Property Law in Namibia

Samuel K. Amoo
BA (Ghana) LLB (Zambia) LLM (Toronto)
Advocate of the High Court for Zambia and Attorney of the High Court of Namibia
Associate Professor of Law (University of Namibia)
Acting Director, Justice Training Centre (JTC)

2014
Property law in Namibia

Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law,
University of Pretoria, South Africa. PULP endeavours to publish and make available
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Cover:
Yolanda Booyzen, Centre for Human Rights
Photograph by Leon Bellingan, Kolmanskop, Namibia

ISBN: 978‐1‐920538‐22‐4

© 2014
 TABLE OF CONTENTS

PREFACE vii

ACKNOWLEDGMENTS ix

Chapter 1 The meaning and scope of the law of property

1 Introduction 1
2 Definition of the law of property 2
3 The sources of the law of property in Namibia 4
3.1 The Constitution 4
3.2 Other legislation 4
3.3 Roman‐Dutch common law 6
3.4 Customary law 7
3.5 International law 8
4 A glossary of terms 8
5 Summary 12

Chapter 2 The genesis of the skewed land policies and land

tenure in Namibia
1 The colonial expropriation of indigenous lands 13
2 Classification of land in Namibia 16
2.1 Creation of crown and state land 17
2.2 Reserves and trusts 18
2.3 Creation of areas for native nations 19
2.4 Creation of communal land 19
3 Summary and concluding remarks 26

Chapter 3 The legal concept of a thing

1 Introduction 28
2 Corporeality 28
3 Impersonal nature 29
4 Independence 29
5 Susceptibility to human control 30
6 Usefulness and value to human beings 31
7 Summary 31
8 Classification of things 32
8.1 Diagram 32
8.2 Introduction 32
8.3 Classification of a thing with regard to its relation
to a person 33
8.4 Classification of a thing with regard to its relation
to nature 35
9 Summary and concluding remarks 39

Chapter 4 Property rights, real rights and personal rights

1 Introduction 40
2 Categories of real rights 42
2.1 Ownership 42
2.2 Servitudes 43
2.3 Pledge 44
2.4 Mortgage 44

iii
 2.5 Lease 45
2.6 Statutory leasehold 45
2.7 Mineral rights 45
2.8 Sectional title unit real right 46
3 Registration of real rights 46
3.1 The classical and personalist theories 47
3.2 Evaluation of the theories 48
3.3 Criteria or requirements developed by the courts to
determine the capability of a right to be registered 48
4 Summary and observations 60

Chapter 5 Ownership
1 Introduction 62
2 Content of ownership 63
3 Nature of co‐ownership 63
3.1 Rights of possession 64
3.2 Rights of use and enjoyment 65
4 Creation and establishment of co‐ownership 66
4.1 Inheritance 66
4.2 Conclusion of a marriage in community of property 67
4.3 Mixing (commixtio) 67
4.4 Estate holdership 68
4.5 Voluntary association without legal personality 68
4.6 Contract 68
5 Limitations on ownership 68
5.1 Introduction 68
5.2 Limitations imposed by the Constitution 70
5.3 Statutory Limitations 88
5.4 Common law limitations 93
6 Conclusion and observations 113

Chapter 6 Acquisition of ownership

1 Introduction 114
2 Original acquisition of ownership 114
2.1 Occupatio (appropriation) 114
2.2 Treasure 115
2.3 Accession 115
2.4 Mixing (commixtio and confusio) 126
2.5 Specificatio (manufacture) 127
2.6 Acquisitive prescription 127
3 Derivative acquisition of ownership 133
3.1 Transfer of ownership under the abstract and causal
systems 134
3.2. Delivery 137
3.3 Transfer by registration 139
4 Summary and concluding remarks 143

Chapter 7 Real rights other than ownership

1 Introduction 145
2 Servitudes 145
2.1 Definition 145
2.2 Classification 146

iv
 3 Lease 164
4 Mortgage 166
4.1 Definition and general features 166
4.2 The legal consequences of mortgage 166
4.3 Termination of mortgage 169
5 Pledge 170
5.1 Definition and general features 170
5.2 Termination of pledge 171
6 Liens 171
6.1 Definition and general features 171
6.2 Categories of liens 172
6.3 Termination of liens 173
7 Concluding remarks 173

Chapter 8 Possession
1 Definition and elements of possession 174
1.1 Physical control (detentio) 174
1.2 Intention (animus possidendi) 175
2 Types of possession 176
2.1 Civil and natural possession 176
2.2 Lawful possession (possessio iusta) and unlawful
possession (possessio iniusta) 176
2.3 Bona fide and mala fide possession 177
3 The legal effect of possession 177
4 Possession compared with ownership 179
5 Loss of possession 180
6 The possessory remedies: protection of possession 180
7 Summary and concluding remarks 181

Chapter 9 Remedies
1 Introduction 182
2 What are remedies? 182
3 Protection of ownership 183
3.1 Rei vindicatio 184
3.2 Actio negatoria 190
3.3 Delictual remedies 191
3.4 Condictio furtiva 191
3.5 Actio legis Aquiliae 193
4 Unjustified enrichment 193
5 Protection of possession; the possessory remedies 194
5.1 Mandament van spolie (spoliation) 194
5.2 Interdict 197
6 Protection of servitudes 199
7 Concluding remarks 199

Chapter 10 Property rights of women in Namibia

1 Introduction 200
2 Background to property rights of women and HIV and
AIDS in Namibia 201
3 Ownership of property and inheritance rights 205
4 The links between gender inequality and HIV and AIDS 206
5 Property rights in Namibia and the enabling legal regime 207
5.1 Land classification and land tenure in independent
Namibia 207

v
 5.2 Private land/commercial farms 208
6 Accessibility of commercial farms to Namibian women 209
6.1 Rights of women to commercial farms before marriage210
6.2 Rights of women to commercial farms during marriage210
7 Access to credit 218
8 Conclusion 221

