sections the right, to be exercised by the body corporate, to have access to each section and the exclusive use areas from time to time during reasonable hours to the extent necessary to maintain, repair or renew a part of the building or any pipes, wires, cables or ducts therein, or to make emergency repairs therein necessary to prevent damage to the common property or to any other section or sections.


(d) Provides for the creation of servitudes by the owners of sections by special resolution (section 31).

(e) States that all ancillary rights and obligations reasonably necessary to make servitudes effective apply in respect of servitudes implied or created under that Act (section 32).

(f) States that -

(i) the Deeds Registries Act does not apply in respect of servitudes or restrictions as to user implied under this Act;

(ii) the servitudes and restrictions referred to in subsection (1) take effect and are enforceable immediately on the establishment of the body corporate [section 33(1) and (2)].

2.2.8 Part VIII: Participation quotas and developers

Part VIII of the 2009 Sectional Titles Act deals with participation quotas and developers and:

(a) Provides for the participation quotas of a section (section 34).

(b) States that nothing in that Act or any other law contained is to be construed as preventing a developer from selling certain sections in a building and letting other sections therein or from letting all sections therein (section 35).

(c) Deals with the shares of developers in buildings and land (section 36).

2.2.9 Part IX: Rules and bodies corporate

Part IX of the 2009 Sectional Titles Act deals with rules and bodies corporate and:

(a) States that a scheme is, as from the date of the establishment in terms of section 38(1) of the body corporate, controlled and managed, subject to that Act, by means of rules [section 37(1)]. The Minister -

(i) may make rules, on the recommendation of the sectional titles Regulation Board and subject to subsection (3); and

(ii) must publish the rules made in terms of paragraph (a) by notice in the Gazette [section 37(2)].

(b) Deals with the establishment of a body corporate (section 38).

(c) Prescribes the functions of a body corporate (section 39).

(d) Prescribes the powers of a body corporate (section 40).

(e) States that the functions and powers of a body corporate must, subject to that Act, the rules and any restriction imposed or direction given at a general meeting of the owners of sections, be performed


and exercised by the trustees of the body corporate holding office in terms of the rules, subject to paragraphs (a) to (d) of subsection (1) (section 40).

(f) Deals with the fiduciary position of trustees (section 42).

(g) Provides for the initiation of proceedings on behalf of a body corporate by an owner of a section in certain circumstances (section 43).

(h) Provides for the powers of curators ad litem appointed or confirmed under section 43 (section 44).

(i) Deals with security for costs by applicants for the appointment of curators ad litem (section 45).

2.2.10 Part X: Owners, administrators and buildings

Part X of the 2009 Sectional Titles Act deals with owners, administrators and buildings and:

(a) Prescribes the duties of owners (section 46).

(b) Provides that, despite the existence of a valid policy of insurance effected by the body corporate in terms of section 39(1)(f), an owner of a section may effect a policy of insurance in respect of any damage to his or her section arising from risks covered by the policy of insurance effected by the body corporate (section 47).

(c) Provides for the appointment of an administrator (section 48).

(d) Provides for the recovery from owners of unsatisfied judgment against bodies corporate (section 49).

(e) States that no debt or other obligation arising from an agreement entered into between a developer and any other person, including an owner of a section, is enforceable against a body corporate (section 50).

(f) Provides for when the building or buildings comprised in a scheme is or are, for the purposes of that Act, deemed to be destroyed (section 51).

(g) States what happens when in terms of section 51 the building or buildings comprised in a scheme is or are deemed to be destroyed (section 52).

(h) Provides that if the State or a local authority is the owner of a section in a building that is not encumbered with a mortgage bond, lease or other real right, and the section is destroyed to give effect to a project or scheme for the benefit of the public, the State or the local authority may, after having advised the body corporate concerned in writing of its intention to do so, notify the registrar to this effect and apply for the cancellation of the relevant sectional title deed (section 53).

(i) Section 54 deals with the valuation of land and buildings and the recovery of rates by local authorities, and subsection (1) provides that when a local authority causes land and buildings comprised in a scheme to be valued for the purposes of Parts XIV and XV of the Local Authorities Act, 1992 (Act No. 23 of 1992), each unit in the scheme is, for the purposes of valuation and the levying and recovery of rates by a local authority,


deemed to be a separate rateable property. When valuing land and buildings comprised in a scheme, the value of each unit in the scheme must be determined separately in accordance with section 67 of the Local Authorities Act, 1992 (Act No. 23 of 1992), and for that purpose any reference in that section to -

(a) the land portion of rateable property, is to be construed as a reference to the undivided share in the common property apportioned to a particular section in accordance with the participation quota of that section;

(b) improvements on land, is to be construed as a reference to each separate section in the scheme [subsection (2)].

Rates on land and buildings comprised in a scheme must be levied separately on each unit in the scheme [subsection (3)], while subsection (4) provides that rates levied by a local authority on a unit is payable by, and recoverable from, the owner of the unit. A local authority may not recover the rates levied on a unit, or any part of the rates, from the body corporate, except if the body corporate is the owner of a unit in the scheme [subsection (5)], and a body corporate may not apportion and collect rates levied by a local authority on units in the scheme from the owners of the units. Nothing in subsections (3), (4), (5) and (6) is to be construed as affecting the liability of a body corporate to a local authority, nor of the owner of a unit to the body corporate, for rates levied before the commencement date on land and buildings comprised in a scheme.

2.2.11 Part XI: Miscellaneous

Part XI of the 2009 Sectional Titles Act contains miscellaneous provisions and:

(a) Section 55(1) establishes a board to be known as the Sectional Titles Regulation Board (the “Regulation Board”) which has the powers, duties and functions referred to in paragraphs (a) to (c) thereof.

(b) Section 56 provides for the making of regulations by the Minister, on the recommendation of the Regulation Board, relating to the matters mentioned in paragraphs (a) to (q) of subsection (1).

(c) Section 57 provides that before an application is made to the Court for an order affecting the performance of an act in the deeds registry or office of the Surveyor-General, the applicant must give notice in writing to the registrar or Surveyor-General at least 21 days before the hearing of the application [subsection (1)]. The registrar or Surveyor-General may submit to the Court such report on an application contemplated in subsection (1) as he or she may consider necessary.

(d) Provides for the appointment of arbitrators (section 58), deals with exemption from liability (section 59), states that the laws specified in the Schedule are repealed to the extent set out in the third column of the Schedule (section 60), and contains savings and transitional provisions (section 61).


3. FLEXIBLE LAND TENURE ACT, 2012 (ACT NO. 4 OF 2012)

3.1 The Flexible Land Tenure Act, 2012 (Act No. 4 of 2012) (the “Flexible Land Tenure Act”):

(a) Provides for -

(i) the creation of new forms of title to immovable property;(ii) the creation of a register for these forms of title and registrars to register these forms of title;

(iii) the nature of the rights conferred by these forms of title; and

(iv) matters incidental thereto.

(b) Has not yet been put into operation.

3.2 Provisions of the Flexible Land Tenure Act

The Flexible Land Tenure Act introduces some alternative forms of land titles that should be simpler and cheaper to administer than existing land rights.

3.2.1 Section 1 of the Flexible Land Tenure Act contains the definitions.

3.2.2 Section 2 of the Flexible Land Tenure Act contains the objectives of that Act, namely to -

(a) create alternative forms of land title that are simpler and cheaper to administer than existing forms of land title;

(b) provide security of title for persons who live in informal settlements or who are provided with low income housing;

(c) empower the persons concerned economically by means of these rights.

3.2.3 Section 3 of the Flexible Land Tenure Act deals with the application of that Act and states that starter title schemes and land hold title schemes may only be established on land situated within the boundaries of a municipality, town or village council or within the boundaries of a settlement area.

3.2.4 Section 4 of the Flexible Land Tenure Act provides for the establishment of Land Rights Offices by the Minister responsible for the registration of immovable property, after consultation with the Minister responsible for Local Government and Housing, for the area specified in the notice concerned as the area of jurisdiction of the office, or if the first-mentioned Minister considers it expedient, he or she may establish only one Land Rights Office for the whole country.

3.2.5 Section 5 of the Flexible Land Tenure Act provides for the appointment of a Land Rights Registrar for every Land Rights Office, who is responsible for the operation of the land rights office concerned, and also for the appointment of registration officers and land measurers who may, subject to the control and directions of the Registrar, do anything which may be done under that Act by a registration officer or land measurer.


3.2.6 According to section 6 of the Flexible Land Tenure Act, the Registrar of Deeds must establish a land hold title register and a starter title register. Subject to that Act, the registers concerned may be recorded in a computer system or in any other appropriate manner and the information contained in -

(a) subsection (3)(a) to (e) must be recorded in the starter title register; and

(b) subsection (4)(a) to (h) must be recorded in the land hold title register.

3.2.7 Section 7 of the Flexible Land Tenure Act provides for the duties of a Land Rights Registrar, while section 8 prescribes the powers of such a Registrar.

3.2.8 Section 9 of the Flexible Land Tenure Act deals with the nature of starter title rights and subsection (1) contains the rights of the holder of a starter title right. The rest of the section deals with the provision of services to a starter title scheme, the transfer of starter title rights, the registration of the transfer of rights and the functions of the association of a starter title scheme.

3.2.9 Section 10 of the Flexible Land Tenure Act deals with the nature of land hold title rights and subsection (1) contains the rights of the holder of a land hold title right. The rest of the section deals with the undivided share in the common property referred to in subsection (1)(c); the transactions that may be performed by registration in the land hold title register; the legal effect of registration of any transaction, and the failure to register any transaction and the functions of the association of a land hold title scheme.

3.2.10 Section 11 of the Flexible Land Tenure Act provides for the preliminary steps to be taken before the establishment of a starter title or land hold title scheme.

3.2.11 Section 12 of the Flexible Land Tenure Act deals with the establishment of a starter title scheme, while section 13 deals with the establishment of a land hold title scheme.

3.2.12 Section 14 of the Flexible Land Tenure Act provides for the upgrading of a starter title scheme to a land hold title scheme, while section 15 provides for the upgrading of starter title or land hold title to full ownership.

3.2.13 According to section 16(1) of the Flexible Land Tenure Act the Minister responsible for the registration of immovable property may make, after consultation with the committee referred to in subsection (3), regulations relating to the matters mentioned in paragraphs (a) to (l) thereof.

3.2.14 Section 17 of the Flexible Land Tenure Act provides for the enforcement of restrictive conditions imposed in terms of section 12(6) or section 13(6).

3.2.15 Section 18 of the Flexible Land Tenure Act deals with the activities of the association of a starter title scheme or a land hold title scheme, such as the holding of annual general meetings and special general meetings; the management of the associations, and the election of the committee of an association.

3.2.16 According to section 19 of the Flexible Land Tenure Act any person having a substantial interest in any decision made by a Registrar may appeal subject to the prescribed procedural rules to the magistrate’s court of the district in which the property concerned is situated.


CHAPTER 7

This chapter deals with provisions relating to land reform in respect of agricultural commercial land and communal land.

With regard to agricultural commercial land the provisions of the Agricultural Land Reform Act dealing with the expropriation of agricultural land and the payment of compensation and the valuation of agricultural land for those purposes, are relevant for valuers and other staff members of the Directorate of Valuation and Estate Management in the Ministry of Lands and Resettlement.

The Communal Land Reform Act repeals amongst others the (South African) Development Trust and Land Act, 1936 (Act No. 18 of 1936), and all amendments thereof, as well as an Act relating to native affairs administration and a Proclamation relating to the administration of the South African Bantu Trust in South West Africa. It provides amongst others for the allocation of rights in respect of communal land and establishes communal land boards.

1. AGRICULTURAL (COMMERCIAL) LAND REFORM ACT, 1995 (ACT NO. 6 OF 1995)

The Agricultural Land Reform Act

(a) (i) Provides for the acquisition of agricultural land by the State for the

purposes of land reform and for the allocation of the land to Namibian citizens who do not own or otherwise have the use of any or of adequate agricultural land, and foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices;

(ii) provides that a preferent right to purchase agricultural land for the purposes of the Act vest in the State;

(iii) provides for the compulsory acquisition of certain agricultural land by the State for the purposes of the Act;

(iv) regulates the acquisition of agricultural land by foreign nationals;

(v) provides for the establishment of a Lands Tribunal and the determination of its jurisdiction; and

(vi) provides for matters connected therewith.

LAND REFORM


(b) Is divided into 9 Parts, providing for the Land Reform Advisory Commission, Land Acquisition and Development Fund, Acquisition of Agricultural Land by State for Purposes of Land Reform, Preferent Right of State to Purchase Agricultural Land, Compulsory Acquisition of Agricultural Land, Allotment of Agricultural Land, Restriction on Acquisition of Agricultural Land by Foreign Nationals, the Lands Tribunal and Land Tax and General, respectively.

(c) Came into operation on the 6th of December 1995.

(d) Has been amended by the Agricultural (Commercial) Land Reform Amendment Act, 2000 (Act No. 16 of 2000), the Agricultural (Commercial) Land Reform Amendment Act, 2001 (Act No. 2 of 2001), the Agricultural (Commercial) Land Reform Amendment Act, 2002 (Act No. 13 of 2002), the Agricultural (Commercial) Land Reform Amendment Act, 2003 (Act No. 14 of 2003), the Agricultural (Commercial) Land Reform Second Amendment Act, 2003 (Act No.19 of 2003) and the Agricultural (Commercial) Land Reform Amendment Act, 2013 (Act No. 8 of 2013).

1.1 Provisions of the Agricultural Land Reform Act

1.1.1 Section 1 of the Agricultural Land Reform Act contains the definitions.

1.1.2 Part I: Land Reform Advisory Commission

Part I of the Agricultural Land Reform Act deals with the Land Reform Advisory Commission, and provides for the establishment of the Land Reform Advisory Commission (section 2) and the functions of the Commission (section 3).

1.1.3 Part IA: Land Acquisition and Development Fund

Part IA of the Agricultural Land Reform Act deals with the Land Acquisition and Development Fund, and provides for the establishment of the Land Acquisition and Development Fund and whereof the Fund consists (section 13A) and the appropriation of the Fund, the administration of the Fund and the accounting responsibility of the Fund (sections 13B to 13D).

1.1.4 Part II: Acquisition of Agricultural Land by State for purposes of Land Reform

Part II of the Agricultural Land Reform Act deals with the acquisition of agricultural land by the State for purposes of land reform, and:

(a) Prescribes the power of the Minister of Lands and Resettlement to acquire agricultural land for purposes of land reform (section 14). Out of moneys available in the Fund the Minister may acquire in the public interest in accordance with that Act, agricultural land in order to make the land available for agricultural purposes to Namibian citizens who do not own or otherwise have the use of agricultural land or adequate agricultural land, and foremost to those Namibian citizens who have been socially or economically disadvantaged by past discriminatory laws and practices [subsection (1)]. Agricultural land -

(i) which has been offered for sale to the Minister in terms of section 17(4), whether or not the offer is subsequently withdrawn;


(ii) which has been acquired by a foreign national, or by a nominee owner on behalf or in the interests of a foreign national, in contravention of section 58 or 59; or

(iii) which the Minister considers to be appropriate for the purposes contemplated in subsection (1),

may be so acquired.

The Minister also has the power, upon a recommendation of the Commission and after consideration of a report by the Commission, to classify agricultural land as under-utilised land or as excessive land if he or she has given written notice of his or her intention to the owner concerned and has invited the owner to consult with the Minister with a view of reaching an agreement on the relevant land or portion or portions to be so classified. Any owner of agricultural land who is aggrieved by a classification by the Minister of the land as under-utilised land or of the land or any portion or portions thereof as excessive land, may, not later than 30 days after the date of notice in which he or she has been given notice of the classification concerned, or such extended period as the Minister in a particular case may allow, appeal against the classification to the Lands Tribunal.

(b) Provides for the inspection of agricultural land to be acquired and the performance of certain activities (section 15).

1.1.5 Part III: Preferent Right of State to Purchase Agricultural Land

Part III of the Agricultural Land Reform Act deals with a preferent right of the State to purchase agricultural land, and:

(a) Section 17 vests in the State a preferent right to purchase agricultural land whenever any owner of such land (including one or more members of a company or close corporation which is the owner of agricultural land) intends to alienate the land. No agreement of alienation of agricultural land entered into by the owner of the land, or, if the land is alienated by a company or close corporation, no agreement of sale or instrument of transfer or transfer otherwise of any shares of the company or any member’s interest in the close corporation or of any portion of the interest which, but for this subsection, would have passed the controlling interest in the company or close corporation to another person, is of any force and effect until the owner of the land -

(i) has first offered the land for sale to the State; and

(ii) has been furnished with a certificate of waiver in respect of the land.

It is not necessary to offer the land for sale to the State and to obtain a certificate of waiver in respect of agricultural land which is alienated -

(i) by or to a regional council or a local authority council or a body corporate as defined in section 1, but only to the extent that the land is alienated otherwise than being sold on the open market;


(ii) in the administration of a deceased estate or in accordance with a redistribution of assets in such an estate between heirs and legatees;

(iii) by the trustee of an insolvent estate or the liquidator of a company, close corporation or co-operative society in the liquidation of the estate or the winding-up of the company, close corporation or co-operative society;

(iv) by a deputy-sheriff or messenger of the court in the execution of a judgment or an order of a competent court;

(v) by a co-owner of the land to another co-owner thereof; except if the land is owned by a company or close corporation; or

(vi) in such other circumstances as the Minister may prescribe.

The rest of the section deals with procedural issues. (Section 16 contains a definition of certificate of waiver for purposes of Part III.)

(b) Provides for the period of validity of a certificate of waiver (section 17A).

(c) States that the Registrar [responsible for the deeds registry referred to in the Deeds Registries Act, 1937, or the registrar responsible for the deeds registry referred to in the Registration of Deeds in Rehoboth Act, 1976,] may not where a certificate of waiver or a land tax certificate is required, register any transfer of agricultural land unless -

(i) a certificate of waiver;

(ii) a land tax clearance certificate, and

(iii) a fully completed land tax registration form contemplated in section 76(1A)(c),

in respect of the land is submitted to the Registrar (section 18). Section 1 of the Agricultural (Commercial) Land Reform Second Amendment Act, 2003(Act No. 19 of 2003), which came into operation on the 1st of April 2004, amends section 18(1) of the Agricultural Land Reform Act in order to provide that a fully completed land tax registration form contemplated in section 76(1A)(c) must also be submitted to the registrar of deeds before the registrar may register any transfer of agricultural land.

1.1.6 Part IV: Compulsory Acquisition of Agricultural Land

1.1.6.1 Part IV of the Agricultural Land Reform Act deals with compulsory acquisition of agricultural land, and:

(a) Confers upon the Minister of Lands and Resettlement the power to expropriate certain property (section 20). If the Minister, after consultation with the Commission, decides to acquire any property for the purposes of section 14(1) and


(i) the Minister and the owner of the property are unable to negotiate the sale of the property by mutual agreement; or

(ii) the whereabouts of the owner of the property cannot be ascertained after diligent inquiry, the Minister may, subject to the payment of compensation in accordance with that Act, expropriate the property for the purpose (subsection [1]). If the Minister decides to expropriate any property, the Minister must cause to be served on the owner concerned an expropriation notice as contemplated in subsection (2). (Section 19 defines “property” for purposes of Part IV as -

(i) any agricultural land contemplated in section 14(2), or

(ii) any right registered in or over the agricultural land.)

(b) Deals with the passing of ownership in expropriated property (section 21).

(c) Prescribes the duties of the owner of a property which has been expropriated in terms of section 20 (section 22).

(d) States that the Minister of Lands and Resettlement may, upon a recommendation of the Commission, in the expropriation notice offer the owner concerned an amount as compensation for the property which is being expropriated [section 23(1)], and further deals with the furnishing or not of relevant information and the determination of compensation.

(e) Provides for an advance payment of a portion of the compensation offered (section 24).

(f) Prescribes the basis on which compensation is to be determined (section 25), and the amount of compensation to be paid to an owner in respect of property expropriated in terms of that Act must be determined with due regard to the considerations contemplated in subsection (5) thereof, but shall not, subject to subsection (2), exceed -

(i) where the property expropriated is agricultural land, the aggregate of -

(aa) the amount which the land would have realised if sold on the date of notice on the open market by a willing seller to a willing buyer; and

(bb) an amount to compensate any actual financial loss caused by the expropriation; and

(ii) where the property expropriated is a right, an amount to compensate any actual financial loss caused by the expropriation of the right.

The actual financial loss can be considered as such a loss that would occur as a direct result of the action of the acquiring authority. No allowance may be made for any indirect damage in the determination of compensation payable under that Act. In Pienaar v Minister van Landbou 1972 (1) SA 14 (A) the Appellate Division held that direct loss as against indirect loss is loss which flows naturally and without any intervening cause from the act of expropriation. The loss must be natural,


direct and as a reasonable consequence of the expropriation. A mere “causa sine qua non” is not sufficient for a claim of compensation. In Estate Marks v Pretoria City Council 1959 (3) SA 227 (A) the Court held:

“The broad concept of the statute is that monetary compensation is substituted for the property expropriated.”

This means that the owner of the property should receive compensation equal to the market value of that property and direct financial loss. This loss must not be uncertain or speculative. [See Greyvenstein & Andere v Minister van Landbou 1970 (4) SA 233 (A)].

(g) Deals with compensation for rights under unregistered leases (section 26).

(h) Provides for the determination of compensation by the Lands Tribunal or by arbitration in the absence of an agreement (section 27).

(i) Deals with orders as to costs (section 28).

(j) Provides that, notwithstanding any application in terms of section 27(1) for the determination of compensation or an appeal against such a determination of the Lands Tribunal, the other provisions of that Act apply as if no such application or appeal had been made (section 29).

(k) Deals with the discharge of a debt secured by mortgage bond, and payment of compensation for certain unregistered rights (section 30).

(l) Provides for the deposit of compensation money with the Master in certain circumstances (section 31).

(m) Deals with the termination of unregistered rights in respect of land which has been expropriated (section 32).

(n) Provides for the withdrawal of an expropriation notice in certain circumstances (section 33).

(o) Provides for the expropriation of the remainder of agricultural land where only a portion of land is expropriated (section 34).

(p) States that the Expropriation Ordinance, 1978 (Ordinance No. 13 of 1978), does not apply to an expropriation of property for the purposes contemplated in section 14(1), but nothing in the Agricultural Land Reform Act is construed as preventing the expropriation of agricultural land in accordance with the Expropriation Ordinance for a purpose contemplated in that Ordinance (section 35).

1.1.6.2 The case of Kessl v Ministry of Lands Resettlement & Others And Two Similar Cases 2008(1) NR 167 HC contains a detailed discussion of the Act’s requirements for expropriation and constitutionality of the expropriation procedure, including guidelines on correct procedure for expropriation under the Act.


The applicants in the three cases were dissatisfied with the way in which the respondents had gone about the expropriation procedure.

The court recognised that in terms of Article 16(2) of the (Namibian) Constitution the Government was entitled to expropriate land. Furthermore, the court took into account that the objective of the Act was to redress past injustices and bring about a fairer distribution of land. However, the court also took into account the provisions of Article 18 (of the Namibian Constitution) which guarantees fair administrative justice. It was necessary that a fair procedure should be followed and the principles of natural justice, for example, the audi alteram partem principle (the other side must also be heard), must be observed. According to Article 16(2), the State or a competent body or authorised organ may expropriate property, but this must be done in accordance with the requirements and procedures laid down in the Agricultural Land Reform Act. The decision-maker then has to act fairly, reasonably and in compliance with the statutory requirements, the requirements of the common law and of Article 16 of the Constitution. Article 18 of the Constitution cannot be disregarded during the process of expropriation of property in terms of Article 16(2), even if it is in the public interest to expropriate the property. Although expropriation usually takes place as part of the State’s eminent domain, the requirements of both Articles 16(2) and 18 must still be adhered to. The application of the principle of audi alteram partem is a pre-requisite before the Minister takes a decision, in terms of the Agricultural Land Reform Act, to expropriate. Failure to do so may lead to declaration that the action of the Minister is invalid.

After examining all the aspects of administrative justice, the audi alteram partem principle, the necessity of a fair procedure and the need for consultation, the court laid down the following guidelines in regard to expropriation: the court acknowledged the right of Government (acting through the Minister responsible) to expropriate property in terms of Article 16(2) of the Constitution; and that the Cabinet was under pressure from different interest groups to provide land to those disadvantaged people described in the Constitution and the Agricultural Land Reform Act and to correct imbalances of the past in respect of ownership of land. However, that process had to be done in terms of the provisions of the Agricultural Land Reform Act. The court then set out five steps that had to be followed in sequence if the Minister intended to expropriate agricultural land, namely:

(a) The function to decide to expropriate agricultural land in terms of the Agricultural Land Reform Act was that of the Minister of Lands and Resettlement and of nobody else.

(b) The requirements of section 14 of the Agricultural Land Reform Act had to be followed whenever the Minister decided to acquire agricultural land, including proper consultations with the Land Reform Advisory Commission. Generally the following matters should be addressed and considered during such consultations:

(i) the Commission, in the exercise of its functions, was obliged to investigate all relevant factors regarding any particular farm or farms;

(ii) factors such as the effect that acquiring farms for resettlement purposes may have on the present employees, other residents and their families; and to make recommendations to the Minister on (i) and (ii).


(c) When the Minister considered expropriating a particular farm, he must observe the principle of audi alteram partem, namely he must first afford the landowner the right to be heard on the issue. This may, for instance, be achieved by the Minister inviting representations in writing from the affected landowner and the landowner responding to the invitation. Where clarification was needed, that had to be provided.

(d) If the Minister nevertheless decided to expropriate a farm in terms of section 20(1) of the Agricultural Land Reform Act, he must notify the particular landowner in terms of section 20(2) thereof and such notice must be served on the particular landowner.

The court held further that, although the present applications did not go further than the decision to expropriate and the service of the notice of expropriation, other requirements of the Agricultural Land Reform Act and the notice had to be complied with. The court accordingly set aside the decisions of the respondents to expropriate the farms owned by the applicant in all three cases.

1.1.7 Part V: Allotment of Agricultural Land

Part V of the Agricultural Land Reform Act deals with the allotment of agricultural land, and:

(a) Prescribes the power of the Minister of Lands and Resettlement to alienate, lease or dispose of -

(i) any land, other than communal land, of which the State is the owner and which has been made available by the President to the Minister for the purpose;

(ii) any agricultural land acquired by the State under Part III or Part IV; or

(iii) any land allotted under Part V which has reverted to the State in terms of any such provision (section 37).

(Section 36 provides that for the purposes of Part V “farming unit” means any piece of surveyed land allotted or available for allotment under Part V.)

(b) Section 37A states that the Minister of Lands and Resettlement may, from moneys available in the Fund, arrange for the undertaking of the development or improvement of land referred to in section 37 by any authority or person, subject to such terms and conditions determined by the Minister in concurrence with the Minister of Finance.

(c) Provides for the subdivision of land acquired under that Act into holdings for allotment to persons for purposes of small-scale farming (section 38).

(d) Provides for the preparation and publication of allotment plans (section 39).

(e) Deals with the disposal of farming units reverting to the State (section 40).

(f) Deals with applications for allotment and the consideration of applications (section 41).

(g) Provides for the duration and registration of leases granted in respect of a farming unit (section 42).


(h) Deals with the yearly rent payable in respect of a farming unit (section 43).

(i) Provides for the occupation of a farming unit which has been leased (section 44).

(j) Deals with the termination of a lease in respect of a farming unit (section 45).

(k) Places a restraint on certain transactions by the lessee of a farming unit (section 46), such as -

(i) the assignment, sublease, hypothecation or in any manner whatsoever encumbering or parting with possession of the farming unit in question or any part thereof; or

(ii) the entering into any partnership for the working of the farming unit.

(l) Provides for the cancellation of a lease in respect of a farming unit (section 50).

(m) Deals with debts due under a lease which has been cancelled or surrendered (section 51).

(n) Provides what happens if the lessee becomes insolvent or, in the case of a lessee which is a company or close corporation, the company or close corporation is placed under liquidation (section 52).

(o) Provides what happens in the case of death or mental illness of a lessee (section 53).

(p) Confers upon any member of the Commission or any staff member or person referred to in paragraph (a), (b) or (c) of subsection (1) of section 13, or any other person authorised thereto in writing by the Minister of Lands and Resettlement or the Commission the power to at all reasonable times enter and inspect any farming unit allotted under Part V for the purpose of ascertaining whether the provisions of the Agricultural Land Reform Act, or the terms and conditions of the relevant agreement of lease are being complied with in respect of the farming unit (section 57).

1.1.8 Part VI: Restriction on acquisition of agricultural land by foreign nationals

Part VI of the Agricultural Land Reform Act deals with restrictions on the acquisition of agricultural land by foreign nationals, and:

(a) According to section 58(1), notwithstanding anything to the contrary in any other law contained, but subject to subsection (2) and section 62, no foreign national is, after the date of commencement of Part VI, without the prior written consent of the Minister, competent -

(i) to acquire agricultural land through the registration of transfer of ownership in the deeds registry; or

(ii) to enter into an agreement with any other person whereby any right to the occupation or possession of agricultural land or a portion of the land is conferred upon the foreign national -

(aa) for a period exceeding 10 years; or


(bb) for an indefinite period or for a fixed period of less than 10 years, but which is renewable from time to time, and without it being a condition of the agreement that the right of occupation or possession of the land concerned may not exceed a period of 10 years in total.

If at any time after the commencement of Part VI the controlling interest in any company or close corporation which is the owner of agricultural land passes to any foreign national, it is deemed, for the purposes of subsection (1)(a), that the company or close corporation acquired the agricultural land in question on the date on which the controlling interest so passed [subsection (1)]. When -

(i) the Registrar of Companies becomes aware that the controlling interest in a company; or

(ii) the Registrar of Close Corporations becomes aware that the controlling interest in a close corporation,

owning agricultural land has passed to a foreign national, he or she must forthwith inform the Permanent Secretary in writing that the interest has so passed [subsection (2A)].

In the case of Müller v Schweiger 2005 NR 98 HC the parties (Schweiger as Lessor and Müller as Lessee) had originally entered into a written lease agreement in respect of certain agricultural land for a period of 20 years and the rental payable, namely DM80 000 was paid in instalments by January 2002. At some stage the parties realised that the period of the lease was contradictory to section 58(1)(a)(ii), and they then concluded another written agreement stipulating that the lease was to endure for a period of 9 years and 11 months. On the same date the parties concluded a further written agreement in the German language (called the “Vereinbarung”), stating amongst others that, while not knowing the legal position, they had previously entered into the agreement enduring for 20 years and that the rental amount in respect of that period had been paid, and also that, as Mr Schweiger junior was not in a position to refund half of the lease fee, he might after the end of the first period of 9 years and 11 months, conclude a new lease agreement with Ms Müller on the same conditions.

In 2003 the plaintiff issued summons against the defendant, alleging the lease agreement itself was valid, but that the Vereinbarung was invalid and therefore not binding or enforceable as a result of the provisions of sections 58, 59, 60 and 61 of the Agricultural Land Reform Act. The plaintiff further reclaimed the amount of DM40 000 based on the condictio indebiti, alleging that the amount was paid over as a result of a bona fide and reasonable error in law, namely that the Vereinbarung was a valid agreement and that the amount was payable in terms of the Vereinbarung, read with the lease agreement. Alternatively, the plaintiff alleged that the defendant had been unjustly enriched by the payment of DM40 000 in terms of an illegal agreement and it could therefore be reclaimed. The defendant’s plea to the particulars of claim was based on a denial the Vereinbarung was illegal, alleging that it was unilateral and was a mere promise to renew the lease after the expiry of the prescribed period.

The court held:

(i) That it was quite clear that the Vereinbarung was not a unilateral undertaking by the defendant: it was named by the parties themselves as an “agreement”, between the “plaintiff as lessee” and the defendant “as lessor”; it was signed by both parties and contained a


number of undertakings by the defendant which clearly were obligations which the parties intended to be enforceable by the plaintiff; the document itself referred in so many words to the agreement being binding.

(ii) Further, that the fact that the agreement recorded in somewhat narrative style the background of the matter and couched the defendant’s undertakings in what was inappropriately termed a “sworn declaration”, did not change the essential nature of the document. Some allowance should be made for the fact that it evidently was drawn up by a layman.

(iii) Further, that the argument advanced on behalf of the defendant lost sight of the fact that the examples relied on were all instances of statutory prohibitions of certain kinds of conduct. Counsel did not refer to the precise wording of the prohibitions as contained in the relevant legislation. Unless one had regard to the exact terms of the prohibition as expressed in the legislation, reliance on these examples was not useful.

(iv) Further, that even if the Vereinbarung in itself was not a lease, it must be read with the existing lease agreement. The Vereinbarung was an agreement whereby the defendant undertook to enter into a lease agreement for a second period of 9 years and 11 months on the same conditions as the original lease. In effect it was an agreement to renew the existing lease. This undertaking was given without it being subject to any suspensive condition, e.g. that the Minister’s consent must first be obtained. There was nothing in the agreement to suggest that the parties contemplated obtaining the Minister’s consent, nor were there any terms regarding repayment of the DM40 000 paid in advance for the second lease period.

(v) Further, that by making the period of the lease in each case 9 years and 11 months, the parties appeared to have in mind to evade the need for registration of the leases as “long leases”, as this would have required submission to the Registrar of Deeds of the written approval of the Minister in terms of section 58. The effect of the Vereinbarung was in fact that it conferred on a foreign national a right to occupation or possession of a portion of agricultural land for a period exceeding 10 years in total.

(vi) Further, that the clear and unambiguous intention of the Legislature in enacting the Agricultural Land Reform Act was to preclude foreign nationals from enjoying any rights of tenure in respect of agricultural land for a period exceeding 10 years.

(vii) Further, that it was clear that the agreement devised by the parties effectively granted the plaintiff the right of occupation and possession for a period exceeding 10 years; as such it effectively evaded the very prohibition contemplated by the Agricultural Land Reform Act and was in fraudem legis.

(viii) Accordingly, that the Vereinbarung was illegal and that the plaintiff was entitled to the repayment of DM40 000.

(b) States in section 59 that no person may acquire and hold, as a nominee owner, on behalf or in the interest of any foreign national any agricultural land if the Minister’s written consent therefor has not been obtained as required by section 58.


(c) Section 60 provides that where any agricultural land has been acquired -

(i) by a foreign national in contravention of section 58(1)(a); or

(ii) by a nominee owner in contravention of section 59,

the Minister of Lands and Resettlement may issue an order that the agricultural land be sold, unless the Minister decides to acquire the land in accordance with Part IV for the purposes of section 14(1).

(d) Section 60A(1) provides that, notwithstanding any action taken by the Minister under section 60, where any agricultural land has been acquired -

(i) by a foreign national in contravention of section 58(1)(a); or

(ii) by a nominee owner in contravention of section 59,

the person who sold or otherwise disposed of the agricultural land to the foreign national or nominee owner is, subject to subsection (2), guilty of an offence and liable on conviction to a fine not exceeding N$100 000 or to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.

The case of Bahlsen v Nederloff & Another 2006(2) NR 416 HC considered sections 58, 59 and 60 of the Agricultural Land Reform Act, which sections deal with the circumstances in which a foreign national (close corporation) may or may not acquire agricultural land in Namibia. Judge-President Damaseb mentioned that the applicant was extremely evasive in his pleadings in respect of the ownership of the second respondent at the time that it acquired the farms and that he was unable from the papers to tell the exact date on which the second respondent took transfer of the two farms. The learned Judge further stated that if the applicant held 50% membership interest in the second respondent when the transfer of the farms was taken, section 58(2) of the Agricultural Land Reform Act may have been breached, entitling the Minister to act in terms of section 60 of that Act as the entire transaction would have been in fraudem legis. On the papers the Judge found no such breach although he had his suspicions, and he therefore directed the Registrar of the High Court to send a copy of the judgment to the Minister of Lands, Resettlement and Rehabilitation, and the Attorney-General to consider if sections 58 and 59 of the Agricultural Land Reform Act had not been breached.

