The Land Delivery Process in
Namibia
A legal analysis of the different stages from possession to
freehold title
GIZ Support to Land Reform
September 2015
The land delivery process in Namibia II
Report written by:
Josephine Ulrich and David Meurers
in cooperation with Leopold von Carlowitz and Judith Middleton, Advisers, Support to
Land Reform, GIZ
The land delivery process in Namibia III
Table of Contents
1. Introduction ............................................................................................................................ 1
2. Legislation relevant for the Land Delivery Process ................................................................. 1
2.1 Townships & Division of Land Ordinance, Ordinance 11 of 1963 as amended (hereafter
Townships Ordinance) ......................................................................................................... 1
2.2 Town Planning Ordinance, Ordinance 18 of 1954 as amended (henceforward, Town
Planning Ordinance) .............................................................................................................. 2
2.3 Urban and Regional Planning Bill (URPB) ........................................................................ 2
2.4 Subdivision of Agricultural Land Act 70 of 1970, as amended (Subdivision of Agricultural
Land Act) ................................................................................................................................ 3
2.5 Agricultural (Commercial) Land Reform Act 6 of 1995 (ACLRA) ....................................... 4
2.6 Sectional Titles Act ........................................................................................................... 4
2.7 Land Survey Act (LSA) ..................................................................................................... 5
2.8 Deeds Registries Act ........................................................................................................ 5
3. Different Stages of the regular Land Delivery Process ........................................................... 6
3.1 Overview .......................................................................................................................... 6
3.2 Subdivision of urban land ................................................................................................. 7
3.2.1 Subdivision of a single erf .......................................................................................... 7
3.2.2 Subdivision of urban land regulated by a TPS ...........................................................10
3.2.3 Township establishment ............................................................................................10
3.3 Subdivision of Agricultural Land .......................................................................................12
3.4 Procedures under the Urban and Regional Planning Bill .................................................13
3.4.1 Subdivision of Land ...................................................................................................13
3.4.2 Establishment of Urban Areas ...................................................................................14
3.4.3 Summary of Changes ...............................................................................................15
The land delivery process in Namibia IV
4. Subdivision of a Sectional Titles Scheme ..............................................................................15
5. The Flexible Land Tenure System (FLTS) .............................................................................17
5.1 Flexible Titles ..................................................................................................................17
5.2 Link to the regular Land Delivery Process ........................................................................18
6. Conclusion ............................................................................................................................20
The land delivery process in Namibia 1
1. Introduction
In every society, the tenure of land has a high social significance. Occupants value their
piece of land as a place to live, a place where they belong and to which they often are
emotionally attached. Apart from that, for private individuals the property they live on is
often the most valuable thing they own and thus one important key to capital.
Due to the colonial and apartheid history of Namibia, the distribution of land in the
country is unequal. It thus stands to reason that providing access to land and tenure
security has been and continues to be one of the most salient political issues since
independence.
This paper examines the administrative processes to be observed by private persons in
order to acquire title to immovable property, the so-called land delivery process.
Chapter two provides an overview of the relevant legislation, also including the Urban
and Regional Planning Bill, which is still in the process of legislation. In the third
chapter, the single stages of this process are examined in detail. The changes brought
about by the Urban and Regional Planning Bill are explained in a separate section of
this Chapter. Eventually, in the last Chapter, the recent Flexible Land Tenure Act is
briefly outlined, which introduced a parallel, faster process to obtain less formal titles.
2. Legislation relevant for the Land Delivery Process
The land delivery process in Namibia is not governed by one comprehensive piece of
legislation, but by various acts and ordinances, which is likely to cause confusion, not
only among laymen. Making changes to this process is complicated, for it often requires
the amendment of fairly many acts.
Which laws apply to the delivery of a certain piece of land depends on various factors,
mostly on its location and of the intended legal procedure, e.g. the establishment of a
township, the subdivision of land, or the initiation of a sectional titles scheme.
2.1 Townships & Division of Land Ordinance, Ordinance 11 of 1963 as amended
(hereafter Townships Ordinance)
The Townships Ordinance sets up rules for the establishment of townships and
provides a legal framework for the regulation and control of the development and
subdivision of township land.
The land delivery process in Namibia 2
The objective of the Ordinance is to ensure an orderly development and facilitate the
peaceful co-existence of people living in townships. Before a township can be
established, the applicant, i.e. the owner of the land in question, in most cases the
municipality, requires permission from the MURD Minister who can grant it after
consultation with the Namibian Planning and Advisory Board1 (henceforth NamPAB)
and the Townships Board.2 Permission is also needed for the subdivision and
consolidation of land3 and for the extension of approved townships.
Also, whenever agricultural land shall be divided in a way that either the subdivision or
the remainder so created is less than twenty-five hectares in extent, the Townships
Ordinance applies, as the subdivision then is regarded as the establishment of a new
township.4
2.2 Town Planning Ordinance, Ordinance 18 of 1954 as amended (henceforward,
Town Planning Ordinance)
The aim of the Ordinance 18 of 1954 is to introduce provisions for the preparation and
the implementation of Town Planning Schemes (TPS). The ordinance also determines
what can be prescribed in a TPS. The TPS is a comprehensive policy statement and it
acts as a parameter for the future spatial development.
In the Ordinance, NamPAB was established to advise the MURD Minister in matters
relating to the preparation and implementation of TPS and other related planning control
and management functions.5 NamPAB consists of three to ten members, all of which
are appointed by the MURD Minister.6
Addressees of the Ordinance are local authorities. They shall develop TPS in their
territory to facilitate a coordinated and harmonious development of local authority areas.