Chapter 11 Land reform in Namibia

1 Introduction 224
2 White agriculture in modern day Namibia 226
3 Security of tenure in the informal areas 229
4 Reform of customary land tenure 231
4.1 Nature of customary land tenure 231
4.2 The Communal Land Reform Act 233
5 Conclusion 235

BIBLIOGRAPHY 236

vi
 PREFACE

Following the imposition of South African Administration on South West Africa, after
the granting of the League of Nations Mandate over the territory to South Africa, one
obvious historical fact was the extension of the application of the South African legal
system to the territory. One basic characteristic of the South African legal system is
the element of Roman‐Dutch law constituting, as it were, the nucleus of South African
law and hence the common law of South Africa. In so far as South West Africa
(Namibia) was concerned, Roman Dutch law was formally introduced as the common
law of the territory by Proclamation 21 of 1919 (S.W.A. Gazette, No 25 of 1919) which
provided inter alia that Roman‐Dutch law was to be applied in the territory as existing
and applied in the Province of the Cape of Good Hope and the proclamation remained
the legal basis for the application of the common law of the Cape as a source of law of
South West Africa (Namibia ) until the promulgation of the Namibian Constitution.

The Namibian Independence Constitution came into force on the eve of

independence as the supreme law of the land and therefore the ultimate source of law
in Namibia. Article 140 of the Constitution provides that all laws that were in force
immediately before the date of independence shall remain in force until repealed or
amended by an Act of Parliament or until they are declared unconstitutional by a
competent court. By virtue of this provision, the sources of law in Namibia comprise
the laws that were in force on the eve of independence and after independence. With
respect to the common law, Article 66(1) specifically stipulates that the common law
of Namibia in force on the date of independence shall remain valid to the extent to
which such common law does not conflict with the Constitution.

A component of the legislative sources of Namibian law was the legislation

introduced by South Africa. In 1925, the South African Parliament was given full power
of legislation over South West Africa (Namibia). Consequently, some of the South
African statutes were extended to South West Africa by proclamation. The legislative
authority over the territory, however, was not vested in the South African Union
government alone. The local legislature, which comprised the Legislative Assembly of
South West Africa and the local Administrator‐General of South West Africa, had
residuary legislative functions subject to the superior legislative functions vested in
the Union Parliament. The former exercised its legislative functions in the form of
ordinances whereas the latter was in the form of proclamations. The head of the
Union of South Africa also had the power to legislate for the territory by
proclamations, (section 38(1) of the South West Africa Constitution Act 39 of 1968 as
amended by section 1 of the South West Africa Constitution Amendment Act 95 of
1977 and the case of Binga v Administrator‐General, South West Africa and Others)1
but after 1978 South African legislation did not automatically apply to Namibia. This
only applied to the extent that it had been declared so by proclamation by the
Administrator‐General of South West Africa (Namibia). After the promulgation of the
Namibian Constitution, however, full legislative power was vested in the National
Assembly ‘with the power to pass laws with the assent of the President’. Current
legislative functions therefore vest in the National Assembly but the legislative
sources of Namibian law have more components than the enactments passed by the
National Assembly of Namibia.

In the context of property law, the current sources of property law in Namibia
comprise the Namibian Constitution, legislation, Roman‐Dutch law and international
conventions. The Constitution has two pertinent provisions relating to property rights
and property relations in Namibia which have been used as the legal basis of land
reform in Namibia. The common law has substantially remained basic Roman‐Dutch
law principles and as developed by precedents of the South African courts. Legislative
sources are both South African and Namibian. But as stated earlier, the post‐1978
South African legislation does not have general application in Namibia.

The above exposition means that Namibia belongs to the Roman‐Dutch Law
tradition and it is a truism that because of Namibia’s historical connections with the

1 1984 (3) SA 949.

vii
South African Judiciary,2 Namibia’s common law is greatly influenced by the South
African legal system. Purely on account of these historical factors, Namibian legal
literature is dominated by writers of South African pedigree, whose publications
primarily reflect the South African laws and legal system. Needless to say, there is the
need for the publication of autochthonous Namibian legal literature reflecting the
current Namibian jurisprudence for reasons stated hereunder.

Following the attainment of independence and sovereignty, Namibia has an

independent Judiciary with a Supreme Court as the highest Court of Appeal and
therefore South African precedents have only persuasive effect on the Courts of
Namibia. The judicial independence endowed on the Namibian Judiciary has led to the
development of home‐grown jurisprudence by the superior courts of Namibia since
independence. The foregoing notwithstanding, the Parliament of Namibia in the
exercise of its sovereign legislative functions has promulgated pieces of legislation to
address the needs of the Namibian people and in the process some pieces of
legislation promulgated by the erstwhile colonial regime have either been amended
or repealed.

The cumulative impact is that Namibian law has acquired a national character and
identity which must be captured and given due recognition in the legal literature of
the country. In fact, there is a practice directive issued by the Judge President
obligating counsel appearing before the Superior Courts of Namibia to first and
foremost cite Namibian authorities on a point they want to rely on and when citing
foreign authorities to declare that a diligent search had been undertaken and that no
relevant Namibian authority on the point could be found. In the realm of property law,
for example, there have been developments relating to land tenure titles and land
reform that have been brought about by the Constitution and legislation. In the
premise, therefore, the rationale for the publication of the law of property in Namibia
is grounded in the current trend towards the growth and development of
autochthonous Namibian jurisprudence and legal literature.