(e) Section 61(1) provides for restrictions upon the registration of agricultural land, and states that, notwithstanding anything to the contrary in any law contained, the Registrar may not register any transfer of agricultural land or any lease or sublease in respect of the land or any cession of such a lease or sublease, unless there is submitted to the Registrar -

(i) a statement made under oath or affirmation by or, in the case of a company or close corporation, on behalf of the transferee, lessee, sublessee or cessionary, as the case may be, declaring -

(aa) his or her nationality or, in the case of a company or close corporation, the nationality of each member thereof and whether or not the company or close corporation is a foreign national; and


(bb) whether or not the land to be transferred mentioned in the lease, sublease or cession, as the case may be, will be held by him or her on behalf or in the interest of any other person and, where applicable, giving particulars of the name and nationality of that person, or, in the case of a company or close corporation, the name and nationality of each member thereof; and

(ii) if in the statement referred to in paragraph (a), the transferee, lessee, sublessee or cessionary, as the case may be, declares that he or she is not a Namibian citizen or, in the case of a company or close corporation, that it is a foreign national, or that the land in question will be held by him or her on behalf or in the interest of another person who is not a Namibian citizen or, in the case of a company or close corporation, which is a foreign national -

(aa) the written approval of the Minister referred to in section 58; or

(bb) proof by affidavit in the form and manner determined by the Registrar that he or she or it qualifies for exemption from the provisions of section 58 by virtue of the provisions of section 58(3) or 62,

and the Registrar may request the transferee, lessee, sublessee or cessionary concerned to submit to the Registrar such further proof as he or she may require that the transferee, lessee, sublessee or cessionary may lawfully acquire or hold such land in terms of this Part.

(f) States that Part VI does not apply to the acquisition of agricultural land by a foreign national -

(i) by virtue of any succession ab intestato or testamentary disposition;

(ii) which is a public company conducting business as a banking institution as defined in section 1 of the Banking Institutions Act, 1998 (Act No. 2 of 1998);

(iii) which is a company of which the shares are listed on a licensed stock exchange in Namibia as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No.1 of 1985), or

(iv) who is married in community of property to a Namibian citizen, and when in the case of the acquisition of agricultural land by a company or close corporation the controlling interest in the company or close corporation is to be determined, any interest that the foreign national who is so married may have in the company or close corporation shall, for the purposes of this Part, be disregarded [section 62(1)].

According to subsection (2) the Minister may -

(i) notwithstanding anything to the contrary in the Agricultural Land Reform Act contained, after consultation with the Minister of Agriculture, Water and Rural Development, by notice in the Gazette exclude from the application of the provisions of Part VI any agricultural land or any category of such land or any category of persons;

(ii) at any time vary or withdraw in a like manner the notice.


1.1.9 Part VII: The Lands Tribunal

Part VII of the Agricultural Land Reform Act deals with the Lands Tribunal, and:

(a) Section 63(1) establishes the Lands Tribunal, and the section further provides for the constitution thereof; the term of office, vacation of office and remuneration of members, their removal from office and the filling of vacancies.

(b) Section:

(i) 64 provides for the taking of an oath or the making of an affirmation of office by members of the Lands Tribunal.

(ii) 65 provides for the appointment by the Lands Tribunal of not more than two persons with the necessary expertise as assessors for the purpose of procuring assistance in the determination of any matter under that Act.

(iii) 66 provides for the appointment by the Minister of Lands and Resettlement of a registrar of the Lands Tribunal, who is in charge of the administrative functions of the Lands Tribunal.

(iv) 67 provides for the seat of the Lands Tribunal and states that the Tribunal has jurisdiction to -

(aa) decide any appeal lodged with it in terms of that Act;

(bb) consider and give a decision on any application made to it in terms of that Act;

(cc) generally to inquire and adjudicate upon any matter which is required or permitted to be referred to it under that Act or any other law.

(v) 68 prescribes the proceedings of the Lands Tribunal.

(vi) 69 provides that there is a Rules Board which may under subsection (5) make rules in relation to -

(aa) the conduct of the proceedings of the Lands Tribunal;

(bb) the manner in which any matter to be heard and determined by the Lands Tribunal must be brought and continued before it;

(cc) the tariff of fees chargeable by legal representatives;

(dd) the fees payable in respect of the service or execution of any process of the Lands Tribunal and the tariff of costs and expenses which may be allowed in respect of the service or execution;

(ee) the taxation of bills of costs;


(ff) the hours during which the office of the registrar of the Lands Tribunal is open for the transaction of business;

(gg) the period within which and the manner in which an appeal from a decision of the Lands Tribunal to the High Court of Namibia must be noted;

(hh) generally, any matter which may be necessary or expedient to prescribe in order to ensure the proper dispatch and conduct of the proceedings of the Lands Tribunal.

(vii) 70 states that in any proceedings before the Lands Tribunal a party to the proceedings may appear personally or be represented by a legal practitioner.

(viii) 71 deals with the summoning of witnesses in respect of proceedings before the Lands Tribunal.

(ix) 72 states that, subject to sections 27 and 28, the Lands Tribunal may in any proceedings before it make an order as to costs as it thinks fit.

(x) 73 deals with contempt of the Lands Tribunal.

(xi) 74 provides for an appeal by any party to any proceedings before the Lands Tribunal against any decision, order or determination given by the Lands Tribunal.

(xii) 75 states that the expenditure incidental to the performance of functions of the Tribunal must be defrayed from the Land Acquisition and Development Fund.

1.1.10 Part VIII: Land Tax and General

Part VIII of the Agricultural Land Reform Act deals with land tax and general, and:

(a) Section 76(1) provides that, notwithstanding any other law to the contrary, the Minister of Lands and Resettlement, with the concurrence of the Minister responsible for Agriculture, and the Minister responsible for Finance, may -

(i) for the benefit of the Land Acquisition and Development Fund by regulations made under section 77, impose a land tax to be paid by every owner of agricultural land on the value of the land, the amount of which shall be calculated in accordance with the formula set out therein; and

(ii) by notice in the Gazette determine the rates of the land tax.

Paragraph (a) of section 2 of the Agricultural (Commercial) Land Reform Second Amendment Act, 2003, amends section 76(1)(b) of the Agricultural Land Reform Act in order to provide that the Minister may by notice in the Gazette determine the rates of the land tax, while paragraph (b) thereof inserts a new subsection (1A) into section 76, dealing with what may be provided in a notice referred to in paragraph (b) of subsection (1).


According to subsection (1A)(a), a notice referred to in paragraph (b) of subsection (1) may prescribe a tariff of different rates in respect of different categories of owners or different categories of agricultural land, differentiating on the basis of any one or more of the following -

(i) nationality or residence of the owner;

(ii) size of agricultural land;

(iii) the number of farms owned by the same owner;

(iv) activities carried out on or predominantly carried out on agricultural land, whether farming operations or otherwise, by an owner or any person having the right of occupation and use of agricultural land through the owner thereof; or

(v) any other basis which the Minister may prescribe and determine in the notice.

The notice may further -

(vi) provide that where more than one farm is possessed or controlled by a person, whether as individual owner or through a controlling interest in the shareholding or membership of a company or a close corporation or any other form of legal entitlement or representation, including a trust of which the person has the right of appointment of the trustee or of designating beneficiaries, and which company, close corporation, trust or trustee is the owner, that such farms must be deemed to be owned by the same owner;

(vii) establish a system and process of registration of owners to identify the category into which they fall and determining the appropriate rate of land tax applicable to them, and provide for the form and manner in which application for registration is to be made; and

(viii) create offences for a contravention or failure to comply with a provision of the notice relating to a process of registration contemplated in paragraph (c) [compare p. 134 paragraph (vii),] or for knowingly giving false or misleading information in any document furnished in connection with the process of registration, and prescribe penalties for the offences not exceeding a fine of N$20 000 or a period of five years imprisonment, or both the fine and the imprisonment.

(Section 75A provides that in the application of Part VIII and of any regulations made pursuant to section 76 “owner” includes, to the extent that those provisions relate to land tax, a representative referred to in paragraph (bb) of the provision to section 76A.)

(b) Section 76A deals with representatives of the owners of agricultural land.

(c) Section 76B deals with the exemption from land tax, and provides that the Minister of Lands and Resettlement may on application made to him or her by an owner of agricultural land, exempt by notice in the Gazette for the period as may be specified in the notice from land tax imposed pursuant to section 76 -


(i) any agricultural land of the owner, but only if the owner is a person belonging to the category of persons contemplated in Article 23 of the Namibian Constitution;

(ii) any agricultural land that is primarily used for the activities of -

(aa) a church, mission, hospital, school or hostel, provided such activities shall not be for profit or gain;

(bb) any state-aided institution, or any charitable institution as defined in section 1 of the Sales Tax Act, 1992 (Act No. 5 of 1992).

(The Sales Tax Act, 1992 (Act No. 5 of 1992), has been repealed by the Value Added Tax Act, 2000 (Act No. 10 of 2000), but the last-mentioned Act does not contain a definition of “state-aided institution”, but only a definition of “charitable organisation”.)

(d) Section 77(1) provides that the Minister of Lands and Resettlement may make regulations in relation to the matters mentioned in paragraphs (a) to (d) thereof.

(e) Section 78 deals with the service of notices and documents.

(f) Section 79 prescribes a penalty for the hindering or obstruction of persons referred to therein.

(g) Section 79A provides for the delegation of powers and the assignment of duties by the Minister of Lands and Resettlement.

(h) Section 80 provides that in so far as the Agricultural Land Reform Act limits the fundamental right of a person to dispose of immovable property and authorises the compulsory acquisition by the State of immovable property and of rights in or over the property, those provisions are enacted on authority of Article 16(2) of the Namibian Constitution, read with Article 23(2) thereof.

1.2 Regulations made under the Agricultural Land Reform Act

1.2.1.1 Government Notice No. 120 of 3 July 2007 contains Land Valuation and Taxation Regulations made under section 76, read with section 77, of the Agricultural Land Reform Act. The Regulations provide amongst others for the appointment, powers, duties and remuneration of the valuers and they also define what has to be contained in the valuation rolls. The Land Valuation and Taxation Regulations have been amended by Government Notice No. 210 of 15 November 2011 which substitutes a new subregulation (2) for regulation 20 and which provides that a land tax return referred to in regulation 20(1) must be submitted on Form 4.

1.2.1.2 The Land Valuation and Taxation Regulations consists of seven Parts, dealing with -

(a) Preliminary, which contains the definitions (Part 1), consisting of regulation 1;

(b) Land Tax (Part II), consisting of regulation 2;

(c) Valuation of Agricultural Land (Part III), consisting of regulations 3, 4 and 5;


(d) Objections against a provisional valuation roll; submission of a provisional valuation roll; establishment of a valuation court; oath of office; assessors of the valuation court; seat of the valuation court; powers and duties of the valuation court; proceedings before the valuation court; appeals against decisions of the valuation court; validity of a main or interim valuation roll; the main valuation or interim valuation roll itself; date of operation and period of validity of valuation roll; alteration or correction of main valuation roll and remuneration and allowances of members of valuation court and expenses (Part IV), consisting of regulations 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19;

(e) Returns and Assessments (Part V), consisting of regulations 20 and 21;

(f) Collection and Recovery of Land Tax (Part VI), consisting of regulations 22, 23, 24, 25 and 26; and

(g) General (Part VII), consisting of regulations 27, 28 and 29.

1.2.1.3.1 Part II:

Regulation 2 imposes on every owner of agricultural land the duty to pay in respect of each financial year a land tax based on the land value (the unimproved site value) of the land as shown on the main or interim valuation roll and calculated at the rate or progressive rate as may be determined by a notice under section 76 of the Agricultural Land Reform Act.

1.2.1.3.2 Part III:

After the commencement of the regulations and thereafter at intervals of 5 years the Minister of Lands and Resettlement must cause a general valuation to be made of all agricultural land, while the Minister may of his or her own accord or at the request made on Form 3 at any time during a period of five years cause an interim valuation to be made in respect of any agricultural land (regulation 3).

According to regulation 4 the Land Reform Advisory Commission must, when a general valuation or interim valuation of agricultural land is required to be made, nominate a person by reason of his or her expertise in the field of real estate valuation (who is a staff member in the Public Service or is not in the full-time employment of the Public Service), for appointment by the Minister as a valuer, and who is responsible for the valuation of the agricultural land in question and for the preparation of a provisional valuation roll. The rest of regulation 4 deals with the powers and duties of the valuer.

1.2.1.3.3 Part IV:

This Part deals amongst others with -

(a) the process for objections against a provisional valuation roll (regulation 6);

(b) the establishment of a valuation court (regulation 8), the powers and duties of the court (regulation 12) and proceedings before the court (regulation 13);


(c) appeals against decisions of the valuation court (regulation 14); and

(d) main or interim valuation rolls (regulations 15, 16, 17 and 18).

1.2.1.3.4 Part V:

Regulation 20 deals with the furnishing of land tax returns by all owners or specified owners of agricultural land, while regulation 21 provides amongst others that the Commissioner of Inland Revenue, from valuations supplied by the Minister of Lands and Resettlement, must cause assessments to be made of the land tax payable by owners of agricultural land.

1.2.1.3.5 Part VI:

This Part provides amongst others -

(a) that, in order to encourage the early payment of land tax, the Minister may allow a rebate of the land tax payable on or before any due date, and also for the charging of interest on tax not paid on or before the due date for payment (regulation 22);

(b) that, when any land tax or any interest payable becomes due and payable, it is deemed to be a debt due to the Land Acquisition and Development Fund and it may be recovered by the Land Reform Advisory Commission in the manner provided for in that regulation (regulation 23);

(c) for a reimbursement of the overpayment of land tax (regulation 24);

(d) for the recovery of land tax from representatives (regulation 25); and

(e) for the recovery of land tax from third parties (regulation 26).

1.2.1.3.6 Part VII:

This part contains general provisions, such as the service of notices (regulation 27); documents to serve as conclusive proof (regulation 28) and a savings provision (regulation 29).

1.2.1.3.7 Form 1 to the Land Valuation and Taxation Regulations deals with an Objection to Land Valuation; Form 2 provides for the Withdrawal of an Objection or a Settlement Agreement and Form 3 is a Data Correction Request, while Form 4 contains a Land Tax Return.

1.2.2 In the recent case of Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and Resettlement & Others (A295/2013) NAHCMD 260 (18 September 2013) with regard to the land valuation and taxation regulations the court gave a ruling on the 11th of September 2013 that the sitting of the valuation court established in terms of the provisions of Regulation 8 of Government Gazette No. 120 of 2007 (GG No. 3870) dated 3 July 2007 (‘the valuation court’) and scheduled for 30 August to 13 September 2013 is declared null and void.

The applicant attacked the constitutional validity of certain sections of the Agricultural Commercial Land Reform Act and some regulations promulgated in terms of that Act and referred to a number of irregularities which apparently


preceded the sitting of the valuation court, amongst others, that the announcement in the Gazette dated 1 July 2013 to consider a provisional valuation roll ‘from 30 August 2013 to September 2013’ is unintelligible and vague and renders the notice invalid, and that the period of inspection, being one day short of the 30 day period within which an objector may object against a valuation thus also rendered the notice invalid. In addition, the Gazette only became available to members of the public on 5 July 2013. The applicant in his founding affidavit stated that sections 76 and 77 of the Agricultural Land Reform Act and the regulations are invalid because they are inconsistent with the constitutional principle that taxation is reserved for the legislature, not the executive.

The court held that the valuation court never came into being and was a nullity, and agreed with Counsel for the applicant that the applicant was coerced into an illegal process and is entitled to resist that on the basis of the illegality thereof. The court further held that it is self-evident that the balance of convenience favours the granting of the relief sought by the applicant since the applicant (as well as the other objectors) should not be subjected to an illegal court process and it is certainly in the interest of the other objectors not to be exposed to or to participate in proceedings before a non-existent (valuation) court.

2. COMMUNAL LAND REFORM ACT, 2002 (ACT NO. 5 OF 2002)

The Communal Land Reform Act, 2002 (Act No. 5 of 2002) (the “Communal Land Reform Act”):

(a) (i) Provides for the allocation of rights in respect of communal land;

(ii) Establishes Communal Land Boards;

(iii) Provides for the powers of Chiefs and Traditional Authorities and boards in relation to communal land; and

(iv) Provides for incidental matters.

(b) Is divided into 5 Chapters, providing for Preliminary Provisions, Communal Land Boards, Communal Land Areas, Allocation of Rights in Respect of Communal Land and General, respectively.

(c) Came into operation on 1st March 2003.

(d) Has been amended by the Communal Land Reform Amendment Act, 2005 (Act No. 11 of 2005).

2.1 Provisions of the Communal Land Reform Act

2.1.1 Chapter 1 of the Communal Land Reform Act deals with preliminary provisions, and section 1 contains the definitions.

2.1.2 Chapter II of the Communal Land Reform Act deals with communal land boards, and:

(a) Section 2(1) provides that, subject to subsection (4), the Minister responsible for affairs relating to land matters must establish Communal Land Boards to perform the functions conferred on a board by that Act within the area for which each board is established in accordance with subsection (2). A board may under subsection (1) be established in respect of -


(i) the whole of any region in which communal land is situated;

(ii) a defined part of such a region; or

(iii) an area comprising defined parts of two or more of the regions.

(b) Section 3 prescribes the functions of a Communal Land Board, which functions are -

(i) to exercise control over the allocation and the cancellation of customary land rights by Chiefs or Traditional Authorities under that Act;

(ii) to consider and decide on applications for a right of leasehold under that Act;

(iii) to establish and maintain a register and a system of registration for recording the allocation, transfer and cancellation of customary land rights and rights of leasehold under that Act;

(iv) to advise the Minister responsible for affairs relating to land matters, either of its own motion or at the request of the Minister, in connection with the making of regulations or any other matter pertaining to the objectives of that Act; and

(v) to perform such other functions as are assigned to a board by that Act.

(c) Section 4 provides for the composition of Communal Land Boards.

(d) Section 5 prescribes the disqualifications to be a member of a Communal Land Board, while section 6 deals with the term of office of a member of a board and the vacation of office.

(e) Section:

(i) 7 deals with meetings of a Communal Land Board.

(ii) 8 provides for committees to be established by a Communal Land Board.

(iii) 9 provides for the disclosure of interest by members of a Communal Land Board.

(iv) 10 deals with remuneration for members of a Communal Land Board.

(v) 11 states that all expenditure in connection with the performance of the functions of a Communal Land Board must be defrayed from moneys appropriated by Parliament for the purpose.

(vi) 12 deals with the performance of administrative work in connection with the performance of the functions of a Communal Land Board.

(vii) 13 provides for the submission of annual reports by Communal Land Boards to the Minister responsible for affairs relating to land matters and the tabling thereof in the National Assembly.


(viii) 14 provides that a Chief or a Traditional Authority or a member of a Communal Land Board or a person referred to in section 12 is not personally liable for anything done in good faith in the performance of any function under that Act.

2.1.3 Chapter III: Communal Land areas

Chapter III of the Communal Land Reform Act deals with communal land areas, and:

(a) Section 15 deals with the extent of communal land, and subsection (1) provides that, subject to subsection (2), communal land consists of -

(i) the areas described in Schedule 1 to that Act;

(ii) any area which is declared to be communal land under section 16(1)(a); and

(iii) any land which is incorporated under section 16(1)(b) into a communal land area referred to in paragraph (a) or (b).

If a local authority area is situated or established within the boundaries of any communal land area the land comprising the local authority area does not form part of the communal land area and is not communal land [subsection (2)].

(b) Section 16 provides for the establishment of new communal land areas and additions to or subtractions from communal land areas, and according to subsection (1), the President, with the approval of the National Assembly, may by proclamation in the Gazette, -

(i) declare any defined portion of unalienated State land to be a communal land area;

(ii) incorporate as part of any existing communal land area any defined portion of unalienated State land; or

(iii) withdraw from any communal land area, subject to subsection (2), any defined portion thereof which is required for any purpose in the public interest,

and in the proclamation make appropriate amendments to Schedule 1 to that Act so as to include the description of any new communal land area declared under paragraph (a) or to redefine any communal land area affected by any change under paragraphs (b) or (c).

Land may not be withdrawn from any communal land area under subsection (1) (c), unless all rights held by persons under that Act in respect of the land or any portion thereof have first been acquired by the State and just compensation for the acquisition of the rights is paid to the persons concerned [subsection (2)]. The compensation payable to a person in terms of subsection (2) must be determined -

(i) by agreement between the Minister responsible for affairs relating to land matters and the person concerned; or


(ii) failing such agreement, by arbitration in accordance with the Arbitration Act, 1965 (Act No. 42 of 1965) [subsection (3)].

Any portion of a communal land area withdrawn under subsection (1)(c) ceases to be communal land and becomes available for disposal as State-owned land [subsection (4)].

(c) Section 17 provides that -

(i) Subject to that Act, all communal land areas vest in the State in trust for the benefit of the traditional communities residing in those areas and for the purpose of promoting the economic and social development of the people of Namibia, in particular the landless and those with insufficient access to land who are not in formal employment or engaged in non-agricultural business activities;

(ii) no right conferring freehold ownership is capable of being granted or acquired by any person in respect of any portion of communal land.

(d) Section 18 contains a prohibition against fences, and states that, subject to the exemptions as may be prescribed, no fence of any nature -

(i) may, after the commencement of that Act, be erected or caused to be erected by any person on any portion of land situated within a communal land area; or

(ii) which, upon the commencement of that Act, exists on any portion of the land, by whomsoever erected, may after the date as may be notified by the Minister responsible for affairs relating to land matters by notice in the Gazette, be retained on the land,

unless authorisation for the erection or retention has been granted in accordance with that Act.

2.1.4 Chapter IV: Allocation of Rights in Respect of Communal Land

Chapter IV of the Communal Land Reform Act deals with the allocation of rights in respect of communal land, and:

(a) Section 19 prescribes the rights that may be allocated in respect of communal land, and that rights are divided into -

(i) customary land rights; and

(ii) rights of leasehold.

(b) Section 20 deals with the power to allocate and cancel customary land rights and, subject to that Act, the primary power to allocate or cancel any customary land right in respect of any portion of land in the communal area of a traditional community vests -


(a) in the Chief of the traditional community; or

(b) if the Chief so determines, in the Traditional Authority of the traditional community.

(c) Section 21 states that the following customary land rights may be allocated in respect of communal land, namely -

(i) a right to a farming unit;

(ii) a right to a residential unit;

(iii) a right to any other form of customary tenure that may be recognised and described by the Minister responsible for affairs relating to land matters by notice in the Gazette for the purposes of that Act.

(d) Section 22 deals with an application for a customary land right.

(e) According to section 23(1), after the commencement of that Act, no person is entitled, without the written approval of the Minister responsible for affairs relating to land matters, to be allocated and to acquire any customary land right in respect of communal land which exceeds the maximum size which that Minister, in consultation with the Minister responsible for agricultural affairs, may prescribe for the purposes of that subsection.

In prescribing a maximum size under subsection (1), the Minister responsible for affairs relating to land matters has the power to differentiate -

(i) according to the area where land is situated;

(ii) according to the purpose for which land is to be used; or

(iii) between persons according to the total extent of other land, whether communal land or otherwise, held by them under any right which permits the beneficial use of the land for a purpose similar to which land held under a customary land right may be used.

(f) Section 24(1) provides that any allocation of a customary land right made by a Chief or a Traditional Authority under section 22 has no legal effect unless the allocation is ratified by the relevant Communal Land Board in accordance with that section.

(g) Section 25 deals with the registration of a customary land right and subsection (1) states if a board ratifies the allocation of a customary land right under section 24(4)(a) it must -

(i) cause the right to be registered in the prescribed register in the name of the person to whom it was allocated; and

(ii) issue to the person a certificate of registration in the prescribed form and manner.


(h) Section 27(1) states that, subject to section 27, and unless the right is relinquished by the holder thereof, a customary land right allocated under that Act endures for the natural life of the person to whom it is allocated. The section further deals with the reverting of the right upon the death of the holder of a right or the re-marriage of a surviving spouse or upon the death of a surviving spouse of a second or subsequent marriage.

(i) Section 27 deals with the cancellation of a customary land right, including a right referred to in section 28(1), by a Chief or a Traditional Authority -

(i) if the holder of the right fails to observe in a material respect any condition or restriction attached to the right under that Act;

(ii) if the land is being used predominantly for a purpose not recognised under customary law; or

(iii) on any other ground as may be prescribed.

A cancellation of a customary land right by a Chief or a Traditional Authority must be ratified by the relevant Communal Land Board before it has legal effect.

(j) Section 28 deals with the recognition of existing customary land rights.

(k) Section 29 deals with grazing rights, and subsection (1) states that, subject to that section, the commonage in the communal area of a traditional community is available for use by the lawful residents of the area for the grazing of their stock, subject to -

(i) the conditions as may be prescribed or as the Chief or Traditional Authority concerned may impose, including conditions relating to -

(aa) the kinds and number of stock that may be grazed; and

(bb) the section or sections of the commonage where stock may be grazed and the grazing in rotation on different sections;

(ii) the right of the Chief or Traditional Authority or the relevant Communal Land Board to utilise any portion of the commonage which is required for the allocation of a right under that Act; and

(iii) the right of the President under section 16(1)(c) to withdraw and reserve any portion of the commonage for any purpose in the public interest.

Under certain circumstances the Chief or Traditional Authority has the power to withdraw the grazing right of residents.

(l) Section 30 deals with the power of a Communal Land Board to grant a right of leasehold. A right of leasehold for agricultural purposes may be granted only in respect of land which is situated within a designated area referred to in subsection (2).


(m) Section 31 deals with an application for a right of leasehold.

(n) Section 32 deals with conditions applicable to a right of leasehold, and a right of leasehold may be granted by a Communal Land Board only -

(i) if an amount in respect of the right and any improvements on the land in question is paid to the board;

(ii) if security is furnished to the satisfaction of the board for the payment of the amount upon registration of the right of leasehold; or

(iii) if the board allows the amount to be paid by way of instalments in a manner agreed upon between the board and the person to whom the right is granted.

(o) Section 33 deals with the registration of a right of leasehold, and subsection (1) provides that, subject to subsection (2), if an application for a right of leasehold is granted by a Communal Land Board, the board must -

(i) cause the right to be registered in the prescribed register in the name of the applicant; and

(ii) issue to the applicant a certificate of leasehold in the prescribed form and manner.

If the land in respect of which the right of leasehold is granted, is surveyed land which is shown on a diagram as defined in section 1 of the Land Survey Act, 1993, and the term of lease is for a period of 10 years or more, the leasehold must be registered in accordance with the Deeds Registries Act [subsection (2)].

(p) Section 34 deals with the duration of a right of leasehold, and subsection (1) states that, subject to subsection (2), a right of leasehold may be granted for such period, not exceeding 99 years, as the Communal Land Board and the grantee of the right may agree. A right of leasehold granted for a period exceeding ten years is not valid unless it is approved by the Minister. A right of leasehold may be renewed by agreement between the Communal Land Board and the leaseholder, but subject to the approval of the Minister responsible for affairs relating to land matters in a case referred to in subsection (2).

(q) Section 35 deals with existing rights to occupy communal land, and subsection (1) provides that, subject to subsection (2), any person who immediately before the commencement of that Act held a right, not being a right under customary law, to occupy any communal land, whether by virtue of any authority granted under any law or otherwise, may continue to occupy the land under that right, subject to the same terms and conditions on which the land was occupied immediately before the commencement of this Act, until -

(i) the right is recognised and a right of leasehold is granted to the person in respect of the land upon acceptance of an offer made in terms of subsection (7);


(ii) the person’s claim to the right to the land is rejected upon an application contemplated in subsection (2);

(iii) the person declines or fails to accept an offer of a right of leasehold made in terms of subsection (7); or

(iv) the land reverts to the State by virtue of subsection (13).

(r) Section 36 deals with the cancellation of a right of leasehold, and provides that in addition to the grounds for cancellation set out in a deed of leasehold, a right of leasehold may be cancelled by a Communal Land Board if the leaseholder fails to comply with the requirements or to adhere to any restrictions imposed by or under any other law pertaining to the utilisation of the land to which the right relates.

2.1.5 Chapter V: General

Chapter V of the Communal Land Reform Act deals with general provisions, and:

(a) Section 37 deals with the appointment by the Minister, in consultation with a Communal Land Board, of an investigating committee for the board to conduct a preliminary investigation of a claim to existing rights.

(b) Section 38 deals with the transfer of rights, and provides that, subject to such exemptions as may be prescribed, or unless any condition attaching to a customary land right or a right of leasehold under that Act provides otherwise -

(i) a customary land right may be transferred only with the written consent of the Chief or Traditional Authority concerned;

(ii) a right of leasehold may be transferred only with the written consent of the Communal Land Board concerned.

(c) Section 39 provides for appeals by persons aggrieved by a decision of a Chief or a Traditional Authority or any board under that Act.

(d) Section 40 deals with compensation for improvements in certain circumstances.

(e) Section 41 provides for the survey of communal land by a Communal Land Board.

(f) According to section 42, except where, and to the extent to which, compensation for any improvement is payable in any of the circumstances contemplated in section 40, no consideration of any nature, whether money or goods or any other benefit of an economic value, may be paid or delivered or given, or may be claimed or received, by any person as compensation for the allocation of any customary land right under that Act. Subsection (1) does not apply to any fees, charges or other moneys which are prescribed to be paid in respect of any application or the issue of any certificate or document or for any other purpose in terms of this Act.


(g) Section 43 deals with the unlawful occupation of communal land, and provides that no person may occupy or use for any purpose any communal land other than under a right acquired in accordance with that Act, including a right referred to in section 28(1) or 35(1). A Chief or a Traditional Authority or the board concerned may institute legal action for the eviction of any person who occupies any communal land in contravention of subsection (1).

(h) Section 44 deals with fences, and according to subsection (1) any person who, without the required authorisation granted under that Act, and subject to the exemptions as may be prescribed -

(i) erects or causes to be erected on any communal land any fence of whatever nature; or

(ii) being a person referred to in section 28(1) or 35(1), retains any fence on any communal land after the expiry of a period of 30 days after his or her application for the authorisation in terms of section 28(2)(b) or 35(2)(b) has been refused,

is guilty of an offence and on conviction liable to a fine not exceeding N$ 4000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. Provision is also made for the removal by the Chief or Traditional Authority or the Communal Land Board concerned of fences found to be on any communal land in contravention of subsection (1).

(i) Section 45(1) the Minister responsible for affairs relating to land matters may make regulations in relation to the matters referred to in paragraphs (a) to (k).

(j) Section 46 provides that the laws mentioned in Schedule 2 to that Act are repealed to the extent set out in the third column of the Schedule.

2.2 Regulations made under the Communal Land Reform Act

Government Notice 37 of 1 March 2003 contains regulations made under the Communal Land Reform Act.

2.3 Case law relating to communal land

The following cases relate to communal land, namely Shingenge v Hamunyela 2004 NR 1 (HC) and Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water and Forestry 2009 (1) NR 89 (HC), but they are not dealing with the Communal Land Reform Act itself.


In Shingenge v Hamunyela the appellant had erected a fence on land which had been given to her by the respondent. In terms of Article 124 read with Schedule 5 of the Constitution, ownership of the land vested in the Government. The land had subsequently been returned to the respondent and the appellant claimed the return of the fencing material or its monetary value. Her cause of action had been based on the actio rei vindicatio. The court amongst others held that the fencing of farm land was common to serve the purpose inter alia of preventing the movement of animals. The fence erected by the appellant was done in such a way that it became a permanent fixture: poles were dug into the ground and wires fixed thereto. The court held accordingly that the fence had acceded to the land by inaedificatio and that the appellant could not succeed in her action.

In Uvhungu-Vhungu Farm Development CC v Minister of Agriculture, Water and Forestry the applicant was the occupier of a farm in terms of an agreement under the Communal Land Reform Act. The applicant did not own the farm. The aim of the scheme which was embodied in the agreement was to grant employment to landless and unemployed people, who would have a share in the profits. The applicant was neither an agent nor an employee of the respondent, but was, inter alia, responsible for the remuneration and welfare of those who worked on the farm. The respondent had instituted an action to evict the applicant from the farm and before the case was finalised, of own accord, took possession of the farm. The application was for mandament van spolie against the respondent. The court held that in terms of the agreement, the applicant had been in lawful possession of the land. The respondent had not been entitled to take the law into his/her own hands by repossessing the farm. The respondent could not rely on the agreement, since the agreement was a management agreement with a commercial component. The conduct of the respondent constituted an act of spoliation.

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CHAPTER 8

The security of tenure provisions in Chapter 8 consist mainly of the Expropriation Ordinance, 1978 (Ordinance No. 13 of 1978), and also refer shortly to the expropriation provisions of the Agricultural Land Reform Act which have been discussed in paragraph 1.1.6.1(a) to (p) on pages 72 to 74.

1. EXPROPRIATION ORDINANCE, 1978 (ORDINANCE NO. 13 OF 1978)

1.1 The Expropriation Ordinance, 1978 (Ordinance No. 13 of 1978) (the “Expropriation Ordinance”):

(a) Provides for the expropriation of land and other property for public and certain other purposes and for matters incidental thereto.

(b) Came into operation on the 24th of July 1978.

(c) Has been amended by the National Transport Corporation Act, 1987 (Act No. 21 of 1987).

(d) Some sources state that the Powers of the SWA Water and Electricity Corporation Act, 1980 (Act No. 14 of 1980), the Export Processing Zones Act, 1995 (Act No. 9 of 1995) and the Airports Company Act, 1998 (Act No. 25 of 1998) have amended the Expropriation Ordinance, but it would rather appear that those Acts have applied the provisions of the Expropriation Ordinance to the matters provided for by that legislation.

1.2 Provisions of the Expropriation Ordinance

With regard to the expropriation of agricultural land for the purposes contemplated in section 14(1) of the Agricultural Land Reform Act, cognizance must be given to section 35(1) of the Agricultural Land Reform Act which has been discussed above and is also referred to below.

1.2.1 Section 1 of the Expropriation Ordinance contains the definitions.

1.2.2 Section 2(1) of the Expropriation Ordinance provides that, subject to that Ordinance, the President (of Namibia) may, subject to the obligation to pay compensation, expropriate any property for public purposes or take the right to use temporarily any property for public purposes. According to subsection (2), the power of the President in terms of subsection (1) to expropriate property for public purposes, and the power in terms of any other law to expropriate or otherwise acquire any property on behalf of the State also includes, if in the opinion of the President the expropriation or acquisition of certain immovable property in terms of subsection (1) or the other law affects or will affect any other immovable property, the power to expropriate as much of


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the other immovable property as the President for any reason deems expedient. The power of the President in terms of subsection (2) to expropriate immovable property which, in the opinion of the President, is affected by an expropriation, includes, in the case where only a portion of a piece of land is expropriated in terms of section 2, at the request of the owner concerned, the power to expropriate also the remainder of the piece of land if the owner satisfies the President that that remainder has become useless to the owner in consequence of the expropriation of the aforesaid portion.

(According to the actual wording of the Expropriation Ordinance the powers contemplated in that Ordinance vest in the Executive Committee [constituted under section 4 of the South West Africa Constitution Act, 1968 (Act No. 39 of 1968)]. As a result of various pieces of transfer legislation which are not now relevant, those powers had vested in the Administrator-General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference in laws in force in Namibia to the Administrator-General must be construed as a reference to the President of Namibia. If the provisions of the Expropriation Ordinance had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in that Ordinance would vest in the Minister responsible for land. It is however not always clear which provisions of laws have been assigned as contemplated in the Assignment of Powers Act.)