Once a TPS has come into effect all spatial use must be in accordance with it.
2.3 Urban and Regional Planning Bill (URPB)
The Urban and Regional Planning Bill is scheduled to be presented to Parliament in the
second week of September. The Bill is supposed to repeal the Townships & Division of
Land Ordinance as well as the Town Planning Ordinance. It renames townships to
1
Established in Sec. 9 Town Planning Ordinance.
2
Established in Sec. 2 Townships Ordinance.
3
Sec. 19 to 30 Townships Ordinance.
4
Sec. 20 Townships Ordinance.
5
Sec. 9 to 14 Town Planning Ordinance.
6
Sec. 9 (1A) Town Planning Ordinance.
The land delivery process in Namibia 3
urban areas with approved townships becoming approved urban areas. The
Townships Board and NamPAB are replaced by the newly established Urban and
Regional Planning Board.7 The board comprises of members representing amongst
others MURD, MLR, MME, the National Planning Commission, Surveyor-Generals
Office, Deeds Registry, Association of Local Authorities, and the Association of
Regional Councils.
Apart from introducing strategic spatial plans for the national level (National
Development Framework), and for the regional and urban levels (Regional or,
respectively, Urban Structure Plans), the Bill strengthens the position of local
authorities. According to the concept of decentralisation, more responsibility is shifted to
the local level to better accommodate the needs of the people who are actually affected
by the plan. Furthermore, the former Town Planning Schemes are renamed into Zoning
Schemes.8 They shall be produced for every local authority for which an urban
structure plan was prepared or in respect of whom the PS has prepared or caused an
urban structure plan to be prepared.9 Zoning Schemes may also be prepared for such
local authorities who do not have an urban structure plan.10 Here again, irrespective of
whether or not a local authority is an authorized planning authority, the PS of MURD
can instruct a local authority to have a zoning scheme for its area prepared.11
Changes that will be introduced by the URPB are summarized in a separate paragraph
of the next Chapter.12
2.4 Subdivision of Agricultural Land Act 70 of 1970, as amended (Subdivision of
Agricultural Land Act)
The aim of the Subdivision of Agricultural Land Act is to exercise control over the spatial
development of rural areas. According to the Act, it is principally prohibited to subdivide
agricultural land unless the Minister of Agriculture has given his consent. In addition, the
Act prescribes the statutory procedure and fees.
7
Sec. 2 URPB.
8
Sec. 27 ff. URPB.
9
Sec. 27 (1) URPB.
10
Sec. 27 (2) URPB.
11
Sec. 27 (3) URPB.
12
The version of the Bill referred to includes the adjustments recommended by Harold Kisting and Peter Rutsch in
their final report dated June 2015.
The land delivery process in Namibia 4
2.5 Agricultural (Commercial) Land Reform Act 6 of 1995 (ACLRA)
The Agricultural Land Reform Act lies at the heart of the political ambition to redistribute
agricultural land to formerly disadvantaged Namibians. This Act grants the State
represented by the MLR the preferent right to purchase agricultural land. This right
has to be exercised according to the willing seller - willing buyer principle and strictly
only in the public interest. That means, every farmland owner planning to sell his farm
has to offer it to the state first. The latter assesses the capacities of the land and
determines whether the farmland is suitable for resettlement purposes. Only after the
State has decided not to buy a certain piece of land and issues a so-called certificate of
waiver,13 the farm can be sold on the free market. This constitutes a privilege to the
State which limits private ownership of this plot. An amendment of the Act introduced a
tax on agricultural land.
The Act also provides a comprehensive system of provisions dealing with the different
aspects of land reform.14 Among these provisions it defines a procedure of valuation to
determine a fair price for the land according to its market value,15 limits the acquisition
of land from foreigners16 and empowers the State to expropriate farms in the public
interest under certain conditions.17
2.6 Sectional Titles Act
The Sectional Titles Act was the first act which established titles other than full
ownership freehold titles under the regular system. The original Sectional Titles Act
dates to 1971 and was amended in 2009. The Sectional Titles Act allows the
subdivision of buildings into sections; to each section belongs one sectional title. It is
also possible to apply sectional titles schemes to more than one building. This is why it
can be used for townhouse developments, which are similar to (small-scale)
townships.18
The sectional titles scheme comprises areas of shared common property and the single
sections of exclusive property. The Deeds Registry refers to an additional Sectional Title
Register which contains all relevant information about the single sectional titles. The
13
Sec.17 ACLRA.
14
For a detailed overview, see Andre P. Resch, Immovable Property Law in Namibia, p. 5.
15
Sec. 25 ACLRA.
16
Sec. 58 ACLRA.
17
Sec. 19 ACLRA.
18
Sec. 6 (2) Sectional Titles Act.
The land delivery process in Namibia 5
owners of a section in a scheme form a body corporate which controls the
management, administration and use of the common property of a scheme.19
2.7 Land Survey Act (LSA)
The LSA regulates the survey of land. The Surveyor-General is in charge of geodetic,
topographical and cadastral surveying in Namibia.20 This means that every result of a
cadastral survey can only be lodged in the Deeds Registry with the Surveyor-Generals
approval.21
The actual survey is carried out by a professional land surveyor.22 A regulations board
comprising the Surveyor General and three other persons appointed by the Minister is
in charge to define the manner of surveying by means of methods stipulated in
implementing Regulations.23 Currently, surveying in Namibia is conceptualized as field
survey.24 This means, to survey a piece of land the land surveyor has to go out in the
field and use physical tools to determine the dimensions of the land concerned. All data
so collected features in a diagram or general plan. A diagram refers to the position and
dimension of one piece of land and a general plan refers to two or more pieces of
land.25 In addition, the regulations provide provisions for the required accuracy of a
survey.