The book contains chapters on traditional concepts of property law such as the
scope and nature of the law of property, classifications of things, real rights and
personal rights, ownership and possession. Chapter 9 is devoted entirely to remedies,
which is a departure from the norm, but where relevant, appropriate remedies are
indicated in the specific parts of the text.

In order to give prominence to Namibian property jurisprudence topics on the

genesis of the land tenure systems of Namibia, land reform, and property rights of
women in Namibia have either been dealt with in separate chapters or been included
as parts of other chapters.

This publication is meant to be utilised by law academics, property law lecturers,

legal practitioners and conveyancers, law students, students pursuing specialised land
related programmes such as land use planning and officials in government ministries,
especially the Ministry of Lands and Resettlement.
Samuel Kwesi Amoo
Windhoek

2 See the Supreme Court Act 59 of 1959.

viii
 ACKNOWLEDGMENTS

This book forms part of the Rule of Law in Africa Series of publications by the Pretoria
University Law Press (PULP) under the Enhancing Access to Legal Information in Africa
project of the University of Pretoria, Faculty of Law. My contribution to this project
was facilitated by the assistance of Prof AJ van der Walt, the University of Stellenbosch
and Prof Danie Brand, University of Pretoria. I wish therefore to extend my gratitude
and indebtedness to them and the entire publication team of PULP.

A publication on the property law of Namibia will inevitably include references to

South African authorities. Prominent South African authorities such as WA Joubert et
al The law of South Africa (1987); DG Kleyn et al Silberberg and Schoeman’s the law of
property 3rd ed (1993); WJ Hosten et al Introduction South African law and legal
theory 2nd ed (1997); PJ Badenhorst et al Silberberg and Schoeman’s the law of
property 5th ed (2006); F du Bois Wille’s principles of South African law 9th ed (2007);
AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009); and H
Mostert et al The principles of the law of property in South Africa (2010) have been
cited. The author hereby wishes to acknowledge references to their publications.

The chapters on the genesis of land tenure systems of Namibia, land reform in
Namibia and property rights of women in Namibia contain contributions from the
publications by S Harring ‘Property rights and land reform in Namibia’ in B Chigara
(Southern African development land issues: Towards a new sustainable land relations
(2012); SK Amoo & SL Harring ‘Namibian land law: Land, law reform, and the
restructuring of post‐apartheid Namibia’ in University of Botswana Law Journal Vol 9,
June 2009; SK Amoo ‘The exercise of the rights of sovereignty and the laws of
expropriation of Namibia, South Africa, Zambia and Zimbabwe’ in MO Hinz et al The
Constitution at Work: 10 years of Namibian nationhood: proceedings of the
conference: Ten Years of Namibian Nationhood, 11‐13 September 2000, Windhoek,
Namibia (2002); D LeBeau et al Women’s property and inheritance rights in Namibia
(2004); and D LeBeau et al Structural conditions for the progression of the HIV/AIDS
pandemic in Namibia (2004). I accord similar acknowledgements to all.

I am extremely grateful to J Kok for editing the book and the following friends and
colleagues, Justice P Damaseb, I Nhamu, C Mapaure and M Tjiteere for their various
contributions to and assistance in the production of this book.

Writing this book exerted strains on the patience and understanding of my family,
my wife Chipo and my children, Yaa, Kwesi, Ama and Ewuraefua. I admire the
steadfastness that they demonstrated towards the achievement of my goal. I am most
grateful to them and may the Almighty grant them good health and wisdom to
continue to afford me such support and comfort.

ix
 1
THE MEANING AND SCOPE OF THE
CHAPTER
LAW OF PROPERTY

1 Introduction

South African Roman‐Dutch traditional conceptualisation of ‘things’ as the

centrality of the province of the law of property tends to put more emphasis
on corporeality as the determining factor in delimiting and defining the
province and scope of the law of property rather than on the totality of the
rights of the individual or the legal subject including his or her patrimony or
estate. However, in modern property jurisprudence property refers to both
movable and immovable assets of a person or a legal subject. It includes both
corporeal and incorporeal things, for example, rights (interests) in a close
corporation and (shares) in a company and copyright. These constitute part
of a person’s or legal subject’s patrimony and therefore part of his or her
estate.

The law of property in the wide sense therefore deals with the totality of
the individual’s or legal subject’s patrimony or estate. It includes everything
that is of value to the legal subject. A central theme in the law of property is
ownership which is a right provided and protected under article 16 of the
Namibian Constitution. In its various subdivisions the law of property relates
to the law of things which deals with the individual’s property relationship
with corporeal objects. This is described as the law of property in a narrow
sense. Intellectual property law deals with rights in incorporeal things – their
recognition, protection and registration. This subdivision of the law is under
private law but to the extent that article 16 of the Namibian Constitution
deals with property rights, the law of property also falls in the domain of
public law. The exercise of the various rights that constitute an individual’s
estate entails various relationships between individuals and the property,
which relationships are regulated by the law of property, the law of
obligations and public law.

The inclusion of both corporeal and incorporeal assets as part of the

subject matter of the law of property renders the scope of law of property
much wider than that of the law of things because the latter deals only with

1
2 Property Law in Namibia

material or corporeal things. In this context the definition of the law of

property has a much broader field of application. The definition of the law of
property therefore focuses on real rights, the object of which can be
corporeal or incorporeal things.