1.2.3 According to section 3 of the Expropriation Ordinance the President may confer his or her powers, except the power contemplated in section 19, in relation to land in terms of that Ordinance upon a local authority, either in general or in relation to particular land or in respect of a particular case. In the exercise of a conferred power by a local authority that Ordinance applies, and any reference therein to the President and the State is construed as a reference to the local authority.

1.2.4 Section 4 of the Expropriation Ordinance deals with the inspection of a property for the purposes of expropriation or the taking of a right of temporary use.

1.2.5 Section 5 of the Expropriation Ordinance states that whenever the President has decided to expropriate or to take the right to use temporarily any property in terms of section 2 the President must, subject to subsection (5), cause an appropriate notice of expropriation to be served upon the owner of the property in question in accordance with subsection (3). Subsection (2) prescribes what particulars must be in a notice of expropriation.

1.2.6 Section 6 of the Expropriation Ordinance deals with the passing of ownership in respect of expropriated property and the exercise of a right to use property temporarily.

1.2.7 Section 7 of the Expropriation Ordinance prescribes the duties of an owner whose property has been expropriated or which is to be used by the State.

1.2.8 Section 8 of the Expropriation Ordinance provides for the consequences of a failure by an owner to inform the President concerning compensation offered or desired, for a further offer by the President and what happens in the case of a failure to institute action.

1.2.9 Section 9 of the Expropriation Ordinance prescribes the basis upon which compensation is to be calculated.

1.2.10 Section 10 of the Expropriation Ordinance provides for the payment of compensation in respect of certain unregistered rights in respect of expropriated land.


1.2.11 Section 11 of the Expropriation Ordinance provides for the determination of compensation by a magistrate’s court or the High Court of Namibia by the Administration for any property expropriated by the President or for any right to use property temporarily which was taken by the President in the absence of an agreement.

1.2.12 Section 12 of the Expropriation Ordinance deals with orders as to costs.

1.2.13 Section 13 of the Expropriation Ordinance states that, notwithstanding any application in terms of section 11(1) for the determination of compensation, or an appeal against the decision of a court contemplated in that section, the other provisions of that Ordinance apply as if no such application had been made or no such appeal had been noted.

1.2.14 Section 14 of the Expropriation Ordinance deals with the discharge of a debt secured by mortgage bond over immovable property, and the payment of compensation in the case of certain unregistered rights affected by expropriation.

1.2.5 Section 15 of the Expropriation Ordinance provides for the payment of certain taxes and other moneys out of compensation moneys.

1.2.6 Section 16 of the Expropriation Ordinance deals with the deposit of compensation money with the Master of the High Court and the retention thereof by the President in certain cases.

1.2.7 Section 17 of the Expropriation Ordinance deals with the termination of unregistered rights in respect of expropriated land and states that that in the case of an expropriation of land, all rights in respect of land which are not registered or recorded against the title deed of the land or in an office contemplated in section 5(4), terminate on the date of expropriation and the State is, subject to sections 10 and 14, not obliged to pay any compensation for the rights.

1.2.18 Section 18 of the Expropriation Ordinance deals with the withdrawal of expropriation.

1.2.19 According to section 19 of the Expropriation Ordinance the President may either generally or in relation to particular property or in any particular case assign to a staff member in the public service any power or duty conferred or imposed on the President by or in terms of that Ordinance, other than a power contemplated in sections 18 and 20.

1.2.20 Section 20 of the Expropriation Ordinance provides that the President may make such regulations as he or she deems necessary or expedient for achieving the objects and purposes of that Ordinance.

1.2.21 Section 21 of the Expropriation Ordinance deals with the application thereof, and states that that Ordinance does not derogate from any power conferred by any other law to expropriate or to take any property or to take the right to use property temporarily: Provided that, subject to the Roads Ordinance, 1972 (Ordinance 17 of 1972), as amended, if such a power is exercised after the commencement of that Ordinance, the expropriation or the taking of the property or the taking of the right to use the property temporarily, and the determination of the amount of the compensation therefor, must be effected, with the necessary changes, in accordance with the Expropriation Ordinance. The fact that any other law makes provision for the expropriation of any property, or any right or interest in or over any property is not, subject to subsection (3), a bar to the property, right or interest being expropriated in accordance with the Expropriation Ordinance.


1.2.22 Section 22 of the Expropriation Ordinance repeals the Expropriation Ordinance, 1967 (Ordinance No. 32 of 1967) and the Expropriation Amendment Ordinance, 1970 (Ordinance No. 19 of 1970).

1.2.23 Section 23 of the Expropriation Ordinance provides that, if, prior to the commencement thereof -

(a) any expropriation has been commenced with by the President; or

(b) proceedings have been instituted by or against the President for the determination of compensation,

in terms of the laws repealed by section 22, the expropriation and proceedings concerned must be proceeded with as if that Ordinance had never been passed: Provided that the parties concerned in the expropriation or the proceedings may agree to proceed with the expropriation or proceedings in accordance with the Expropriation Ordinance, in which case the relevant provisions of that Ordinance apply in connection with the continuation of the expropriation or proceedings as if it were a continuation of an expropriation of proceedings for the determination of compensation in terms of that Ordinance.

1.3 With regard to Sub-Article (2) of Article 16 of the Namibian Constitution which states that the State or a competent body or organ authorised by law may expropriate property in the public interest and subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament: The question may in my opinion rightfully be asked whether the Expropriation Ordinance is an Act of Parliament as contemplated in Article 16(2) of the Namibian Constitution which can determine the requirements and procedures mentioned in that Article.

2. THE AGRICULTURAL LAND REFORM ACT

2.1 The Agricultural Land Reform Act contains its own provisions relating to the expropriation of agricultural land for the purposes of section 14(1) thereof, and those provisions have been referred to and discussed in paragraph 1.1.6.1(a) to (p) on pages 72 to 74.

2.2 Section 35(1) of the Agricultural Land Reform Act states that the Expropriation Ordinance does not apply to an expropriation of property for the purposes contemplated in section 14(1), while subsection (2) states that nothing in the Agricultural Land Reform Act is construed as preventing the expropriation of agricultural land in accordance with the Expropriation Ordinance for a purpose contemplated in that Ordinance.


CHAPTER 9

This chapter deals with professionals who are involved in the immovable property industry, such as estate agents and property valuers. Note should be taken of the concerns mentioned in the text dealing with the Property Valuers Profession Act, 2012 (Act No. 7 of 2012), regarding the making of regulations by two different functionaries.

1. ESTATE AGENTS ACT, 1976 (ACT NO. 112 OF 1976)

1.1.1 The Estate Agents Act, 1976 (Act No. 112 of 1976) (the “Estate Agents Act”):

(a) Provides for -

(i) the establishment of an Estate Agents Board and an Estate Agents Fidelity Fund;

(ii) the control of certain activities of estate agents; and

(iii) incidental matters.

(b) Is divided into three chapters, dealing with the Estate Agents Board, the Estate Agents Fidelity Fund and General Provisions, respectively.

(c) Came into operation on 1 August 1977.

(d) Has been amended by the Estate Agents Amendment Act, 1987 (Act No. 28 of 1987).

1.1.2 The President (of Namibia) is by virtue of section 140(4) of the Namibian Constitution the functionary in the Estate Agents Act. If the provisions of the Estate Agents Act had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in the Estate Agents Act would vest in the Minister responsible for affairs relating to land matters. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act. (See however section 35 of the Estate Agents Act discussed below.)

PROFESSIONALS IN THE IMMOVABLE PROPERTY INDUSTRY


1.2 Provisions of the Estate Agents Act

1.2.1 Chapter I: Estate Agents Board

Chapter I of the Estate Agents Act deals with the Estate Agents Board, and:

(a) Section 1 contains the definitions.

(b) Section 2 establishes a juristic person to be known as the Namibia Estate Agent Board.

(c) Section 3 provides for the constitution of the Namibia Estate Agents Board, as well as for the election of a chairman and vice-chairman of the board, the terms of office of members of the board, the vacation of office by members of the board and the filling of vacancies.

(d) Section:

(i) 4 deals with meetings of the Namibia Estate Agents Board.

(ii) 5 provides for the payment of remuneration and allowances to members of the Namibia Estate Agents Board.

(iii) 6 provides for the staff of the board to perform the work incidental to the carrying out of its functions by the Namibia Estate Agents Board and for the appointment of inspectors.

(iv) 7 states that the object of the Namibia Estate Agents Board is to maintain and promote the integrity of estate agents.

(v) 8 prescribes the powers of the Namibia Estate Agents Board.

(vi) 8A provides for an executive committee to be appointed by the Namibia Estate Agents Board.

(vii) 8B provides for the appointment of disciplinary committees by the Namibia Estate Agents Board.

(viii) 9 deals with the funds of the Namibia Estate Agents Board.

(ix) 10 provides for the financial year of the Namibia Estate Agents Board and for the keeping of accounting records, drawing up of financial statements and auditing thereof.

(x) 11 states that the Namibia Estate Agents Board must furnish the President with such information as the President may desire from time to time in connection with the functions and financial position of the board, and must in addition submit to the President an annual report, including annual financial statements audited in accordance with section 10(3), on its functions. The President must table every report furnished under subsection (1) as soon as may be practicable upon the Table of the National Assembly.


1.2.2 Chapter II: Estate Agents Fidelity Fund

Chapter II of the Estate Agents Act deals with the Estate Agents Fidelity Fund, and:

(a) Section 12 establishes the Estate Agents Fidelity Fund for Namibia.

(b) Section 18 deals with the application of moneys in the Estate Agents Fidelity Fund for Namibia, and subsections (1)(a)(ii) and (iii) provide that, subject to Chapter II, the fund shall be held and applied to reimburse persons who suffer pecuniary loss by reason of theft, committed after the commencement of the Estate Agents Amendment Act, 1987, by an estate agent -

(i) of any moneys collected or received by him and payable in respect or on account of a contract of purchase and sale in respect of immovable property, including any agreement or intermediate transaction as defined in section 1(1) of the Instalment Sales Act;

(ii) of any other moneys, including insurance premiums, collected or received by him and payable in respect of immovable property, any interest in immovable property or any business undertaking.

1.2.3 Chapter III: General Provisions

Chapter III of the Estate Agents Act deals with general provisions, and:

(a) Section 29 deals with the duty of an estate agent to keep accounting records.

(b) Section 30 deals with improper conduct by estate agents, and the bringing and investigation of charges of improper conduct against estate agents.

(c) Section 31 provides for appeal against certain decisions of the Namibia Estate Agents Board.

(d) Section 32 provides for the opening of trust accounts by estate agents and the depositing of trust moneys therein.

(e) Section 32A provides for the powers of inspectors.

(f) Section 33(1) provides that the President may make regulations, after consultation with the Namibia Estate Agents Board, relating to the matters referred to in paragraphs (a) to (lA) thereof.

(g) Section 34 states that any person who contravenes or fails to comply with any provision of that Act or any order or request issued or addressed thereunder, is guilty of an offence and liable on conviction to a fine not exceeding N$5 000 or to imprisonment for a period not exceeding five years, or to both the fine and the imprisonment.

(h) Section 35 deals with the delegation of the powers of the President, and subsection (1) states that the President may upon the conditions as he or she may deem fit, delegate in writing to a staff member


in the Ministry of Lands any of or all the powers conferred upon the President by that Act, except the power to make regulations. The President may in writing revoke any delegation under subsection (1), and the delegation of any power does not prevent the exercise of the power by the President himself or herself.

If the President has delegated a power in the Estate Agents Act to a staff member as contemplated in section 35(1) then the staff member concerned may exercise the power concerned, subject thereto that the President personally may also exercise the power which has been delegated.

(i) Section 36, as substituted by section 23 of the Estate Agents Amendment Act, 1987 (Act No. 28 of 1987), provides that the Estate Agents Act applies in Namibia.

1.3 Regulations made under the Estate Agents Act

Various South African regulations have been made under the Estate Agents Act, and Namibian Government Notices 221 and 222 of 2 September 1996 contain regulations made under that Act.

1.4 Code of Conduct for Estate Agents

A Code of Conduct for Estate Agents has been promulgated by Government Notice No. 16 of 3 January 1996. It provides amongst others that where an estate agent has received conflicting mandates in respect of a particular immovable property or any interest in immovable property or any business undertaking, the person whose mandate has first been accepted by the estate agent, is regarded as the client. Estate agents are obliged to protect the public’s interest, and must also protect the interests of their clients at all times to the best of their ability, with due regard to the interest of all other parties concerned. An estate agent may act only after authorisation by mandate, and the terms of the mandate must be in writing and signed by the client. An estate agent has certain duties, such as -

(a) a duty to disclose, namely to convey to a purchaser or lessee or a prospective purchaser or lessee of immovable property in respect of which a mandate has been given him or her to sell, let, buy or hire, all facts concerning the property as are, or should reasonably in the circumstances be, within his or her personal knowledge and which are or could be material to a prospective purchaser or lessee thereof;

(b) a duty not to make misrepresentations or false statements or to use harmful marketing techniques;

(c) duties in respect of offers and contracts, such as to explain to every prospective party to any written offer or contract negotiated or procured by him or her in his or her capacity as an estate agent, prior to signature thereof by the party, the meaning and consequences of the material provisions of the offer or contract or, if he or she is unable to do so, refer the party to a person who can do so.


2. PROPERTY VALUERS PROFESSION ACT, 2012 (ACT NO. 7 OF 2012)

2.1 The Property Valuers Profession Act, 2012 (Act No. 7 of 2012) (the “Property Valuers Profession Act”) -

(a) Provides for -

(i) the establishment of the Namibian Council for Property Valuers Profession;

(ii) the registration of professional valuers, associate professional valuers, valuers in training, student valuers in training and specified categories in the property valuation profession; and

(iii) incidental matters.

(b) Is divided into five Parts, providing for Introductory Provisions, the Namibian Council for Property Valuers Profession, Registration, Code of Conduct and Disciplinary Provisions and General Provisions, respectively.

(c) Has not yet been put into operation.

2.2 Provisions of the Property Valuers Profession Act

2.2.1 Part 1: Introductory Provisions

Part 1 of the Property Valuers Profession Act deals with introductory provisions, and section 1 contains the definitions.

2.2.2 Part II: Namibian Council for Property Valuers Profession

Part II of the Property Valuers Profession Act deals with the Namibian Council for Property Valuers Profession, and:

(a) Section 2 establishes a juristic person to be known as the Namibian Council for Property Valuers Profession (the “Council for Property Valuers Profession”).

(b) Section 3 provides for the constitution of the Council for Property Valuers Profession.

(c) Section 4 prescribes the powers and functions of the Council for Property Valuers Profession with regard to registration.

(d) Section 5 provides for the powers and functions of the Council for Property Valuers Profession with regard to fees and charges.

(e) Section 6 provides for the powers and functions of the Council for Property Valuers Profession with regard to education in property valuation.


(f) Section 7 prescribes the general powers of the Council for Property Valuers Profession, which includes the power to acquire, hire, maintain, let, sell or otherwise dispose of movable or immovable property for the effective performance and exercise of its functions, duties or powers.

(g) Section:

(i) 8 deals with the term of office of members of the Council for Property Valuers Profession.

(ii) 9 deals with disqualification for appointment as member of the Council for Property Valuers Profession.

(iii) 10 provides for the vacation of office and the filling of casual vacancies of members of the Council for Property Valuers Profession.

(iv) 11 deals with the election of a chairperson and a vice-chairperson of the Council for Property Valuers Profession.

(v) 12 deals with the meetings and decisions of the Council for Property Valuers Profession.

(vi) 13 provides for the funds of the Council for Property Valuers Profession and the keeping and auditing of accounts.

(vii) 14 provides for the establishment of committees by the Council for Property Valuers Profession.

(viii) 15 provides for the appointment and remuneration of a Registrar and other employees of the Council for Property Valuers Profession.

2.2.3 Part III: Registration

Part III of the Property Valuers Profession Act deals with registration, and:

(a) Section 16(1) prescribes the categories in which a person may be registered in the property valuation profession, namely -

(i) professional valuer;

(ii) associate professional valuer;

(iii) valuer in training;

(iv) student valuer in training; or

(v) other specified categories as prescribed by the Council.

A person may only actively practise in any of the categories contemplated in subsection (1) if the person is registered in that category.


(b) Section 17 deals with registration in any category of valuers.

(c) Section 18 provides for cancellation of registration.

(d) Section 19 prescribes the authorised titles by which a person who is registered in any of the categories referred to in section 16(1)(a) to (d) [compare p. 108 section 16(1)(i) to (iv)] may describe himself or herself. A person registered in a specified category prescribed by the Council for Property Valuers Profession as contemplated in section 16(1)(e) [compare p. 108 section 16(1)(v),] may use a title prescribed by the Council for the specified category.

(e) Section 20 provides for renewal of registration.

(f) Section 21 provides for the return of a registration certificate in the case of a person whose registration has been cancelled in terms of that Act.

(g) Section 22 deals with the recognition of voluntary associations by the Council for Property Valuers Profession.

(h) Section 23 deals with the identification of work, and provides that the Council for Property Valuers Profession must consult with -

(i) all voluntary associations;

(ii) any person;

(iii) any body; or

(iv) any industry,

that, in the opinion of the Council, may be affected by any law regulating the built environment professions regarding the identification of the type of property valuation work which may be performed by persons registered in any of the categories referred to in section 16.

(i) Section 24 provides for the prohibition of unregistered persons from performing work reserved for registered persons and from doing certain things.

2.2.4 Part IV: Code of Conduct and Disciplinary Provisions

Part IV of the Property Valuers Profession Act deals with a code of conduct for registered persons, disciplinary provisions and the appointment of a disciplinary tribunal, and will not be referred to or discussed, because it deals only with procedural matters.


2.2.5 Part V: General Provisions

Part V of the Property Valuers Profession Act deals with general provisions, and:

(a) Section 33 provides for the determination of professional fees by the Council for Property Valuers Profession.

(b) Section 34(1) provides for the making of regulations, after consultation with the Council for Property Valuers Profession, by the Minister responsible for lands, with regard to any matter that is required or permitted to be prescribed in terms of the Property Valuers Profession Act and any other matter for the better execution of that Act or in relation to any power granted or duty imposed by that Act. It would appear that the Minister concerned is the functionary to make regulations, especially with regard to any matter that is required or permitted to be prescribed in terms of that Act, but the Minister must consult with the Council for Property Valuers Profession. This would mean that wherever the word “prescribed” occurs in that Act, the Minister concerned must make the regulations concerned. (“Prescribed” is defined in section 1 of that Act as to mean prescribed by a regulation.)

However, it would appear from sections 4(b) and (c), 7(1)(d) and (j), 16(1)(e), 17(2)(a)(ii) and (b)(iii) and (iv) and 19(2) of the Property Valuers Profession Act (compare p. 108) that the Council for Property Valuers Profession also has the power to make regulations, because the sections concerned confer upon the Council the power to prescribe the matters referred to therein. There is no requirement for the Council, before making regulations, to consult with the Minister responsible for lands as the Minister is required to consult with the Council before the Minister makes the regulations concerned. The question may justly be asked whether it is correct that two different functionaries have the power to make regulations in terms of the Property Valuers Profession Act, seemingly with regard to the same matters? Should the Council not be empowered to make rules in relation to the matters which it may prescribe?

(c) Section 36 provides for exemptions by the Minister responsible for lands of persons from any provision of that Act for a period not exceeding two years. The Minister must make regulations regarding exemptions from the provisions of this Act.

(d) Section 37 deals with liability, and provides that no person, including the State, is liable in respect of anything done or omitted in good faith in the exercise of a power or the performance of a function conferred or imposed by or under that Act, unless the exercise or performance of the power or function is attributable to gross negligence by the person. A person who was registered in terms of that Act and whose registration was cancelled is liable for any of his or her actions while he or she was registered.

(e) Section 38 provides for the delegation of powers and the assignment of functions by the Council for Property Valuers Profession and the Registrar, respectively. It would appear that the Council may also delegate the power to make regulations, as that power is not excluded from the delegation concerned. Is that correct?

(f) Section 39 deals with offences and penalties.


(g) Section 40 provides that if any other law confers upon a functionary the power to appoint any person to determine the value of property, the functionary -

(i) may still appoint any person not registered in terms of this Act until 12 months from the date of commencement of this Act;

(ii) after the 12 months referred to in paragraph (a) [compare p. 111 paragraph (g) (i)], may only appoint a person registered in terms of this Act.

(h) Section 41 contains transitional provisions relating to the registration of persons who at the date of commencement of this Act practise in the property valuation profession.

(i) According to section 42, that Act binds the State.



CHAPTER 10

Chapter 10 deals with legislation which provides for or creates financial obligations with regard to immovable property, such as the payment of transfer duty and stamp duties.

1. MORATORIUM ON THE PAYMENT OF STAMP DUTY OR TRANSFER DUTY IN RESPECT OF RATIONALISATION SCHEMES ACT, 1993 (ACT NO. 13 OF 1993)

The Moratorium on the Payment of Stamp Duty or Transfer Duty in Respect of Rationalisation Schemes Act, 1993 (Act No. 13 of 1993) (the “Moratorium Act”):

(a) Provides -

(i) for the exemption from stamp duty or transfer duty in respect of certain acquisitions of marketable securities or property or the transfer of rights or obligations under mortgage bonds under a scheme for the rationalisation of a group of companies and for the assessment of companies in any such group for income tax purposes in certain circumstances; and

(ii) for incidental matters.

(b) Came into operation on the 1st of September 1993.

(c) Has been amended by the Moratorium on the Payment of Stamp Duty or Transfer Duty in respect of Rationalisation Schemes Amendment Act, 1994 (Act No. 26 of 1994).

1.1 Provisions of the Moratorium Act

1.1.1 Section 1 of the Moratorium Act contains the definitions.

1.1.2 Section 2 of the Moratorium Act deals with the exemption from stamp duty and transfer in respect of certain transactions under an approved scheme of rationalisation of a group of companies, and subsection (1) provides that where on or at any time after the date of commencement of that Act, but not later than 30 June 1995, and pursuant to a scheme for the rationalisation of the activities of a group of companies, an agreement is concluded between companies which are members of the group whereby -

FINANCIAL OBLIGATIONS


(a) any property is sold or otherwise disposed of by a member company to any other member company;

(b) any marketable security is so sold or otherwise disposed of;

(c) any mortgage bond is ceded by a member company to any other member company; or

(d) a member company is to be substituted as debtor under a mortgage bond for any other member company,

and the agreement has been approved by the Permanent Secretary: Finance in accordance with subsection (3), there is exempt -

(i) from stamp duty-

(aa) the transfer deed relating to the property transferred;

(bb) the registration of transfer of such marketable security; or

(cc) the cession of such mortgage bond or the substitution of the debtor under such mortgage bond,

in terms of the agreement; and

(ii) from transfer duty, the acquisition of the property in terms of the agreement.

(“Property” means property as defined in section 1 of the Transfer Duty Act, namely land and any fixtures thereon, and includes -

(a) any real right in land, but not any right under a mortgage bond or a lease of property other than a lease referred to in paragraph (b);

(b) any right to mine for minerals and a lease or sublease of such a right.)

An application for the approval of the Permanent Secretary: Finance of an agreement referred to in subsection (1) should have been made to the Permanent Secretary in writing by or on behalf of the controlling company of the group of companies concerned not later than 30 June 1995, and should have been accompanied by -

(a) the written agreement in question;

(b) a written statement setting forth details of the scheme of rationalisation of the activities of the group; and

(c) a written mandate from each controlled company in the group which is a party to the agreement to act on its behalf for the purposes of that section, supported by a resolution of the directors or shareholders of the company.


If in terms of subsection (2) an agreement is submitted to the Permanent Secretary: Finance for his or her approval for the purposes of subsection (1), the Permanent Secretary may in his or her discretion approve the agreement subject to the conditions as he or she may impose, but the Permanent Secretary may not approve the agreement unless he or she is satisfied that -

(a) the agreement was concluded pursuant to a scheme for the rationalisation of the activities of the group of companies in question;

(b) the scheme was devised solely or mainly for the purpose of achieving within the said group substantial and enduring savings in operational expenditure or substantial and enduring operational or administrative advantages; and

(c) under the scheme -

(i) a consideration became payable by the member company concerned in respect of its acquisition of the marketable security, property or cession of the mortgage bond or its release as debtor under the mortgage bond because of the substitution of debtor in terms of the agreement, and the value of the consideration is equal to -

(aa) the fair market value of the marketable security, property or bond, as the case may be, at the time of the agreement; or

(bb) the other value as may be agreed upon by the controlling company and the Permanent Secretary; or

(ii) the marketable security, property or bond is to be disposed of by the member company concerned to the other member company by way of a distribution of a dividend in specie.

The Permanent Secretary: Finance should, upon approving an agreement under subsection (3), issue to the applicant a certificate to the effect that -

(a) the transfer deed relating to the property transferred or the substitution of the debtor under the mortgage bond, as the case may be, is exempt from stamp duty under subsection (1); or

(b) the acquisition of the property is exempt from transfer duty under subsection (1).

Any exemption under subsection (1) lapses unless the registration of the cession of the relevant bond or the substitution of the debtor under the relevant bond or the registration of the transfer of the relevant property, as the case may be, is effected not later than six months after the date of issue of the certificate referred to in subsection (4) or within the further period as the Permanent Secretary, having regard to the circumstances of the case, may approve.


1.2 Application of the Moratorium Act

It would appear that the Moratorium Act had limited operation, aimed at the approval of schemes of rationalisation of groups of companies, and that, due to the fact -

(a) that an agreement contemplated in section 2(1) could not be concluded later than 30 June 1995; and

(b) that an application for the approval contemplated in section 2(1) should have been made not later than 30 June 1995, as contemplated in section 2(1),

that Act can or should no longer be applied.

2. TRANSFER DUTY ACT, 1993 (ACT NO. 14 OF 1993)

The Transfer Duty Act, 1993 (Act No. 14 of 1993) (the “Transfer Duty Act”):

(a) Consolidates and amends the laws relating to transfer duty.


(c) Has been amended by the Transfer Duty Amendment Act, 2003 (Act No. 20 of 2003), the Transfer Duty Amendment Act, 2010 (Act No. 3 of 2010), the Transfer Duty Second Amendment, 2010 (Act No. 8 of 2010), and the Transfer Duty Amendment Act, 2013 (Act No. 6 of 2013).

2.1 Provisions of the Transfer Duty Act

2.1.1 Section 1 of the Transfer Duty Act contains the definitions.

2.1.2 Section 2 of the Transfer Duty Act deals with the imposition of transfer duty, and subsection (1) provides that subject to section 9, there is levied for the benefit of the State Revenue Fund a transfer duty on the value of any property acquired by any person on or after the date of commencement of the Transfer Duty Amendment Act, 2013, by way of a transaction or in any other manner, or on the amount by which the value of any property is enhanced by the renunciation, on or after the said date, of an interest in or a restriction upon the use or disposal of the property, at the rate of -

(a) where the said value or the said amount, as the case may be -

(i) does not exceed N$600 000, nil per cent;

(ii) exceeds N$600 000 but does not exceed N$1 000 000, one per cent of such amount of the said value or the said amount, as the case may be, as exceeds N$600 000;

(iii) exceeds N$1 000 000 but does not exceed N$2 000 000, N$4 000 plus 5 per cent of so much of the said value or the said amount, as the case may be, as exceeds N$1 000 000;


(iv) exceeds N$2 000 000, N$54 000 plus eight per cent of so much of the said value or the said amount, as the case may be, as exceeds N$2 000 000,

if the property is not agricultural land as contemplated in paragraph (b) and the person by whom the property is acquired or in whose favour or for whose benefit the said interest or restriction is renounced is a natural person;

(b) where the value of agricultural land acquired by a natural person to whom an advance, for the purposes of such acquisition, is made by the Agribank in accordance with the provisions of section 5(a) or (c) of the Agricultural Bank Act, 2003 (Act 5 of 2003) -

(i) does not exceed N$1 500 000, nil per cent;

(ii) exceeds N$1 500 000 but does not exceed N$2 500 000, one per cent of so much of the value of the agricultural land as exceeds N$1 500 000; and

(iii) exceeds N$2 500 000, N$10 000 plus three per cent of so much of the value of the agricultural land as exceeds N$2 500 000; or

(c) 12 per cent of the said value or the said amount, as the case may be, if the person by whom the property is acquired or in whose favour or for whose benefit the said interest or restriction is renounced is a person other than a natural person.

(“Property” is defined in section 1 of the Transfer Duty Act as to mean land and any fixtures thereon, and includes -

(a) any real right in land, but not any right under a mortgage bond or a lease of property other than a lease referred to in paragraph (b);

(b) any right to mine for minerals and a lease or sublease of such a right.

2.1.3 Section 3 of the Transfer Duty Act states that the duty becomes payable on the date of acquisition by the person who has acquired the property or in whose favour or for whose benefit any interest in or restriction upon the use or disposal of property has been renounced, and must be paid within a period of six months of that date.

2.1.4 Section 4 of the Transfer Duty Act provides for the payment of a penalty at the rate of ten per cent per annum on the amount of the unpaid duty, on late payment of the duty.

2.1.5 Section 5 of the Transfer Duty Act deals with the value of property on which duty is payable, and according to subsection (1), the value on which the duty is payable is, subject to that section -

(a) if consideration is payable by the person who has acquired the property, the amount of that consideration; and

(b) if no consideration is payable, the declared value of the property.


2.16 According to section 6 of the Transfer Duty Act there shall for the purpose of the payment of the duty be added to the consideration payable in respect of the acquisition of any property -

(a) any commission or fees paid or payable by the person who acquired the property;

(b) if property has been acquired by the exercise of an option to purchase or a right of pre-emption, any consideration paid or payable by the person who has acquired the property to any person in respect of the option or right of pre-emption;

(c) any consideration which the person who has acquired the property has paid or agreed to pay to any person whatsoever in respect of or in connection with the acquisition of the property, over and above the consideration payable to the person from whom the property was acquired, other than any rent payable under a lease or sublease by the cessionary thereof.

2.1.7 Section 7 of the Transfer Duty Act provides for the exclusion of certain payments from the consideration payable in respect of the property.

2.1.8 Section 8 of the Transfer Duty Act deals with the valuation of consideration payable by way of rent, royalty, share of profits or any other periodical payment, or otherwise than in cash.

2.1.9 Section 9 of the Transfer Duty Act provides for the exemption from the payment of duty in respect of the acquisition of property by the persons mentioned in paragraphs (a) to (j) thereof, and further states that no duty is payable as contemplated in subsections (2) to (9).

2.1.10 According to section 10 of the Transfer Duty Act, the Permanent Secretary: Finance is responsible for the administration of that Act, and the powers conferred and the duties imposed upon the Permanent Secretary by that Act may be exercised or performed by the Permanent Secretary personally or by any officer acting under a delegation from or under the control or direction of the Permanent Secretary.

2.1.11 Section 11 of the Transfer Duty Act prescribes the powers of the Permanent Secretary.

2.1.12 Section 12 of the Transfer Duty Act deals with the registration of the acquisition of property where the duty has not been paid.

2.1.13 Section 13 of the Transfer Duty Act states that the Permanent Secretary: Finance must recover the amount of any duty that has been underpaid.

2.1.4 Section 14 of the Transfer Duty Act deals with the declarations that must be furnished to the Permanent Secretary: Finance.

2.1.15 Section 15(1) of the Transfer Duty Act provides that every auctioneer or other person who has effected a sale of property on behalf of some other person must, for a period of five years from the date on which the sale was effected, keep a record of the sale, including a description of the property sold, the person by whom and the person to whom the property has been sold and the price paid for the property.


2.1.16 Section 16 of the Transfer Duty Act deals with the disclosure of the names of principals in certain circumstances.

2.1.17 According to section 17 of the Transfer Duty Act, any person who fails to comply with any requirement or demand by the Permanent Secretary under this Act or who knowingly submits or causes to be submitted to the Permanent Secretary a declaration referred to in section 14 which fails to disclose any material fact relevant to the nature of the transaction by which property has been acquired or to the consideration payable in respect of any property or to the value on which the duty is payable, is guilty of an offence and liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.

2.1.18 Section 18 of the Transfer Duty Act provides for appeals against decisions of the Permanent Secretary: Finance.

2.1.19 According to section 19 of the Transfer Duty Act any dispute between the Permanent Secretary: Finance and any person who claims to be exempt from payment of the duty in respect of the acquisition of property may, on application by either party to the dispute, be determined by a judge of the High Court sitting in chambers after hearing the Permanent Secretary and the person or their respective representatives.

2.1.20 Section 20 of the Transfer Duty Act provides for refunds.

2.1.21 Section 21 of the Transfer Duty Act states that that Act shall in respect of the acquisition of property of which the acquisition is registrable in terms of the Registration of Deeds in Rehoboth Act, 1976, only apply if the date of acquisition falls on or after the date of commencement of the Transfer Duty Act.

2.1.22 Section 22(1) of the Transfer Duty Act repeals the laws specified in the Schedule to that Act to the extent set out in the third column of the Schedule, while subsections (2) and (3) contain transitional provisions.

2.2 Case law relating to the Transfer Duty Act

A relevant case concerning the application of the Transfer Duty Act is Permanent Secretary of Finance & Another v Shelfco Fifty-One (Pty) Ltd 2007 (2) NR 774 (SC), wherein the powers of the first appellant to levy transfer duty upon the sale of property as set out and circumscribed in that Act are discussed. Section 10(1) of the Act specifically states that the appellant shall be responsible for the administration of the Act and subsection (2) provides for delegation of the duties of the appellant to any officer acting under his control or direction. The Court amongst others pointed out that the power of the appellant to levy transfer duty is set out in the Transfer Duty Act. He therefore derives his power from that Act and not from the parties to a transaction.

3. STAMP DUTIES ACT, 1993 (ACT NO. 15 OF 1993)

3.1 The Stamp Duties Act, 1993 (Act No. 15 of 1993) (the “Stamp Duties Act”):

(a) Consolidates and amends the laws relating to stamp duties.

(b) Is divided into six Parts dealing with Introductory Provisions, Imposition of Stamp Duties, General Provisions Relating to Stamping of Instruments, Provisions Relating to Particular Instruments, Offences and General and Miscellaneous Provisions, respectively.


(c) Came into operation on the 1st of September 1993.

(d) Has been amended by the Stamp Duties Amendment Act, 1994 (Act No. 12 of 1994), the Stamp Duties Amendment Act, 2011 (Act No. 12 of 2011), and the Stamp Duties Amendment Act, 2013 (Act No. 7 of 2013).

3.2 Provisions of the Stamp Duties Act

3.2.1 Part I: Introductory Provisions

Part I of the Stamp Duties Act deals with introductory provisions and:

(a) Section 1 contains the definitions.

(b) Section 2 deals with the administration of that Act. The Permanent Secretary: Finance -

(i) is responsible for carrying out that Act, and may in the exercise of his or her powers or the performance of his or her duties act personally or through officers in the public service acting under his or her authority;

(ii) must make such arrangements for the supply of stamps to public offices and the sale and distribution of stamps at public offices or at any other premises as may be necessary for the convenience of the public;

(iii) may make use of such forms as he or she may from time to time consider necessary or convenient for the better carrying out of the provisions of this Act.

3.2.2 Part II: Imposition of Stamp Duties

Part II of the Stamp Duties Act deals with the imposition of stamp duties, and:

(a) Section 3 provides that with regard to transfer deeds relating to immovable property, stamp duty is to be charged in accordance with item 16 of Schedule 1.

(b) Section 4 deals with general exemptions and subsection (1) provides that any duty imposed by that Act is not chargeable in respect of the instruments referred to in paragraphs (a) to (e) thereof.