2.8 Deeds Registries Act26
The Deeds Registries Act deals with the registration of deeds. The Deeds Office is
located in Windhoek and headed by the Registrar of Deeds.
In general, the transfer of immovable property rights requires the registration of the
deed of transfer in the Deeds Office in order to be valid.27 The transfer of land and
cessions of real rights have to follow the sequence of the successive transactions in
pursuance of which they are made.28 This means that only the owner of the land or real
19
Sec. 38, 39 Sectional Titles Act
20
Sec. 3 (2) LSA.
21
Sec. 35 LSA.
22
Sec. 7 LSA.
23
Sec. 4, 5 LSA.
24
Part III, Regulations LSA.
25
Statutory definitions, Sec. 1 LSA
26
see Andre P. Resch, Immovable Property Law in Namibia, p. 2. There is also a Deeds office in Rehoboth which
runs its own system of deeds registration under the Registration of Deeds in Rehoboth Act 93 of 1976. The parallel
system will be given up as soon as the Deeds Registries Bill (DRB) has been adopted.
27
Sec. 16 DRA.
28
Sec. 14 (1) DRA. The DRB is going to change this so that also the owner of the land himself can prepare the deed,
cf. Sec. 9 DRB.
The land delivery process in Namibia 6
right can transfer his right. Before a transfer is registered, the ownership is determined
by the Registrar of Deeds or his staff by means of the previously registered deeds.
Before a transfer can take place, the relevant deed has to be prepared by a
conveyancer.29 Only such deed can be attested, executed or registered by the Registrar
of Deeds. All registered encumbrances (mortgages, servitudes, etc.) have to be
cancelled.30
The Deeds Registries Act imposes additional requirements for the subdivision of land.
As the new piece of land has to be entered into the Deeds Registry, like every other
piece of land it first has to be surveyed and the diagram has to be approved by the
Surveyor-General.31
3. Different Stages of the regular Land Delivery Process
In general, the land tenure system of Namibia is divided into the freehold system in the
urban and commercial areas and the customary tenure system in the communal areas.
The communal areas are deemed to be owned by the State, who holds them in trust for
the people. In contrast, the commercial and urban areas are mostly held in individual
ownership. Sectional titles and flexible titles are other, compared with freehold titles
more restricted types of immovable property, registered not in the Deeds Registry, but
in their respective subordinate registers.
Customary rights can with the exception of registered leaseholds not be entered into
the Deeds Registry and can thus not be encumbered with mortgages or other real
rights.
This analysis focuses on the procedure of acquiring freehold titles on every type of land.
It is assumed that people living on the land approach the owner of the land to purchase
the plot they are living on.
3.1 Overview
The statutory procedure of land delivery actions for urban land is prescribed in the
Townships and Division of Land Ordinance, except for the subdivision of land in
regard of which a TPS was adopted. The latter falls within the scope of the Town
29
Sec. 15 DRA.
30
Sec. 56 DRA.
31
Sec. 43 DRA.
The land delivery process in Namibia 7
Planning Ordinance instead. In addition, the Sectional Titles Act allows creating
sectional titles schemes as another manner of subdividing land. The subdivision of
agricultural land is prescribed by the Subdivision of Agricultural Land Act. All
transfers of land have to be in accordance with the Deeds Registries Act.
3.2 Subdivision of urban land
There are three different categories of land referred to in the Townships Ordinance:
erven, townlands and land outside of townships and townlands. Every category
indicates a different legal status of the plot. The definitions stated in the Townships
Ordinance do not correspond with the common parlance of these words in every case.
Township means any area of land registered as one or more pieces of land either
contiguous or in close proximity to each other which is being or is intended to be laid out
or divided into sites for residential, business or other urban uses or for urban settlement
arranged in such a manner as to be intersected or connected by or to abut on public
places. The definition of the Townships Ordinance only refers to spatial conditions and it
is neutral towards the inhabitants of the area. Therefore it differs from the South African
usage of the word township. Within the category of township a further distinction is
made between approved townships and others. An approved township is a township
which is established and proclaimed under the provisions of the Townships Ordinance.
The difference between a township and an approved township is reflected in the
different legal status of the plots within those areas.
Erf denotes every piece of land in an approved township. An erf is a piece of land which
is surveyed in accordance with the provisions of the Land Survey Act and thus is
registered in the Deeds Registry; and Townland signifies all land situated within the
area of jurisdiction of a local authority except for land in approved townships.
Depending on the legal status of the plot, different sections of the Ordinance apply32. As
shown in the definitions given, the legal status of a plot derives from the location of the
respective plot.
The statutory procedure for all sections is similar.
3.2.1 Subdivision of a single erf
Subdivision of land generally denotes the division of an erf or a piece of land by means
of a survey for the registration of a title. A single subdivision following Sec. 25
32
For erven applies Sec. 19 and for townlands Sec. 21, 20.