2 Definition of the law of property

In the light of the above, the law of property may be defined as the sum total
of the various legal norms which regulate the legal relationships between
legal subjects in regard to things or, to distinguish more clearly between the
law of property and the law of obligations, as the sum total of the various
norms which regulate the legal relationships between persons and things and
between legal subjects inter se.1

Van der Walt & Pienaar go further and add that the said definition
describes the ways in which property rights may be lawfully acquired and
exercised, the available remedies in the event of any infringement, and the
legal contents of other relations between persons and property.2

The definition draws a distinction between the law of obligations and the
law of property. The former consists of the subdivision of the law that deals
with legal relationships constituting obligations between legal subjects. It
deals with personal rights and obligations associated with such rights,
whereas the law of property goes beyond the domain of personal rights
which may arise from contract, delict or the law of succession.

The diagram below may serve as an illustration of the distinction

between the law of obligations and the law of property; and the distinction
between the law of property in the wide sense, and the function of the law of
property.

1 DG Kleyn et al Silberberg & Schoeman’s the law of property 3rd ed (1993) 1‐2.
2 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 7.
 Chapter 1: Meaning and scope of the law of property 3

A is the owner of Farm A which is a piece of land adjacent to Chalcot

Farm, B. The owner of Chalcot Farm inherited it from his father, who had
entered into a contract with the owner of Farm A allowing the latter a right
of way over Chalcot Farm. B wishes to construct a farmhouse on Chalcot Farm
and has borrowed money from Bank Windhoek using the farm as collateral.

The right that A has over Farm A is the right of ownership which is a real
right and the subject matter of the law of property. This is also a
constitutional right in terms of article 16(1) of the Namibian Constitution. It
falls to be dealt with under constitutional law which is part of public law. The
right of ownership vests in A. This right affords A the legal power over his
property (Farm A) which may be exercised in any manner whatsoever within
the parameters of the law. This is normally referred to as an absolute right.
This right includes the power to enter into any agreement with other legal
subjects on matters relating to the land. Hence, A is entitled to enter into an
agreement with B who inherited the farm from his father. Generally, the law
relating to inheritance and succession falls under the law of succession, but
issues relating to property that has been inherited will have to be determined
with reference to both the law of property and the law of succession. For
example, issues relating to the binding effects of a fideicommissum on a third
party may have to be determined under the law of property, the law of
contract and the law of succession.

The agreement entered into between A and B creates a relationship

between the two parties which is governed by the principles of the law of
contract and the law of property. The agreement has created a servitude
which comprises certain powers and obligations. The creation of the
agreement is the subject matter of the law of contract but whether this
agreement will bind the successors in title of B or A, is determined by the
principles of the law of property. The agreement between B and Bank
Windhoek creates a mortgage which burdens the land. The agreement itself
is governed by the law of contract, but the issues relating to the relationship
between the two parties cannot be resolved with reference only to the
principles of the law of contract. Issues relating to the binding effect of the
mortgage on B’s successor in title, in case the mortgage has not been
cancelled before the transfer of the property, will have to be resolved under
the law of property. It will have to be determined whether the rights and
obligations arising from these contractual arrangements are personal rights
or real rights. These examples illustrate how the same set of circumstances
could involve the subject matter of the law of property, the interrelation
between the law of property and the law of obligations, and the functions of
the law of property. The law of property and the law of obligations fall under
private law.

It can therefore be said that the primary functions of the law of property
are to regulate relationships between legal subjects and legal objects, to
harmonise competing interests, and to guarantee individual property rights.
4 Property Law in Namibia

3 The sources of the law of property in Namibia

The sources of the law of property in Namibia include the constitution,

legislation, Roman‐Dutch common law, case law, customary law and
international conventions.

3.1 The Constitution

The Namibian Constitution was adopted as the supreme law and inter alia
creates fundamental rights and freedoms, which include provisions
governing property rights. Article 100 vests the allodial title of the land in the
State by the provision that land, 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 not otherwise lawfully owned. Lawful ownership of both movable
and immovable property in Namibia is constitutionally recognised and
protected by article 16(1) of the Constitution. This right to property, however,
is limited in article 16(2) by the right granted to the state to expropriate
private property in the public interest subject to the payment of
compensation. Article 23 of the Constitution also grants Parliament the
power to legislate directly or indirectly for the advancement of persons
within Namibia who have been socially, economically or educationally
disadvantaged by past discriminatory laws or practices, or for the
implementation of policies and programmes aimed at redressing social,
economic or educational imbalances in the Namibian society, resulting from
discriminatory laws or practices. These constitutional provisions have formed
the legal basis of the land reform programme of the Government of the
Republic of Namibia.

3.2 Other legislation

The legislative sources of Namibian law in general range from legislation

applied by the German colonial administration to current legislation enacted
by the legislature of the sovereign state of Namibia. The German legislation
applicable to the territory during the years of occupation comprised such
imperial statutes as had been made applicable to the protectorate by an Act
of Imperial Government. These enactments include the Civil Code of 1900,
the German Criminal Code and Acts passed by the Imperial Government for
the government of the territory in particular. In addition to these
enactments, the local Landesrat, since 1913, also had legislative power over
the territory. Ordinances passed by the Landesrat became a legislative source
of Namibian law. However, most of these pieces of legislation have been
repealed. With the promulgation of Proclamation 21 of 1919, the laws that
applied in the Province of the Cape of Good Hope were superimposed upon
the German Imperial enactments.
 Chapter 1: Meaning and scope of the law of property 5