3.2.3 Part III: General Provisions Relating to the Stamping of Instruments

Part III of the Stamp Duties Act deals with general provisions relating to the stamping of instruments, and:

(a) Section 5 deals with the use of stamps in payment of duty and according to subsection (1), the payment of any duty or of any penalty incurred under that Act must, save as is otherwise provided in that Act, be denoted by means of adhesive revenue stamps for the amount of the duty or adhesive penalty stamps for the amount of the penalty, but impressed stamps and special receipts may also be used.


(b) Section 7 deals with persons liable to stamp various instruments, and according to subsection (1), the persons respectively liable for duty and required to stamp any instrument referred to in that section are -

(i) in the case of a bond, the person giving or passing the bond or in the case of a substitution of a debtor in respect of a bond, the person substituted as debtor;

(ii) in the case of a lease or agreement of lease in respect of immovable property, the lessor;

(iii) in the case of any transfer deed, the transferor.

(c) Section 8 prescribes the time within which instruments must be stamped.

(d) Section 9 deals with late stamping of instruments and penalties for default.(e) Section 10 deals with the defacement of adhesive stamps.

(f) Section 11 provides that an endorsement or a certificate made on or in respect of any instrument and signed by the Permanent Secretary: Finance or by his or her authority, stating that the instrument is duly stamped or is not chargeable with duty or penalty or further duty or penalty, is for all purposes conclusive evidence of the fact so endorsed or certified.

(g) Section 12 deals with the invalidity of instruments not duly stamped.

(h) Section 13 states the person making use of an instrument which is not duly stamped is liable for the unpaid duty and penalty thereon.

(i) Section 14 deals with the duties of persons in the employ of the Government, including authorised revenue officers.

(j) Section 15 states that any contract, agreement or undertaking made for the purpose of evading, defeating or frustrating the requirements of that Act as to the stamping of instruments, or with a view to precluding objection or inquiry relating to the due stamping of any instrument, is void, but nothing in that section contained prohibits any agreement between parties as to the distribution between themselves of liability to pay the amount which is payable as duty.

3.2.4 Part IV: Provisions Relating to Particular Instruments

Part IV of the Stamp Duties Act deals with provisions relating to particular instruments, and section 22 deals with the period for which leases of immovable property contemplated in Item 10 of Schedule 1 must be stamped.


3.2.5 Part V: Offences

Part V of the Stamp Duties Act deals with:

(a) Offences relating to:

(i) The stamping or defacement of stamps and the evasion of duty (section 26).

(ii) Dies and stamps (section 27).

(iii) Adhesive stamps (section 28).

(b) The powers to search for and seize forged stamps (section 29).

3.2.6 Part VI: General and Miscellaneous Provisions

Part VI of the Stamp Duties Act deals with general and miscellaneous provisions, and:

(a) Section 30 provides for the recovery of duties and penalties by civil action in a magistrate’s court having jurisdiction in the area in which the person liable for the duty or penalty resides or carries on business.

(b) Section 31 states that the Permanent Secretary: Finance may require the production of instruments or an authorised officer may search for instruments or documents.

(c) Section 32 provides for the refunds of duty.

(d) Section 33 provides that the Minister of Finance may make regulations as to the demonetization or withdrawal of any particular issue of stamps and generally for the better carrying out of the objects and purposes of that Act.

(e) Section 36 repeals the laws specified in Schedule 2 to the extent set out in the third column of that Schedule, and contains transitional provisions.


CHAPTER 11

This chapter deals with and discusses provisions relating to land planning, the establishment of townships and the division of land and the survey of land. An Urban and Regional Planning Bill to amend and consolidate the various provisions relating to land planning, the establishment of townships and the division of land (excluding agricultural land) has been prepared on the instructions of the Ministry of Regional and Local Government, Housing and Rural Development, but it is not clear how far the finalisation of that Bill is.

1. TOWN PLANNING ORDINANCE, 1954 (ORDINANCE NO. 18 OF 1954)

The Town Planning Ordinance, 1954 (Ordinance No. 18 of 1954) (the “Town Planning Ordinance”):

(a) Provides -

(i) for the preparation and carrying out of town planning schemes; and

(ii) for matters incidental thereto.

(b) Came into operation on the 1st of October 1960.

(c) Has been amended by the Town Planning Amendment Ordinance, 1968 (Ordinance No. 13 of 1968), the Town Planning Amendment Ordinance, 1970 (Ordinance No. 13 of 1970); the Town Planning Amendment Ordinance, 1973 (Ordinance No. 11 of 1973); the Town Planning Further Amendment Ordinance, 1973 (Ordinance No. 23 of 1973); the Town Planning Amendment Ordinance, 1977 (Ordinance No. 10 of 1977); the Town Planning Amendment Ordinance, 1979 (Ordinance No. 5 of 1979); the Town Planning Amendment Act, 1993 (Act No. 27 of 1993) and the Town Planning Amendment Act, 2000 (Act No. 15 of 2000).

1.1 Provisions of the Town Planning Ordinance

1.1.1 Section 1 of the Town Planning Ordinance provides for the intent or purpose of that Ordinance, namely that:

(a) Every town planning scheme must have for its general purpose a co-ordinated and harmonious development of the local authority area, or the area or areas situate therein, to which it relates (including, where necessary, the re-construction and re-development of any part which has already been subdivided, whether there are or are not buildings thereon) in such a way as will most effectively tend to promote health, safety, order, amenity, convenience and general welfare, as well as efficiency and economy in the process of development and the improvement of communications.

LAND PLANNING, TOWNSHIPS AND DIVISION OF LAND AND SURVEY OF LAND


(b) A scheme must contain the provisions as may be deemed necessary or expedient for regulating, restricting or prohibiting the development of the area to which the scheme applies and generally for carrying out any of the objects for which the scheme is made, and, in particular, for dealing with any of the matters mentioned in the Second Schedule to that Ordinance.

1.1.2 Section 2 of the Town Planning Ordinance contains the definitions.

1.1.3 Section 3 of the Town Planning Ordinance states that:

(a) That Ordinance applies to every local authority mentioned in the Third Schedule thereto, and to every other local authority to which the Ordinance is made applicable in terms of section 4 thereof.

(b) For the purposes of that Ordinance every local authority mentioned in the Third Schedule is deemed to have taken a formal resolution to prepare a scheme and the resolution is deemed to have taken effect.

1.1.4 Section 4 of the Town Planning Ordinance prescribes the powers of the Minister of Regional and Local Government and Housing to apply that Ordinance to other local authorities.

1.1.5 Section 5 of the Town Planning Ordinance provides that every local authority to which that Ordinance has been applied by section 3 must within a period of one year from the commencement of that Ordinance or within the further period or periods as the Minister of Regional and Local Government and Housing may in his or her discretion allow, prepare and submit to the Minister, in the form as may be prescribed, a town-planning scheme, hereafter referred to as a scheme, in respect of all the land situated within the local authority or the portion thereof as the Minister may decide and, with the consent of the Minister, specified land outside the boundaries of the local authority area.

1.1.6 Section 6 of the Town Planning Ordinance provides that every local authority to which that Ordinance has been applied in terms of section 4(1) must within a period of three years from the date of the notice applying that Ordinance or within the further period as the Minister may in his or her discretion allow, prepare and submit to the Minister a scheme in respect of all the land situate within the local authority area or the portion thereof as the Minister may decide and, with the consent of the Minister, specified land outside the boundaries of the local authority area.

1.1.7 Section 7 of the Town Planning Ordinance confers upon a local authority which has not been required to submit a scheme as aforesaid to, on its own initiative, prepare and submit to the Minister a scheme in respect of all or any of the land situate within the local authority area and, with the consent of the Minister, specified land outside the boundaries of the local authority area.

In Grobbelaar & Another v the Walvis Bay Municipality & Another 1997 NR 259 HC the applicants challenged the validity of the first respondent’s decision [namely that the appellants must provide certain parking space on the property concerned] on a number of grounds, amongst others that the first respondent’s Council had no authority to have taken the decision; that the Town Planning Scheme relied on as authority for the adoption of that resolution was not in force or, if in force, had not been complied with; that the applicants were not afforded a proper opportunity to be heard on the resolution; that the resolution was invalidly taken with retrospective effect; that the first respondent’s Council acted in a discriminatory manner contrary to the provisions of Article 10 of the Namibian Constitution to the detriment of the applicants and that the first respondent’s Council acted so unreasonably that the court is entitled to infer mala fide from its conduct.


Having spent considerable time searching through thousands of unindexed General and Government Notices published since the promulgation of the Ordinance, the learned Judge established that the first respondent published the notice contemplated in section 7(2) in Official Gazette No. 3066 dated 15 April 1970, and in the circumstances the Judge was satisfied the provisions of the Town Planning Ordinance were applied to Walvis Bay.

The Court was further satisfied that the town planning scheme applied to the property concerned and that the proposed development contemplated in the approved municipal plans contravened that scheme (in the course of preparation) to the extent that no provision was made for parking in that building at the prescribed ratio and that the first respondent was entitled in terms of section 39(1) to authorise the construction of the building on that property on condition that the applicant should either acquire land for the parking facilities elsewhere in a position approved by the Council or pay a cash sum to the Council.

1.1.8 Section 8 of the Town Planning Ordinance provides for the appointment by a local authority of a town planning committee for the purpose of the preparation of a scheme. Two or more local authorities who are desirous of acting jointly for any of the purposes of that Ordinance may concur in appointing a joint town-planning committee.

1.1.9 According to section 9 of the Town Planning Ordinance, the body corporate which immediately before the commencement of the Town Planning Amendment Act, 1993, existed under the name South West African Planning Advisory Board, continues to exist as a body corporate under the name Namibia Planning Advisory Board (“NAMPAB”). That section further provides for the constitution of NAMPAB and the term of office of members thereof.

1.1.10 Section 12 of the Town Planning Ordinance prescribes the functions, powers and duties of NAMPAB, and according to subsection (1), NAMPAB is entrusted with all matters relating to town planning schemes as are assigned to it by that Ordinance, and must in the performance of its functions, powers and duties thereunder, comply with the directions as may from time to time be given to it by the Minister of Regional and Local Government and Housing. Subsection (2) provides that, without prejudice to the generality of subsection (1), the functions of NAMPAB are as set out in paragraphs (a) to (h) thereof.

1.1.11 Section 13 of the Town Planning Ordinance provides for additional powers of NAMPAB for the purposes of, and in so far as it may be necessary for or incidental to the carrying out and the performance of its functions, powers and duties. The exercise by NAMPAB of any of the powers mentioned in subsection (1) is subject in every case to the prior approval, whether general or special, of the Minister of Regional and Local Government and Housing.

1.1.12 Section 15 of the Town Planning Ordinance states that in the preparation of a scheme under that Ordinance the local authority must furnish a survey of the matters set out in the First Schedule hereto, and must deal in detail with the matters set out in the Second Schedule thereto in the scheme.

1.1.13 Section 16 of the Town Planning Ordinance deals with the decision of a local authority or a joint committee to prepare a scheme.

1.1.14 Section 17 of the Town Planning Ordinance provides for the publication of a notice of a resolution to prepare a scheme.


1.1.15 Section 18 of the Town Planning Ordinance states that every scheme must define the area to which it applies and specify in accordance with section 19 the authority or authorities who are to be responsible for enforcing and carrying into effect the provisions of the scheme.

1.1.16 Section 19 of the Town Planning Ordinance provides that the provisions to be inserted in a scheme with respect to buildings and building operations may include the provisions referred to in paragraphs (a) to (e) thereof.

1.1.17 Section 20 of the Town Planning Ordinance deals with the powers of NAMPAB in relation to schemes which are in the course of preparation.

1.1.18 According to section 21 of the Town Planning Ordinance a scheme prepared by a local authority or a joint committee requires the approval of the Minister of Regional and Local Government and Housing, but before its submission to the Minister the draft scheme must be adopted by the resolution of the local authority or joint committee at a meeting of which special notice indicating the business to be transacted has been given to each member.

1.1.19 Section 22 of the Town Planning Ordinance provides that after the preparation of a scheme and its adoption as contemplated in section 21, the same must be submitted to the Minister under cover of an application for approval of the scheme.

1.1.20 Section 23 of the Town Planning Ordinance states that upon the receipt of an application for approval of a scheme the Minister of Regional and Local Government and Housing must refer the scheme to the Board for its consideration and report, as further provided for in that section.

1.1.21 Section 24 of the Town Planning Ordinance provides for the making of objections to a scheme.

1.1.22 Section:

(a) 25 of the Town Planning Ordinance deals with the hearing of applications and of any objections which may have been lodged.

(b) 26 of the Town Planning Ordinance provides for the approval and coming into effect of schemes.

(c) 27 of the Town Planning Ordinance provides for the variation and revocation of an approved scheme.

(d) 28 of the Town Planning Ordinance provides for the enforcement and carrying into effect of approved schemes.

(e) 29 of the Town Planning Ordinance provides for the purchase or expropriation of land by a responsible authority which it requires for any of the purposes of the scheme.

(f) 30 of the Town Planning Ordinance prescribes the duties of owners of land affected by a scheme.

(g) 31 of the Town Planning Ordinance deals with the subdivision of land to conform to a scheme.


(h) 32 of the Town Planning Ordinance provides for the payment of compensation in the case of any injurious damage by the coming into operation of any provision contained in a scheme or by the execution of any work under a scheme.

(i) 33 of the Town Planning Ordinance provides for the exclusion and limitation of compensation in certain cases.

(j) 34 of the Town Planning Ordinance provides for the recovery of betterment by a responsible authority if property has been increased in value by the coming into operation of any provision contained in a scheme, or by the execution by a responsible authority of any work under a scheme.

(k) 35 of the Town Planning Ordinance deals with the determination of claims for compensation or betterment.

(l) 36 of the Town Planning Ordinance deals with the making of claims for compensation.

(m) 37 of the Town Planning Ordinance provides for the giving of a notice by a responsible authority to the claimant of its intention to withdraw or modify all or any of the provisions of the scheme which give rise to the claim for compensation.

(n) 38 of the Town Planning Ordinance provides for the payment of compensation to mortgagees.

(o) 39 of the Town Planning Ordinance deals with the prohibition of certain works and uses pending the approval of a scheme.

(p) 40 of the Town Planning Ordinance provides that after a resolution to prepare a scheme has taken effect, no application to establish a private township upon land situate in the area to which the scheme is to apply may be considered, except after consultation with the local authority or, as the case may be, the joint committee, or, after the scheme has been approved, the responsible authority.

(q) 42 of the Town Planning Ordinance states that all sums received by a responsible authority by way of betterment, or as proceeds of sale of any land purchased under the powers conferred by this Ordinance, shall be applied in such manner as the Minister may approve, towards the discharge of any debt of the responsible authority, or otherwise for any purpose for which capital money may be applied.

1.1.23 Section 43 of the Town Planning Ordinance confers upon the Minister of Regional and Local Government and Housing the power to require local authorities to prepare schemes or to combine in the preparation of joint schemes.

1.1.24 Section 44 of the Town Planning Ordinance provides for the preparation of a scheme by NAMPAB upon application made to it by a local authority or by two or more local authorities.

1.1.25 Section 45 of the Town Planning Ordinance provides that the Minister may from time to time out of moneys appropriated by the Parliament for the purpose, advance moneys to any local authority on such conditions as the Minister may prescribe, to enable it to undertake the preparation of a scheme or to carry out and enforce an


approved scheme, or for such purpose, or, alternatively, the Minister may in any special circumstance make a grant of money to any local authority upon conditions to be prescribed by him for any such purpose or purposes.

1.1.26 Section 46 of the Town Planning Ordinance deals with the payment of expenses incurred by NAMPAB in connection with applications for the approval by the Minister of resolutions to prepare schemes, or for the approval by the Minister of schemes.

1.1.27 Section 47 of the Town Planning Ordinance provides for the vesting of ownership of public places.

1.1.28 Section 48 of the Town Planning Ordinance provides for offences and penalties.

1.1.29 Section 48A of the Town Planning Ordinance provides that if the Minister of Regional and Local Government and Housing, after consultation with NAMPAB, is of the opinion that steps taken or intended to be taken in connection with the erection of a building or buildings on any land, other than for bona fide farming operations, form or are likely to form the nucleus of a township, the Minister may, notwithstanding any other law, prohibit the erection of any such building or buildings on the land by causing a suitable notice to owners of the land to be published in two consecutive editions of the Gazette and once a week for two consecutive weeks in an English newspaper circulating in the district in which the land is situated, and if the address of an owner of the land is known, by causing a suitable written notice to be sent to his address by certified mail.

1.1.30 Section 49(1) of the Town Planning Ordinance provides that the Minister of Regional and Local Government and Housing may make regulations with effect to the matters mentioned in paragraphs (a) to (i) thereof.

1.1.31 Section 50 of the Town Planning Ordinance provides that all fines and estreated bails recovered in respect of offences against that Ordinance, or the regulations made there under, are payable to the local authority or the responsible authority at whose instance the prosecutions were instituted, but otherwise to the State Revenue Fund.

1.2 Regulations made under the Town Planning Ordinance

Government Notice 102 of 1 June 1974 contains Town Planning Regulations made under the Town Planning Ordinance.

2. TOWNSHIPS AND DIVISION OF LAND ORDINANCE, 1963 (ORDINANCE NO. 11 OF 1963)

The Townships and Division of Land Ordinance, 1963 (Ordinance No. 11 of 1963) (the “Townships and Division of Land Ordinance”):

(a) (i) consolidates and amends the laws relating to the establishment of townships;

(ii) provides for the regulation and control of the development and subdivision of land; and

(iii) provides for matters incidental thereto.


(b) Came into operation on the 28th of June 1963.

(c) Has been amended by the Townships and Division of Land Amendment Act, 1992 (Act No. 28 of 1992).

2.1 Provisions of the Townships and Division of Land Ordinance

2.1.1 Section 2(1) of the Townships and Division of Land Ordinance establishes the Townships Board and further provides for the constitution thereof, the terms of office of members of the Board and the remuneration of members.

2.1.2 Section 2A of the Townships and Division of Land Ordinance states that the purpose of the Townships Board is to exercise and perform the functions, powers and duties entrusted to and conferred upon it in terms of that Ordinance.

2.1.3 According to section 3(1) of the Townships and Division of Land Ordinance it is the duty of the Townships Board to consider the matters referred to in paragraphs (a) to (j) thereof in so far as applicable when enquiring and reporting on an application for permission to establish a township referred to it for report. In addition to reporting on any application referred to it, the Board must perform the other duties as may be prescribed by that Ordinance or by the Minister of Regional and Local Government, Housing and Rural Development and must report on the other matters as may be referred to it by the Minister.

2.1.4 Section 4 of the Townships and Division of Land Ordinance provides that, save as provided in section 37, no township may be established after the commencement of that Ordinance otherwise than in accordance with that Ordinance.

2.1.5 Section 5 deals with application for permission to establish a township, while section 6 deals with the consideration of an application by the Townships Board and the making of a recommendation to the Minister of Regional and Local Government, Housing and Rural Development.

2.1.6 According to section 7 of the Townships and Division of Land Ordinance the Minister of Regional and Local Government, Housing and Rural Development may not grant an application for permission to establish a township on land held under lease by the applicant.

2.1.7 Section 8 of the Townships and Division of Land Ordinance provides that, save as is in that section provided, the Minister of Regional and Local Government, Housing and Rural Development may not grant an application for permission to establish a township on land the trading rights over which are held by one or more persons to the exclusion of others.

2.1.8 Section 9 of the Townships and Division of Land Ordinance states that upon the granting of any application for permission to establish a township, the Minister of Regional and Local Government, Housing and Rural Development -

(a) must notify the applicant, the Board, the Surveyor-General, the Registrar of Deeds, and if the land concerned is within the area of jurisdiction of a local authority, the local authority concerned; and


(b) shall state the conditions upon which the application has been granted, whereupon the erven in the township in respect of which the application was granted, are subject to all the conditions as may have been imposed in respect of the erven.

2.1.9 Section:

(a) 10 of the Townships and Division of Land Ordinance deals with the survey of a township in respect of which a plan showing the proposed design of the township has been submitted to the Board.

(b) 11 of the Townships and Division of Land Ordinance provides for the approval of a general plan of the proposed township.

(c) 12 of the Townships and Division of Land Ordinance deals with the endorsement of titles, the issue of a certificate of township title and the opening of a township register.

(d) 13 of the Townships and Division of Land Ordinance states that upon the receipt of a notification from the Registrar of Deeds that section 12 has been complied with, the Minister of Regional and Local Government, Housing and Rural Development must by notice in the Gazette declare the area represented by the general plan concerned to be an approved township and the notice must set forth in a schedule thereto the conditions subject to which the application for permission to establish the township concerned has been granted.

(e) 14(1) of the Townships and Division of Land Ordinance states that when a township has been proclaimed an approved township under that Ordinance or any other law, the dominium of the land therein comprising all public places ipso facto vests in the local authority within whose area of jurisdiction the land is situated, or if the land is not situated within the area of jurisdiction of a local authority, in the State in trust for any local authority which may thereafter be constituted in respect of the area within which the land is situated.

(f) 15 of the Townships and Division of Land Ordinance provides for the transfer to the State or a local authority of land which has been reserved for the State or the local authority concerned.

(h) 16 of the Townships and Division of Land Ordinance states that erven may not be transferred until a township has been proclaimed.

(i) 17 of the Townships and Division of Land Ordinance deals with conditions that must be embodied in title deeds before transfer of any erf in a township established under that Ordinance or any prior law may be registered in the Deeds Registry.

(j) 18 of the Townships and Division of Land Ordinance provides that the owner of the land upon which a township has been established under that Ordinance or any other law or his or her successors in title thereto, may not grant a title to any erf in the township other than a freehold title or a lease for a period not exceeding five years without the right of renewal, but that section is not deemed to limit or otherwise affect the powers of the State or of any local authority to lease land in the township for a period exceeding five years or dispose of it in any other manner.


2.1.10 Section:

(a) 19 of the Townships and Division of Land Ordinance requires the permission of the Minister of Regional and Local Government, Housing and Rural Development for the subdivision of erven, and the section further deals with applications for permission to subdivide erven or land.

(b) 20 of the Townships and Division of Land Ordinance deals with the subdivision of land of less than twenty-five hectares in extent.

(c) 21 of the Townships and Division of Land Ordinance deals with the subdivision of townlands.

2.1.11 Section 23 of the Townships and Division of Land Ordinance deals with the change of the name of a township, while section 24 provides for the deproclamation of a township.

2.1.12 Section 25 of the Townships and Division of Land Ordinance deals with the re-vesting and transfer of public places and reserved land in a deproclaimed township.

2.1.13 Section 26 of the Townships and Division of Land Ordinance provides for the cancellation or amendment of the general plan of a township.

2.1.14 According to section 27 of the Townships and Division of Land Ordinance, no transfer duty, stamp duty or deeds registration fees are payable in respect of any transfer of land under section 15 or section 25, and no stamp duty is payable in respect of the diagrams concerned.

2.1.15 Section 28 of the Townships and Division of Land Ordinance prescribes the circumstances when diagrams of erven must be annexed to deeds of transfer.

2.1.16 Section 29 of the Townships and Division of Land Ordinance deals with the extension of the boundaries of an approved township by the Minister of Regional and Local Government, Housing and Rural Development.

2.1.17 Section 30 of the Townships and Division of Land Ordinance provides for the consolidation of erven or portions of erven.

2.1.18 Section 31 of the Townships and Division of Land Ordinance deals with the enforcement of conditions that have been imposed and prescribes penalties for non-compliance with imposed conditions.

2.1.19 Section 31A of the Townships and Division of Land Ordinance deals with the variation of conditions in terms of that Ordinance or any prior law.

2.1.20 Section 31B of the Townships and Division of Land Ordinance provides for the cancellation by the Registrar of Deeds of conditions which have in terms of that Ordinance or any other law been inserted in a deed of transfer or a certificate of title or endorsed upon a title deed.

2.1.21 According to section 32 of the Townships and Division of Land Ordinance the Minister of Regional and Local Government, Housing and Rural Development may by notice in the Gazette define the boundaries of any township mentioned in the First Schedule whenever the boundaries of the township have not been defined.


2.1.22 Section 33 of the Townships and Division of Land Ordinance provides that the owner of land upon which an approved township is situate may transfer by one deed the whole or any portion of the land or an undivided share in the land or portion thereof.

2.1.23 Section 34 of the Townships and Division of Land Ordinance provides for the delegation of powers which relate to an approval of a recommendation of the Townships Board, by the Minister of Regional and Local Government, Housing and Rural Development.

2.1.24 According to section 35 of the Townships and Division of Land Ordinance that Ordinance binds the State.

2.1.25 Section 36 of the Townships and Division of Land Ordinance provides that the Minister of Regional and Local Government, Housing and Rural Development may make regulations with respect to the matters referred to in paragraphs (a) to (d) thereof.

2.1.26 Section 37 of the Townships and Division of Land Ordinance provides for the repeal of the laws specified in the Fourth Schedule to the extent set out in the third column of that Schedule, and also contains a transitional provision that notwithstanding the repeal, every application for permission to establish a township made before the commencement of that Ordinance must be considered and decided under the provisions of the said laws as if they had not been repealed.

2.2 Regulations made under the Townships and Division of Land Ordinance

Government Notice 165 of 15 September 1973 contains Townships Board Regulations made under the Townships and Division of Land Ordinance.

2.3 Case law relating to the Townships and Division of Land Ordinance

Erongo Regional Council v Wlotzkasbaken Home Owners Association 2009 (1) NR 252 (SC) contains a discussion of the township development process applied to Wlotzkasbaken, but actually deals with the case where the appellants acted in contravention of the provisions of a settlement agreement which was previously entered into between the parties.

3. LAND SURVEY ACT, 1993 (ACT NO. 33 OF 1993)

The Land Survey Act, 1993 (Act No. 33 of 1993) (the “Land Survey Act”):

(a) Regulates the survey of land and provides for matters incidental thereto.

(b) Is divided into eight chapters, providing for Administration of the Act, Duties of Land Surveyors, Original Surveys and Resurveys, Division Surveys, Townships, Beacons and Boundaries, General Plans and Diagrams and Miscellaneous Provisions, respectively.

(c) Came into operation on the 1st of June 1994.


3.1 Provisions of the Land Survey Act

3.1.1 Section 1 of the Land Survey Act is part of the introductory provisions, and contains the definitions.

3.1.2 Chapter 1: Administration of the Land Survey Act

Chapter 1 of the Land Survey Act deals with the administration of the Land Survey Act, and:

(a) Section 2(1) provides for the appointment of a Surveyor-General by the Minister of Lands and Resettlement.

(b) Section 3 prescribes the powers and duties of the Surveyor-General.

(c) Section 4 establishes a survey regulations board which has the power to make regulations in relation to the matters mentioned in section 5(1), and further provides for the constitution of the board, a chairperson of the board, meetings of the board, a quorum of the board, decisions of the board and the remuneration of members of the board.

(d) Section 5(1) provides that, subject to subsection (2), the board may make regulations in relation to the matters referred to in paragraphs (a) to (j) thereof. The Minister of Lands and Resettlement must approve regulations made under subsection (1) and regulations so approved must be published in the Gazette.

(e) According to section 6 the Minister of Lands and Resettlement may by notice in the Gazette prescribe the fees to be charged in respect of any act or matter required or permitted to be performed or dealt with in or in connection with the Surveyor-General’s office.

3.1.3 Chapter 2: Duties of Land Surveyors

Chapter 2 of the Land Survey Act deals with the duties of land surveyors, and section 7(1) prescribes the duties of land surveyors, as set out in paragraphs (a) to (d) thereof.

3.1.4 Chapter 3: Original Surveys and Resurveys

Chapter 3 of the Land Survey Act deals with original surveys and resurveys, and:

(a) Section 8 deals with where a land surveyor carries out a survey of a piece of land in respect of which a title deed has been issued, but no diagram has previously been registered.

(b) Section 9 deals with where a survey is carried out under the direction of the Surveyor-General of a piece of land in respect of which no title deed has been issued and which is not represented on a diagram registered in the deeds registry or the Surveyor-General’s office.

(c) Section 10 provides for the rectification of title deeds after the determination of a boundary dispute.


(d) Section 11 deals with the endorsement of diagrams when the correct position of a beacon or a boundary has been determined and agreed on.

(e) Section 12 prescribes rules for arbitrators when determining the true and correct beacons or boundaries common to two contiguous pieces of land.

(f) Section 13 states that no diagram of a portion of an unsurveyed piece of land registered in the deeds registry may be approved by the Surveyor-General until a survey has been carried out of the whole of the piece of land and a new title deed has been registered or the old title deed has been endorsed on the basis of the survey.

(g) Section 14 deals with the replacing of an existing diagram by a new diagram after resurvey.

(h) Section 15 provides for the resurvey of a block of land other than a township.

3.1.5 Chapter 4: Division Surveys

Chapter 4 of the Land Survey Act deals with division surveys, and:

(a) Section 16 deals with division diagrams if the owner of a surveyed piece of land desires to divide the land and to effect separate registration of one or more portions of the land in the deeds registry.

(b) Section 17 prescribes the procedure to be followed in the case of a division survey, while section 18 deals with the division of land abutting on the sea or a tidal river or a lake or vlei which is owned by the State.

(c) Section 19 states that when a surveyed piece of land which is held in undivided shares is divided for the purpose of partition, the Surveyor-General may withhold his or her approval of a diagram purporting to represent an exact fraction of the total extent of the surveyed piece of land until the Surveyor-General is satisfied that the total extent has been ascertained by a resurvey of the whole of the piece of land.

(d) Section 20 deals with reference marks that should be established in any township or in a defined portion thereof.

3.1.6 Chapter 5: Townships

Chapter 5 of the Land Survey Act deals with townships, and:

(a) Section 21 deals with the resurvey of townships when the recognised boundaries of pieces of land composing a township do not conform to the boundaries represented on their respective diagrams or the general plan.

(b) Section 22 provides for the defrayal of the costs of resurvey of a township, and subsection (1) provides that in the case of the resurvey of a township or a portion of a township falling within the area of jurisdiction of a local authority, all costs of and incidental to the resurvey must (except in respect of State land) be borne by the local authority, but the local authority may, notwithstanding anything


contained in any other law, levy a special rate payable by the registered owners of land within the resurveyed area, in proportion to the value of the land (including any non-ratable land other than State land) of each such owner in order to cover the costs of the resurvey or any portion thereof. For the purpose of subsection (1) “the value of the land” means the valuation of the land as shown on the main valuation roll of the local authority concerned or, in the absence of the valuation, the valuation determined by the Minister after consultation with the local authority concerned.

(c) Section 23 deals with the approval of a new general plan.

(d) Section 24 provides that a new general plan supersedes erroneous diagrams.

(e) Section 25 states that a general plan which is filed in the Surveyor-General’s office or registered in the deeds registry may be altered or amended by the Surveyor-General for the purposes of rectifying errors.

3.1.7 Chapter 6: Beacons and Boundaries

Chapter 6 of the Land Survey Act deals with beacons and boundaries, and:

(a) Section 26 states that a beacon or boundary is deemed to be lawfully established when its position is in agreement -

(i) with the position adopted in a survey or resurvey carried out in terms of that Act, provided section 8 has been complied with in respect of the beacon or boundary;

(ii) with the position thereof adopted in a resurvey in terms of section 15 or 21 and when a general plan based on the resurvey has been approved; or

(iii) with an order of the court.(b) Section 27 deals with the removal of uncertainty in the description of a curvilinear boundary.

(c) Section 28 deals with land abutting on a river and when, if a river constitutes a boundary of any piece of land, the piece of land is not deemed to extend to the middle of the river.

(d) Section 29 provides for the manner and costs of erecting a beacon for survey purposes, while section 30 deals with the placing of erections or excavations near a trigonometrical station.

(e) Section 31 provides for the repair or re-erection of a beacon or a mark.

(f) Section 32 provides for offences relating to the altering, moving, disturbing, damaging or destruction of a beacon, a bench mark, a reference mark, a signal or a trigonometrical station and for the payment of compensation in respect thereof.

(g) Section 33 deals with the obtaining of authorisation for the removal or disturbance of a beacon or mark.


3.1.8 Chapter 7: General Plans and Diagrams

Chapter 7 of the Land Survey Act deals with general plans and diagrams, and:

(a) According to section 34, a general plan or diagram submitted for approval by the Surveyor-General must be prepared in accordance with the regulations, and the numerical and other data recorded thereon must be within the prescribed limits of consistency.

(b) Section 35 states that, subject to subsection (2), no general plan or diagram of a piece of land may be accepted in the deeds registry in connection with any registration therein of the land, unless the general plan or diagram has been approved by the Surveyor-General.

(c) According to section 36 a general plan or diagram must be prepared by or under the direction of and signed by a land surveyor before it can be approved by the Surveyor-General.

(d) Section 37 deals with the rectification of overlapping diagrams.

(e) Section 38 states that the Surveyor-General may approve a diagram which -

(i) has been compiled, without a resurvey, from two or more diagrams representing several pieces of land; and

(ii) has been prepared for the purpose of obtaining a consolidated title to the pieces of land.

(f) Section 39 provides that the Surveyor-General must notify the Registrar and the owner of a piece of land of an incorrect diagram.

(g) Section 40 deals with the correction of a registered diagram.

3.1.9 Chapter 8: Miscellaneous Provisions

Chapter 8 of the Land Survey Act deals with miscellaneous provisions, and:

(a) Section 41 deals with the powers of the Surveyor-General, persons generally or specially deputed in writing by him or her and land surveyors for the purpose of performing their functions.

(b) Section 42 states that that Act binds the State with respect to any land vesting in the State. For the purposes of that Act the Minister of Regional and Local Government, Housing and Rural Development has the power to exercise in respect of any land referred to in subsection (1) any power or right required or permitted to be exercised by the owner of land in terms of that Act.

(c) According to section 43 that Act does not apply to surveys for purposes of mines, railways and irrigation works.


(d) Section 44 provides that before any application is made to a court for an order affecting the performance of an act in the office of the Surveyor-General, the applicant must give notice in writing to the Surveyor-General at least 21 days before the hearing of the application and the Surveyor-General may submit to that court the report thereon as he or she considers desirable.

(e) Section 45 states that no person, including the State, is liable in respect of anything done or omitted in good faith and not attributable to negligence in the exercise or performance of a power or duty in terms of that Act.

(f) Section 46 provides that the laws specified in Schedule 2 are repealed and further contains transitional provisions.

3.2 Regulations made under the Land Survey Act

Government Notice 58 of 15 April 2002 contains Regulations Relating to the Manner in which Land Surveys shall be conducted under the Land Survey Act.



CHAPTER 12

Chapter 12 deals with legislation containing provisions relating to immovable property which belongs to regional councils and local authority councils, and also discusses the Decentralisation Enabling Act, 2000 (Act No. 33 of 2000).

1. THE REGIONAL COUNCILS ACT, 1992 (ACT NO. 22 OF 1992)

1.1 The Regional Councils Act, 1992 (Act No. 22 of 1992) (the “Regional Councils Act”):

(a) (i) Establishes regional councils in respect of regions;

(ii) provides for the election by regional councils of members of the National Council;

(iii) defines the rights, powers, duties and functions of such regional councils; and

(iv) provides for incidental matters.

(b) Came into operation on the 31st of August 1992.

(c) Has been amended by the Regional Councils Amendment Act, 1997 (Act No. 17 of 1997), the Regional Councils Amendment Act, 2000 (Act No. 30 of 2000), the Regional Councils Amendment Act, 2002 (Act No. 12 of 2002), the Regional Councils Amendment Act, 2010 (Act No. 12 of 2010) and the Second Regional Councils Amendment Act, 2010 (Act No. 16 of 2010).

1.2 Provisions of the Regional Councils Act

1.2.1 Section 2(1) of the Regional Councils Act establishes a regional council for every region specified in column 2 of Schedule 1, while subsection (2) deals with the boundaries of a region.