The land delivery process in Namibia 8
Townships Ordinance can only be conducted if the erf is subdivided in less than eleven
erven; otherwise the provisions for the township establishment apply.33 The Ordinance
entitles the owner, be it a natural or legal person, to subdivide a piece of land.34
Normally, however, he or she is supported by a professional town and regional planner,
35 although this is not legally required.36
First, the owner of the land that is to be subdivided must seek approval from the local
authority.37 Legally there is no prescription concerning the required content and form of
the request. The local authority examines if the intended subdivision is in harmony with
the existing surrounding area. It also makes sure that infrastructure provisions are
satisfying.38 In a large municipality such as Windhoek, the application is assessed by
the municipalitys Town Planning Division. At the same time it is distributed to other
offices for comments, like the water, electrical, roads and storm water division.39 After
roughly five months in total the approval of the local authority is issued.40
As a second step, the application together with the letter of consent from the local
authority has to be referred to the Townships Board for its approval.41 The Townships
Board consists of officials from the MURD, the National Railways (TransNamib), the
Deeds Office, the Surveyor-Generals Office and a representative of the ALAN
(Association of Local Authorities of Namibia), which is normally represented by the City
of Windhoek.42 The Townships Board approval is sometimes referred to as Townships
Board Certificate or subdivision certificate. In practice, this certificate substitutes the
authorisation of the MURD Minister which is required by the Townships Ordinance.43 It
takes on average three months to obtain the Townships Board Certificate.44
After that, the land is surveyed. In this respect, the order of planning steps is not
prescribed by law but follows established practice. The Townships Board approval is not
33
Sec. 19 (3), 28 (2) Townships Ordinance; cf. interpretation of Joe Lewis & Walter de Vries, Are urban land tenure
regulations in Namibia the solution or the problem?, p. 5.
34
Explicitly only prescribed in Sec. 20 Townships Ordinance.
35
According to the information given by Joe Lewis in Are urban land tenure regulations in Namibia the solution or
the problem?.
36
Annexure B, Reg. to the Town and Regional Planners Act, Sec. 2 (h)(ii).
37
Sec. 19 (3) Townships Ordinance.
38
For a detailed listing see Decentralization Performance: Functions Rules Procedures, Book 5, Ministry for
Regional and Local Government and Housing (now: Ministry for Urban and Rural Development), 2000.
39
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 5.
40
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 5.
41
Sec. 19 (3), Sec. 21 Townships Ordinance.
42
Sec. 2 (2) Townships Ordinance.
43
Sec. 19 (1), 20 (1), 21 Townships Ordinance.
44
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 6.
The land delivery process in Namibia 9
mandatory for the survey. Legally it is possible to survey the land already while the
application for approval of the survey is still pending. This approval is only a prerequisite
for the Surveyor-Generals approval to lodge the result of this survey in the cadastre.
However, the described order ensures an effective process. For the survey must
possibly be redone in case the Townships Board refuses the approval or merely grants
it under certain conditions. This would involve unnecessary additional costs.
All cadastral surveys must be conducted in accordance with the Land Surveyor Act
(LSA) and its regulations.45 The result of the survey, i.e. the diagram and the general
plan, can only be registered in the Deeds Registry after it was approved by the
Surveyor-General.46 In 2009, the survey process took at least seven months in total,
whereby the survey itself took about a month and the approval of the Surveyor-General
six months at minimum.47 These numbers are now superseded. According to the
Surveyor-Generals Office, the duration of the assessment of survey records depends
on the complexity, completeness and correctness of the lodged survey records. For
95% of the survey records, the assessment process is completed within three months.48
Thus, today the process can be concluded in four months.
The Registrar of Deeds has to approve the general plan of the subdivision.49 Under
current legislation, applications for registration have to be prepared by a conveyancer.50
The Registrar of Deeds shall not register the transfer of any erf until a receipt of the
payment of an endowment to the municipality has been submitted.51 The endowment
shall be calculated as a percentage of the value of the portion of land.52
The ownership can only be conveyed from one party to another when the deed of
transfer is executed or attested by the registrar.53 For this reason, the process of
conveyance by the manner of subdivision of land is only complete once it has been
45
Sec. 34 LSA.
46
Sec. 35 LSA.
47
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 6.
48
According to the Surveyor-Generals Office, the remaining five per cent are mainly surveys that are initially
rejected by the SG because of flaws and which are then not relodged timely by the responsible professional land
surveyors.
49
Sec. 46 (1), 46 B Deeds Registries Act.
50
Sec. 15 Deeds Registries Act, to be changed by Deeds Registries Bill, cf. fn. 21.
51
Sec. 19 (5), (6) Townships Ordinance; note that this provision only applies for erven, thus not for townlands
and land outside the jurisdiction of a local authority.
52
Sec. 19 (4)(c) Townships Ordinance.
53
Sec. 16 Deeds Registries Act.
The land delivery process in Namibia 10
registered in the Deeds Registry. The whole process for a single subdivision takes
about 12 months.54
3.2.2 Subdivision of urban land regulated by a TPS
According to Sec. 19 (14) Townships Ordinance, all areas for which TPS were
developed and where the local authority is empowered to exercise control over the
subdivision of land in terms of the provisions of the scheme, do not fall under the scope
of the section. Because in the course of forging the TPS the Townships Board must
already give its approval, it is not necessary to obtain an additional permission for
administrative decisions that only implement the approved planning.
Sec. 31 Town Planning Ordinance prescribes that the Surveyor-General should not
grant his approval of any general plan or diagram containing a sub-division of land if
he/she finds it inconsistent with any of the provisions of the approved TPS.