Another component of the legislative source of Namibian law was the

legislation introduced by South Africa. In 1925 the South African Parliament
was given full legislative power over Namibia. Consequently, some South
African statutes were extended to Namibia by proclamation. However,
legislative authority over the territory was not vested in the South African
Union government alone. The local legislature, which comprised the
legislative Assembly of South‐West Africa and the Administrator‐General of
South‐West Africa, had residuary legislative functions, subject to the superior
legislative functions vested in the South African Union Parliament. The
former exercised its legislative functions in the form of ordinances whereas
the latter was in the form of proclamations. The Head of the Union of South
Africa also had the power to legislate for the territory by proclamation in
terms of section 38(1) of the South‐West Africa Constitution Act 39 of 1968
as amended by section 1 of the South‐West Africa Constitution Amendment
Act 95 of 1977 and the decision in the case of Binga v Administrator‐General3
but after 1978/9 South African legislation did not automatically apply to
Namibia. This only applied to the extent that it had been declared applicable
by proclamation of the Administrator‐General of South‐West Africa. After the
promulgation of the Namibian Constitution, however, full legislative power
was vested in the National Assembly ‘with the power to pass laws with the
assent of the President’.4 Current legislative functions therefore vest in the
National Assembly but the legislative sources of Namibian law have more
components than those contained in the enactments passed by the National
Assembly of Namibia.

Mention should also be made of the fact that pieces of legislation that
were introduced into South‐West Africa before independence were not
purely and authentically of South African origin. There was quite a number of
English statutes that applied to Namibia especially after the passing of
Proclamation 21 of 1919.

With regard to the legislative sources of property law in Namibia during

the period of German occupation, the Imperial German Government’s
declarations of the territory as a German protectorate in 1884 and as a Crown
Colony in 1890 are very important historical developments of property rights
and land classification in South‐West Africa. They divested the indigenous
people of their allodial rights to their ancestral land and ushered in the
classification of the land based on the native‐settler dichotomy. The Imperial
Ordinance of 1905 legitimised the confiscation of indigenous land by the
Governor.

3 Binga v Administrator‐General, South‐West Africa, & Others 1984 3 SA 949 (SWA).

4 Art 44 of the Namibian Constitution provides: ‘The legislative power of Namibia shall be
vested in the National Assembly with the power to pass laws with the assent of the
President as provided in this Constitution subject, where applicable, to the powers and
functions of the National Council as set out in this Constitution’.
6 Property Law in Namibia

The South African administration followed a similar pattern. The

Transvaal Crown Land Disposal Ordinance of 1903 was declared applicable to
South‐West Africa by virtue of the Crown Land Disposal Proclamation 13 of
1920. This effectively gave the South African Administration the power to
either extend the application of existing South African legislation on property
to South‐West Africa or to promulgate completely new legislation for the
territory. The current legislative sources of property law in Namibia have
South African components and these include, to mention a few, the Deeds
Registries Act 47 of 1937, Formalities in Respect of Leases of Land Act 18 of
1969, Prescription Act 18 of 1943 on which the Prescription Proclamation 13
of 1943 of South‐West Africa was based, Prescription Act 68 of 1969 and
Sectional Titles Act 66 of 1975. Since 1990 the Namibian Legislature has
promulgated a few pieces of legislation on property, which include the Local
Authorities Act 23 of 1992, the Agricultural (Commercial) Land Reform Act 6
of 1995, Married Persons Equality Act and the Communal Land Reform Act 5
of 2002.

3.3 Roman‐Dutch common law

The introduction of Roman‐Dutch law into Namibia is closely interrelated

with the political and historical development of Namibia. After the
occupation of the territory by South African troops in 1915, German law
remained in force except for such laws as were found necessary to be
repealed under martial law. At the end of the First World War, South‐West
Africa was placed under the League of Nations Mandate system as ‘C’
mandate. The King of Great Britain accepted and delegated the mandate to
the Government of the Union of South Africa to exercise it under the
supervision of the League of Nations. Article 2 of the mandate agreement
gave the mandatory all powers of administration and legislation over the
mandated territory as an integral portion of the Union, and authorised the
mandatory to apply the laws of the Union to the territory. Following the
imposition of South African administration on South‐West Africa, after the
granting of the League of Nations Mandate over the territory to South Africa,
one obvious historical fact was the extension of the application of the South
African legal system to the territory. One basic characteristic of the South
African legal system is the element of Roman‐Dutch law constituting, as it
were, the nucleus of South African common law. In so far as South‐West
Africa was concerned Roman‐Dutch law was formally introduced as the
common law of the territory by Proclamation 21 of 1919 (S.W.A Gazette No
25 of 1919) which provided inter alia that Roman‐Dutch law was to be applied
in the territory ‘as existing and applied in the Province of the Cape of Good
Hope’ and the proclamation remained the legal basis for the application of
the common law of the Cape as a source of law of South‐West Africa until the
promulgation of the Namibian Constitution. Article 66(1) of the Constitution
stipulates that the common law of Namibia in force on the date of
independence shall remain valid to the extent to which such common law
does not conflict with the Constitution. It must also be pointed out that in
 Chapter 1: Meaning and scope of the law of property 7

1959, after amalgamation of the judiciary of the territory into that of South
Africa in terms of the Supreme Court Act 59 of 1959, the High Court of South‐
West Africa became a division of the Supreme Court of South Africa. Since
then the courts of the territory were bound by the decisions of the Supreme
Court of South Africa. To this extent the Roman‐Dutch law developed by the
South African courts as the common law of South Africa was binding on
Namibian courts. South African Roman‐Dutch principles are still the major
source of property law in Namibia today.

However, as a consequence of English colonial administration over the

Cape of Good Hope, English common law was introduced into the Cape and
by virtue of the application of Proclamation 21 of 1919, English law that
applied in the Province of the Cape Good Hope also applied in South‐West
Africa (later Namibia). Unlike the situation with regard to certain areas, such
as those of civil and criminal procedure, the law of evidence, commercial law
and company law, which were greatly influenced by English law, English
property law did not have a similar impact on property law which has
essentially remained Roman‐Dutch in nature.

