- Government of the Republic of Namibia White Paper on National Land Policy (1997).
- Foreign invasion of the territory began in the early 1760s. The first phase of this process culminated in the declaration of the territory as a German Protectorate in 1884 and as a Crown Colony in 1890. The territory was a German colony from 1884 until 1915 when it was occupied by South African forces. From 1920 onwards the territory was ruled by South Africa as a Mandated Territory. Namibia achieved its independence in 1990.
- See F Adams & W Werner The Land Issue in Namibia: An Inquiry (1990) chapters 2 and 4.
- Land alienation by Europeans began in 1883 when Germans obtained the first tracts of land in the south of the territory. Increasingly, German colonists acquired land by signing protection treaties with indigenous rulers. Signatories of protection treaties in return were not permitted to alienate any land to ‘a different nation or members thereof’ without the consent of the German Emperor. Similarly, indigenous rulers abrogated their rights to enter into any other treaties with foreign governments. By 1883, the whole territory occupied by pastoral communities had been acquired by eight concession companies. Although the territory had been parcelled out to concession companies, little actual colonisation of the land had taken place before 1897. By 1902 only 31.4 million hectares (38 per cent) of the total land area of 83.5 million hectares remained in black hands. White settlers had acquired 3.7 million hectares, concession companies 29.2 million hectares and the colonial administration 19.2 million hectares. See Adams & Werner (note 3 above) 11–12.
- The expropriation and alienation of land belonging to the indigenous people by the Europeans did not occur unchallenged. The Herero and Nama took up arms against the German colonial forces in 1904, with devastating consequences for both tribes. Between 75 and 80 per cent of the Herero and about 50 percent of the Nama were exterminated by the German colonial forces. The German colonial administration issued regulations at the end of 1905 announcing the expropriation of ‘all tribal land, including that given to the missionaries by the chiefs’. More specific regulations followed in 1906 and 1907, empowering the colonial administration to appropriate all the land of the Herero and Nama. Henceforth, black Namibians could obtain land only with specific permission of the Governor. For a more comprehensive overview of the process of land dispossession in Southern Africa, see R Palmer Land and Racial Domination in Rhodesia (1977); ST Plaatje Native Life in South Africa (1987); C Bundy The Rise and Fall of the South African Peasantry (1989); W Miller Bantu, Boer and Briton: The Making of the South African Native Problem (1983); and SWAPO of Namibia, Department of Information and Publicity To Be Born A Nation (1981) 9–15.
- See P Hayes, J Silvester, M Wallace & W Hartman Namibia Under South African Rule (1998) 3: ‘The Police Zone came into existence from 1906 under German rule. It comprised the central and southern area of Namibia and it was prohibited to trade in guns, horses and alcohol beyond its northern border. The Police Zone was under direct colonial control and whites were permitted to settle there (theoretically under police protection). Under South African martial law, Proclamation 15 of 1919 decreed that no person could cross the line marking the Police Zone without official permission and this became known as the Red Line. This boundary shifted numerous times during the period of South African rule as white land holdings in the north-central areas expanded.’
- See SWAPO of Namibia, (note 5 above) 13–14.
- See Kaiserliche Verordnung, betreffend die Einziehung von Vermögen Eingeborener im Sudwestafrikanischen Schutzgebiet, vom 26 Dezember 1905 (Kol B1 1906 S 1, Reichs-Anz vom 30 Januar 1905). This Imperial Ordinance gave the Governor the power to confiscate, either completely or partially, the lands of natives who engaged in any wars or other belligerent activities against the German colonial Administration, non-natives or other natives.
- See Bekanntmachung des Gouverneurs von Deutsch-Sudwestafrika, betreffend Einziehung des Stammesvermogens der Herero, Zwartbooi- und Toopnar-Hottentotten, vom 23 Marz 1906. By virtue of the powers vested in him by the Imperial Ordinanace of 1905, mentioned in note 8 above, the Governor by this proclamation expropriated the tribal lands of the Herero, Zwartbooi and Toopnar.
- See Bekanntmachung des Gouverneurs von Deutsch-Sudwestafrika, betreffend Einziehung des Stammesvermogens der Witbooi-usw. Hottentotten sowie der Roten Nation und der Bondelzwarts- einschl. der Swartmodder-Hottentotten, vom 8 Mai 1907. By virtue of the powers vested in him by the Imperial Ordinance of 1905, the Governor by this proclamation expropriated the tribal lands of Witbooi, Bethanie, Franzmann, Veldshoendoyes, the Red Nation and Bondelzwarts Nama.
- Adams & Werner (note 3 above) 14–16.
- Ibid.