3.2.3 Township establishment
Roughly speaking, the establishment of a township is a formalized large-scale
subdivision of land for urban use. A subdivision is a township establishment, when the
threshold of eleven erven is reached or exceeded.55
The owner of the property is the person entitled to start this procedure by lodging an
application with the Minister of Urban and Rural Development.56 The definition owner
refers to whoever is registered in the Deeds Registry.57 This definition includes private
persons as well as local authorities or municipalities. However, regularly the land of a
future township is held by the local authority or municipality.
Upon receipt, the Minister refers the application to NamPAB which assesses the need
and desirability of the proposed township establishment.58 The application must contain
a layout plan of the proposed township59 that must be prepared and submitted by a
town and regional planner.60 To be desirable, the plan should balance out different land
uses such as residential zones, parks and other recreational facilities and public
54
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 6;
see also fn. 48.
55
Sec. 19 (3), 28 (2) Townships Ordinance. According to the interpretation of Joe Lewis & Walter de Vries, Are
urban land tenure regulations in Namibia the solution or the problem?, p. 5.
56
Sec. 5 (1) Townships Ordinance.
57
Sec. 102 Deeds Registries Act.
58
Sec. 5 (5)(a)(i) Townships Ordinance.
59
E.A. Simon, Manual on town & regional planning practice in Namibia, Volume 1, p. 46.
60
Sec. 13 Town and Regional Planners Act (TRPA); Annexure B Sec. 2 (f) Reg. TRPA.
The land delivery process in Namibia 11
places.61 The approval of NamPAB serves as a recommendation for the MURD
Minister.62
Once the Minister has given his consent, he refers the application to the Townships
Board. The Board has to lay open the application to public inspection at the office of the
Director of Local Government and/or other places, giving the public the opportunity to
raise objections.63 The Board shall announce the public display in the Government
Gazette and in another selected newspaper.64 Taking into account all objections raised
the Townships Board can recommend to the Minister whether to grant or refuse the
application or can impose conditions.65
Upon the granting of permission, the Minister notifies the applicant, the Townships
Board, the Surveyor-General, the Registrar of Deeds, and the local authority
concerned.66 The applicant then has to submit a finalized version of the layout plan with
exactly laid out boundaries for all erven which then can be surveyed and registered. All
plots must have street access and must be connected to utility services linked to the
town.67 The plan must meet all conditions imposed by the Minister. If the plan is in
accordance with the Ministers permission and with the TPS, if applicable, as advised by
the local authority, the Townships Board approves it.68
Thereafter the owner must initiate a survey in accordance with the approved layout
plan. On completion of the survey, the owner shall submit the general plan of the
proposed township and the diagram of the respective land to the Surveyor-General for
his approval. Once the Surveyor-General has approved the survey records, he will
notify the Minister, the owner and the Registrar of Deeds.69
Within one year after receiving the Surveyor-Generals approval, the township owner
must lodge the aforementioned plan and diagram with the Registrar of Deeds for
endorsement. The endorsement indicates that the land concerned has been laid out as
a township. The Registrar of Deeds will open a register for the approved township, the
so called township register.70
Upon the approval of the Registrar of Deeds the Minister declares the concerned land
an approved township. The proclamation has to be announced in the Government
61
E.A. Simon, Manual on town & regional planning practice in Namibia, Volume 1, p. 46.
62
Sec. 5 (5)(ii) Townships Ordinance.
63
Sec. 5 (5)(iii) Townships Ordinance.
64
Ibid.
65
Sec. 6 (1) Townships Ordinance.
66
Sec. 9 (1) Townships Ordinance.
67
see Schedule to Townships Ordinance, Sec. 10 Townships Ordinance.
68
Sec. 10 (1) Townships Ordinance.
69
Sec. 11 Townships Ordinance.
70
Sec. 12 Townships Ordinance.
The land delivery process in Namibia 12
Gazette. It shall include all the conditions if there are any under which the approval
of the township has been granted.71
The applicant has to cover all the expenses arising from the establishment process.72
The town planning process takes on average about one year in total.73 In addition to
that, the survey and proclamation process approximately takes another year. To sum
up, the whole township establishment process typically takes about two years.74
After the township has been proclaimed, the erven located in there can be transferred.75
3.3 Subdivision of Agricultural Land
The term agricultural land denotes any land outside the jurisdiction of a municipality,
city, town, or village council not earmarked for the establishment of a township/urban
area.76 This definition includes every type of farm or rural area; the land must not
necessarily be used for agricultural purposes.
Principally, the subdivision of agricultural land is prohibited.77 The owner78 of that land
can apply for approval of subdivision by the Minister of Agriculture, Water and Forestry
(MAWF).79
He/she needs to complete a standard form and attach a sketch plan to indicate the
proposed subdivision. The approval is often obtained within two weeks.80 No costs arise
from the application procedure.81 Only if the subdivision creates pieces of land that are
less than twenty-five hectares in size, according to Sec. 20 Townships Ordinance, in
addition the approval of the MURD minister has to be obtained, as the subdivision is
regarded as a township establishment.82 As applies to every township, the minister has
to consult with NamPAB before he can grant his approval.83
As a second step the land can be surveyed in accordance with the LSA as described
above. The Surveyor-General has to approve the result of the survey before it can be
71
Sec. 13 Townships Ordinance.
72
Sec. 5 (4) Townships Ordinance.
73
According to Joe Lewis, the chairman of SURCON.
74
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?.
75
Sec. 16 Townships Ordinance.
76
Statutory definition (a) given in the Subdivision of Agricultural Land Act.
77
Sec. 3 (a) Agricultural Land Act.
78
Referring to Sec. 102 Deeds Registries Act.
79
Sec. 4 (1) (a) Subdivision of Agricultural Land Act.