1.2.2 Section 5(5) (a) of the Regional Councils Act provides that the Registrar of Deeds must in the case of any asset referred to in subsection (4 )(b)(ii) consisting of immovable property which vests by virtue of that subparagraph in a regional council, upon production to him or her of the deed of any such immovable property, endorse the deed to the effect that the immovable property described therein vests in the regional council and must make the necessary entries in his or her registers, and thereupon the deed serves and avails for all purposes as proof of the title of the regional council. No transfer duty, stamp duty or any other fee or charge is payable in respect of any endorsement or entry referred to in paragraph (a)

IMMOVABLE PROPERTY BELONGING TO REGIONAL COUNCILS AND LOCAL AUTHORITY COUNCILS


1.2.3 Section 28 of the Regional Councils Act deals with the powers, duties, functions, rights and obligations of regional councils, and a regional council has, in addition to the powers conferred upon a regional council by Article 108 of the Namibian Constitution or any other provision of that Act, the power according to subsection (1):

(a) (a)(v), to undertake, with due regard to the powers, duties and functions of the National Planning Commission referred to in Article 129 of the Namibian Constitution and any other law relating to planning, the planning of the development of the region for which it has been established with a view to the general land utilisation pattern.

(b) (j)(i), with the approval in writing of the Minister of Local Government and Housing previously obtained in general or in every particular case and subject to such conditions, if any, as may be determined by the Minister, to acquire or hire, or hypothecate, let, sell or otherwise dispose of immovable property or any right in respect of immovable property.

(c) (nA), to determine, by notice in the Gazette, the charges, fees and other moneys payable in respect of any service rendered by the regional council in terms of that Act, or pursuant to the regulation and control of any matter under that Act.

(d) (o), to exercise any power assigned to regional councils by the laws governing communal land which vests in the Government of Namibia by virtue of Schedule 5 to the Namibian Constitution, or any other power so assigned by or in terms of any other law.

1.2.4 Section 31 deals with the declaration of certain areas in regions as settlement areas, and subsection:

(a) (2)(a) provides that if the area of any township or village management area established or purporting to have been established by or under any law on the establishment of townships or village management boards on communal land is, in terms of subsection (1), declared to be a settlement area, the assets used in relation to the township or village management area and all rights, liabilities and obligations connected with the assets vest in the regional council concerned to the extent and as from the date as may be determined by the Minister of Local Government and Housing.

(b) (2)(b) provides that the Registrar of Deeds must, in the case of any asset referred to in paragraph (a) consisting of immovable property which vests by virtue of that paragraph in a regional council, upon production to him or her of the deed of the immovable property, endorse the deed to the effect that the immovable property described therein vests in the regional council and must make the necessary entries in his or her registers, and thereupon the deed serves and avails for all purposes as proof of the title of the regional council.

(c) (2)(c) provides that no transfer duty, stamp duty or any other fee or charge is payable in respect of any endorsement or entry referred to in paragraph (b).

1.2.5 Section 33 of the Regional Councils Act deals with the funds of regional councils, and subsection (1)(b) provides that the funds of a regional council consist amongst others of the rates, charges, fees and other moneys levied and received by the regional council under any provision of that Act in respect of immovable property situated within a settlement area in its region and services rendered by it or the regulation and control of any matter in a settlement area.


2. THE LOCAL AUTHORITIES ACT, 1992 (ACT NO. 23 OF 1992)

The Local Authorities Act, 1992 (Act No. 23 of 1992) (the “Local Authorities Act”):

(a) provides amongst other for the establishment of local authority councils and defines the powers, duties and functions of local authority councils.


(c) Has been amended by the Registration of Deeds in Rehoboth Amendment Act, 1994 (Act No. 35 of 1994), the Local Authorities Amendment Act, 1997 (Act No. 3 of 1997), the Local Authorities Second Amendment Act, 1997 (Act No. 14 of 1997), the Local Authorities Amendment Act, 2000 (Act No. 24 of 2000), the Local Authorities Amendment Act, 2002 (Act No. 17 of 2002), the Electoral Amendment Act, 2003 (Act No. 7 of 2003), the Local Authorities Amendment Act, 2003 (Act No. 27 of 2003), the Local Authorities Amendment Act, 2004 (Act No. 14 of 2004), the Electoral Amendment Act, 2006 (Act No. 4 of 2006) and the Local Authorities Amendment Act, 2009 (Act No. 1 of 2009).

2.1 Provisions of the Local Authorities Act

2.1.1 Section 3 of the Local Authorities Act provides for the declaration of areas of local authorities as municipalities, towns or villages, and existing municipalities, and subsection:

(a) (3)(a) provides that if the area of any township or village management area established or purporting to have been established by or under any law on the establishment of townships or village management boards on communal land is, in terms of subsection (1), declared to be, or, in terms of subsection (5), deemed to have been declared to be, a municipality, town or village, the assets used in relation to the township or village management area and all rights, liabilities and obligations connected with the assets vest in the municipal council, town council or village council of the municipality, town or village, as the case may be, to the extent and as from the date as may be determined by the Minister responsible for Regional and Local Government and Housing.

(b) (3)(b) provides that the Registrar of Deeds must, in the case of any asset referred to in paragraph (a) consisting of immovable property which vests by virtue of that paragraph in a municipal council, town council or village council, upon production to him or her of the deed of any such immovable property, endorse the deed to the effect that the immovable property described therein vests in that municipal council, town council or village council and must make the necessary entries in his or her registers, and thereupon the deed serves and avails for all purposes as proof of the title of that municipal council, town council or village council.

2.1.2 Section 4 of the Local Authorities Act deals with the alteration of the declaration of local authorities, and according to subsection (3) the Registrar of Deeds must, in the case of any asset referred to in subsection (2)(b)(ii) consisting of immovable property which vests by virtue of that subsection in a local authority council, upon production to him or her of the deed of any such immovable property, endorse the deed to the effect that the immovable property described therein vests in that local authority council and must make the necessary entries in his or her registers, and thereupon the deed serves and avails for all purposes as


proof of the title of that local authority council. No transfer duty, stamp duty or any other fee or charge shall be payable in respect of any endorsement or entry referred to in paragraph (a).

2.1.3 Section 27 of the Local Authorities Act deals with the appointment of town clerks of municipal councils and town councils, village secretaries of village councils and other staff members of local authority councils, and subsection (1)(c)(iii)(aa) provides that, subject to that section and of any regulations made under section 94A(1)(d), a local authority council may from time to time on the conditions and against the security as it may deem fit, provide collateral security, including guarantees, to a financial institution in respect of a loan granted to its chief executive officer or other staff members by the financial institution, to enable the chief executive officer or other staff members to acquire, improve or enlarge immovable property for residential purposes.

2.1.4.1 Section 30 of the Local Authorities Act provides for the powers, duties and functions of local authority councils, and a local authority council has the power, subject to subsections (2) and (3), according to subsection:

(a) (1)(r), to construct, acquire and maintain railway sidings, including marshalling yards, in any industrial area or areas, and to recover the costs incurred in connection with the construction, acquisition and maintenance from the owners of immovable property connected or capable of being connected to, or using or capable of using, the railway sidings.

(b) (1)(t), subject to Part XIII, to buy, hire or otherwise acquire, with the prior approval of the Minister responsible for Regional and Local Government and Housing and subject to the conditions, if any, as may be determined by the Minister, any immovable property or any right in respect of immovable property for any purpose connected with the powers, duties or functions of the local authority council, or to so sell, let, hypothecate or otherwise dispose of or encumber any such immovable property.

(c) (1)(u), to determine by notice in the Gazette the charges, fees and other moneys payable in respect of any service, amenity or facility established and provided by it under this Act or any other law or any matter regulated and controlled by it thereunder, including charges for the provision of any service rendered by the local authority council in respect of immovable property, with or without improvements, being -

(i) an availability charge leviable in respect of immovable properties connected to or supplied with any such service as well as immovable properties not so connected or supplied but which can reasonably be so connected or supplied; or

(ii) a minimum charge leviable in respect of properties connected to or supplied with any such service, based on a minimum supply, whether or not such service is being utilised.

2.1.4.2 According to subsection (3) of section 30, a power referred to in paragraph (r) of that subsection, shall only be exercised by a town council or a village council, if the Minister responsible for Local Government and Housing has assigned the power to the village council or town council, by notice in the Gazette.

2.1.5 Section:

(a) 34 of the Local Authorities Act confers upon a local authority council certain powers regarding the construction of waterworks over immovable properties within the local authority area.


(b) 38, 39, 40, 41 and 43 of the Local Authorities Act confer upon a local authority council certain powers regarding the construction of sewerage and drainage works in respect of immovable properties within the local authority area.

(c) 48, 49 and 50 of the Local Authorities Act confer upon a local authority council certain powers regarding the construction of streets and public places.

(d) 52 and 54 of the Local Authorities Act confer upon a local authority council certain powers regarding the supply of electricity and gas in respect of immovable properties within the local authority area.

2.1.6 Part XIII of the Local Authorities Act deals with immovable property of local authority councils, and:

(a) Section 63 prescribes the circumstances in which the approval of the Minister responsible for Local Government and Housing for the selling, letting, disposal, hypothecation, encumbrance or acquisition of immovable property is not required.

(b) Section 64 provides for the powers of the Minister responsible for Local Government and Housing in relation to approval for the acquisition of immovable property by local authority councils.

(c) Section 65 deals with the acquisition of ownership of immovable property of local authority councils by prescription, and states that, notwithstanding the Prescription Act or any other law, no person may by prescription become the owner of any immovable property of a local authority council or of any right in the property.

2.1.7 Part XIV of the Local Authorities Act deals with the valuation of rateable property within local authority areas, and:

(a) Section 66 provides for, with the approval of the Minister responsible for Local Government and Housing, the valuation by local authority councils of rateable properties within local authority areas.

(b) Section 67 prescribes the appointment and the powers, duties and function of a valuer.

(c) Section 68(1) establishes a valuation court for the area of every local authority, and further provides for the constitution of the court, the appointment of assessors, the sessions and the decisions of the court.

(d) Section 69 provides for objections against a provisional valuation roll.

(e) Section 70 deals with the consideration of valuations contained in a valuation roll and objections lodged in relation to the valuations.

(f) Section 71 provides for appeals against the decision of valuation courts.

(h) Section 72(1) provides that the provisional valuation roll containing the valuations, as decreased or increased or otherwise amended by the valuation court, of all rateable property in the area of a local authority is the main valuation roll of the local authority for purposes of the determination of any rates on the rateable property in terms of Part XV, and that section further deals with the coming into operation of the main valuation roll; the inspection thereof and the making of extracts from the main valuation roll.


2.1.8 Part XV of the Local Authorities Act deals with rates on rateable property, and:

(a) Section 73 deals with rates levied on rateable property, to be known as a general rate, a site value rate, an improvement rate and a site and improvement rate, as the case may be.

(b) Section 74 provides for the levying of special rates in the case of certain deficits.

(c) Section 75 provides for exemption by a local authority council from rates levied on rateable property, while section 75A provides for the reduction of rates in respect of certain properties.

(d) Section 76 deals with the payment of rates levied under that Part.

(e) Section 76A authorises the levying of a penalty rate, in addition to any rate referred to in section 73(1), in certain circumstances.

(f) Section 77(1) provides that there must be levied for the benefit of the funds of regional councils an amount equal to five per cent of the rates levied under section 73 on all rateable property situated in local authority areas, while subsection (2) states that the amount referred to in subsection (1) must be collected by a local authority council situated in the region of the regional council concerned in the manner as may be determined by the Minister responsible for Local Government and Housing and paid over to the regional council on the date or dates as may be so determined.

(g) Section 78 deals with the transfer of rateable properties, and provides that, subject to section 89(4) of the Insolvency Act, 1936 (Act No. 24 of 1936), the Registrar of Deeds may not register a transfer of any immovable property situated within a local authority area unless there is produced to him or her, in the case of a registration of transfer in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), a conveyancer’s certificate or, in the case of a registration of transfer in terms of the Registration of Deeds in Rehoboth Act, 1976 (Act No. 93 of 1976), the document referred to in section 48 of the last mentioned Act, certifying -

(a) that all rates leviable in respect of the immovable property in terms of the Local Authorities Act and all the fees, charges and other moneys due to the local authority council in respect of any service, amenity or facility supplied to the property in terms of the Local Authorities Act, inclusive of any availability charge and minimum charge provided for in section 30(1)(u) has been paid; or

(b) that the immovable property is not contained in the main valuation roll, a provisional valuation roll or any other register held by the local authority council.

2.1.9 Section 79 of the Local Authorities Act deals with an alternative system of rating for town councils and village councils, and subsection (1) provides that, notwithstanding Parts XIV and XV, a town council or village council may levy and determine, with the prior approval of the Minister responsible for Local Government and Housing and in respect of the financial year or years as the Minister may determine, a rate on rateable property situated within its area upon a basis other than that of a valuation.


2.1.10 Section 90A of the Local Authorities Act provides for the power of a local authority council to authorise staff members to enter immovable property for the performance of certain work in connection with the inspection, maintenance, removal, replacement or renewal of any water main, stormwater drain or public sewer or any cables, wires or conduits forming part of the mains of a local authority council for conveying electricity or gas.

2.1.11 Section 94 of the Local Authorities Act authorises local authority councils to make regulations, after consultation with the Minister, by notice in the Gazette in relation to amongst others its powers, duties and functions.

2.1.12 Section 95 of the Local Authorities Act provides for the repeal of laws and contains savings, with regard to, amongst others, the Peri-Urban Development Board established by section 2 of the Peri-Urban Development Board Ordinance, 1970 (Ordinance No. 19 of 1970), until the date immediately before the date fixed in terms of Article 137(5) of the Namibian Constitution [Subsection (2)(a)]. Subsection (4)(a) provides that, for the purposes of subsection (2)(a), the Peri-Urban Development Board Ordinance, 1970, in relation to any powers, duties and functions conferred or imposed thereunder upon the Peri-Urban Development Board, so continue to be in force as if the Minister responsible for Local Government and Housing were the Peri-Urban Development Board until the date immediately before the date fixed in terms of Article 137(5) of the Namibian Constitution. Paragraph (b) of subsection (4) provides that, as from the date referred to in paragraph (a), the assets, liabilities, rights and obligations which vested in the Peri-Urban Development Board immediately before the date so fixed vest in the local authority council whose area consists of or includes a peri-urban area administered by the Peri-Urban Development Board which ceased to exist as from that date by virtue of the Local Authorities Act or in a regional council in whose region such area is situated or the State to the extent and as from the date as may from time to time be determined by the Minister. The Registrar of Deeds must, in the case of any asset referred to in subparagraph (i) of paragraph (b) consisting of immovable property which vests by virtue of that subparagraph in a local authority council, a regional council or the State, upon production to him or her of the deed of any such immovable property, endorse the deed to the effect that the immovable property described therein vests in the local authority council, regional council or the State and must make the necessary entries in his or her registers, and thereupon the deed serves and avails for all purposes as proof of the title of the local authority council or regional council or the State. No transfer duty, stamp duty or any other fee or charge is payable in respect of any endorsement or entry referred to in paragraph (c).

3. DECENTRALISATION ENABLING ACT, 2000 (ACT NO. 33 OF 2000)

3.1 The Decentralisation Enabling Act, 2000 (Act No. 33 of 2000) (the “Decentralisation Enabling Act”):

(a) Provides for and regulates the decentralisation (which per its definition includes the delegation or devolution of a function) to regional councils and local authority councils of functions vesting in Line Ministries and provides for incidental matters.

(b) Came into operation on the 5th of March 2001).


3.2 Provisions of the Decentralisation Enabling Act

3.2.1 Section 5 of the Decentralisation Enabling Act deals with the effect of the devolution of functions, and subsection (1) provides that, as soon as practicable after the date on which the devolution of a function under section 2 became of force and effect, the Minister responsible for regional and local government matters must determine, in writing and in consultation with the Minister responsible for the Line Ministry concerned, the vesting of ownership in, or the use by, as the case may be, the regional council or local authority council concerned, as the case may be, of -

(a) the immovable property, including erven and buildings, together with all the improvements on the immovable property, including purpose-made furniture; and

(b) the movable property, including furniture and equipment,

of which property, immediately prior to that date, the Line Ministry was the owner or had the use of, as the case may be, and which property was used in relation to or in connection with the function, and the Minister must issue a certificate containing particulars of the determination, including a description of the property concerned, the liabilities pertaining thereto and the conditions subject whereto the ownership of the property shall pass to, or the property may be used by, the regional council or local authority council concerned, as the case may be.

The Registrar of Deeds must without payment of transfer duty, stamp duty or any other duty, fee or charge and on production to him or her of the title deed pertaining to any immovable property referred to in subsection (1)(a) or (3), as the case may be, and the certificate issued in terms of the corresponding subsection, endorse the title deed to the effect that the immovable property described in the title deed and in the certificate concerned is vested in the regional council or local authority council concerned, and must make the necessary entries or endorsements in or on any relevant register or other document in his or her office.

3.2.2 Section 6 of the Decentralisation Enabling Act deals with the withdrawal of the devolution of functions, and subsection (4) provides that if the Minister has withdrawn the devolution of any function under subsection (1), the immovable property and all rights or obligations referred to in section 5(1) shall again vest in or be used by, as the case may be, the Line Ministry concerned. The Minister responsible for the Line Ministry concerned must identify the immovable property, rights or obligations referred to in subsection (4)(a), and issue separate certificates containing particulars of such staff members and of such immovable or movable property, rights or obligations, respectively [subsection (5)].

Subsection (6) states that the Registrar of Deeds must without payment of transfer duty, stamp duty or any other duty, fee or charge and on production to him or her of the title deeds relating to the immovable property referred to in subsection (4)(a) and the relevant certificate issued in terms of subsection (5), endorse the title deeds to the effect that the immovable property described therein vests in the Line Ministry concerned, and must make the necessary entries or endorsements in or on any relevant register or other document in his or her office.


CHAPTER 13

This chapter contains miscellaneous legislation relating to immovable property which does not resort under any one of the other 12 Chapters discussed above.

1. BIOSAFETY: THE BIOSAFETY ACT, 2006 (ACT NO. 7 OF 2006)

The Biosafety Act, 2006 (Act No. 7 of 2006) (the “Biosafety Act”);

(a) Provides for measures to regulate activities involving the research, development, production, marketing, transport, application and other uses of genetically modified organisms and specified products derived from genetically modified organisms.

(b) Has not yet been put into operation.

1.1 The Biosafety Act is relevant for land owners who want to use their property for research, development, production, marketing, transport, application and other uses of genetically modified organisms, because they have to comply with its provisions concerning the use of genetically modified organisms.

1.2 The Biosafety Act contains many references to “environment”, and “environment” is defined in section 1 thereof as the complex of natural and anthropogenic factors and elements that are mutually interrelated and affect the ecological equilibrium and the quality of life, and includes -

(a) the natural environment being land, water, air, all organic and inorganic material and all living organisms; and

(b) the human environment being the landscape and natural, cultural, historical, aesthetic, economic and social heritage and values.

1.3 Landowners must have regard to the provisions of the Biosafety Act which refer to or have a bearing on the environment, namely sections 2(a)(i) and (b); 3(c); 6(2)(a); 23(2)(b)(ii) and (v), (c)(i) and (3); 25(4)(a) and (6)(a) and (b); 26(g), (j) and (p); 31(1)(h); 33(4); 35(8); 40(1)(a); 41(1)(b) and 47(2) and (3).

MISCELLANEOUS LEGISLATION RELATING TO IMMOVABLE PROPERTY


2. COMMUNICATIONS: THE COMMUNICATIONS ACT, 2009 (ACT NO. 8 OF 2009)

2.1 The Communications Act, 2009 (Act No. 8 of 2009) (the “Communications Act”):

(a) (i) Provides for the regulation of telecommunications services and

networks, broadcasting, postal services and the use and allocation of radio spectrum.

(ii) Establishes an independent Communications Regulatory Authority of Namibia and makes provision for its powers and functions.

(b) Came into operation on the 18th of May 2011.

2.2 Provisions of the Communications Act

2.2.1 Section 60 of the Communications Act deals with the entry upon and construction of lines across any land, and provides that a carrier may, for the purposes of provision of telecommunications services, enter upon any land, including any street, road, footpath or land reserved for public purposes, and any railway, and construct and maintain a telecommunications facility upon, under, over, along or across any land, street, road, footpath or waterway or any railway, and alter or remove the same, and may for that purpose attach wires, stays or any other kind of support to any building or other structure.

2.2.2 Section 63 of the Communications Act deals with the removal of pipes and facilities, and subsection (1) provides that if a carrier finds it necessary to move any telecommunication facilities, pipes, tunnels or tubes constructed upon, in, over, along, across or under any land, railway, street, road, footpath or waterway, owing to any alteration of alignment or level or any other work on the part of any local authority or person, the cost of the alteration or removal must be borne by the local authority or person.

2.2.3 Section 64 of the Communications Act deals with fences, and if any fence erected or to be erected on land over which a telecommunications facility, pipe, tunnel or tube is constructed or is to be constructed by a carrier, renders or would render it impossible or inconvenient for the carrier to obtain access to the land, the carrier may at its own expense erect and maintain gates in the fence and must provide duplicate keys therefor, one of which must be handed to the owner or occupier of the land. Any person intending to erect the fence must give not less than six weeks’ notice in writing to the carrier of his or her intention.

2.2.4 Section 65 of the Communications Act deals with trees obstructing telecommunication facilities, and subsection (1) provides that if in the opinion of a carrier, any tree or vegetation obstructs or interferes with or is likely to obstruct or interfere with the working or maintenance of any telecommunications facility, pipe, tunnel or tube, whether or not the tree or vegetation is on state land or land belonging to a local authority or other public body it may issue a notice in terms of subsection (2). A notice issued under the circumstances referred to in subsection (1) must instruct the owner or occupier of the land to cut down or trim the tree or vegetation specified in the notice in the indicated manner.


2.2.5 Section 66 of the Communications Act provides that:

(a) Aerial telecommunication wires or cables along any railway or public or private street, road, footpath or land must be at the prescribed height above the surface of the ground.

(b) Underground telecommunication facilities, pipes, tunnels and tubes must be placed by a carrier at the prescribed depth below the surface of the ground.

2.2.6 Section 128 of the Communications Act deals with expropriation, and subsection (1) states that, notwithstanding anything to the contrary contained in any law -

(a) the holder of a telecommunications licence to which Part 5 of Chapter V applies; and

(b) the holder of a broadcasting licence [except the Namibian Broadcasting Corporation established by section 2 of the Namibian Broadcasting Act, 1991 (Act No. 9 of 1991)],

may, with the approval of the Cabinet and subject to the conditions as the Cabinet may impose, by expropriation acquire any land or any right in, over or in respect of land as the licensee may require, in the public interest, that is necessary for the rendering of telecommunications or broadcasting services and to which Part 5 does not apply. The rest of the section deals with the circumstances under which the Cabinet may grant approval, the holding of a public hearing and the determination of compensation. Nothing in section 128 affects the powers of the Namibian Broadcasting Corporation to expropriate land referred to in section 23 of the Namibian Broadcasting Act, 1991.

3. ELECTRICITY: THE ELECTRICITY ACT, 2007 (ACT NO. 4 OF 2007)

3.1 The Electricity Act, 2007 (Act No. 4 of 2007) (the “Electricity Act”):

(a) (i) Establishes the Electricity Control Board and provides for its powers and functions, and its main object is to ensure the efficient provision of electricity.

(ii) Also provides for the requirements and conditions for obtaining licenses for the provision of electricity and the powers and obligations of licensees.


3.2 Provisions of the Electricity Act

3.2.1 Section 24 of the Electricity Act deals with conditions of a licence, and subsection (2)(b) provides that, without derogating from the generality of the power conferred by subsection (1), conditions prescribed or imposed under that subsection may include provisions relating to the obligations of the licensee, upon cessation of the activities carried on under the licence concerned, with regard to the destruction, dismantling or removal of any buildings, walls, installations, equipment, structures, waste dumps or other facilities erected or used for purposes of, or in connection with, those activities, whether on the premises of the licensee or elsewhere, and the restoration of any land disturbed by the activities.


3.2.2 Section 35 of the Electricity Act deals with expropriation, and subsection (1) provides that, despite any law to the contrary, a licensee may, with the approval of the Cabinet and subject to the conditions as the Cabinet may impose, by expropriation acquire any land or any right in, over or in respect of land as the licensee may require, in the public interest, for any purpose associated with the provision of electricity by the licensee. The Cabinet may only grant approval if the Cabinet is satisfied, after considering a report by the Board -

(a) that the licensee has been unable to acquire the land or right concerned on reasonable terms, other than terms relating to compensation, by agreement with the owner;

(b) that the land or right concerned is reasonably required by the licensee for the purposes of the undertaking carried on by the licensee; and

(c) that it is in the public interest that the land or right be acquired by the licensee.

The Board is responsible for organising the whole procedure of verifying whether or not the conditions mentioned are fulfilled. For these purposes the Board has to hold a public hearing to receive evidence and collect information relevant to those matters; and must give at least 14 days’ written notice of the hearing to the licensee and to the owner concerned. Provision is also made that the owner may at a hearing raise any objection against the expropriation. For the determination of the compensation payable, neither Cabinet nor the Board are responsible, and in the event of the licensee and owner failing to reach agreement as to compensation, the compensation payable must be determined in accordance with the Expropriation Ordinance.

3.2.3 Section 36 of the Electricity Act deals with the provision of electricity by regional councils and local authority councils, and according to subsection (9), the power of a local authority council to enter immovable property or private land in terms of sections 90A and 91 of the Local Authorities Act for the performance of a function relating to electricity applies only -

(a) in so far as the relevant local authority council has control over the provision of electricity within the local authority area concerned; or

(b) if authorisation to so enter has been given to the local authority council concerned by the person so in control in terms of the Electricity Act or any other applicable law.

3.2.4 Section 38 of the Electricity Act prescribes a licensee’s powers of inspection, work and entry, and subsection (2) provides that if any cables, wires or conduits and any civil or mechanical structures (including enclosures, poles, isolators, foundations and fences) forming part of the mains of a licensee for providing electricity, are placed or installed on or are laid on or across any immovable property, whether underground or overhead, the licensee concerned may authorise -

(a) any staff member of the licensee; or

(b) any other person,

to enter the immovable property for the purpose of performing any work in connection with the inspection, maintenance, removal, replacement or renewal of any of the works or accessories thereof.


3.2.5 According to section 39 of the Electricity Act any powerlines, meters, fittings, works or apparatus belonging to a licensee and lawfully placed or installed in or upon any premises, whether or not fixed to any part of the premises -

(a) remain the property of and may be removed by the licensee;

(b) are not subject to the landlord’s hypothec for rent of the premises; and

(c) are not liable to be taken in execution under any process of law or any proceedings in insolvency or liquidation against the owner or occupier of the premises, provided that it is reasonably clear that the licensee is the owner of the powerlines, meters, fittings, works or apparatus.

4. ENVIRONMENT: THE ENVIRONMENTAL MANAGEMENT ACT, 2007 (ACT NO. 7 OF 2007)

The Environmental Management Act, 2007 (Act No. 7 of 2007) (the “Environmental Management Act”):

(a) (i) Promotes the sustainable management of the environment and the use of natural resources by establishing principles for decision making on matters affecting the environment.

(ii) Establishes the Sustainable Development Advisory Council.

(iii) Provides for the appointment of the Environmental Commissioner and environmental officers.

(iv) Provides for a process of assessment and control of activities which may have significant effects on the environment and provides for incidental matters.

(b) Came into operation on the 6th of February 2012.

4.1 The Environmental Management Act is relevant for people who want to use land for purposes referred to therein.

4.2 The Environmental Management Act contains many references to “environment”, and “environment” is defined in section 1 thereof as 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.

4.3 Landowners must have regard to the provisions of the Environmental Management Act which refer to or have a bearing on the environment, especially if someone plans to undertake a listed activity in respect of land, and is required to prepare an environmental plan and obtain an environmental clearance certificate.


4.4 Section 27 of the Environmental Management Act deals with the listing of activities, and subsection (1) provides that the Minister responsible for environment, after following the consultative process referred to in section 44, may list, by notice in the Gazette, activities which may not be undertaken without an environmental clearance certificate. According to subsection (2), the activities listed under subsection (1) may include activities in respect of land use and transformation. Despite any other law to the contrary, a person may not undertake a listed activity, unless the person is a holder of an environmental clearance certificate in relation to the activity [subsection (3)].

5. EXECUTION OF IMMOVABLE PROPERTY: THE AMENDMENT OF EXECUTION (MORTGAGED PROPERTIES) PROCLAMATION, 1933 (PROCLAMATION NO. 6 OF 1933)

5.1 The Amendment of Execution (Mortgaged Properties) Proclamation, 1933 (Proclamation No. 6 of 1933) (the “Mortgaged Properties Amendment of Execution Proclamation”):

(a) Amends, in the view of the prevailing financial depression of that time, the law relating to the execution of judgments in respect of immovable property so as to come to the assistance of mortgage debtors.

(b) Appears to have come into operation on the 1st of March 1933.

5.2 Provisions of the Mortgaged Properties Amendment of Execution Proclamation

5.2.1 Section 1 of the Mortgaged Properties Amendment of Execution Proclamation deals with the suspension of the execution of judgment, and subsection (1) provides that, notwithstanding anything to the contrary in any law contained, when judgment has been granted on a mortgage bond by any Court of competent jurisdiction, the Court may, on application by the mortgagor and after hearing the mortgagee, suspend execution of the judgment for a period not exceeding six months, upon the terms for the protection of the rights and for the security of the mortgagee as may seem just and reasonable to the Court; provided the mortgagor satisfies the Court -

(a) that, before issue of summons, he or she had paid all interest due in respect of the mortgage debt, and all Fire Insurance premiums payable on any Fire Insurance Policy ceded to or held by the mortgagee in terms of the mortgage bond, and all rates, taxes or Government, Municipal or other charges due in respect of the property mortgaged under the mortgage bond;

(b) that his or her assets fairly valued exceed his or her liabilities fairly assessed.

Provision is further made for the extension of the period of suspension of execution of the judgement, as well as for the variation or cancellation of an order of suspension.

5.2.2 According to section 2 of the Mortgaged Properties Amendment of Execution Proclamation any order made by a magistrate’s court in terms of that Proclamation is subject to appeal in the same way as if the order had been made under the powers conferred upon the Court by the Magistrate’s Courts Act, 1944 (Act No. 32 of 1944).


5.3 Applicability of the Mortgaged Properties Amendment of Execution Proclamation

Although the Mortgaged Properties Amendment of Execution Proclamation is still in force in Namibia, it is an open question, due to the fact that it was promulgated as a result of the prevailing financial depression at the time when it was promulgated, whether it can or should still be enforced.

6. EXTRADITION: THE EXTRADITION ACT, 1996 (ACT NO. 11 OF 1996)

6.1 The Extradition Act, 1996 (Act No. 11 of 1996) (the “Extradition Act”):

(a) Provides for the extradition of persons accused or convicted of certain crimes committed within the jurisdictions of certain countries and provides for incidental matters.


6.2 Provisions of the Extradition Act

Section 23 of the Extradition Act deals with the handing over of property, and subject to any other law and the rights of third parties under common law, any property found in Namibia that is duly proved to have been acquired as a result of the offence for which the return of a person has been granted under that Act or that may be required as evidence may, if the requesting country concerned so indicates and at that country’s expense, be transferred thereto under an order issued by a magistrate. The magistrate may issue the order for the surrender of property in terms of subsection (1) notwithstanding the fact that the return in question cannot be carried out by reason of the death or escape of the person to be returned.

(“Property” is not defined in the Extradition Act, but it would include immovable property.)

7. FENCING OF IMMOVABLE PROPERTY: THE FENCING PROCLAMATION, 1921 (PROCLAMATION NO. 57 OF 1921)

7.1 The Fencing Proclamation, 1921 (Proclamation No. 57 of 1921) (the “Fencing Proclamation”):

(a) Regulates the erection and maintenance of dividing fences between adjoining properties, including jackal-proof fences.

(b) Appears to have come into operation on the 1st of February 1922.

(c) Consists of a Preliminary Provision and four Chapters.

(d) Has been amended by the Fencing Amendment Proclamation, 1923 (Proclamation No. 13 of 1923), the Fencing Amendment Proclamation, 1925 (Proclamation No. 18 of 1925), the Fencing Amendment Proclamation, 1925 (Proclamation No. 28 of 1925), the Fencing Law Amendment Ordinance, 1928 (Ordinance No. 4 of 1928), the Fencing Proclamation Amendment Ordinance, 1952 (Ordinance No. 44 of 1952), the Fencing Proclamation Amendment Ordinance, 1955 (Ordinance No. 21 of 1955), the Fencing


Proclamation Amendment Ordinance, 1957 (Ordinance No. 6 of 1957), the Fencing Proclamation Amendment Ordinance, 1958 (Ordinance No. 6 of 1958), the Animal Diseases and Parasites Ordinance, 1958 (Ordinance No. 14 of 1958), the Fencing Proclamation Amendment Ordinance, 1959 (Ordinance No. 28 of 1959), the Fencing Proclamation Amendment Ordinance, 1963 (Ordinance No. 23 of 1963), and the Fencing Proclamation Amendment Ordinance, 1965 (Ordinance No. 26 of 1965).

7.2 Provisions of the Fencing Proclamation

7.2.1 Section 1 of the Fencing Proclamation states that so much of any law as is repugnant to or inconsistent with that Proclamation is repealed.

7.2.2 Section 2 of the Fencing Proclamation contains the definitions.

(a) “Dividing fence” is defined in section 2 as, in relation to a holding, a fence erected on or as near as possible to any boundary thereof and separating that holding from another holding, including any necessary gate in the fence and having not less than the strands, straining-posts and droppers mentioned therein.

(b) “Holding” is defined in section 2 to mean -

(i) any area of land held by any person under separate grant, deed of transfer or certificate of title, or under separate paragraph of any grant, deed of transfer or certificate of title;

(ii) any area of land held under lease or allotment from the President, with an option to purchase the area, provided the instrument of lease or allotment is registered in the Deeds Registry.

(According to the definition of “holding” it would appear that the Fencing Proclamation does not apply to communal land.)

7.2.3 Chapter 1 of the Fencing Proclamation consists of sections 4, 5, 6, 7 and 8, which deal mainly with the contributions of costs towards the erection of fences.

7.2.3.1 Section 4 of the Fencing Proclamation deals with the case where an owner has under that Proclamation or any other law or otherwise lawfully, erected a dividing fence on the boundary lines of his or her holding in an area in which contributions towards the costs thereof are not obligatory, and the owner of an adjoining holding has adopted means whereby the fence is rendered of beneficial use to the last-mentioned owner. In such a case either owner may, in default of agreement, demand that an assessment be made of the value to each owner of the fence, regard being had to the extent to which and the time at which the beneficial use is being or has been made. The value must be determined as a dispute in accordance with the Second Schedule to the Proclamation, and thereupon it is obligatory upon the owner who has made beneficial use of the fence to contribute towards the costs of the fence in accordance with the assessment.

7.2.3.2 According to section 5(1), contributions towards the cost of a dividing fence are obligatory in any area in which the contributions are declared obligatory by the President by notice in the Gazette and contributions when so declared obligatory in any area must be made as from a date to be determined by the notice.


7.2.4 Chapter 2 of the Fencing Proclamation (sections 9 to 17) has been deleted by the Animal Diseases and Parasites Ordinance, 1958 (Ordinance No. 14 of 1958).

7.2.5 Chapter 3 of the Fencing Proclamation consists of sections 18 to 23, inclusive, which deal with offences and penalties.

7.2.6 Chapter 4 of the Fencing Proclamation consists of sections 24 to 42 inclusive, which contain general and miscellaneous provisions.