In view of the strong historical connections with the South African legal
system, Namibia has acquired a legal system which is a convergence of the
two major legal traditions resulting in a legal system which can be described
as a hybrid or mixed system. In terms of judicial methodology, the common
law is a prominent component of the system. Jurisdictions that employ the
common law methodology use the case precedent or stare decisis as part of
the judicial process and therefore case law is the core or an important source
of the law. Namibia has a Supreme Court which is the final court of appeal5
and therefore precedents from foreign jurisdictions are persuasive but not
binding. However, in terms of the common law sources of property law,
Namibia relies a great deal on South African precedents. This does not
suggest complete reliance on South African law. In the landmark case of Kessl
v Ministry of Lands Resettlement & Others,6 for example, the High Court laid
down principles of reciprocity, which are embodied in the letter and spirit of
article 18 of the Namibian Constitution as the basis for the State’s powers to
expropriate private property under section 16(2) of the Namibian
Constitution.

3.4 Customary law

Article 66 of the Namibian Constitution provides as follows:

(1) 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

5 Arts 78 and 81 of the Namibian Constitution.

6 2008 1 NR 167 (HC).
8 Property Law in Namibia

or common law does not conflict with this Constitution or any other customary
law.
(2) Subject to the terms of this Constitution, any part of such common law or
customary law may be repealed or modified by Act of Parliament, and the
application thereof may be confined to particular parts of Namibia or to
particular periods.

By virtue of the above provision customary law is a source of law in Namibia,

but its application, just as in the case of the application of the common law,
is subject to internal conflict rules. The above exposition of the Namibian
legal system clearly indicates that there exists legal pluralism or dualism and
that the basic internal conflict rule is that the constitutional imperatives and
legislative enactments constitute the yardsticks for the resolution of internal
conflicts. In property law a particular customary law becomes relevant where
there is no relevant legislative principle or where such customary law satisfies
internal conflict rules. The Communal Land Reform Act 5 of 2002 governs the
creation and allocation of land rights in the communal areas and therefore, in
so far as the application of customary law is concerned, the provisions of the
Act take precedence over customary law.

3.5 International law

Article 144 of the Namibian Constitution provides that the general rules of
public international law and international agreements binding upon Namibia
shall form part of the law of Namibia. In Kessl, for example, references were
made to the international law principle of eminent domain, the cases of
Sporrong & Lönnroth v Sweden,7 Tre Traktorer AB V Sweden8 and the decision
of the Permanent Court of International Justice in a case concerning certain
German interests in Polish Upper Silesia.9

4 A glossary of terms

Certain expressions used in this book are defined and explained below.

Person: The law of property, as indicated earlier, deals with

the patrimony of a person. A person, in the law of
property, is a legal subject who can acquire and
exercise rights and obligations in law. A legal subject
can be a natural person or a legal person, the latter
sometimes also being referred to as a juristic or
artificial person.

7 1983 5 EHRR 35.

8 1989 ECHR series A, vol 5, 1959.
9 1926 PCIJ series A, no7, (May 25) 22.
 Chapter 1: Meaning and scope of the law of property 9

Object: Object is anything with regard to which a person can

acquire or hold a right.

Property: Property is everything which can form part of a

person’s patrimony or estate, including corporeal
and incorporeal things and incorporeal interests and
rights.10

Allodial title: Allodial title is the most comprehensive title capable

of being held in most jurisdictions. It is an absolute
right and is an example of a real right. In Namibia, for
example, under article 100 of the Namibian
Constitution the allodial title to land is vested in the
state. In England the allodial title is vested in the
crown. In certain tribal communities in West Africa
the allodial title or tribal land is vested in the tribe or
the stool and the allodial title of state land is vested
in the state. The crown, the state or the stool may be
the absolute owner, but the land itself may be in the
possession or occupation of individuals or a co‐
operation and the actual right will be determined
between the state or the stool and the individual
persons. The state or the stool may by agreement
grant freehold titles or leasehold, as the case may
be.11

Freehold: A freehold title or interest is a title or interest which

is held by the proprietor for an indefinite period of
time. It is carved out of the allodial title. In reality the
proprietor of freehold title and his or her successors
in title hold for an indefinite period until there is a
failure of succession in which case the freehold title
is merged with the allodial title from which it was
originally carved. The title holder has a real right to
land. In other jurisdictions, for example in England
and the US, the freehold title is known as ‘fee
simple’.

Customary freehold: The customary freehold is an interest in land, which

is acquired by a person in his or her capacity as a
subject of a stool, or as a member of a clan or a
family (A stool is a symbol of the chief’s authority).
Such a subject of a stool or clan has a customary
right to freely use part of the stool’s or family’s land

10 See generally Van der Walt & Pienaar (n 2 above) 7‐11.

11 See also Mambo & Others v Queensland (No2) 1992 175 ALR 1 and Richtersveld
Community & Others v Alexkor Ltd & Another 2003 6 BCLR 583.
10 Property Law in Namibia

if it is not occupied by another person. Such other

person could be another subject or member or
grantee of the stool or family, who is not a subject of
the stool or member of the family. If a subject of the
stool or member of a family, in the exercise of this
inherent customary right, occupies land and retains
possession thereof, either for farming or building, he
acquires a customary freehold. The customary
freehold is not a mere right of occupation and
farming, but an interest in land which prevails
against the whole world, including the allodial
owner. The proprietor of a customary freehold can
dispose of it, either inter vivos or by testamentary
provision. The customary freehold is acquired as of
right and a formal grant from the allodial owner is
not necessary. Unlike common law freehold, which
is created by an express grant, customary freehold
may be created by the occupation of vacant stool or
family land whenever a subject of a stool or member
of a family exercises that inherent right to occupy
vacant stool or family land.12

In Namibia the position is different. The ownership of the communal lands is

vested in the state, and the concept of customary freehold as part of the land
tenure systems of Namibia is therefore merely of academic importance.
Before the enactment of the Communal Land Reform Act 5 of 2002, occupiers
of communal lands had certain rights, mainly generic rights of usufruct. Such
existing rights have been recognised and other rights have been created by
the Act, for example, the statutory leasehold, which gives the holder a 99 year
lease.