80
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 6.
81
Sec. 9 Subdivision of Agricultural Land Act.
82
Sec. 20 (1) Townships Ordinance.
83
Sec. 20 (4) + (5) Townships Ordinance.
The land delivery process in Namibia 13
registered.84 This second stage takes at least four months, whereof the survey takes
about one month and the approval of the Surveyor-General about three months at
least.85
However, before a subdivision can be registered in the Deeds Registry86, the land has
to be offered to the MLR according to the Agricultural (Commercial) Land Reform Act.87
This Ministry has the privilege to buy agricultural land before the seller is allowed to
offer it on the free market or in any manner convey the ownership. Only if the Ministry
issues a certificate of waiver the procedure of the subdivision can be finalized with the
registration in the Deeds Registry.
3.4 Procedures under the Urban and Regional Planning Bill
The Bill contains provisions for the subdivision of land in Part IV. No distinction between
urban and agricultural land is made, this part of the Bill is equally applicable to all land.
The establishment of new urban areas (the former townships) is set out in Part V of the
Bill. The Bill does not define the threshold where a subdivision of land becomes the
establishment of an urban area. This is left to be determined in the accompanying
regulations.
3.4.1 Subdivision of Land
The most important change in the procedure in comparison to the current process of
single subdivision is that no board is included in the decision making process anymore.
The decision can be taken by the authority in charge alone. This can be the Permanent
Secretary responsible for regional and local government matters (currently the PS of
MURD) or an authorised planning authority, which can be a local authority, a regional
council or a joint committee consisting of regional councils and local authorities that are
governing the land situated within the planning area as determined by the MURD
Minister.88
According to Sec. 42 of the Bill, land may not be subdivided without the approval of the
relevant authority. The person who wants to subdivide land, which can be the owner, a
regional council, or local authority, has to file a written application with the respective
authority in charge of the area in which the land is situated.89 To accelerate the process,
84
Sec. 35 LSA.
85
According to the Surveyor-Generals Office.
86
This is necessary to make it legally valid, Sec. 16 Deeds Registries Act.
87
Sec. 17 Agricultural Land Reform Act.
88
Sec. 42 (1), 44 URPB.
89
Sec. 43 (1) URPB.
The land delivery process in Namibia 14
the applicant should notify any adjacent owner or neighbouring owners of the
application to subdivide beforehand and advertise the application in a manner still to be
prescribed by regulation.
With that, the neighbours and the general public are invited to bring their objections to
the awareness of the authority. These objections and the comments e.g. of the local
authority (in case it does not take the decision about the subdivision itself), are then
brought to the attention of the applicant who is free to react to these remarks,90 i.e., for
instance, amend his application or provide additional justifications for his proposal.
After the application was filed, the responsible authority decides whether it is granted or
refused and whether conditions are imposed91 and notifies the owner, the Surveyor-
General and the Permanent Secretary (if he/she is not him-/herself the responsible
authority) of the decision.92 One possible condition can be the obligation to pay an
endowment to the local authority in question.93
After this procedure is concluded, the applicant shall lodge the plans, diagrams or other
documents with the Surveyor-General for approval. After the plans were so approved,
the Surveyor-General notifies the Deeds Registrar thereof who makes an endorsement
to the title deed.94
3.4.2 Establishment of Urban Areas
Under the Urban and Regional Planning Bill, no private person can apply for the
establishment or extension of an urban area; only an authorised planning authority or
the Permanent Secretary can do so.95
Before the application is lodged with the Urban and Regional Planning Board, the
intention to apply for permission has to be advertised. Objections from the general
public are invited. These objections and comments with proof of sufficient advertisement
have to be attached to the initial application.
It is the Boards duty to gather all the information it deems necessary to eventually
formulate a recommendation to the Minister. The latter shall not make changes to these
recommendations without consultation with the Board. When the Minister has approved
the application, the Board notifies the applicant, the Surveyor-General and the Deeds
Registrar of this decision.
90
Sec. 43 (3)(b); (6)(a)(ii) URPB
91
Sec. 44 URPB.
92
Sec. 43 (4)(b), (6)(b) URPB.
93
Sec. 44 (3)(j), (4) URPB.
94
Sec. 51 URPB.
95
Sec. 55 (2) URPB.
The land delivery process in Namibia 15
The applicant shall then initiate that the new urban area is surveyed in accordance with
the approved layout plan.96 He/she shall lodge such plans, diagrams or other
documents as required for approval by the Surveyor-General within a period of 36
months from the date of which he/she was notified.97 Within six months after the
Surveyor-Generals approval , the plans and diagrams shall be given to the Registrar of
Deeds for endorsement or registration.98 As a final step, the Minister declares, by notice
in the Gazette, the new urban area to be an approved urban area, together with the
name thereof.99
3.4.3 Summary of Changes
In summary, the Bill will accelerate the land delivery process. Although the Bill cannot
change the lengthy procedures of surveying and registration in the Deeds Registry, for
the single subdivision an approval by the Townships Board or a similar board is no
longer needed. Under the Bill it is sufficient that the responsible authority agrees with
the proposed plans. The fact, that the participation of neighbours and other
stakeholders concerned already has to take place before the actual application is filed
also contributes to streamlining the application process.
The same can be said about the establishment of urban areas under the Bill. While
under current law NamPAB as well as the Townships Board must be consulted, the Bill
shifts all responsibilities to the newly founded Urban and Regional Planning Board. This
reduces the process by one administrative step. As in the procedure regarding the
subdivision of land without the establishment of an urban area, the participation of
stakeholders should already take place before filing the application.