- See also MO Hinz ‘Communal Land, Natural Resources and Traditional Authority’ in M D'Engelbronner, MO Hinz and J Sindana (eds) Traditional Authority and Democracy in Southern Africa (1998) 183–88.
- During the conquest of Namibia by South African troops in 1915, the Union government was precluded from alienating or allocating any land on a permanent basis. However, the granting of the mandate over Namibia to South Africa in 1919 enabled South Africa to intervene more decisively on land issues. In terms of the mandate all land held by the previous German government was transferred to South Africa. Henceforth, only the Governor-General of the Union had the power to legislate in regard to the allocation of Crown Land.
- The creation of the reserves along racial lines was meant, inter alia, to accommodate white settlers on the prime land and to push the indigenous people onto more marginal land. By 1946, surveyed farms in the Police Zone comprised 32 million hectares representing just over 60 per cent of its area or 39 per cent of the country. By contrast, the area reserved for black Namibians in the Police Zone amounted to 4.1 million hectares. By shifting the Police Zone further north and opening up land in the desert another 880 farmers were allotted farms between 1945 and 1954, bringing the total number of farms to 5 214. See also Adams & Werner (note 3 above) 9–20
- Ibid 31.
- Ibid.
- See also Hinz (note 13 above) 184–88.
- Note that the executive authority of the representative authorities was established under the various Representative Authorities Proclamations.
- Article 147 deals with repeal of laws, and repeals all laws set out in Schedule 8.
- Schedule 8 is a list of repealed laws, mostly Representative Authority Proclamations.
- Hinz (note 13 above) 185.
- Adams & Werner (note 3 above) 32.
- Article 100 provides that ‘[l]and, water and natural resources below and above the surface of the land and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned.’
- Schedule 5(1) provides that ‘[a]ll property of which the ownership or control immediately prior to the date of independence vested in the Government of the Territory of South-West Africa, or in any Representative Authority constituted in terms of the Representative Authorities Proclamation, 1980 (Proclamation AG 8 of 1980), or in the Government of Rehoboth, or in 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.’
- For further discussion on the recognition of titles over communal lands see IV below.
- See Republic of Namibia National Conference on Land Reform and the Land Question Consensus Document (1991;.
- T Nandjaa ‘The Land Question: Namibians Demand Urgent Answers’ (1997) Namibia Review 1–4.
- The Namibian Government has held a number of consultative conferences on the land question since the National Conference in 1991. These have led to the enactment of legislation on land and related matters and to the drafting of the White Paper on National Land Policy (note 1 above). References to appropriate legislation and the White Paper are made elsewhere in this article.
- See Nandjaa (note 28 above).
- Ibid.
- See art 16(2) of the Constitution of Namibia and ss 14(1) and 20 of the Agricultural (Commercial) Land Reform Act 6 of 1995.
- See the Resolution on Permanent Sovereignty over Natural Resources, 1962 adopted in the case of Texaco v Libya (1977) 53 ILR 389.
- I Tvedten and M Mupotola ‘Urbanisation and Urban Policies in Namibia’ Discussion Paper 10, Social Sciences Division, University of Namibia (1995). See also SF Christensen & PD Hojgaard Report on Flexible Land Tenure System for Namibia (1997) 6. In the proposal for the introduction and development of a flexible land tenure system for Namibia, references are made to ‘formal’ and ‘informal’ areas of settlement. The former is used to denote areas that are planned and surveyed. These areas are most often serviced with water, sewage removal, roads and electricity. The latter are areas where people have not settled according to prior planning.
- See II(c) below.
- See ss 3(3)(a), 3(5)(b) and 30(1)(t) of the Local Authorities Act 23 of 1992.
- The old settlement areas are the urban or urbanising areas where the colonial administration before independence carried out the surveying of some plots and in some cases provided water and electricity. These are also referred to as formal areas. If the PTO falls within such an area it is an urban one and will usually be located on one of the numbered surveyed plots.
- In 1962, the South African government appointed a Commission of Enquiry to make ‘recommendations on a comprehensive five-year plan for the accelerated development of the various non-white groups of South-West Africa’. This Commission was commonly known as the Odendaal Commission. The recommendations made by the Commission in its 1964 report had little to do with promoting the welfare of black Namibians. One infamous recommendation in the Report was that Namibia should be fragmented into a series of economically unviable self-governing homelands or Bantustans for Africans, which would of necessity, remain perpetually dependent on the ‘white’ areas, and, through them, on South Africa. The Odendaal Plan was implemented by two pieces of legislation: the Development of Self-Government for Native Nations in South-West Africa Act 54 of 1968 and the South-West Africa Affairs Act 25 of 1969. The effect of the implementation of the Plan was to entrench both territorial apartheid in Namibia and the distribution of land along racial lines. See NK Duggal Namibia: Perspectives for National Reconstruction and Development (1986) 37–41.