Usufruct: Usufruct is a right to use property belonging to

another, a grantor, and to enjoy it while maintaining
the substance of such property. The dominium of the
thing does not pass to the usufructuary. The
usufructuary merely exercises a right of use and
enjoyment of the property. This is an example of
limited real right.

Lease: Lease is an interest in land, which is created to last

for a fixed period. Every lease must therefore have a
date on which it commences and a date on which it
must expire, although it may in certain
circumstances be terminated before the actual date
fixed for its expiration. A lease is created between a

12 BJ da Rocha & CHK Lodoh Ghana land law and conveyancing (1995) 3‐14.
 Chapter 1: Meaning and scope of the law of property 11

lessor and a lessee; the lessor is the landlord and the

lessee is the tenant. A special relationship of
landlord and tenant exists. Under the current law in
Namibia, a lease of less than ten years is not
required to comply with the normal formalities. But
if it is for more than ten years, the lease must be in
writing.13

Tenancy: Tenancy is a limited right or interest in land. It is a

right of use. A grantor, who is the landlord, retains
his or her dominium or ownership in the land but
grants possessory rights and use to a tenant for a
fixed period of time. Tenancy is a species of lease
and the two terms are sometimes used
interchangeably. The major difference between the
two is that in the case of lease its duration
terminates when the fixed period of the lease
expires, whereas in the case of tenancy its duration
could be indefinite. A yearly tenancy continues from
year to year until terminated by notice. The same
applies to weekly and monthly tenancies. They can
be created either by express agreement or by
inference which may be drawn when rent due for a
month, a week or a quarter, as the case may be, is
offered by the one party and accepted by the other
whereby the tenancy is then extended for the
corresponding period.

Servitude: A servitude is a right belonging to one person to the

property of another, entitling the former to either
exercise a zone right as benefit in property or to
prohibit the latter from exercising one or more of
the powers of ownership, for example a right of way,
a right of grazing, a right of access to water, et
cetera. A servitude normally creates rights and
obligations inter partes but if they are registered,
they bind third parties who, as a result of the
registration, are deemed to have knowledge of the
servitude.

Real security: Real security is the security a creditor may acquire by

exercising a limited real right over a thing owned by
the debtor to enforce payment by the debtor. Real
security is, for instance, created by mortgage over

13 See sec 1 of the Formalities in Respect of Leases of Land Act 18 of 1969.

12 Property Law in Namibia

immovable property and pledge over a movable

thing.

5 Summary

In modern property jurisprudence property refers to both movable and

immovable assets of a person or a legal subject. It includes both corporeal
and incorporeal things, for instance, rights (interests) in a close corporation
and (shares) in a company and copyright. These constitute part of a person’s
or legal subject’s patrimony and therefore part of his or her estate.

The law of property in the wide sense therefore deals with the totality of
the individual’s or legal subject’s patrimony or estate. It includes everything
that is of value to the legal subject. The scope of the law of property also
includes the principles dealing with the rights and actions of persons with
regard to things and other forms of property, as well as other relations
between persons and property. It describes the ways in which property rights
can be acquired and exercised lawfully and the remedies by which they are
protected against infringement, as well as the legal results and implications
between persons and property.

The sources of the law of property in Namibia include the Namibian

Constitution, legislation, Roman‐Dutch common law, case law, customary
law and international conventions. These sources place the law of property
under both private law and public law.
 2
THE GENESIS OF THE SKEWED LAND
CHAPTER
POLICIES AND LAND TENURE IN
NAMIBIA1

1 The colonial expropriation of indigenous lands 1

Land rights in modern societies are recognised by and defined in law. The
‘land title’ is the legal document that serves as a representation of land for all
legal purposes: it can be sold; mortgaged; pass by inheritance; or given away.
Under apartheid, as under the German regime, only whites could hold ‘land
titles’, thus only whites had a ‘legal’ right to their land. Blacks held land, but
under customary law, not under legal title. Any regime recognising such a
system is called a regime of ‘legal dualism’, but it does not allow ‘dual’
participation because black land rights are not backed by land titles.

The ‘stolen lands’ issue, which is a world‐wide phenomenon, refers to the

process of colonial occupation of indigenous lands. In Namibia it derives more
narrowly from the Herero/Nama War, one of the most violent of colonial
wars. The colonial history of Namibia is complex and still, from the standpoint
of the black people who live there, largely unwritten.2 The Herero War has
been the subject of a number of books, with scholars drawn to the unique
character of German colonial violence.3 While a number of meanings can be
drawn from the war, the central outcome in terms of land law is clear:
Germany terminated by conquest all Herero land rights in South‐West Africa,
leaving the Herero with no land at all. Herero lands were then ‘sold’ by

1 See SK Amoo ‘Towards comprehensive land tenure systems and land reform in Namibia’
(2000) 17 South African Journal on Human Rights 87; SK Amoo & SL Harring ‘Property rights
and land reform in Namibia’ in B Chigara (ed) Southern African development community
land issues: Towards a new sustainable Land Relations Policy (2012) 222; SK Amoo &
SL Harring ‘Namibian land Law: reform and the restructuring of post‐apartheid Namibia’ in
University of Botswana Law Journal (9) June 2009 87‐123.
2 There is a growing body of literature on this ‘new’ Namibian history. H Bley South‐West
Africa under German rule, 1894‐1915 (1981); P Hayes et al Namibia under South African
rule: Mobility and containment, 1915‐1946 (1998); W Hartmann et al The colonising
camera: Photographs in the making of Namibian history (1998).
3 JB Gewald Herero heroes: A socio‐political history of the Herero of Namibia, 1890‐1923
(1999); H Drechsler Let us die fighting: The struggle of the Herero and Nama against
German imperialism, 1885‐1915 (1980); JM Bridgman The revolt of the Hereros (1981).