4. Subdivision of a Sectional Titles Scheme
Ownership rights granted through sectional titles differ from the aforementioned regular
land tenure system. A sectional title is a personalized title which assigns the right of
ownership of a section of land to its holder. The single sections are linked within a
scheme. This entails that ownership is to a certain extent limited: On the one hand, the
sectional title can be transferred like a freehold title, because the unit, i.e. a section
together with its undivided share in the common property, is deemed to be land.100 But,
96
Sec. 55 (6)(b) URPB for the establishment; Sec. 55 (12)(b) URPB for the extension of an urban area.
97
Sec. 58 (1) URPB.
98
Sec. 60 (1) URPB.
99
Sec. 61 (1) URPB.
100
Sec. 5, Statutory Definitions Sectional Titles Act.
The land delivery process in Namibia 16
on the other hand, any other transaction, like a subdivision or consolidation of the title or
an extension of land, is only possible with the consent of the trustees of the body
corporate.101 If the section is encumbered with a mortgage, the mortgagee must
consent to registration.102
The structural difference of this construct also influences the land delivery process. In
contrast to the regular process, which includes the survey of every single piece of
registered land, only the outer boundaries of the sectional titles scheme are registered
in the Deeds Registry. The single sections are only listed in the additional subordinate
Sectional Title Register.
A sectional titles scheme can only be established on urban land falling under the
jurisdiction of a local authority.103 The registered owner of land can develop the scheme.
Again, the definition includes private persons as well as public bodies. However, in most
cases it is the Municipality which establishes a sectional titles scheme.
As a first step the developer of a sectional titles scheme has to commission the draft of
a sectional layout plan comprising the area and the single buildings. This plan can be
drawn by an architect or professional land surveyor.104 Then the plan has to be
submitted to the Surveyor-General. He examines whether the draft sectional plan
complies with the Land Survey Act.105 Afterwards the local authority has to approve it
within 60 days.106 The authoritys approval is only given when the draft sectional plan
complies with the operative town planning schemes or current planning/development
initiatives.
Finally, the applicant applies to the Registrar of Deeds for the registration of the
scheme.107 The Registrar makes the necessary endorsement on the title deed.108
Following registration in the Deeds Registry the single units can be sold.
The land delivery process under the Sectional Title Act shortens the town planning
process as neither NamPAB nor the Townships Board is involved in the procedure.
Depending on the size of the scheme the process can be completed within a period
from three months to one year.109
101
Sec. 22 (1) Sectional Titles Act.
102
Sec. 23 (2c), 24 (2c) Sectional Titles Act.
103
Def. of developer, Sec. 1 Sectional Titles Act, Statutory Definitions.
104
Sec. 7 Sectional Titles Act.
105
Sec. 6 (1a) Sectional Titles Act.
106
Sec. 6 (1b), 9 Sectional Titles Act.
107
Sec. 11 Sectional Titles Act.
108
Sec. 12 Sectional Titles Act
109
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?, p. 9.
The land delivery process in Namibia 17
5. The Flexible Land Tenure System (FLTS)
The Flexible Land Tenure Act was enacted in 2012. Together with its Implementing
Regulations that are currently finalized, the Act aims at improving tenure security for low
income households in informal settlements on urban land by establishing a new and
less formal system of land tenure titles. Due to its simplicity it is supposed to be faster
and more affordable.
The desired improvement concerns different aspects: Firstly, land tenure security for the
inhabitants of informal settlements shall be provided. Whilst they were formerly
considered illegal occupants, the new titles under the FLTS shall protect them against
eviction. At the same time the titles shall secure the additional financial value of the plot
as there is a higher incentive for the occupants to develop a plot they actually own. In a
broader perspective, this less formal system of titles is meant to spread economic
growth to the low income households by legally enabling them to use their (land hold)
titles as collateral for a bank loan.110
5.1 Flexible Titles
The FLTS establishes two new titles that are gradually upgradable to freehold. Each of
these new titles guarantees different rights to their holders. Both types of titles constitute
group rights. It is required that a group of people of any size founds an association
which constitutes the base of each scheme. The titles are personalized, but in the
categories of the regular system refer to an ideal part of the group property. The right is
guaranteed to the association, not to the individual members of the scheme.
The starter title implies two rights111:
- The right to perpetual occupation of a site within the concerned block.
- The right to transfer or otherwise dispose of the starter title, subject to local
custom or the group constitution.
The starter title does not refer to a clearly defined piece of land within the scheme. Only
the whole block, the so-called blockerf, is registered in the Deeds Registry. Starter titles
are only listed in a starter title register, maintained in a Land Rights Office (LRO) to be
established. 112
110
Sec. 10 (5)(b) FLTA.
111
Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?,
p. 11; Sec. 9 FLTA.
112
Sec. 4 FLTA.
The land delivery process in Namibia 18
In contrast to the starter title, the land hold title pertains to a specific parcel within that
blockerf. The land hold title comprises most of the elements of ownership, namely:
- The right to occupy a geographically defined plot in perpetuity.
- The right to transfer or otherwise dispose over the property.
- In addition to the provisions of the Deeds Registries Act concerning real rights,
the land hold title can be used as collateral for a bank loan.