According to section 24(1) an owner has the right to fence his or her holding or to contribute towards the costs of erecting a dividing fence between the holding and any adjoining holding notwithstanding that the first-mentioned holding is subject to a servitude of grazing or a servitude of watering livestock thereon in favour of any other owner or person whomsoever, provided that the first-mentioned owner must through suitable and sufficient gates allow reasonable means of access and exit to the livestock of the servitude holder. In default of agreement between the owner and the servitude holder as to the suitability or sufficiency of the gates, either of them may claim that the matter be determined as a dispute in accordance with the Second Schedule to the Proclamation. The holder of a servitude of grazing referred to in subsection (1) is liable to pay to the owner of the holding a fair share of the costs of erection, maintenance and repair of the fence proportionate to his or her interest in the grazing rights over the holding, and in default of agreement between the owner and the servitude holder as to their respective shares in the grazing rights either of them may claim that the matter be determined as a dispute in accordance with the Second Schedule to the Proclamation [subsection (2)].

8. GAME, NATURE CONSERVATION AND TOURISM

8.1 THE NATURE CONSERVATION ORDINANCE, 1975 (ORDINANCE NO. 4 OF 1975)

8.1.1 The Nature Conservation Ordinance, 1975 (Ordinance No. 4 of 1975) (the “Nature Conservation Ordinance”):

(a) Consolidates and amends the laws relating to the conservation of nature, the establishment of game parks and nature reserves, the control of problem animals and provides for matters incidental thereto.

(b) Came into operation on the 20th of June 1975.

(c) Has been amended by the Nature Conservation Amendment Ordinance, 1977 (Ordinance No. 4 of 1977), the Nature Conservation Amendment Ordinance, 1980 (Ordinance No. 16 of 1980), the Nature Conservation Amendment Act, 1986 (Act No. 27 of 1986), the Nature Conservation Amendment Act, 1988 (Act No. 6 of 1988), the Second Nature Conservation Amendment Act, 1988 (Act No. 17 of 1988), the Nature Conservation Amendment Act, 1990 (Act No. 31 of 1990), the Nature Conservation Amendment Act, 1996 (Act No. 5 of 1996) and the Inland Fisheries Resources Act, 2003 (Act No. 1 of 2003).

8.1.2 Provisions of the Nature Conservation Ordinance

The Nature Conservation Ordinance contains provisions which relate or refer to game parks, nature reserves, private game parks, private nature reserves, conservancies and wildlife councils, as well as to hunting on land, fishing in a game park or nature reserve and the collection of indigenous plants.


8.1.2.1 Chapter II of the Nature Conservation Ordinance deals with the declaration of game parks, nature reserves, private game parks, private nature reserves and conservancies, as well as the amendment of the boundaries thereof (except the Etosha National Park) and the withdrawal of any such declaration. Game parks and nature reserves may be declared in respect of any area, private game parks and private nature reserves may be declared in respect of private land and conservancies may be declared in respect of an area inhabited by a group of persons residing on communal land. Provision is also made for the establishment of wildlife councils, after consultation with a community residing on communal land, for the area or any part thereof, in which the community resides, but no such area may include any conservancy, any land subject to any lease, or any proclaimed game park or nature reserve.

8.1.2.2 Section 78 of the Nature Conservation Ordinance provides for general powers of the Minister of Environment and Tourism, and the Minister may, according to paragraph (a) thereof, provide for the acquisition or lease of movable or immovable property, servitudes or other rights thereon, for -

(a) the establishment, erection, extension or improvement of game parks, fisheries and nurseries;

(b) the preservation of nature or any part of nature.

[It is noted that nature reserves are not mentioned in subparagraph (i)].

It is however not said how the Minister of Environment and Tourism may provide for the acquisition of immovable property contemplated in paragraph (a), for example whether the Minister may expropriate any land or not.

8.1.2.3 Section 84(1) of the Nature Conservation Ordinance provides that the Minister of Environment and Tourism may make regulations in relation to the matters mentioned in paragraphs (a) to (y) thereof.

8.2 THE NAMIBIA WILDLIFE RESORTS COMPANY ACT, 1998 (ACT NO. 3 OF 1998)

8.2.1 The Namibia Wildlife Resorts Company Act, 1998 (Act No 3 of 1998) (the “Wildlife Resorts Company Act”):

(a) Establishes a company to be known as Namibia Wildlife Resorts Limited; provides for its powers, duties and functions; provides for the transfer of the wildlife resorts enterprise of the State to the Company and the transfer of staff members to the Company and provides for incidental matters.

(b) Came into operation on the 9th of March 1998.

8.2.2 Provisions of the Namibia Wildlife Resorts Company Act

Section 8 of the Wildlife Resorts Company Act deals with the transfer of the wildlife resorts enterprise and according to subsection (1)(b) the Minister of Environment and Tourism must by agreement with the Wildlife Resorts Company, and on a date determined by the Minister, transfer in ownership or make available under agreement of lease to the Company, as the Minister with the concurrence of the Minister of Finance may decide, any State land which before that date was being used for or in connection with the conduct of the wildlife resorts enterprise. Except in the case of State land made available to the Company under an agreement of lease as


contemplated in subsection (1)(b), the Company is, with effect from the transfer date, vested with the ownership of the assets and rights and is charged with the liabilities and obligations transferred or assigned to it by virtue of subsection (1). A certificate issued by the Minister in which it is stated that any State land or a servitude or other real right or lease or any other asset or right described in the certificate has been transferred to the Company in terms of subsection (1) is sufficient proof that the asset or right so described vests in the Company. Upon the submission of a certificate referred to in subsection (4) to the Registrar of Deeds or to any other person in charge of any other office where a register or record is being kept of the ownership of or entitlement to an asset or right described in the certificate, the Registrar or the person, as the case may be, must make the entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer in the name of the Company. Notwithstanding any provision to the contrary in any other law, no stamp duties, transfer duties or registering fees payable in terms of any law for the acquisition or transfer of assets or rights is payable in respect of -

(a) the transfer of assets or rights by the State to the Company in terms of subsection (1); or

(b) the transfer of assets or rights by the Company to any of its subsidiaries in terms of section 7(2)(d).

8.3 THE NAMIBIA TOURISM BOARD ACT, 2000 (ACT NO. 21 OF 2000)

8.3.1 The Namibia Tourism Board Act, 2000 (Act No. 21 of 2000) (the “Namibia Tourism Board Act”):

(a) Establishes the Namibia Tourism Board and provides for its functions; provides for the registration and grading of accommodation establishments; provides for the declaration of any sector of the tourism industry as a regulated sector and for the registration of businesses falling within a regulated sector and provides for matters incidental thereto.


(c) Has been amended by the State-owned Enterprises Governance Act, 2006 (Act No. 2 of 2006).

8.3.2 Provisions of the Namibia Tourism Board Act

Section 31 of the Namibia Tourism Board Act contains transitional provisions and according to subsection (1) the Minister responsible for tourism must in consultation with the Namibia Tourism Board, and on a date determined by the Minister -

(a) transfer in ownership or make available under an agreement of lease to the Board, as the Minister with the concurrence of the Minister of Finance may decide, any State land which immediately before the commencement of that Act was being used by or for the purpose of the Subdivision Tourism Promotion of the Ministry; and

(b) transfer and assign to the Board the other assets and the liabilities, rights and obligations of the State which relate to or are connected with the functions performed by the Subdivision Tourism Promotion of the Ministry as the Minister may determine.


Except in the case of State land made available to the Board under an agreement of lease as contemplated in subsection (1)(a), the Board is, with effect from the transfer date, vested with the ownership of the assets and rights and charged with the liabilities and obligations transferred or assigned to it by virtue of subsection (1). Upon the submission of a certificate referred to in subsection (4) to the Registrar of Deeds or to any other person in charge of any other office where a register or record is being kept of the ownership of or entitlement to an asset or right described in the certificate, the Registrar or the other person, as the case may be, must make the entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer in the name of the Board. Notwithstanding any other law, the Board is exempt from the payment of any stamp duty, transfer duty or registration fees payable in terms of any law in relation to the transfer to the Board of assets or rights in terms of subsection (1).

9. GENDER: THE MARRIED PERSONS EQUALITY ACT, 1996 (ACT NO. 1 OF 1996)

9.1 The Married Persons Equality Act, 1996 (Act No. 1 of 1996) (the “Married Persons Equality Act”):

(a) Abolishes marital power; amends the matrimonial property law of marriages in community of property; provides for domicile of married women; provides for domicile and guardianship of minor children; further regulates the liability for household necessaries of spouses married out of community of property; amends certain laws to give effect to the abolition of marital power; and provides for matters incidental thereto.

(b) Came into operation on the 1st of June 1996.

(c) Has been amended by the Banking Institutions Act, 1998 (Act No. 2 of 1998), the Defence Act, 2002 (Act No. 1 of 2002) and the Companies Act, 2004 (Act No. 28 of 2004).

9.2 Provisions of the Married Persons Equality Act

9.2.1 Section 2 of the Married Persons Equality Act deals with the abolition of marital power, and subsection (1) provides that, subject to that Act with regard to the administration of a joint estate -

(a) the common law rule in terms of which a husband acquires marital power over the person and property of his wife is repealed; and

(b) marital power which any husband had over the person and property of his wife immediately before the commencement of that Act, is abolished.

According to subsection (2), the abolition of the marital power by paragraph (b) of subsection (1) does not affect the legal consequences of any act done or omission or fact existing before the abolition.

9.2.2 Section 3 of the Married Persons Equality Act deals with the effect of abolition of marital power, and paragraph (a)(i) provides that, subject to that Act, the effect of section 2(1) is to remove the restrictions which the marital power places on the legal capacity of a wife to contract and litigate, including, but not limited to, the restrictions on her capacity to register immovable property in her name.


9.2.3 Section 7 of the Married Persons Equality Act deals with acts which require the other spouse’s consent, and subsection (1)(a), (b) and (g) provides that, except in so far as permitted by subsection (4) and (5), and subject to sections 10 and 11, a spouse married in community of property may not without the consent of the other spouse -

(a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;

(b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate;

(c) as a purchaser enter into a contract as defined in the Sale of Land on Instalments Act, 1971 (Act No. 72 of 1971), and to which the provisions of that Act apply.

According to subsection (2), the consent required under subsection (1) for the performance of an act contemplated in subsection (1) may be given either orally or in writing, but the consent required for the performance of any such act which entails the registration, execution, or attestation of a deed or other document in a deeds registry, must, in respect of each separate performance of the act, be given in writing only.

10. HOUSING

10.1 HOUSING LEVY ORDINANCE, 1976 (ORDINANCE NO. 18 OF 1976)

The Housing Levy Ordinance, 1976 (Ordinance No. 18 of 1976) (the “Housing Levy Ordinance”):

(a) Provides for the payment of levies to local authorities in respect of adult employees residing in declared housing areas, regulates the utilisation of moneys paid to local authorities in respect of the levies and provides for matters incidental thereto.


10.1.1 Provisions of the Housing Levy Ordinance

10.1.1.1 Section 2 of the Housing Levy Ordinance deals with declared housing areas. The President may at his or her discretion declare the whole or any part of the area under the jurisdiction of a local authority to be a declared housing area and must cause the declaration and a definition of the area so declared as a housing area to be promulgated by notice in the Gazette. Different parts of the area under the jurisdiction of the same local authority area may be declared to be different declared housing areas. Provision is also made for the withdrawal of any declaration or the amendment of any definition of an area so declared.

(According to the actual wording of the Housing Levy Ordinance the powers contemplated in that Ordinance vest in the Executive Committee [constituted under section 4 of the South West Africa Constitution Act, 1968 (Act No. 39 of 1968)]. As a result of various pieces of transfer legislation which are not now relevant, those powers had vested in the Administrator-General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference in laws in force in Namibia to the Administrator-General must be construed as a


reference to the President of Namibia. If the provisions of the Housing Levy Ordinance had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in that Ordinance would vest in the Minister responsible for roads. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act.)

10.1.1.2 Section 3 of the Housing Levy Ordinance provides for the payment by the employer of every designated employee of a levy to the local authority concerned for every day on which the employer employs the designated employee or allows the designated employee to work for the employer. The levy must be paid into a fund to be established by the local authority in terms of section 5. (A designated employee is defined as an employee who has reached the age of 18 years and who resides in a declared housing area.) A local authority which employs any designated employee or allows the designated employee to work for it must also pay the levy concerned. The levy is not payable in respect of any designated employee whose employer provides the employee with accommodation approved by the local authority concerned or in respect of any other category of designated employees in respect of which the President has granted exemption from payment of the levy.

10.1.1.3 Section 4 of the Housing Levy Ordinance prohibits the reduction of wages. An employer or a local authority may not reduce or deduct any amount from the salary, wages or allowances of a designated employee, or terminate or terminate the employment of a designated employee by reason of the fact that the employer or local authority is required to pay a levy in respect of the designated employee.

10.1.1.4 Section 5 of the Housing Levy Ordinance provides for the establishment by a local authority concerned of a Housing Levy Fund.

10.1.1.5 Section 6 of the Housing Levy Ordinance deals with the utilisation of moneys in a Housing Levy Fund, while section 7 provides for the appointment of inspectors who may exercise the powers and perform the functions and duties as may be prescribed.

10.1.2 Regulations made under the Housing Levy Ordinance

Section 8 of the Housing Levy Ordinance provides that the President may make regulations in relation to any matter contemplated therein. I could however not find any regulations which have been made under section 8.

10.1.3 Applicability of Housing Levy Ordinance

Although the Housing Levy Ordinance appears to be still applicable in Namibia it is an open question whether it will still be enforced.

10.2 THE RENTS ORDINANCE, 1977 (ORDINANCE NO. 13 OF 1977)

The Rents Ordinance, 1977 (Ordinance No. 13 of 1977) (the “Rents Ordinance”):

(a) Consolidates and amends the laws on the control of rent payable in respect of leased dwellings and the periods of notice with which lessors of business premises and dwellings must comply.



(c) Has been amended by the Rents Amendment Ordinance, 1980 (Ordinance No. 4 of 1980), and the Married Persons Equality Act. Section 33 of the Married Persons Equality Act amends the definition of “lessee” in section 1 of the Rents Ordinance in order to also include the widower or widow of a lessee in certain circumstances.

10.2.1 Provisions of the Rents Ordinance

10.2.1.1.1 Section 2 of the Rents Ordinance deals with the establishment of rent boards.

(According to the actual wording of the Rents Ordinance the powers contemplated in that Ordinance vest in the Executive Committee [constituted under section 4 of the South West Africa Constitution Act, 1968 (Act No. 39 of 1968)]. As a result of various pieces of transfer legislation which are not now relevant, those powers had vested in the Administrator-General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference in laws in force in Namibia to the Administrator-General must be construed as a reference to the President of Namibia. If the provisions of the Rents Ordinance had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in that Ordinance would vest in the Minister responsible for roads. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act.)

10.2.1.1.2 The President must establish as many rent boards as he or she may deem necessary, and notice must be given in the Gazette of the establishment of each rent board and the area for which it is established.

10.2.1.2 Section 10 of the Rents Ordinance provides for the functions, powers and duties of rent boards.

10.2.1.3 Section 36 of the Rents Ordinance deals with exemptions, and according to subsection (1), the President may from time to time and with effect from a date determined by him or her, exempt any kind or class of dwelling or business premises from the provisions of that Ordinance.

10.2.2 Regulations made under the Rents Ordinance

Section 38 of the Rents Ordinance provides that the President may make regulations in relation to any matter contemplated therein. Regulations made by the then Executive Committee have been promulgated by Government Notice No. 10 of 3 January 1978.

10.2.3 Applicability of the Rents Ordinance

Although the Rents Ordinance appears to be still applicable in Namibia it is an open question whether it will still be enforced. According to NAMLEX that Ordinance lost power after 1991, when all rent boards ceased to function.


10.3 THE SQUATTERS PROCLAMATION, 1985 (PROCLAMATION NO. AG 21 OF 1985)

The Squatters Proclamation, 1985 (Proclamation No. AG 21 of 1985) (the “Squatters Proclamation”):

(a) Provides for the removal of persons unlawfully present on land or in buildings, and for the demolition of structures which are unlawfully erected.

(b) Came into operation on the 30th of May 1985, except sections 1, 5, 8, 14, 15, 16 and 17 which apply in such area, to such extent and with effect from such date as determined by Proclamation No. AG 28 of 1986.

10.3.1 Provisions of the Squatters Proclamation

10.3.1.1 Section 2 of the Squatters Proclamation deals with the prohibition of the unlawful presence of persons on or in any land, building or structure, and provides for the removal of the persons and buildings or structures erected by or for the persons.

10.3.1.2 Section 3 of the Squatters Proclamation prohibits the erection or occupation of buildings without the necessary approval and provides for the demolition and removal of buildings or structures so erected. This section is aimed at the owners or lessees of land or persons exercising control over the land with the consent of the owner, who contravenes section 3.

10.3.1.3 Section 4 of the Squatters Proclamation deals with the demolition and removal of buildings or structures erected without the consent of the owner of land or contrary to legal requirements, and provides in subsection (1) that, notwithstanding anything to the contrary in any law contained and without the authority of an order of court or prior notice of whatever nature to any person -

(a) the owner of land may demolish and remove together with its contents any building or structure intended for human habitation or occupied by human beings which has been erected or is occupied without his or her consent on the land;

(b) any building or structure intended for human habitation or occupied by human beings which has been erected on land within the area of jurisdiction of any local authority, without the prior approval of that or any former local authority of any plan or description of the building or structure required by law, may at the expense of the owner of the land be demolished and removed together with its contents by the local authority or the Permanent Secretary responsible for health or any staff member employed in his or her ministry and authorised thereto by him or her.

Subsection (3) states that unless a person first satisfies the Court on a preponderance of probabilities -

(a) that the person is lawfully entitled to occupy the land on which any building or structure has been erected; and

(b) in the case of any person whose right of occupation is based on the consent of any person other than the owner of the land, that the other person is lawfully entitled to allow other persons to occupy the land,


the first-mentioned person does not have recourse to any court of law in any civil proceedings founded on the demolishing or removal or intended demolishing or removal of the building or structure under that section and it is not competent for any court of law to grant any relief in any such proceedings to the last-mentioned person.

10.3.1.4 Section 5 of the Squatters Proclamation prohibits the residence or employing of a person unless proper accommodation is available.

10.3.1.5 Section 8 of the Squatters Proclamation provides for the erection of an emergency camp by a local authority for the purpose of the accommodation of homeless persons.

10.3.2 Case law relating to the Squatters Proclamation

10.3.2.1 The provisions of the Squatters Proclamation are highly controversial. In a court ruling on 21 July 2009, the Applicants obtained a rule nisi declaring section 4(1) and 4 (3) of the Proclamation to be unconstitutional, invalid and of no force or effect. This ruling was though discharged on 16 September 2010 (Shaanika and Others v Windhoek City Police and Others (A 249/2009) [2010] NAHC 171 (28 October 2010) according to the dirty hand theory, as the applicants were claiming to not apply a law which they were already contravening. In this case, the Applicants were all informal settlers who erected shacks without consent of the owners of the immovable property on which they were settling. They were therefore violating “the law in connection with the very transaction as to which they sought legal redress” and consequently were denied court aid.

10.3.2.2 On the 15th of July 2013 the Supreme Court declared provisions of the Squatters Proclamation which authorise the demolition of buildings and structures without a court order and which bar a litigant from access to court, in other words which authorises the destruction of people’s homes and the removal of their contents without any notice to the people concerned or any consideration by a court, to be unconstitutional and invalid.

10.4 THE NATIONAL HOUSING DEVELOPMENT ACT, 2000 (ACT NO. 28 OF 2000)

10.4.1 The National Housing Development Act, 2000 (Act No. 28 of 2000) (the “National Housing Development Act”):

(a) (i) Establishes a National Housing Advisory Committee and defines the powers, duties and functions of that Committee.

(ii) Provides for the establishment of Housing Revolving Funds by local authority councils and regional councils.

(iii) Regulates the allocation of moneys to, and the administration of, Housing Revolving Funds.

(iv) Provides for the establishment of Decentralised Build Together Committees and defines the powers, duties and functions thereof.

(v) Provides for matters incidental thereto.

(b) Came into operation on the 5th of March 2001.


10.4.2 Provisions of the National Housing Development Act

10.4.2.1 Section 9(a) and (b) of the National Housing Development Act states that the objects and purposes of a Housing Revolving Fund are amongst others -

(a) to grant loans to persons for the purpose of constructing or acquiring low cost residential accommodation, or for the purpose of acquiring land, in geographical areas;

(b) to acquire land or material for the purpose of constructing low cost residential accommodation in geographical areas, to construct the accommodation and to let or sell the accommodation to any person;

(“Geographical area” is defined in section 1 of the National Housing Development Act as to mean -

(a) a village declared as such under section 3 of the Local Authorities Act, or deemed to be so declared; or

(b) a settlement area declared under section 31 of the Regional Councils Act,

as the case may be).

10.4.2.2 Section 16 of the National Housing Development Act deals with security for the repayment of a loan, and if a regional council or local authority council under section 15(5) grants a loan to any person, the accounting officer concerned must -

(a) cause, if any immovable property is registered or is to be registered in the name of the person, a mortgage bond to be registered against the property; or

(b) require, if no immovable property is registered in the name of the person, the person to furnish the Fund with any other form of security as may be prescribed,

as security for the repayment by the person of the capital, interest and costs in respect of the loan granted.

10.4.2.3 Section 17 of the National Housing Development Act provides for the acquisition or alienation of land and subsection (1) provides that if a Housing Revolving Fund acquires any immovable property, the property so acquired must be registered in the name of the Fund by the regional council or local authority council concerned, as the case may be. A regional council or local authority council concerned, as the case may be, may alienate, subject to the other provisions of that Act, immovable property registered in the name of the Fund concerned. The accounting officer of a Fund, on the written instructions of the regional council or local authority council concerned, as the case may be, must execute, in the name and on behalf of the Fund, any document required for the purposes of the registration of the transfer of immovable property to or from the Fund in terms of subsection (1) or (2), as the case may be.

10.4.2.4 Section 18 of the National Housing Development Act deals with the sale of property, and according to subsection (1) the accounting officer concerned must cause, if the Housing Revolving Fund concerned sells immovable property to any person -


(a) the property to be transferred, subject to section 17, in the name of, and

(b) a mortgage bond to be registered against the property in favour of the Fund concerned as security for the payment of any moneys owing to the Fund by,

the purchaser of the property.

10.4.2.5 According to section 19 of the National Housing Development Act the Sale of Land on Instalments Act does not apply to any agreement relating to the sale of immovable property entered into in terms of or pursuant to any provision of the National Housing Development Act.

10.4.2.6 According to section 20 -

(a) (1) of the National Housing Development Act, the acquisition, sale or transfer of any immovable property in terms of or pursuant to any provision of this Act is exempted from the payment of transfer duty payable in terms of the Transfer Duty Act;

(b) (2) of the National Housing Development Act, any agreement, including an agreement of lease, or any mortgage bond, power of attorney, surety, promissory note or form entered into or registered, granted, given or made in terms of or pursuant to any provision of this Act is exempted from the payment of stamp duties payable in terms of the Stamp Duties Act;

(c) (3) of the National Housing Development Act, the Minister responsible for housing may exempt, in consultation with the Minister of Finance and notwithstanding subsection (2), by notice in the Gazette from stamp duties payable in terms of the Stamp Duties Act, any document or category of documents required for any purpose of this Act, subject to the conditions as the Minister may determine and specify in the notice.

10.4.2.7 Section 23 of the National Housing Development Act confers upon a Housing Revolving Fund a preferent right to purchase property, and according to subsection (1) such a Fund has a preferent right, subject to the other provisions of that section, to purchase property -

(a) acquired by any person by means of the proceeds of a loan granted by the Fund to the person pursuant to any provision of that Act; or

(b) sold by the Fund to the person under section 21,

if the person intends to alienate the property.

Subsection (6) states that if an offer made in terms of subsection (3)(a) is accepted by a Fund, the purchase price payable by the Fund in respect of the sale of the property concerned is equal to -

(a) the purchase price paid by the owner of the immovable property concerned in respect of the purchase of the property by the owner; and


(b) an amount, subject to subsection (7), determined by mutual agreement between the Fund concerned and the owner of the property in respect of the immovable improvements, if any, erected on the property after the purchase of the property by the owner, or, in the absence of any such agreement, an amount determined by two evaluators, one of whom must be appointed by the Fund and the other one by the owner; and

(c) the other or further additions to, or deductions from, the purchase price as may be prescribed.

If the evaluators appointed in terms of subsection (6)(b) fail to reach an agreement on the value of the immovable improvements referred to in that subsection, the Minister responsible for housing, in consultation with the Minister of Finance, must appoint an evaluator to determine the fair value of the immovable improvements [subsection (7)].

According to subsection (8), the Registrar of Deeds must at the request of the accounting officer concerned, acting for and on behalf of a Housing Revolving Fund -

(a) make the endorsements on the title deed relating to any property, and make the entries in his or her registers as may be necessary to indicate that subsection (1) applies in respect of the property; or

(b) cancel any endorsements and entries referred to in paragraph (a) if the accounting officer has submitted to the Registrar a waiver referred to in subsection (3)(b).

11. MINERALS

11.1 THE MINERALS (PROSPECTING AND MINING) ACT, 1992 (ACT NO. 33 OF 1992)

11.1.1 The Minerals (Prospecting and Mining) Act, 1992 (Act No. 33 of 1992) (the “Minerals Act”):

(a) Provides for the reconnaissance, prospecting for, and mining and disposal of, and the exercise of control over, minerals in Namibia and provides for matters incidental thereto.

(b) Came into operation on the 1st of April 1994.

(c) Has been amended by the Minerals (Prospecting and Mining) Amendment Act, 2008 (Act No. 8 of 2008).

11.1.2 Provisions of the Minerals Act

11.1.2.1 Section 2 of the Minerals Act deals with the rights in relation to minerals, and provides that, subject to any right conferred under that Act, any right in relation to the reconnaissance or prospecting for, and the mining and sale or disposal of, and the exercise of control over, any mineral or group of minerals vests, notwithstanding any right of ownership of any person in relation to any land in, on or under which any such mineral or group of minerals is found, in the State.


11.1.2.2 Section 3 of the Minerals Act deals amongst others with the prohibition on carrying on certain operations without a licence, and subsection (1) provides that, subject to that Act, no person may -

(a) carry on any reconnaissance operations, prospecting operations or mining operations in, on or under any land in Namibia, except under and in accordance with a non-exclusive prospecting licence, a mining claim or a mineral licence, as the case may be; or

(b) transfer any mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence, or grant, cede or assign any interest in any such claim or licence to any other person, or be joined as a joint holder of the mining claim, licence or interest otherwise than in writing and with the approval in writing of the Minister of Mines and Energy.

11.1.2.3 Section 5 of the Minerals Act prescribes the general powers of the Mining Commissioner, and subsection (1)(a) provides that, subject to subsection (2), the Commissioner or any officer who is engaged in carrying out the provisions of that Act and who has been authorised thereto by the Commissioner may, in order to exercise any power or perform any duty or function conferred or imposed by that Act -

(a) at all reasonable times enter any land or place where any reconnaissance operations, prospecting operations or mining operations have been, are or are to be carried on, including any accessory works, or land to which any such operations or accessory works relate;

(b) take or remove, for purposes of mineralogical examination, assaying, testwork or marketability surveys from -

(i) any land, place or accessory works referred to in paragraph (a), any sample of any mineral or group of minerals; or

(ii) any such land, place or accessory works, a sample taken of any sample, or taken of any mineral or group of minerals won or mined, in the course of any operations referred to in paragraph (a).

11.1.2.4 Section 107 of the Minerals Act deals with the limitation of fundamental rights contemplated in Article 16 of the Namibian Constitution, and states that Part XV, in so far as it provides for a limitation on the fundamental rights contemplated in Sub-Article (1) of Article 16 of the Namibian Constitution in order to authorise, subject to an obligation to pay just compensation, the holder of a non-exclusive prospecting licence, a mineral licence or a mining claim to enter upon any land of any person for purposes of carrying on operations authorised by the licence, is enacted upon the authority conferred by Sub-Article (2) of that Article.

11.1.2.5 Section 122 of the Minerals Act deals with the reservation of land from prospecting operations and mining operations, and subsection (1) provides that, subject to that section, the Minister of Mines and Energy may at any time by notice in the Gazette, if the Minister deems it necessary or expedient in the national interest, declare that no person other than the holder of a reconnaissance licence may, notwithstanding anything to the contrary contained in that Act or any other law, but subject


to any right conferred upon the holder of any mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence by that Act before the date of the notice and which exists on the date immediately before the date of the notice, carry on any prospecting operations or mining operations in, on or under any land or area described by the Minister in the notice.

11.2 THE DIAMOND ACT, 1999 (ACT NO. 13 OF 1999)

11.2.1 The Diamond Act, 1999 (Act No. 13 of 1999) (the “Diamond Act”):

(a) Provides for the establishment of a board to be known as the Diamond Board of Namibia; defines the objects and the powers, duties and functions of the Board; provides for the establishment of funds to be known as the Diamond Board Fund and the Diamond Valuation Fund; provides for the management and control of the Funds; provides for control measures in respect of the possession, the purchase and sale, the processing and the import and export of diamonds and provides for matters connected therewith.

(b) Came into operation on the 1st of April 2000.

(c) Has been amended by the State-owned Enterprises Governance Act, 2006 (Act No. 2 of 2006).

11.2.2 Provisions of the Diamond Act

11.2.2.1 Section 52 of the Diamond Act deals with restricted areas and according to subsection (1) the areas referred to in subsection (2) thereof are for the purposes of that Act restricted areas in which, except as in that section provided, no person other than those referred to in subsection (1)(a) to (h), acting in the ordinary performance of his or her duties, may enter, reside, travel, work or be without a permit contemplated in section 27(k): Provided that every such permit specify the restricted area, or part thereof, for which it is granted. Any restricted area must be clearly indicated by the display of adequate signs to be a restricted area.

11.2.2.2 Section 67 of the Diamond Act provides for the search of persons and things and subsection (1) provides that, subject to subsection (2), any producer, contractor, sub-contractor, holder of an exclusive prospecting licence or licensee, or his or her authorised representative, may search or cause to be searched -

(a) any person, whether employed in connection with the activities of such producer, contractor, sub-contractor, holder of an exclusive prospecting licence or licensee or not, on any land, premises, vessel or installation upon which or in any building in which such activities are being carried on; and

(b) any vehicle, vessel or aircraft, or any other object in the possession of or any clothing worn by such person, or any vehicle, vessel or aircraft on or in which such person is or was,

and may without warrant -

(i) seize any article referred to in section 20 of the Criminal Procedure Act; and

(ii) subject to the provisions of Article 11(2) and (3) of the Namibian Constitution,


arrest any person in regard to whom the producer, contractor, sub-contractor, holder of an exclusive prospecting licence or licensee, or his or her authorised representative, has a reasonable suspicion that the person has committed an offence under this Act.

A search under subsection (1) may only be carried out if -

(a) the person concerned has consented to the search;

(b) in the case of a search of a vehicle, vessel or aircraft, the person in charge of the vehicle, vessel or aircraft at the scene has consented to the search; or

(c) the producer, contractor, sub-contractor, holder of an exclusive prospecting licence or licensee, or his or her authorised representative, on reasonable grounds believes -

(i) that a search warrant will be issued if applied for by a police official; and

(ii) that the delay in obtaining the warrant would defeat the object of the search.

12. NATIONAL HERITAGE: THE NATIONAL HERITAGE ACT, 2004 (ACT NO. 27 OF 2004)

12.1 The National Heritage Act, 2004 (Act No. 27 of 2004) (the “National Heritage Act”):

(a) Provides for the protection and conservation of places and objects of heritage significance and the registration of such places and objects; establishes a National Heritage Council; establishes a National Heritage Register and provides for incidental matters.


(c) Has been amended by the the State-Owned Enterprises Governance Act, 2006 (Act No. 2 of 2006).

12.2 Provisions of the National Heritage Act

12.2.1 Section 5 of the National Heritage Act prescribes the functions of the National Heritage Council and according to subsection (2)(a), (d) and (f), the Council may, for the purpose of performing its functions -

(a) purchase or otherwise acquire or receive in trust or by donation any immovable or movable property or any interest in immovable or movable property which is, or is proposed to be declared, a heritage place or a heritage object under this Act, and entrust any heritage object so acquired to the custody of the National Museum, the National Art Gallery, the National Archives or any other museum or institution, as the Council may determine;

(d) by agreement with the owner of any land acquire or construct and maintain an access road over the land to any protected place and to construct upon the land fences, walls or gates along or across the road or to enclose the place;


(i) subject to the consent of the Minister responsible for culture, granted after consultation with the Minister of Finance -

(i) lease, exchange, transfer to trustees to hold in trust or otherwise alienate or, hypothecate or burden with a servitude a protected place or other immovable property; or

(ii) lend, exchange, transfer to trustees, to hold in trust or otherwise delegate control over a protected object or other movable object,

owned by the Council or controlled on behalf of the State by the Council.

12.2.2 Section 37 of the National Heritage Act deals with a notice to the Registrar of Deeds, and the Council must lodge with the Registrar of Deeds, in the prescribed manner, notice of any matter concerning any inclusion in, removal from or amendment to the National Heritage Register which affects land. The Registrar must make the endorsements or recordings in the appropriate documents and registers of the Deeds Registry, and any affected title deed or other document submitted to the Registrar, as are necessary to reflect the subject matter of the notice in respect of the land concerned.

12.2.3 Section 41 of the National Heritage Act provides for the power to make a provisional protection order and provides that the Minister responsible for culture, on the recommendation of the National Heritage Council, may make a provisional protection order in relation to a place or object if, in the opinion of the Minister, it is necessary or desirable to do so for the purposes of this Act. [“Place” is defined in section 1 of the National Heritage Act as an area of land, with or without improvements, and includes -

(a) a building;

(b) a garden;

(c) a tree;

(d) the remains of a ship or part of a ship;

(e) an archaeological site;

(f) a site;

(g) land associated with anything specified in paragraphs (a) to (e)].

The National Heritage Council must cause the provisional protection order to be served on the owner, occupier or person apparently in charge of the place or object, and in the case of -

(a) a place which is a government building or State land; or

(b) an object which is in or on a government building or State land,


the Council must give the order required to be served under subsection (3) to a Minister or a public authority or any other person responsible for the care, management or control of the building or land.

12.2.4 Section 55 of the National Heritage Act deals with archaeological and palaeontological sites, meteorites and other heritage resources, and subsection (5) provides that if the National Heritage Council has reason to believe that any activity or development is being carried out in or on any area of land which is believed to be an archaeological or palaeontological or meteorite site without a permit under section 52 and that the activity or development may destroy, damage or alter the site, the Council may -

(a) serve on the owner or occupier of the site or on the person undertaking the activity or development an order to cease the activity or development immediately for the period specified in the order;

(b) carry out or cause to be carried out an investigation for the purpose of obtaining information on whether or not an archaeological or palaeontological site exists on the land and whether the activity or development may adversely affect the site;

(c) if the Council considers that the activity or development may adversely affect the archaeological or palaeontological site, assist the person on whom the order has been served under paragraph (a) to apply for a permit in accordance with section 48; and

(d) recover the costs of the investigation from the person on whom the order has been served under paragraph (a) if the investigation shows that an archaeological or palaeontological site exists on the land and that a permit under section 52 is required for carrying out the activity or development.

12.2.5 Section 60 of the National Heritage Act provides for the appointment and powers of heritage inspectors and according to subsection (6) a heritage inspector may at all reasonable times enter upon any land or premises for the purpose of inspecting any heritage resource protected in terms of that Act, or any other property in respect of which the Council may exercise its functions and powers under that Act, and may take photographs, make measurements and sketches and use any other means of recording information necessary for the purposes of that Act.