- See II(b)(ii) above.
- Note 34 above, 52.
- In a report prepared for the Social Sciences Division, University of Namibia, entitled A Summary Review of Urban Land Policy Issues and Options (1995), JW Howard states that the public's perception of the PTO is that of a second rate form of title given to the black population by the previous regime whilst retaining the best title, freehold, for whites. He argues that if a revised form of PTO is to be accepted then it must be marketable, mortgageable and inheritable, and its implementation will have to be backed by organisations trusted by the target group until it gains popular acceptance.
- White Paper on National Land Policy (note 1 above).
- These projected forms of tenure are the starter title and the landhold title, which are described in detail in III below. From the perspective of the holder, landhold or freehold title would seem to be the more appropriate title to obtain in the place of a PTO.
- See III(a) below.
- Christensen & Hojgaard (note 34 above) 7.
- The White Paper on Urban Land and the Proclamation of Local Authorities states that prior to independence many urban areas developed which, because of the discriminatory policies of the colonial regime, were never proclaimed as municipalities or townships and in which no local authority administration developed. The White Paper on National Land Policy (note 1 above) requires the establishment and proclamation of urban or urbanising areas as townships and municipalities where appropriate, to promote decentralisation of government and the close involvement of communities in their own administration.
- Ibid.
- White Paper on National Land Policy (note 1 above).
- See III(a) for details of this proposal.
- For a detailed discussion of issues relating to customary law in Namibia, see Hinz (note 13 above) and IV below.
- For a more detailed account of the nature of this form of tenure, see Christensen & Hojgaard (note 34 above) chapter 7.
- M Gluckman Judicial Process Among the Barotse (1967).
- BJ da Rocha and CHK Lodoh Ghana Land Law and Conveyancing (1985) state that in Ghana, for example, neither in theory nor in practice can it be said that all land is held from the state. Land in Ghana is held from various stools (skins) or families or clans, which are the allodial owners. The state holds lands only by acquisition from these traditional allodial owners. This right was recognised by Rayner CJ in a report on land tenure in West Africa, cited in the judgment of the Privy Council in the case of Amodu Tijani v Secretary, Government of Southern Nigeria (1921) AC 399.
- A Source Book of African Customary Law for Southern Africa (1991) 384–96.
- Article 66(1) of the Constitution states that both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law.
- See II(a) above.
- S Harring ‘Inconsistencies in the Constitution of Namibia Regarding the Land Question’ in D'Engelbronner, Hinz & Sindano (note 13 above) 158–59.
- Schedule 5(1) provides: ‘All property of which the ownership or control immediately prior to the date of independence vested in the Government of the Territory of South-West Africa, or in any Representative Authority constituted in terms of the Representative Authorities Proclamation, 1980 (Proclamation AG 8 of 1980), or in the Government of Rehoboth, or in 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.’
- Harring (note 57 above) 159–65.
- 1996 NR 238 (SC).
- Harring (note 57 above).
- Note 1 above. The relevant clauses of the White Paper are 7–11, 64–65 and 82.
- See III above.
- The Communal Land Reform Bill contains the proposed provisions on the question of ownership, types of titles, security of tenure, and administration of communal land. In addition to this, the Traditional Authorities Act 17 of 1995 and the Council of Traditional Leaders Act 13 of 1997 give certain jurisdiction over the allocation and administration of communal lands to the traditional authorities. The Communal Land Reform Bill is in its final stages of promulgation.
- See clause 19 of the Bill.
- Under clause 21 the customary rights that may be allocated comprise a right to a farming unit and a right to a residential unit. Clause 20 vests the power to allocate or cancel any customary land right in the communal area of a traditional community in the Chiefs and Traditional Authorities.
- See clause 26
- See clause 25(1)(b).
- Clause 26 provides, inter alia, that upon the death of the holder of a customary land right, such right reverts to the Chief or Traditional Authority for re-allocation either to the surviving spouse of the deceased person, if such spouse consents to the allocation or in the absence of a surviving spouse to such child of the deceased person as the Chief or Traditional Authority determines to be entitled to the allocation of the right in accordance with customary law.
- The traditional laws of the various tribal communities in Namibia relating to the rights of the surviving spouse to a communal land erstwhile occupied by a deceased spouse vary. The common position is contained in clause 26.
- See clause 19(b) and 30(1).
- The Communal Land Boards are created under clause 2(1) of the Bill.
- See clause 34.
- See clause 33 (1).
- See clause 33(2).
- See clauses 2 and 3. The establishment of the Communal Land Boards will be a completely new development in the law relating to communal land in Namibia, though Botswana and other countries have similar Boards.
South African Journal on Human Rights
Volume 17, 2001 - Issue 1