The individual plots allotted within a land hold title scheme are not registered in the
Deeds Registry, but in a separate register for land hold titles which will be administered
by the LRO. This register also requires submission of a layout plan that demarcates the
single plots. Since this plan is not lodged in the Deeds Registry, it must not comply with
the provisions of the Land Survey Act. That is why the boundaries within a land hold title
scheme may be determined by a land measurer instead of having to be surveyed by a
professional land surveyor. In Namibias institutions of tertiary education, courses
leading to the title land measurer are no longer offered. Consequently, it is unclear
what qualifications a land measurer actually needs. The current version of the draft
Regulations to the FLTA mandates the Public Service Commission with the task to find
a definition for the term.113
In principle, the FLTA intends that the land delivery process begins with the
establishment of starter title schemes. Subsequently, these schemes are to transform
into land hold title schemes and can eventually be upgraded to freehold title. But this
order is not mandatory. It is also possible to establish a land hold title scheme without a
preceding starter title scheme.114 As a group tenure system, only the entire scheme can
upgrade, not just parts of that scheme. When a majority of 75 % votes in the positive,
the upgrade can be commenced.115 Scheme members who voted against the scheme
will, in case of an upgrade to a land hold title scheme, be granted starter title rights in
another, similar scheme.116 In case of an upgrade to freehold, they will lose their title,
but receive fair compensation for it.117 In both cases, the respective land falls back to
the relevant authority, which is free to sell it to other interested parties.118
5.2 Link to the regular Land Delivery Process
Although the FLTA creates a somewhat parallel system for the establishment of new
titles, elements of the regular land delivery process do apply.
113
Sec. 5 Reg. FLTA.
114
Cf. Sec. 11 (4), 13 FLTA.
115
Sec. 14 (1), 15(1) FLTA.
116
Sec. 14 (2) FLTA.
117
Sec. 15 (4) FLTA.
118
Sec. 14 (3), Sec. 15 (5) FLTA.
The land delivery process in Namibia 19
Before any title scheme can be established, the land concerned must be subdivided or
consolidated in such manner that the scheme is situated on one portion of land
registered as such in the Deeds Registry.119 To meet this prerequisite the procedures
prescribed in the Townships Ordinance must be adhered to. Within Flexible Land
Tenure, the procedure for a single subdivision should apply. As explained above the
distinction between the procedure to establish townships and the one for single
subdivision is the number of erven registered in the Deeds Registry. Since only the
blockerf is registered in the Deeds Registry, the threshold for a township establishment
is not reached. Also, in comparison to the survey required for township establishment,
the FLTS-survey is less formal and therefore less costly. Nevertheless, in addition to the
provisions of the FLTA, should a subdivision be necessary beforehand, the Townships
Board needs to approve it. Only then can the blockerf be entered into the Deeds
Registry.
As a result it can be stated, that the newly established FLTS does not completely
substitute the town planning part of the land delivery process. It applies only after this
stage. It accelerates land delivery because the time consuming township establishment
process can be avoided.
FLTS makes surveying and registration easier than in the regular procedure. The less
formal starter title and land hold registers, which are subordinate to the Deeds Registry,
do not require that registration is done by a conveyancer, nor that the surveying rules of
the LSA apply.
Nevertheless, the FLTA cannot be considered as a fast track way towards a freehold
title.120 The group tenure construct makes the FLTS somewhat inflexible. This creates
difficulties for the intended upgrading process. Especially when the size of the group is
relatively large, coordination between its members becomes increasingly lengthy and
cumbersome. In addition, FLTS-titles are transferable and membership is fluent. Some
inhabitants will leave the scheme and newcomers will bring different interests in. It
seems not very likely that a majority of 75 % has the money and the will to upgrade to
freehold titles at the same time.
On the contrary, economic rationale requires the blockerf to be as big as possible. If the
blockerf is too small and only consists of a few erven, the pro rata surveying costs for
every erf becomes very high. Surveying fees are prescribed by regulation. The
calculation of the fees is based on the size of the land and the number of plots to be
surveyed. There is a degression of costs for large surveys. That means the more plots
119
Sec. 11 (2) FLTA.
120
Cf. Joe Lewis & Walter de Vries, Are urban land tenure regulations in Namibia the solution or the problem?,
p. 13.
The land delivery process in Namibia 20
are surveyed at once, the cheaper surveying becomes for each single plot. A best
practice approach to this dilemma still has to be developed.
It is also doubtful, whether banks would be willing to accept land hold titles as collateral.
Flexible titles are momentarily regarded as highly insecure. Without the financial aspect
to them, the new titles are not likely to encourage economic growth.
Such uncertainties notwithstanding, compared to the existing regular land tenure
system the FLTS might currently be a favourable way to at least provide some kind of
tenure security to the inhabitants of informal settlements. The importance of that cant
be underestimated. In fact, as it must also is essential for the peaceful development of
this country, bettering the living conditions of the poor quickly must be regarded as the
primary objective the government pursues with the FLTA.
6. Conclusion
The land delivery process in Namibia is governed by multiple Acts and Ordinances and
thus appears to be very complex. If the new Urban and Regional Planning Bill is
accepted by Parliament, the Townships Ordinance and the Town Planning Ordinance
will be repealed and replaced with one comprehensive Act. The abundance of Boards
involved in the planning process will be abolished and procedures thus be streamlined.
The objective of the Bill is desirable and will help to accelerate the land delivery
process.
This text gave an overview of the current and future legal framework and the
administrative procedures that have to be observed in order to acquire ownership titles.
It explains the different procedural stages, introduces the reader to the actors involved
in the process and gives an idea of how long which steps take. The text shall enhance
understanding of this complicated process. It may be the basis for informed discussions
and enable the readers to identify underperformances and propose useful changes.