12.2.6 Section 68 of the National Heritage Act contains transitional provisions and -

(a) all assets, rights, liabilities and obligations of the National Monuments Council constituted under the National Monuments Act, 1969 (Act No. 28 of 1969), vest in the National Heritage Council on the commencement of the National Heritage Act;

(b) any immovable property referred to in subsection (1) vests in the National Heritage Council without formal transfer and without payment of transfer duty, stamp duty or any other fee or charge, but subject to any existing right, charge, or obligation registered in or over the property; and

(c) the Registrar of Deeds must make the necessary endorsements in the registers and records of the Deeds Registry and on any title deed or other document submitted to the Registrar to give effect to subsection (2).


13. RACIAL DISCRIMINATION: THE RACIAL DISCRIMINATION ACT, 1991 (ACT NO. 26 OF 1991)

13.1 The Racial Discrimination Act, 1991 (Act No. 26 of 1991) (the “Racial Discrimination Act”):

(a) Renders criminally punishable, in pursuance of Article 23 of the Namibian Constitution, certain acts and practices of racial discrimination and apartheid in relation to public amenities, the provision of goods and services, immovable property, educational and medical institutions, employment, associations, religious services and involving the incitement of racial disharmony and victimisation, and provides for matters incidental thereto.

(b) Came into operation on the 23rd of December 1991.

(c) Has been amended by the Racial Discrimination Prohibition Amendment Act, 1998 (Act No. 26 of 1998), and the Affirmative Action (Employment) Act, 1998 (Act No. 29 of 1998).

13.2 Provisions of the Racial Discrimination Act

13.2.1 Section 4 of the Racial Discrimination Act deals with immovable property and states that no person who, whether as principal or agent -

(a) intends to sell or otherwise dispose of any immovable property or any right therein, may -

(i) refuse or fail to sell or so dispose of the property or right to any other person; or

(ii) sell or so dispose of, or offer to sell or so dispose of, the property or right to any other person on less favourable terms and conditions than have been or are or would be offered to other persons,

because the other person is a member of a particular racial group;

(b) intends to let or in any other manner grant any right to occupy any immovable property or any part thereof, may -

(i) refuse or fail to let or grant the right to any other person; or

(ii) let or grant the right, or offer to let or grant the right, to any other person on less favourable terms and conditions than have been or are or would be offered to other persons,

because the other person is a member of a particular racial group;

(c) has entered into an agreement with any other person for the sale or disposal otherwise of immovable property or any right therein, or for the lease or grant of any other right of occupation of the property or any part thereof, may terminate the agreement because the other person is a member of a particular racial group.


13.2.2 Section 16 of the Racial Discrimination Act provides for compensation or damages and states that if a court convicts any person of an offence under that Act, the court may, upon the application of the complainant, if he or she has suffered damage as a result of an act in respect of which that person was so convicted, award the complainant compensation for the damage.

14. RESTRICTIONS ON IMMOVABLE PROPERTY: THE REMOVAL OF RESTRICTIONS ORDINANCE, 1975 (ORDINANCE NO. 15 OF 1975)

14.1 The Removal of Restrictions Ordinance, 1975 (Ordinance No. 15 of 1975) (the “Removal of Restrictions Ordinance”):

(a) Empowers the President to alter, suspend or remove certain restrictions and obligations in respect of land in Namibia and provides for incidental matters.

(b) Came into operation on the 7th of October 1975.

14.2 Provisions of the Removal of Restrictions Ordinance

14.2.1 Section 2 of the Removal of Restrictions Ordinance deals with the alteration, suspension or removal of restrictions or obligations in respect of land by the President, and subsection (1) provides that if the President is satisfied -

(a) that it is desirable to do so in the interest of the development of any township or in the interest of any area, whether it is situate in the area of jurisdiction of a local authority or not, or in the public interest; or

(b) that the land in question is required -

(i) for ecclesiastical purposes by the owner or purchaser thereof; or

(ii) for public purposes by the State or a local authority; or

(iii) for the use or erection of any building by the State or a local authority; or

(iv) for purposes incidental to any purpose mentioned in paragraphs (i) to (iii), inclusive,

the President may, subject to the Removal of Restrictions Ordinance, of his or her own accord or on application of any person in terms of section 3, by proclamation in the Gazette, alter, suspend or remove, either permanently or for a period specified in the proclamation, and either unconditionally or subject to any condition so specified, any restriction or obligation which is binding on the owner of the land by virtue of -

(aa) a restrictive condition or servitude registered against the title deed of the land; or

(bb) a provision of a law relating to the establishment of townships or to town planning; or

(cc) a provision of a by-law or of a regulation or of a town planning scheme; or


(dd) a provision of a town planning scheme and a restrictive condition or servitude registered against the title deed of the land; or

(ee) a provision of a town planning scheme and a provision of a law relating to the establishment of townships or to town planning,

and which relates to -

(aaa) the subdivision of the land; or

(bbb) the purpose for which the land may be used; or

(ccc) the requirements to be complied with or to be observed in connection with the erection of buildings or the use of the land.

According to subsection (2) of section 2, subsection (1) does not apply in respect of any condition of title specifically prohibiting or restricting the sale or supply of intoxicating liquor. The rest of subsection (2) contains racially discriminatory provisions.

The rest of section 2 contains provisions relating to the payment of betterment money, to the serving of a notice on the local authority and the publication of a notice in the Gazette.

14.2.2 The rest of the Removal of Restrictions Ordinance deals with -

(a) the form and method of an application (section 3);

(b) the consideration of an application by the Townships Board and the President (section 4);

(c) endorsements in connection with alterations, suspensions or removals of restrictions or obligations (section 5).

15. ROADS

15.1 THE ADVERTISING ON ROADS AND RIBBON DEVELOPMENT ORDINANCE, 1960 (ORDINANCE NO. 30 OF 1960)

15.1.1 The Advertising on Roads and Ribbon Development Ordinance, 1960(Ordinance No. 30 of 1960) (the “Roads Advertising Ordinance”):

(a) Regulates -

(i) the display of advertisements outside certain urban areas at places visible from proclaimed roads;


(ii) the erection of structures near certain proclaimed roads;

(iii) access to certain land from the roads; and

(iv) the establishment of drive-in cinemas.


(c) Has been amended by the Advertising on Roads and Ribbon Development Amendment Ordinance, 1967 (Ordinance No. 3 of 1967), the Entertainment Tax Abolition Ordinance, 1972 (Ordinance No. 11 of 1972).

(d) And all amendments thereof have been made applicable by section 1(1) of the Application of Laws Relating to Roads in Eastern Caprivi, Owambo, Kavango and Damaraland Act, 1982 (Act No. 5 of 1982) to Eastern Caprivi, while section 1(2) has made all amendments of that Ordinance applicable to Owambo and Kavango.

15.1.2 Provisions of the Roads Advertising Ordinance

15.1.2.1 Section 2 of the Roads Advertising Ordinance deals with the prohibition of certain advertisements visible from public roads, and subsection (1) provides that, subject to subsection (4) of that section and of section 6, no person may display an advertisement, except an advertisement displayed at the commencement of that Ordinance and which thereafter remains displayed continuously and unchanged in the same place, which is visible from a public road, unless it is displayed in accordance with the written permission of the President, but any person may, subject to subsection (3) of section 2 and of subsection (1) of section 4 without permission -

(a) provided the name of the advertiser is not displayed more prominently than the rest of the advertisement, display, outside a public road such an advertisement which relates solely to an article produced or to a service performed or business or undertaking carried on, or to a form of recreation available or to an entertainment, meeting or sale to be held upon the land upon which the advertisement is displayed, or to the sale or lease of the land;

(b) display, outside a public road, such an advertisement which merely indicates the name of the farm or that a particular road or path is a private road or path or is intended for a particular class of traffic or leads to a particular place or that a particular act is prohibited or permitted; or

(c) display, on or at a gate, such an advertisement which conveys besides the name of the farm owner merely the name of a property or place to which the gate gives access, or merely a warning or a direction to close the gate.

(According to the actual wording of the Roads Advertising Ordinance the powers contemplated in that ordinance vest in the Administrator (of the territory of South West Africa). As a result of various pieces of transfer legislation which are not now relevant, those powers had vested in the Administrator-


General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference in laws in force in Namibia to the Administrator-General must be construed as a reference to the President of Namibia. If the provisions of the Roads Advertising Ordinance had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in that Ordinance would vest in the Minister responsible for roads. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act.)

15.1.2.2 Section 4 of the Roads Advertising Ordinance provides for the removal of advertisements and if there is being displayed at a place visible from a public road an advertisement, whether the advertisement was displayed before the commencement of that Ordinance and thereafter remains displayed continuously and unchanged in the same place, or is being displayed only after the commencement -

(a) for which no permission was granted under section 2 or for which the permission has expired or has been revoked; or

(b) which does not conform to the specifications or conditions prescribed in any permission granted therefor in any regulation applicable thereto, or which is being displayed in a manner or place or in circumstances other than those prescribed in any such permission or regulation,

the President may by notice in writing direct any person who displays the advertisement to remove it or to effect the alterations in the nature of the advertisement or in the manner in which it is displayed as may be prescribed in the notice, and to effect the removal or alteration within the period (which may be not less than 14 days from the date on which the notice was given) as may be specified in the notice.

If a person to whom a notice has been given in terms of subsection (1) fails to comply with a direction contained in the notice within the period therein specified, the President may, at any time after the expiration of the period, through the agency of any person authorised thereto by him or her, enter upon the land upon which the advertisement to which the notice relates, is being displayed and remove the advertisement or effect the alterations prescribed in the notice.

15.1.2.3 Section 6 of the Roads Advertising Ordinance prescribes the cases where sections 2 and 4 do not apply to an advertisement.

15.1.2.4 Section 8 of the Roads Advertising Ordinance deals with the prohibition of erection of structures near certain roads and subsection (1) provides that, subject to subsection (2) no person may erect or permit the erection of any structure which is attached to the land on which it stands even though it does not form part of the land within a distance of one hundred metres from the central line of a trunk, main or building restriction road, except in accordance with permission in writing granted by the President, but this prohibition does not apply to the cases referred to in paragraphs (a) to (e) thereof.

15.2 THE ROADS ORDINANCE, 1972 (ORDINANCE NO. 17 OF 1972)

15.2.1 The Roads Ordinance, 1972 (Ordinance No. 17 of 1972) (the “Roads Ordinance”):

(a) Consolidates and amends the laws relating to roads and provides for incidental matters.



(c) Has been amended by the Roads Amendment Ordinance, 1973 (Ordinance No. 16 of 1973), the Roads Further Amendment Ordinance, 1973 (Ordinance No. 22 of 1973), the Roads Amendment Ordinance, 1974 (Ordinance No. 10 of 1974), the Roads Amendment Ordinance, 1975 (Ordinance No. 18 of 1975), the Roads Amendment Ordinance, 1980 (Ordinance No. 6 of 1980), the Roads Amendment Proclamation, 1984 (Proclamation No. AG 21 of 1984), the Roads Amendment Act, 1986 (Act No. 13 of 1986) and the Roads Amendment Act, 1993 (Act No. 3 of 1993).

All amendments of the Roads Ordinance have been made applicable by section 2(1) of the Application of Laws Relating to Roads in Eastern Caprivi, Owambo, Kavango and Damaraland Act, 1982 (Act No. 5 of 1982) to Eastern Caprivi, and by section 2(2) to Owambo and Kavango, in so far as they are not already applicable in the said Owambo and Kavango.

15.2.2 Provisions of the Roads Ordinance

15.2.2.1 Chapter III of the Roads Ordinance deals with the proclamation, closing, deviation and classification of proclaimed roads such as district and farm roads.

15.2.2.2 Section 28 of the Roads Ordinance prescribes the general powers of the President and subsection (1)(a) and (g) provides that, subject to that Ordinance and the Road Traffic and Transport Act, 1999 (Act No. 22 of 1999), the President has power and authority in respect of the following matters -

(a) the construction, maintenance and control of all freeways and all trunk, main and district roads and the road reserve of all proclaimed roads;

(b) the erection and maintenance of any fence, wall, gate, ditch, furrow or similar obstruction, or beacon of stone, concrete, iron or other permanent material, on the centre line or along or near the boundaries of the road reserve of a proclaimed road to indicate the location of the road on the land, whether the road has been constructed or not,

but the powers concerned may only be exercised within the area of a local authority in consultation with the local authority concerned.

(According to the actual wording of the Roads Ordinance the powers contemplated in that Ordinance vest in the Executive Committee [constituted under section 4 of the South West Africa Constitution Act, 1968 (Act No. 39 of 1968)]. As a result of various pieces of transfer legislation which are not now relevant, those powers had vested in the Administrator-General immediately prior to the independence of Namibia, and according to Article 140(5) of the Namibian Constitution any reference in laws in force in Namibia to the Administrator-General must be construed as a reference to the President of Namibia. If the provisions of the Roads Ordinance had been assigned by the President to a Minister as contemplated in section 3(1)(a) of the Assignment of Powers Act, then the powers in that Ordinance would vest in the Minister responsible for roads. It is however not always clear which provisions of laws had been assigned as contemplated in the Assignment of Powers Act.)


15.2.2.3 Section 30 of the Roads Ordinance deals with the obtaining of materials, and for the purpose of the construction, maintenance or repair of a proclaimed road the President may through his or her representatives, staff members or contractors enter upon any land with any vehicle, tool, material or animal and after the expiry of a period of fourteen days after a written notice of his or her intention to do so -

(a) has been handed to the owner, lessee or occupier of the land; or

(b) has been sent to the last-known address of the owner, lessee or occupier by registered post; or

(c) has been left at a conspicuous place on the land,

the President may without any compensation to the owner, lessee or occupier of the land, remove any material which may be necessary for the construction, maintenance or repair from the land or process it on the land and thereafter remove it therefrom and for this purpose the President may build and maintain any access roads which he or she may consider necessary: Provided that -

(i) nothing may be removed from any garden or other land usually cultivated, nor within two hundred and fifty metres of any house nor within fifty metres of any kraal;

(ii) every excavation, including excavation for a sample and an experimental pit, must as soon as possible be filled up or fenced off or must otherwise be made safe for human beings and animals again to the satisfaction of the owner, lessee or occupier of such land or as the President Committee directs;

(iii) any road provided for this purpose must be ripped up in such a way that it cannot be washed away should the owner, lessee or occupier so desire;

(iv) the President, his or her representatives, staff members or contractors, must, in exercising these powers, take every care to prevent damage, injury, loss or inconvenience to the owner, lessee or occupier concerned:

Provided further that the powers granted to the President in terms of this section may be exercised only within the area of a local authority in consultation with the local authority concerned.

15.2.2.4 Section 31 of the Roads Ordinance deals with camping sites, water, firewood and the cutting of trees and brushwood, and according to subsection (1)(a), the President may through his or her representatives, staff members or contractors, where no other opportunity is available, erect temporarily dwellings for roadworkers and their families on private land and select or, where necessary, erect places of storage for their equipment and material at a place on the private land determined in consultation with the owner, lessee or occupier of the land: Provided that if no agreement in regard to the place can be reached at the consultation, the President determines the place. No compensation is payable to the owner, lessee or occupier of the land concerned in respect of any temporary dwellings and places of storage erected or selected on the land in terms of subsection (1)(a).


15.2.2.5 Section 58 of the Roads Ordinance deals with the draining of proclaimed roads, and the President may, in consultation with the owner, lessee or occupier of land -

(a) divert storm water from or from under any proclaimed roads onto the land, provided no buildings, orchards, gardens or other improvements have been erected or laid out on the land and the President is not liable for any damage caused by the diversion of the storm water;

(b) erect, lay out and maintain, outside proclaimed roads, retaining walls or other structures which the President may deem necessary for the diversion of water onto the land, provided that no buildings, orchards or gardens or other improvements are erected or laid out on the land and the President is not liable for damage caused by the diversion of the water.

If it however becomes necessary to divert water to land on which buildings, orchards, gardens or other improvements have been erected or laid out and damage is caused thereby the President is liable to the owner, lessee or occupier of the land, for damages, the amount of which must be determined by agreement between the parties, or failing an agreement, by arbitration in terms of the provisions of the Arbitration Act, 1965.

15.2.2.6 Section 60 of the Roads Ordinance provides for the entering upon or taking possession of land to exercise powers or duties and provides that, subject to section 65, the President or any person authorised thereto by the President may, in the exercise or execution of the powers or duties granted to the President or imposed upon the President by that Ordinance, at any time enter upon or take possession of any land after having handed a written notice of his or her intention to do so to the owner, lessee or occupier of the land or, if the owner, lessee or occupier of the land is not found thereon, without any notice whatsoever.

15.2.2.7 Section 65 of the Roads Ordinance deals with compensation for encroachment on land, in cases where -

(a) any direct damage is caused to any improvements in the course of the opening, construction, maintenance or widening of a proclaimed road, or the establishment of a pont service by or on behalf of the President;

(b) the President has increased the width of the road reserve of a proclaimed road in terms of section 3;

(c) in the course of the construction of a trunk road, land remains on both sides or on one side of the road.

The amount of any compensation concerned must be determined by agreement between the parties, or failing an agreement, by arbitration in terms of the Arbitration Act, 1965.


15.3 THE ROADS CONTRACTOR COMPANY ACT, 1999 (ACT NO. 14 OF 1999)

15.3.1 The Roads Contractor Company Act, 1999 (Act No. 14 of 1999) (the “Roads Contractor Company Act”):

(a) Provides for the incorporation of a company to undertake the construction and maintenance of roads and other construction works and provides for matters incidental thereto.


(c) Has been amended by the Roads Contractor Company Amendment Act, 2002 (Act No. 11 of 2002), and the State-Owned Enterprises Governance Act, 2006.

15.3.2 Provisions of the Roads Contractor Company Act

Section 10 of the Roads Contractor Company Act contains transitional provisions, and subsection (1) provides that, subject to the further provisions of that section and section 11, the Minister responsible for transport must, after consultation with the Minister responsible for Finance and on the conditions as the Minister responsible for transport may determine, transfer to the Roads Contractor Company, with effect from a date determined by the Minister by notice in the Gazette, such assets, liabilities, rights or obligations of the State which relate to or are connected with the construction and maintenance of roads by the Department of Transport of the Ministry responsible for Transport, as may, in the opinion of the Minister, be required by the Company for the effective achievement of its objects. Notwithstanding any other law, the Roads Contractor Company is, with effect from the transfer date, vested with the ownership of the assets and rights and charged with the liabilities and obligations transferred or assigned to it by virtue of subsection (1). Upon the submission of a certificate referred to in subsection (3) to the Registrar of Deeds or to any other person in charge of any other office where a register or record of the ownership of or entitlement to an asset or right described in the certificate is being kept, the Registrar or such person, as the case may be, must make such entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer concerned in the name of the Roads Contractor Company. Notwithstanding any other law or the common law, no servitude or other right of any kind in respect of State land transferred to the Company in terms of subsection (1) may be acquired by prescription. Notwithstanding any other law, no stamp duty or transfer duty payable in terms of any law relating to the acquisition or transfer of assets or rights is payable in respect of the transfer of assets or rights by the State to the Roads Contractor Company in terms of subsection (1).

15.4 THE ROADS AUTHORITY ACT, 1999 (ACT NO. 17 OF 1999)

15.4.1 The Roads Authority Act, 1999 (Act No. 17 of 1999) (the “Roads Authority Act”):

(a) Establishes a Roads Authority to manage the national road network of Namibia and provides for matters incidental thereto.


(c) Has been amended by the Roads Authority Amendment Act, 2004 (Act No. 20 of 2004), and the State-Owned Enterprises Governance Act, 2006.


15.4.2 Provisions of the Roads Authority Act

15.4.2.1 Section 16 of the Roads Authority Act deals with the management of the national road network, and subsection (1)(a) provides that, notwithstanding anything to the contrary contained in any other law, but subject to this Act and with due regard to the funds at its disposal, the Authority must undertake the management of the national road network, including the planning, designing, construction and maintenance of roads which are part of the national road network.

15.4.2.2 Section 24 of the Roads Authority Act provides that, subject to that Act or any other law, the Minister responsible for transport may, in consultation with the relevant competent authority, and subject to the terms and conditions as may be agreed upon, make State land or land controlled by the State or any other facility on that land or any other movable property of the State available to the Authority for the performance of the functions of the Authority. It would appear that the relevant competent authority concerned is the ministry, office or agency in the government of Namibia who controls or is responsible for the State land concerned that is going to be made available to the Roads Authority, as contemplated in section 24.

15.4.2.3 Section 27 of the Roads Authority Act contains transitional provisions, and subsection (1) provides that, subject to that section, the Minister responsible for transport, in consultation with the Minister responsible for Finance, and on the conditions as the Minister responsible for transport may determine, must transfer to the Roads Authority, with effect from a date determined by the Minister by notice in the Gazette, such assets, liabilities, rights or obligations of the State which relate to or are connected with the management of roads by the Ministry as may, in the opinion of the Minister, be required by the Authority. Notwithstanding any law to the contrary, the Roads Authority is, with effect from the transfer date, vested with the ownership of the assets and rights and charged with the liabilities and obligations transferred or assigned to it under subsection (1). Upon the submission of a certificate referred to in subsection (3) to the Registrar of Deeds or to any other person in charge of any other office where a register or record of the ownership of or entitlement to an asset or right described in the certificate is being kept, the Registrar or the person must make such entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer in the name of the Roads Authority. Notwithstanding any law to the contrary, no servitude or other right of any kind in respect of State land transferred to the Roads Authority in terms of subsection (1) may be acquired by prescription. Notwithstanding any law to the contrary, no stamp duties or transfer duties payable in terms of any law for the acquisition or transfer of assets or rights are payable in respect of the transfer of assets or rights by the State to the Roads Authority in terms of subsection (1).

15.5 THE ROAD FUND ADMINISTRATION ACT, 1999 (ACT No. 18 OF 1999)

15.5.1 The Road Fund Administration Act, 1999 (Act No. 18 of 1999) (the “Road Fund Administration Act”):

(a) Establishes a Road Fund Administration to manage a road user charging system, establishes a Road Fund and provides for matters incidental thereto.


(c) Has been amended by the State-Owned Enterprises Governance Act, 2006.


15.5.2 Provisions of the Road Fund Administration Act

15.5.2.1 Section 26 of the Road Fund Administration Act provides that the Minister responsible for finance may, in consultation with the relevant competent authority, and subject to the terms and conditions as may be agreed upon, make State land or land controlled by the State or any other facility on that land or any other movable property of the State available to the Administration for the performance of the functions of the Administration. It would appear that the relevant competent authority concerned is the ministry, office or agency in the government of Namibia who controls or is responsible for the State land concerned that is going to be made available to the Administration, as contemplated in section 26

15.5.2.2 Section 29 of the Road Fund Administration Act contains transitional provisions, and subsection (1) provides that, subject to that section, the Minister responsible for Transport, after consultation with the Minister responsible for finance, and on the conditions as the Minister responsible for Transport may determine, must transfer to the Road Fund Administration, with effect from a date determined by the Minister responsible for Transport by notice in the Gazette, such assets, liabilities, rights or obligations of the State which relate to or are connected with the funding of roads by the Ministry responsible for Transport, as may, in the opinion of the Minister responsible for Transport, be required by the Road Fund Administration. Notwithstanding any law to the contrary, the Road Fund Administration is, with effect from the transfer date, vested with the ownership of the assets and rights and charged with the liabilities and obligations transferred or assigned to it under subsections (1) and (2). Upon the submission of the certificate referred to in subsection (4) to the Registrar of Deeds or to any other person in charge of any other office where a register or a record is being kept of the ownership of or entitlement to an asset or right described in such certificate, the Registrar or the other person must make the entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer in the name of the Administration. Notwithstanding any law to the contrary, no servitude or other right of any kind in respect of State land transferred to the Administration in terms of subsection (1) shall be acquired by prescription. Notwithstanding any law to the contrary, no stamp duties or transfer duties payable in terms of any law for the acquisition or transfer of assets or rights are to be payable in respect of the transfer of assets or rights by the State to the Administration in terms of subsection (1).

15.6 THE ROAD TRAFFIC AND TRANSPORT ACT, 1999 (ACT NO. 22 OF 1999)

15.6.1 The Road Traffic and Transport Act, 1999 (Act No. 22 of 1999) (the “Road Traffic and Transport Act”):

(a) Provides for the establishment of the Transportation Commission of Namibia; for the control of traffic on public roads, the licensing of drivers, the registration and licensing of vehicles, the control and regulation of road transport across Namibia’s borders and for matters incidental thereto.

(b) Came into operation on the 6th of April 2001.

(c) Has been amended by the Road Traffic and Transport Amendment Act, 2008 (Act No. 6 of 2008).


15.6.2 Provisions of the Road Traffic and Transport Act

Section 74 of the Road Traffic and Transport Act deals with the authority to display a road traffic sign, and according to subsection (8) the Minister of Works, Transport and Communication, within a local authority area, the local authority council concerned, or within a settlement area, the regional council concerned, may by notice in writing direct the owner or occupier of any land on which any road traffic sign or other object resembling a road traffic sign is displayed, or on which any object is displayed which obscures or interferes with the effectiveness of any road traffic sign, to remove the sign or object within the period specified in the notice, and if the owner or occupier concerned fails to comply with the notice, the Minister or local authority council or regional council, as the case may be, may cause the sign or other object to be removed.

16. SOIL: THE SOIL CONSERVATION ACT, 1969 (ACT NO. 76 OF 1969)

16.1 The Soil Conservation Act, 1969 (Act No. 76 of 1969) (the “Soil Conservation Act”):

(a) Consolidates and amends the law relating to the combating and prevention of soil erosion, the conservation, improvement and manner of use of the soil and vegetation and the protection of the water sources in Namibia and provides for matters incidental thereto.

(b) Came into operation on the 26th of March 1970, but was made applicable in Namibia with effect from 1 April 1971 by the Second Soil Conservation Amendment Act, 1971 (Act No. 38 of 1971).

(c) Has been amended by the Soil Conservation Amendment Act, 1971 (Act No. 4 of 1971), the Second Soil Conservation Amendment Act, 1971 (Act No. 38 of 1971), the Soil Conservation Amendment Act, 1973 (Act No. 11 of 1973), the Soil Conservation Amendment Act, 1974 (Act No. 21 of 1974), the Expropriation Act, 1975 (Act No. 63 of 1975), the Soil Conservation Amendment Act, 1977 (Act No. 22 of 1977) and the Forest Act, 2001 (Act No. 12 of 2001).

16.2 Provisions of the Soil Conservation Act

16.2.1 Section 3 of the Soil Conservation Act prescribes the power of the Minister of Agriculture to declare directions applicable with reference to land, and subsection (1) provides that the Minister may, either by notice in the Gazette or by written notice to the owner or occupier of land referred to in the notice, declare a direction to be applicable with reference to land referred to in the notice, relating to the matters referred to in paragraphs (a) to (n) thereof, but a direction whereby a person who carries on prospecting or mining activities on land is required to perform specific acts in respect of the land may not be declared applicable to the land unless the declaration is made in consultation with the Minister of Mines.

16.2.2 Section 4 of the Soil Conservation Act confers upon the Minister of Agriculture the power to order the construction of soil conservation works, and according to subsection (1) the Minister may by means of a direction order the owner of land to construct the soil conservation works referred to in the direction either on land belonging to the owner or on land belonging to another person, in the manner and within the period as may be mentioned in the direction, if the Minister is of the opinion that the construction of the soil conservation works is necessary in order to achieve any object of that Act in respect of the land belonging to the owner.


Soil conservation works constructed in terms of that section must be maintained by the owner ordered to construct the soil conservation works and by every person who subsequently becomes the owner of the land in respect of which the soil conservation works have been erected. The costs in connection with the construction and maintenance of any soil conservation works constructed under that section must be borne by the person ordered by the Minister to construct the soil conservation works, or who is under this section obliged to maintain the works. If the landowner who is obliged under that section to construct or maintain soil conservation works, refuses or neglects to do so, the Minister may cause the steps to be taken as he or she may deem necessary in order to construct or maintain the soil conservation works and may recover the costs in connection with the taking of the steps from the owner.

16.2.3 Section 5 of the Soil Conservation Act provides that the Minister of Agriculture may order the payment of certain amounts, and according to subsection (1)(a) the Minister may on application by the landowner who has constructed any soil conservation works after having been ordered to do so in terms of section 4(1), which in the opinion of the Minister have increased or are likely to increase the value of land belonging to another person, order the other person to pay the owner the amount determined by the Minister. If an owner of land has constructed any soil conservation works on land belonging to another person in compliance with a direction, as a result of which the value of the land in the opinion of the Minister has been reduced or is likely to be reduced, the Minister may on application of the other person, order the owner to pay the other person the amount determined by the Minister.

16.2.4 According to section 7 of the Soil Conservation Act the Minister of Agriculture may at any time cause the steps to be taken as the Minister may deem necessary for the construction and maintenance on any land of the soil conservation works as the Minister may deem necessary in order to achieve any object of that Act in respect of any land. The costs of construction of any such soil conservation works may, in the discretion of the Minister, be charged entirely to the State or entirely to the owner or owners of the land in respect of which, in the opinion of the Minister, the soil conservation works have a beneficial effect, or partly to the State and partly to the owner or owners, and any costs so charged to an owner or owners of land must be recovered from the owner or owners concerned by the Minister in the manner as the Minister may deem fit. The Minister may by means of a direction order the owner or occupier of land on which soil conservation works have been constructed under the provisions of that section, to maintain the soil conservation works subject to the conditions as may be determined by the Minister.

16.2.5 Section 8 of the Soil Conservation Act provides that the Minister of Agriculture may, with the approval of the owner of any land and subject to the conditions as may be agreed upon between the Minister and the said owner, construct and maintain at State expense soil conservation works on or in respect of the land of the said owner for the purpose of public demonstration or research in matters relating to veld, soil and water conservation.

16.2.6 Section 17 of the Soil Conservation Act deals with a right of entry on or way over land, and according to subsection (1) any staff member of any Ministry, any officer of TransNamib and any person duly authorised thereto by the Minister of Agriculture, may enter upon any land and may take with him or her the equipment and the number of assistants as are required for the purpose of constructing or maintaining on the land any soil conservation works in accordance with that Act, and may, after notice to the owner or occupier of the land and without any obligation to pay compensation therefor, erect a temporary camp, and dig or take away the stones, sand, earth, water, bush or wood as required for the purpose of constructing or maintaining on the land the soil conservation works, and in addition any person duly authorised thereto by the Minister may enter upon any other land for the removal of the aforesaid material if suitable material is not readily available on the land where the soil conservation works must be constructed or maintained, in which case the compensation determined by the Minister must be paid.


16.2.7 Section 18 of the Soil Conservation Act deals with the expropriation of land for conservation or stabilisation purposes, and if in the opinion of the Minister for Agriculture any land is required for -

(a) the prevention of soil erosion or the stabilising of land subject thereto; or

(b) the prevention of drift-sand or the stabilising of land subject thereto; or

(c) the protection of catchment areas or the conservation of water sources,

the Minister may cause the land to be expropriated.

According to subsection (2) the Expropriation Act, 1975, applies with the necessary changes with reference to the expropriation of land under section 18. According to NAMLEX the Expropriation Act, 1975, applied to South West Africa only in respect of expropriations by the Railway Administration.

16.2.8 According to section 19 of the Soil Conservation Act the Minister of Agriculture may, from moneys appropriated by Parliament for the purpose, perform on or in respect of any land any act relating to any matter referred to in paragraphs (a) to (n), inclusive, of section 3 and which the Minister deems necessary in order to achieve any object of that act in respect of the land and may recover the costs in connection with the performance of the act or the portion of the costs as the Minister may determine from the owner of the land.

16.2.9 Section 26 of the Soil Conservation Act deals with the application thereof, and subsection (1) provides that, subject to subsection (2), that Act does not apply -

(a) to land situated in a local authority area, and includes any area subdivided into erven or lots and public open spaces and streets bounded by the erven or lots or spaces, but does not include any commonage in any such area;

(b) to land in Namibia included in the “Gebiet”, as defined in section 1 of the Rehoboth Investment and Development Corporation Act, 1969 (Act No. 84 of 1969). (I assume this provision should be revisited, as it would appear that the Soil Conservation Act should apply in the former “Rehoboth Gebiet”.)

The Minister may declare, by notice in the Gazette, the Soil Conservation Act applicable to land specified in the notice and situated in a local authority area.

17. TAXATION PROVISIONS OTHER THAN LAND TAX

17.1 INCOME TAX ACT, 1981 (ACT NO. 24 OF 1981)

17.1.1 The Income Tax Act, 1981 (Act No. 24 of 1981) (the “Income Tax Act”):

(a) Consolidates and amends the law relating to the taxation of income and provides for incidental matters.

(b) Came into operation on the 31st of December 1981.

(c) Has been amended frequently.


17.1.2 Provisions of the Income Tax Act

17.1.2.1 Section 14 of the Income Tax Act deals with certain amounts that may be included in income or taxable income, and subsection (5) thereof provides that any amount which has been paid, whether in the form of rent or otherwise, by any person for the right of use or occupation of any movable or immovable property and has been allowed as a deduction in the determination of the person’s taxable income, and which or the equivalent of which is upon the subsequent acquisition of the property by that or any other person applied in reduction or towards settlement of the purchase price of the property, must be included in the income of the person by whom the property is acquired as aforesaid for the year of assessment in which the person exercises the option or concludes the agreement, as the case may be, in consequence of which the property is acquired by the person. If any amount has been paid by any person for the right of use or occupation of any property which is thereafter acquired by that or any other person for a consideration which in the opinion of the Minister is not an adequate consideration, it is for the purposes of paragraph (a) deemed, unless the Minister, having regard to the circumstances of the case otherwise decides, that the said amount, or so much thereof as does not exceed the difference between the fair market value of the property as determined by the Minister and the amount of the consideration for which it has been acquired as aforesaid, has been applied in reduction or towards settlement of the purchase price of the property.

17.1.2.2 Section 17 of the Income Tax Act deals with general deductions that may be allowed in the determination of taxable income, and subsection (1)(g)(i) provides that, for the purpose of determining the taxable income derived by any person from carrying on any trade within Namibia, there is allowed as deductions from the income of the person so derived, an allowance in respect of any premium or consideration in the nature of a premium paid by a taxpayer for the right of use or occupation of land or buildings used or occupied for the production of income or from which income is derived, subject to the proviso thereof.

17.1.2.3 Section 19 of the Income Tax Act deals with the deduction of expenses incurred by a lessor of land let for farming purposes, in respect of soil conservation works, and subsection (1) provides that, subject to subsection (2), there is allowed to be deducted from the income derived by any taxpayer from letting any land on which bona fide pastoral, agricultural or other farming operations were carried on during the year of assessment, the expenditure incurred by the person during the year in respect of the construction of soil conservation works, provided a certificate by the Minister responsible for agriculture is produced to the effect that the works have been approved under the Soil Conservation Act. If expenditure incurred by the taxpayer during any year of assessment and ranking for deduction from income under subsection (1) exceeds the taxable income (as calculated before allowing any deduction under that subsection) derived by the taxpayer from letting land on which bona fide pastoral, agricultural or other farming operations were carried on during such year, the amount allowed to be deducted under subsection (1) in respect of the said year is limited to an amount equal to the taxable income (calculated as aforesaid), and the excess must be carried forward and is deemed for the purposes of that section to be expenditure incurred by the taxpayer during the next succeeding year of assessment in respect of the construction of soil conservation works.

17.1.2.4 Section 4 of the Income Tax Amendment Act, 2005 (Act No. 4 of 2005) added a new paragraph (i) to section 24(i) of the Income Tax Act which deals with deductions that are not allowed in the determination of taxable income. According to the new paragraph (i) no deductions may in any case be made in respect of any amount paid in respect of land tax referred to in section 76 of the Agricultural Land Reform Act.


17.1.2.5 Section 25 of the Income Tax Act deals with credit agreements providing for the postponement of the passing of ownership, and states that if any taxpayer has entered into any agreement with any other person in respect of any property, the effect of which is that, in the case of movable property, the ownership will pass or, in the case of immovable property, transfer will be effected from the taxpayer to that other person upon or after the receipt by the taxpayer of the whole or a certain portion of the amount payable to the taxpayer under the agreement, the whole of that amount is for the purposes of that Act deemed to have accrued to the taxpayer on the day on which the agreement was entered into. The Minister of Finance, taking into consideration any allowance he or she has made under paragraph section 17(1)(m), may make such further allowance as under the special circumstances of the trade of the taxpayer seems to him or her reasonable, in respect of all amounts which are deemed to have accrued under such agreements but which have not been received at the close of the taxpayer’s accounting period. Any allowance so made must be included as income in the taxpayer’s returns for the following year of assessment and must form part of his or her income, and for that purpose any allowance granted in terms of the corresponding provisions of a previous income tax law is deemed to be an allowance which was made in terms of section 25 in respect of a year of assessment under the Income Tax Act.

17.2 VALUE ADDED TAX ACT, 2000 (ACT NO. 10 OF 2000)

17.2.1 The Value-Added Tax Act, 2000 (Act No. 10 of 2000) (the “Value-Added Tax Act”):

(a) Provides for the imposition and collection of value-added tax and provides for matters incidental thereto.


(c) Has been amended by the Value-Added Tax Amendment Act, 2000 (Act No. 34 of 2000), the Value-Added Tax Amendment Act, 2002 (Act No. 6 of 2002), the Value-Added Tax Amendment Act, 2004 (Act No. 12 of 2004), the Value-Added Tax Amendment Act, 2007 (Act No. 2 of 2007), the Value-Added Tax Amendment Act, 2008 (Act No. 4 of 2008), the Value-Added Tax Amendment Act, 2010 (Act No. 4 of 2010) and the Value-Added Tax Amendment Act, 2011 (Act No. 11 of 2011).

17.2.2 Provisions of the Value Added Tax Act

17.2.2.1 Section 6 of the Value Added Tax Act provides for the imposition of value-added tax, and subsection (1)(a) provides that, subject to that Act, there is levied and paid, for the benefit of the State Revenue Fund, a value-added tax on every taxable supply by a registered person calculated at the rate of 15 percent on the value of the supply.

(“Taxable supply” is defined in section 1 of the Value Added Tax Act as any supply of goods or services in the course or furtherance of a taxable activity, other than an exempt supply, while “taxable activity” is defined as to mean a taxable activity as defined in section 4(1). According to section 4(1)(a) of the Value Added Tax Act “taxable activity” for the purposes of that Act means any activity which is carried on continuously or regularly by any person in Namibia or partly in Namibia, whether or not for a pecuniary profit, that involves or is intended to involve, in whole or in part, the supply of goods or services to any other person for consideration. “Goods” is defined in section 1 of the Value Added Tax Act as all kinds of corporeal movable or immovable property, thermal or electrical energy, heat, gas, refrigeration, air conditioning and water, but does not include money.)


17.2.2.2 Section 7 of the Value Added Tax Act deals with the time of supply, and subsection (18) provides that where goods consisting of immovable property are supplied under a sale, the supply is deemed to take place on -

(a) the date of registration of the transfer of the property in a deeds registry; or

(b) the date on which any payment is made in respect of the consideration for the supply,

whichever date is earlier.

17.2.2.3 Section 45 of the Value Added Tax Act deals with the death or insolvency of, or property mortgaged by, a registered person, and subsection (2) provides that where a mortgagee is in possession of any land or other property previously mortgaged by a mortgagor who is a registered person, and the mortgagee carries on any taxable activity in relation to that land or other property, the mortgagee is, from the date on which the mortgagee took possession of that land or property until such time as the mortgagee ceases to be in possession of that land or property, deemed to be the registered person carrying on the taxable activity.

17.2.2.4 Section 79 of the Value Added Tax Act provides for the application of an increased or reduced tax rate, and subsection (5) provides that, subject to section 87, where, before the date on which an increase in the rate of tax becomes effective, a written agreement is concluded for -

(a) the sale of immovable property consisting of -

(i) any dwelling, together with land on which it is erected, or of any real right conferring a right of occupation of a dwelling or of any unit as defined in section 1 of the 1971 Sectional Titles Act, such unit being a dwelling; or

(ii) land, or of any real right conferring a right of occupation of land for the sole or principal purpose of the erection by or for the purchaser of a dwelling or dwellings on the land, as confirmed by the purchaser in writing; or

(b) the construction of a new dwelling by any registered person carrying on a construction business,

and -

(aa) the price of the sale or construction in question was determined and stated in the said agreement, as in force before the said date, and that agreement was signed by the parties thereto before the said date; and

(bb) the supply of the immovable property or construction services under the said agreement is in terms of section 7 deemed to be made on or after the said date,

the rate at which tax under section 6 is leviable in respect of that supply is the rate at which tax would have been levied had the supply taken place on the date on which the said agreement was concluded.


18. VETERANS: THE VETERANS ACT, 2008 (ACT NO. 2 OF 2008)

18.1 The Veterans Act, 2008 (Act No. 2 of 2008) (the “Veterans Act”):

(a) Defines the responsibilities of the Minister in relation to veterans affairs; provides for the establishment of a Veterans Fund for the provision of assistance to veterans and dependants of veterans; provides for the registration of veterans and dependants of living or deceased veterans; provides for the establishment of projects for the benefit of and assistance to veterans and dependants of veterans; provides for the integration of pension benefits of veterans; provides for the constitution and functions of the Veterans Board and Veterans Appeal Board and provides for matters incidental to or connected with the foregoing.

(b) Came into operation on the 8th of July 2008.

18.2 Provisions of the Veterans Act

18.2.1 Section 3 of the Veterans Act deals with war memorial sites and honours, and subsection (1) provides that if the Minister responsible for veterans affairs considers that it is necessary that any building, burial ground, land, water, place or anything whatsoever where war or any liberation struggle or act in Namibia or elsewhere took place be declared and registered as a heritage place or object in terms of the National Heritage Act, the Minister must make the nomination referred to in section 29 of the National Heritage Act and must thereafter take the steps as are necessary to ensure the declaration and registration.

18.2.2 Section 13(b) of the Veterans Act provides for exemption from certain taxes, duties and levies, and notwithstanding anything to the contrary in any law, no transfer duty, stamp duty or any other fee payable to the Registrar of Deeds in connection with the transfer of immovable property is payable in respect of the acquisition and transfer of immovable property by the Fund.

19. WATER

19.1 THE WATER ACT, 1956 (ACT NO. 54 OF 1956)

19.1.1 The Water Act, 1956 (Act No. 54 of 1956) (the “Water Act”):

(a) Consolidates and amends the laws relating to the control, conservation and use of water for domestic, agricultural, urban and industrial purposes; makes provision for the control, in certain respects, of the use of sea water for certain purposes; for the control of certain activities on or in water in certain areas; for the control of activities which may alter the natural occurrence of certain types of atmospheric precipitation; for the control, in certain respects, of the establishment or the extension of townships in certain areas; and for incidental matters.

(b) Came into operation on the 13th of July 1956, but only the following provisions of the Act have been made applicable to Namibia -

(i) sections 1-4, with effect from 25 June 1969;


(ii) section 162, with effect from 1 April 1971;

(iii) sections 5 to 7, 9A, 21 to 23, 26 [excluding paragraph (a)], 27, 28(1), 30, 34 to 43, 44(2), 45 to 51, 54 to 56, 57(1), 59(2), 66, 69, 70 [excluding paragraphs (d), (f), (g) and (h)], 139 to 152, 164bis, 164ter, 165, 166, 170 [excluding subsection (3) and paragraph (c) of subsection (5)] and 171, with effect from 26 June 1971; and

(iv) sections 9B; 30A(a) and 170(3) with effect from 18 December 1985.

(c) Has been amended by the Water Amendment Act, 1957 (Act No. 75 of 1957), the Water Amendment Act, 1961 (Act No. 56 of 1961), the Water Amendment Act, 1963 (Act No. 63 of 1963), the Water Amendment Act, 1965 (Act No. 71 of 1965), the Water Amendment Act, 1966 (Act No. 11 of 1966), the Agricultural Credit Act, 1966 (Act No. 28 of 1966), the Water Amendment Act, 1967 (Act No. 79 of 1967), the Water Amendment Act, 1969 (Act No. 77 of 1969), the Water Amendment Act, 1971 (Act No. 36 of 1971), the Water Amendment Act, 1972 (Act No. 45 of 1972), and the General Law Amendment Act, 1972 (Act No. 102 of 1972), the Water Amendment Act, 1974 (Act No. 58 of 1974), the Water Amendment Act, 1975 (Act No. 42 of 1975), the Expropriation Act, 1975 (Act No. 63 of 1975), the Water Amendment Act, 1976 (Act No. 27 of 1976), the Water Amendment Act, 1977 (Act No. 108 of 1977) and the Water Amendment Act, 1985 (Act No. 22 of 1985).

(d) Has been repealed by section 137 of the Water Resources Management Act, 2004 (Act No. 24 of 2004), but that Act has not yet been placed in operation, and the Water Act therefore still applies in Namibia.

19.1.2 Provisions of the Water Act

19.1.2.1 Section 5 of the Water Act deals with the use of private water. Subject to subsection (2) and Chapter III, and rights lawfully acquired and existing at the commencement of that Act, the sole and exclusive use and enjoyment of private water belongs to the owner of the land on which the water is found, but nothing in that section contained is construed as derogating from the right of an owner of land to a reasonable share of water which, rising on the land of an upper owner, flows in a known and defined channel on, or along the boundary of, land situated beyond that upon which the water rises, and has for a period of not less than thirty years been beneficially used by the owner of the land so situated. A person who is, as contemplated in subsection (1), entitled to the use and enjoyment of private water found on any land of which he is the owner, may not, except under the authority of a permit from the Minister responsible for water affairs and on the conditions as may be specified in the permit -

(a) sell, give or otherwise dispose of the water to any other person for use on any other land, or convey the water for his own use beyond the boundaries of the land on which the water is found;

(b) construct any water work other than a water work constructed in terms of a direction contained in an order under section 4 of the Soil Conservation Act, to impound or store the water, or impound or store more than 20 000 cubic metres of the water.

Subsection (2) does not apply to TransNamib and to the selling, giving or disposal in any other manner of any water to the Government of Namibia.


19.1.2.2 Section 6 of the Water Act deals with the ownership of public and private water and there is no right of property in public water and the control and use thereof is regulated as provided in that Act. If an owner of land obtains, by artificial means on his or her own land, a supply of water which is not derived from a public stream, the water is deemed to be private water.

19.1.2.3 Section 7 of the Water Act deals with the use of public water by authorised persons for certain purposes and, notwithstanding anything contained in that Act, the owner of any land may not, except under the authority of a permit from the Minister responsible for water affairs and on the conditions as may be specified in the permit, take public water from a public stream for the purposes of the watering of crops on an area of land exceeding one hectare.

19.1.2.4 According to section 9A(3) of the Water Act any staff member in the public service authorised thereto by the Minister responsible for water affairs or the Permanent Secretary responsible for water affairs may at any time enter upon any land and inspect and test water works and water-meters and carry out any other investigation which the Minister or the Permanent Secretary may consider necessary for the purpose of establishing how much public water is abstracted, supplied or used on the land or of determining whether the provisions of a notice referred to in subsection (1) are being complied with.

19.1.2.5 Section 9B of the Water Act deals with the control of impounding or abstraction of public water in excess of a certain quantity, and notwithstanding anything to the contrary contained in that Act or any other law, no person may construct, alter or enlarge any water work on any land which on the date of commencement of the Water Amendment Act, 1985, was registered in the deeds registry as a separate piece of land, if more than 20 000 cubic metres of public water is or, after completion of the construction, alteration or enlargement, will be capable of being impounded or stored in or by means of that water work, or that water work and any other water work or water works on the land, except under the authority of a permit issued by the Minister responsible for water affairs, and on the conditions as may be specified in the permit.

19.1.2.6 Section 23 of the Water Act deals with the prevention of the pollution of water, and according to subsection (2)(a) the Minister responsible for water affairs may out of moneys appropriated by Parliament for the purpose, take any steps which he may consider necessary to prevent the pollution, as a result of seepage or drainage from any area on which mining or other industrial operations have been carried on, of public or private water, including underground water, after the operations have been abandoned, and may in his discretion recover the cost or any part of the cost incurred in taking the steps from any person who carried on or is entitled to carry on the operations. According to paragraph (b), the Minister or a person acting under the authority of the Minister may at any time enter upon any land for the purpose of taking any steps referred to in paragraph (a), and may take with him on to the land any men, animals, vehicles, equipment, appliances, instruments, stores or materials, and may erect the camps and construct the works as may be necessary for the purpose.

19.1.2.7 Section 30 of the Water Act provides for the use of subterranean water, and subsection (1) provides that, subject to subsection (2), an owner of land is entitled to abstract or obtain any subterranean water thereunder, or derived therefrom, for his or her own use for any purpose on the land. According to subsection (2), the Minister responsible for water affairs may in relation to any subterranean water control area, or to any portion of such an area make the regulations as he or she may deem necessary for exercising control over the drilling of boreholes for the purpose of locating subterranean water


for use for any purpose, the sinking of wells and the abstraction, use, protection against pollution and preservation of subterranean water contained in the area, or portion thereof. The Minister responsible for water affairs may, after notice in writing to the owner of any privately owned water work situated within any subterranean water control area, make the adjustments or repairs to the water work, or construct or erect the additional works, or in writing direct any such owner to make the adjustments or repairs or construct or erect the additional works, within a period stipulated by the Minister and at his own expense, as may, in the opinion of the Minister, be necessary for the proper measurement and regulation of any subterranean water abstracted or conveyed by, or flowing over, such works [subsection (2A)]. An owner referred to in subsection (1) may not, without a permit issued by the Minister responsible for water affairs under subsection (5), sell, give or otherwise dispose of subterranean water abstracted or obtained by him or her from under his or her land or derived therefrom in accordance with subsection (1) to any person for use on any other land or convey the water beyond the boundaries of his or her land for his or her own use.

19.1.2.8 Section 30A of the Water Act deals with the disposal by the Minister responsible for water affairs of water found underground, and paragraph (a) provides that, notwithstanding the other provisions of Chapter III, the Minister responsible for water affairs may, within as well as outside a subterranean water control area, convey and supply any subterranean water which has been or is abstracted or obtained in any manner whatsoever, whether before or after the commencement of the Water Amendment Act, 1985, by the State to any person for use on any land for any purpose determined by mutual agreement by the Minister responsible for water affairs and the person, whether the water has been or is abstracted or obtained on land belonging to the Government of Namibia or on other land: Provided that no water so abstracted or obtained may be so conveyed or supplied by the Minister responsible for water affairs if it has been found on land not belonging to the Government unless the Minister responsible for water affairs has acquired a right to the water by agreement with the owner of the said land or by expropriation in accordance with the laws on expropriation in force in Namibia. Paragraph (b) provides that for the purposes of the expropriation section 60 applies with the necessary changes as if the borehole or other underground source concerned were situated within a Government water control area.

It must however be noted that section 60 of the Water Act does not apply within Namibia, and paragraph (b) of section 30A cannot find any application within Namibia.

19.1.2.9 Section 40 of the Water Act deals with the jurisdiction, powers and authority of a water court, and according to paragraph (f) a water court has the power to determine and fix the place or places, either upon land riparian to a public stream or upon any land higher up the course of the public stream, at which an owner of the land is entitled to divert water from the stream, and to determine, if required, the nature and extent of the right of use at the place or places, due regard being had to the rights of any other owners.

19.1.2.10 Section 51 of the Water Act deals with the registration of orders and awards against the title deeds of land concerned, and according to subsection (1), any order or award of a water court affecting rights to water which is final and which is not subject to appeal, or as to which no appeal has been noted within the prescribed time, or as to which an appeal has been noted but has not been prosecuted or has been dismissed, or any order or award made upon appeal to the Supreme Court under that Act must, if the water court or the Supreme Court, as the case may be, so directs, upon production of the said order


or award, be registered by the Registrar of Deeds in charge of the deeds registry concerned against the title deed of any land to which the order or award refers and recorded in the appropriate registers, and the owner of any such land must produce his or her title deeds for the purpose.

19.1.2.11 Section 59(2)(b) of the Water Act provides that, if, in the opinion of the Minister responsible for water affairs any land is required for the protection of any portion of the catchment area of a public stream, the Minister may, by proclamation in the Gazette declare the channel of any such stream or any portion thereof, together with the portion of the land on either side or on both sides of the said channel, or any other area situated within the catchment of the stream, as the Minister may consider necessary for the purpose, and as may be defined in the proclamation, to be a catchment control area, and the Minister may from time to time in like manner amend or repeal any such proclamation.

19.1.2.12 Section 61 of the Water Act deals with the suspension of owner’s rights in or over land in a catchment control area for certain purposes, and according to subsection (1), if any area has under section 59(2) been declared to be a catchment control area, the Minister responsible for water affairs may -

(a) out of moneys provided by Parliament for the purpose, cause the work as he or she may deem necessary in connection with any of the purposes set out in the said subsection to be carried out by the Ministry on any land in that area;

(b) by notice in writing suspend for a period to be specified in the notice (which period may from time to time in like manner be extended) all or any of an owner’s rights in or over any land in the said area, and at the expiration of a period of three months from the date of the notice, enter upon and take possession of the land in order to carry out the work.

Subsection (4) provides that section 4(1), (4), (5) and (6) of the Expropriation Act 1965 (Act No. 55 of 1965) applies with the necessary changes in respect of the service of any notice under subsection (1)(b).

19.1.2.13 Section 66 of the Water Act provides for the levying of rates and charges, and subsection (1)(a) provides that, notwithstanding anything to the contrary contained in that or any other law, or any existing right or any other right to any water or to the use thereof, and notwithstanding any restriction imposed by or under any such law or right in respect of the powers of the Minister responsible for water affairs, the Minister may from time to time assess the rates as he or she may deem fit on land which may be irrigated with water abstracted, supplied or distributed from a Government water work, or from a public stream or natural channel which is in a Government water control area or into which water from such a work is released, or assess the charges as he or she may deem fit for water so abstracted, supplied or distributed for any purpose, or assess both the rates and the charges, and may recover the rates or charges so assessed from the owners of the said land or, as the case may be, from the persons entitled to use the such water. Rates or charges assessed in terms of paragraph (a) in respect of water used for agricultural purposes is a charge upon the land in respect of which they have been assessed, and any person who becomes the owner of any such land is liable for any such rates or charges which remain unpaid at the time when the person becomes the owner.

19.1.2.14 Section 140 of the Water Act deals with a point on a public stream at which water may be taken and according to subsection (1) -


(a) any person entitled to the use of the water of a public stream may, subject to that Act, acquire the right to divert the water at such point on the course of the stream as may be reasonably necessary to enable the person to exercise his or her right to use the water;

(b) a local authority is entitled, with the consent of the Minister responsible for water affairs, to construct and maintain any water works on or over any land for drainage purposes or for the purpose of conveying water to the area of jurisdiction of the local authority for urban use in that area.

19.1.2.15 Section 141 of the Water Act prescribes the rights of servitudes and of owners of dominant and servient tenements and subsection (1) provides that any person who, having a right to or to the use of public water or subterranean water (as defined in section 27), or being entitled to supervise or control the use or disposal of public or subterranean water, desires to employ it or to increase its employment for or in connection with any purpose for which the water may be used in accordance with that Act, or to dispose of the water, whether by drainage or in any other manner, is entitled to claim under that Act, temporarily or in perpetuity, the servitudes of abatement, aqueduct, drainage or storage as may be necessary for or incidental to the said purpose or for the disposal or drainage of the water.

19.1.2.16 Section 142 of the Water Act deals with the rights which are included in servitudes, and according to subsection (1) any servitude acquired under Chapter IX, unless otherwise provided in the deed of servitude or order of a water court, as the case may be, includes a right -

(a) to take from the land subject to the servitude, any material or substance which may reasonably be required for the purpose of constructing, enlarging, renewing, replacing, maintaining or repairing any water work or any portion thereof in respect of which the servitude has been acquired, whether the material or substance is used on the land or elsewhere;

(b) to cut down from the land subject to the servitude or remove and use any tree, bush, vegetation or other obstacle which may be detrimental to the enjoyment of the servitude by the person in whose favour it has been granted or acquired;

(c) to deposit on the land subject to the servitude, any material or substance excavated or removed from the water work in respect of which the servitude has been acquired in the process of constructing, enlarging, renewing, replacing, repairing, maintaining or cleaning such work;

(d) to occupy temporarily so much land subject to the servitude as may be reasonably required during the period of construction of the water work in respect of which the servitude has been acquired, for the construction of camps or roads or for the erection on the land of the houses, plant, reservoirs or other buildings or structures as may be necessary in connection with the construction of the work, and to occupy permanently so much land as may be reasonably required for the residence of the persons and for workshops or storage purposes as may be necessary in connection with the control, operation and maintenance of the water works in question.


19.1.2.17 Section 145 of the Water Act prescribes the modes of acquiring servitudes under Chapter IX.

19.1.2.18 Section 166 of the Water Act provides for a right of entry upon land, and according to subsection (1), any person authorised thereto in writing by the Minister responsible for water affairs or by the Permanent Secretary responsible for water affairs may, after reasonable notice to the owner or occupier of any land, enter the land with the men, animals, vehicles, appliances and instruments and do all the acts thereon as may be necessary for the purpose of complying with that Act, or for the purpose of making any enquiries or undertaking any investigations with a view to determining the feasibility of constructing any water work, or for the purpose of erecting construction camps or other preliminary works which the Minister may consider necessary in connection with the construction of any contemplated water work, or for the purpose of ascertaining whether any provision of that Act or any regulation made or condition imposed thereunder is being complied with and may, for the purpose of gaining access to the land, after like notice, enter upon and cross any other land with the necessary men, animals, vehicles, appliances and instruments.

19.2 THE NAMIBIA WATER CORPORATION ACT, 1997 (ACT NO. 12 OF 1997)

19.2.1 The Namibia Water Corporation Act, 1997 (Act No. 12 of 1997) (the “Namwater Act”):

(a) Establishes the Namibia Water Corporation Limited (“Namwater”); regulates its powers, duties and functions; provides for a more efficient use and control of water resources and provides for incidental matters.


(c) Has been amended by the State-Owned Enterprises Governance Act, 2006.

19.2.2 Provisions of the Namwater Act

19.2.2.1 Section 8 of the Namwater Act deals with powers of entry onto land, and subsection (1) provides that, for the purposes of achieving its objects or performing its functions under that Act and subject to subsections (2) and (4), Namwater may authorise any of its employees or any other person in writing, to enter upon any land or portion thereof, street, road or footpath thereon, including land reserved for public purposes and to -

(a) take onto the land the vehicles, goods, equipment and materials as may reasonably be required for Namwater’s purposes under this section;

(b) take such sample, material or substance therefrom as may reasonably be required, subject to the payment of just compensation to the owner;

(c) conduct feasibility studies into the construction of any waterwork on the land;

(d) carry out the investigations as may be necessary in connection with the planning or design of a waterwork on the land;


(e) construct, erect, drill, sink, enlarge, alter, inspect, close down, operate or maintain any waterwork thereon or adjacent thereto;

(f) ascertain whether any activity which may be detrimental to the objectives of Namwater is being carried out on the land; and

(g) conduct any other activity on the land as may be necessary for Namwater’s purposes.

The right to entry is however subject to certain conditions, such as -

(a) buildings or enclosed premises may be entered only with the prior written consent of the owner or occupier thereof and as little damage as possible may be caused to property, and compensation must be paid for any damage or loss;

(b) reasonable written notice must be given to the owner or occupier of the land before entering thereupon.

19.2.2.2 Section 34 of the Namwater Act deals with the transfer of assets and liabilities to Namwater, and according to subsection (1), (1) the Minister responsible for water affairs must by notice in the Gazette determine the transfer date with effect from which the bulk water supply function of the Department of water affairs will cease to be carried out by the Department and will become the responsibility of the Corporation. With effect from the transfer date all those assets determined by the Minister in writing as formerly belonging to the State and used in relation to the waterworks referred to in the Schedule, whether those assets are situated in Namibia or abroad, as well as any title in land, lease, servitude or other real right held by the Department in respect of the waterworks referred to in the Schedule will be transferred to and vest in Namwater. The Registrar of Deeds must, at the written request of Namwater and on receipt of a certificate by the Minister to the effect that a title, lease, servitude or other real right in land has been transferred to the Corporation under subsection (2) or (3) make the entries or endorsements on the register, title deed or other document in the Deeds Registry as he or she may deem necessary to effect the transfer, free of charge.

19.2.2.3 Section 36(1) of the Namwater Act provides that, notwithstanding any other law to the contrary, Namwater is exempt from the payment of transfer duties and stamp duties payable in respect of the transfer of assets to the Corporation under section 34.

19.3 THE WATER RESOURCES MANAGEMENT ACT, 2004 (ACT NO. 24 OF 2004)

The Water Resources Management Act, 2004 (Act No. 24 of 2004) (the “Water Resources Management Act”):

(a) Provides for the management, development, protection, conservation, and use of water resources; establishes the Water Advisory Council, the Water Regulatory Board and the Water Tribunal and provides for incidental matters.

(b) Repeals the Water Act, but has not yet been put into operation, and the Water Act is therefore still of effect in Namibia.


(c) Will not be put into operation, as it is about to be repealed and replaced by a new law, and will therefore not be discussed here.

20. WILLS AND SUCCESSION

20.1 THE WILLS ACT, 1953 (ACT NO. 7 OF 1953)

20.1.1 The Wills Act, 1953 (Act No. 7 of 1953) (the “Wills Act”):

(a) Consolidates and amends the law relating to the execution of wills.


(c) Has been amended by the Wills Amendment Act, 1958 (Act No. 48 of 1958), the General Law Amendment Act, 1964 (Act No. 80 of 1964), and the Wills Amendment Act, 1965 (Act No. 41 of 1965).

20.1.2 Provisions of the Wills Act

Section 3bis of the Wills Act deals with the validity of certain wills executed in accordance with the law of certain other states and subsection (1)(b) provides that a will, whether executed before or after the commencement of that section, shall, so far as immovable property is disposed of therein, not be invalid merely by reason of the form thereof, if the form complies with the law of the state or territory in which the property is situate.

Subsection (4) provides that section 3bis does not apply in respect of a will made by a Namibian citizen otherwise than in writing.

20.2 THE POLITICAL ORDINANCE OF 1 APRIL 1580

20.2.1 The Political Ordinance of 1 April 1580 (the “Political Ordinance”), as amended and interpreted by the Interpretation of 13 May 1594 and the Oktrooi of 10 January 1661 unified the law of intestate succession in the provinces of North Holland and South Holland in order to ensure that the whole of the Netherlands was governed by the “Skependomserfreg” (Southern Provinces System) principle of per stirpes inheritance. The principle of per stirpes inheritance as embodied in article 22 of the Political Ordinance means that if one or both of the parents be dead, the succession must go absolutely to the intestate’s brothers and sisters and their children and grandchildren per stirpes or by representation.

The Oktrooi of 10 January 1661 clarified that both the Ordinance and the 1594 Interpretation applied to the Cape Colony. (The Oktrooi applied the Political Ordinance to the “Indies”, which at the time included the Cape Colony.) They were subsequently made applicable to SWA by the Administration of Justice Proclamation (SWA) 21 of 1919, as interpreted by Tittel v The Master of The High Court 1921 SWA 58.

20.2.2 In the case of Frans v Paschke 2007 (2) NR 520 (HC) the court cites the Political Ordinance, the Interpretation of 13 May 1594 and the Oktrooi of 1661, explains their historical background and the route by which they became applicable to Namibia and declares the rule that children born outside marriage may not inherit intestate from their fathers, to be unconstitutional.


20.3 IMMOVABLE PROPERTY (REMOVAL OR MODIFICATION OF RESTRICTIONS) ACT, 1965 (ACT NO. 94 OF 1965)

20.3.1 The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965) (the “Immovable Property (Removal or Modification of Restrictions) Act”):

(a) Consolidates and amends the laws relating to the removal or modification of restrictions on immovable property imposed by will or other instrument; imposes a limit on the duration of fideicommissa created by will or other instrument in respect of immovable property; imposes a limit on the duration of restrictions on the alienation of immovable property imposed by will or other instrument otherwise than by way of a fideicommissum and provides for incidental matters.

(b) Came into operation on the 1st of October 1965, and section 10 provides that Act and any amendment thereof apply also in Namibia, including the portion known as the Eastern Caprivi Zipfel, and also in relation to all immovable property in the portion known as the “Rehoboth Gebiet”.

20.3.2 Provisions of the Immovable Property (Removal or Modification of Restrictions) Act

20.3.2.1 Section 2 of the Immovable Property (Removal or Modification of Restrictions) Act deals with an application to the court for the removal or modification of restrictions on immovable property, and subsection (1) provides that if any beneficiary interested in immovable property which is subject to any restriction imposed by will or other instrument before or after the commencement of this Act, desires to have the restrictions removed or modified on the ground that the removal or modification will be to the advantage of the persons, born or unborn, certain or uncertain, who are or will be entitled to the property or the income thereof under the will or instrument, the beneficiary may apply to the court for the removal or modification of the restriction.

20.3.2.2 Section 3 of the Immovable Property (Removal or Modification of Restrictions) Act prescribes the powers of the court as to the removal or modification of restrictions on immovable property and as to the disposal of proceeds of the property, and subsection (1) states that if the court to which application is made under that Act, is satisfied -

(a) that the shares which any of the beneficiaries in being at the time of the making of the application individually hold in the immovable property concerned are so small that they cannot be beneficially occupied or enjoyed; or

(b) that no beneficial use can be made of the immovable property concerned by the beneficiaries in being owing to there being a prohibition in the will or other instrument against the subdivision of the property; or

(c) that since the taking effect of the will or other instrument imposing any restriction upon the immovable property concerned circumstances materially affecting the value of the property have arisen which in the opinion of the court were not contemplated or foreseen by the person who made and executed the will or instrument; or


(d) that it will be in the public interest or in the interests of the persons referred to in section 2(1), to do so,

it may remove or modify any restriction such as is referred to in section 2(1) and order the property to be sold in whole or in part or may make any further or other order as to it may seem just.

20.3.2.3 Section 6 of the Immovable Property (Removal or Modification of Restrictions) Act deals with a limit on the duration of any fideicommissum created after the commencement of that Act in respect of immovable property in favour of more than two successive fideicommissaries, and subsection (1) provides that any fideicommissum created after the commencement of that Act by any will or other instrument in respect of immovable property in favour of more than two successive fideicommissaries is, notwithstanding the terms of the will or instrument, limited to two successive fideicommissaries.

If in terms of any disposition made by will or other instrument after the commencement of that Act any immovable property or any undivided share in immovable property becomes vested in any fiduciary (other than a fiduciary without a beneficial interest) subject to a fideicommissum purporting to be in favour of more than two successive fideicommissaries, the immovable property or undivided share, or any undivided share therein, shall, notwithstanding the terms of the will or instrument, when it vests in the second successive fideicommissary, vest in, and be transferred to, the fideicommissary free of the fideicommissum.

20.3.2.4 Section 7 of the Immovable Property (Removal or Modification of Restrictions) Act deals with a limit on the duration of any fideicommissum created before the commencement of that Act in respect of immovable property and according to subsection (1), any fideicommissum created before the commencement of this Act by any will or other instrument in respect of immovable property in favour of more than two successive fideicommissaries, shall, notwithstanding the terms of the will or instrument -

(a) if at the commencement no fideicommissary substitution has taken place in terms of the will or instrument, be limited to two successive fideicommissaries;

(b) if at the commencement one fideicommissary substitution has already taken place in terms of the will or instrument, be limited to one further fideicommissary;

(c) if at the commencement two or more fideicommissary substitutions have already taken place in terms of the will or other instrument, be terminated at the commencement.

If in terms of any disposition made by will or other instrument before the commencement of that Act any immovable property or any undivided share in immovable property -

(a) is vested at the commencement for the first time or becomes vested after the commencement for the first time, in terms of the will or instrument, in a fiduciary (other than a fiduciary without a beneficial interest) subject to a fideicommissum purporting to be in favour of more than two successive fideicommissaries, the immovable property or undivided share, or any undivided


share therein, shall, notwithstanding the terms of the will or instrument, when it vests in the second successive fideicommissary, vest in that fideicommissary free of the fideicommissum and the immovable property or undivided share or the undivided share therein, as the case may be, must be transferred to that fideicommissary free of the fideicommissum;

(b) is already vested at the commencement in terms of the will or instrument in the first fideicommissary subject to a fideicommissum purporting to be in favour of more than one further fideicommissary, the immovable property or undivided share, or any undivided share therein, shall, notwithstanding the terms of the will or instrument, when it vests after the commencement in the second successive fideicommissary, vest in that fideicommissary free of the fideicommissum and the immovable property or undivided share or the undivided share therein, as the case may be, shall be transferred to that fideicommissary free of the fideicommissum;

(c) is already vested at the commencement in terms of the will or instrument in the second or a later successive fideicommissary subject to a fideicommissum purporting to be in favour of further fideicommissaries, the immovable property or undivided share, shall, notwithstanding the terms of the will or instrument, at the commencement be released from the fideicommissum and the immovable property or undivided share, as the case may be, shall vest in the second or later fideicommissary free of the fideicommissum and the immovable property or undivided share shall, if it is not already registered in the name of the second or later fideicommissary, be transferred to that fideicommissary free of the fideicommissum [subsection (2)].

20.3.2.5 Section 8 of the Immovable Property (Removal or Modification of Restrictions) Act deals with a limit on the duration of restrictions on the alienation of immovable property imposed by will or other instrument otherwise than by way of a fideicommissum, and subsection (1) provides that no restriction against the alienation of any immovable property imposed before or after the commencement of this Act, otherwise than by way of a fideicommissum, by any will or other instrument which provides for benefits for successive beneficiaries named, described or designated therein, shall be effectual to prohibit or restrict the alienation of the immovable property after a right to enjoy any benefit in connection with or derived from the immovable property or any fund of which the immovable property forms a part, has in terms of the will or other instrument vested in the third successive beneficiary.

After any restriction against alienation has ceased to be effectual in respect of any immovable property in terms of subsection (1), the immovable property shall thereafter in all other respects continue to be, or if it is sold, the proceeds or any investment of the proceeds thereof, shall thereafter in all other respects with the necessary changes be, subject to the terms, conditions and trusts contained in the will or other instrument relating to the immovable property.


20.3.2.6 Section 9 of the Immovable Property (Removal or Modification of Restrictions) Act provides for the endorsement of title deeds, and subsection (1) provides that if any immovable property or any undivided share in immovable property which has vested in any fideicommissary free of any fideicommissum in terms of section 6 or 7, is registered in the name of the fideicommissary subject to the fideicommissum, the Registrar of Deeds must, on application by or on behalf of the fideicommissary, accompanied by the title deed under which the immovable property or undivided share is so registered and in which the fideicommissum is embodied, together with an order of court, or other proof as the Registrar may consider necessary, to the effect that the said immovable property or undivided share has vested in the fideicommissary free of the said fideicommissum, endorse the title deed to that effect.

After any restriction against alienation has ceased to be effectual in respect of any immovable property in terms of section 8, the Registrar must, on the application by or on behalf of the person in whose name the immovable property is registered, accompanied by the title deed under which the immovable property is so registered and in which the restriction is embodied, together with an order of court, or other proof as the Registrar may consider necessary, to the effect that the said restriction has so ceased to be effectual in respect of the said immovable property, endorse the title deed to that effect.






Documents

Republic Of Namibia Ministry of Lands and Resettlement