13
14 Property law in Namibia

colonial authorities to settlers – 90 per cent of them German – on favourable

terms, with long‐term loans subsidised by the colonial government.4 These
farms are now the heart of Namibian agriculture, occupying a wide swath
from Omaruru to Gobabis and the Botswana border and the entire country to
the west, north, and east of Windhoek. Further south, most Nama lands were
also taken, although the Nama were left with reserves.

This violent dispossession followed a short colonial history. The

ovaHerero were occupants of the high plains of central Namibia. They were a
Bantu tribe which had moved south into this region from Angola, arriving in
about 1750. A series of wars with the Nama who lived to the south, occurred
in the mid‐nineteenth century, destabilising the entire region.5 Germany first
arrived in South‐West Africa in 1884, using the dubious private land claims of
a businessman, Adolf Luderitz, as the legal basis for establishing a
protectorate over a vast desert hinterland, the first German colony in Africa.6

The Herero were not involved in these coastal land treaties but on 29
December 1884 Chief Kamaherero, at Omaruru, entered into a treaty of
protection with Great Britain, then engaged in a diplomatic dispute with
Germany over what is now Namibia. Great Britain soon abandoned the
contest, withdrawing to the Cape Colony and leaving the native people of
South‐West Africa, with or without treaties of protection, to the Germans.7
Different chiefs may well have had different strategies to deal with colonial
authority and the Germans were beginning to implement a ‘divide and rule’
strategy. It is also unclear what the Herero believed these ‘treaties of
protection meant. Such agreements apparently did not cede land or
sovereignty.8 It seems that the Germans rather agreed to ‘protect’ Herero
interests from rival tribes.

In 1895 colonial troops intervened in Okahandja on behalf of Chief

Samuel Maharero in an Herero succession dispute. This military action
cemented an alliance between the Germans and Maharero that lasted for
nine years. During this time, Maharero ‘sold’ vast tracts of Herero lands under
various kinds of arrangements, some more ‘legal’ than others. For example,
traders took vast quantities of land in exchange for trade goods, including
liquor. They, in turn, sold the land to farmers at huge profits.9 Other Herero

4 W Werner No one will become rich: Economy and society in the Herero reserves in Namibia,
1915‐1946 (1998) 48; W Schmokel ‘The myth of the white farmer: Commercial agriculture
in Namibia, 1900‐1983’ (1985) 18 International Journal of African Historical Studies 1;
R Moorsom Transforming a wasted land 21‐24.
5 JS Malan Peoples of Namibia (1995) 68‐69; H Vedder et al The native tribes of South West
Africa (1928) 153‐208.
6 JH Esterhuyse South‐West Africa, 1880‐1894: The establishment of German authority in
South‐West Africa (1968) 46‐65.
7 Esterhuyse (n 6 above) 66‐83.
8 M Shaw Title to territory in Africa: International legal issues (1986) 46‐48; MF Lindley The
acquisition and government of backward territory in international law: Being a treatise on
the law and practice relating to colonial expansion (1926) 181‐206.
9 Gewald (n 3 above) 129‐136; Werner (n 4 above) 43.
 Chapter 2: Skewed land policies and land tenure 15

land was deserted as a rinderpest epidemic killed most of their cattle. Much
land was simply taken with no regard for legality and it is not known how the
land was alienated from black ownership. Much closer attention needs to be
paid by historians to the colonial land records.

In a 1922 Memorandum on Treaties between the Late Government and

Various Native Tribes in South‐West Africa a colonial official bluntly, but
confidentially, stated:

I would like to mention here that in law there was no confiscation of the Khauash
(sic) Hottentots property, and their Treaties with the late Government of the 9th
March, 1894 and 4th February, 1885, are still valid. In fact the late Government
confiscated their property, and omitted however to give this confiscation the
force of law as prescribed in the Imperial Ordinance of the 26th December 1905.
The German government in 1913 and 1914 was well aware of this mistake; as,
however, nobody had yet found it out, it kept silence. Should the Khauas
Hottentots come forward to‐day and ask for the return of their former territory,
of which a lot has been sold and is still advertised for sale, it would mean the
return of one‐quarter of the District of Gobabis.10

If this treaty is still in force, it may invalidate numerous land titles in this
district.

Some black lands were lost through the actions, even duplicity, of their
own chiefs. Land was ‘sold’ to whites, although it is unclear what the parties
understood those transactions to mean. There was no history or law of land
sales in Herero or Nama society at that time, and it is unclear how these legal
transactions were translated into German. By 1902 the Herero only retained
about 46 000 cattle of an estimated 100 000 head held ten years before. In
contrast, 1 051 German farmers and traders held 44 500 head. The number
of settlers increased from 1 774 in 1895 to 4 640 in 1903. Of the 83.5 million
hectares of land in the colony, 31.4 million remained in African hands11 –
although these figures include much land that belonged to Nama and other
tribes. In an infamous proclamation, issued on 2 October 1904, the German
General, Von Trotha, ordered all Herero men to be killed, and all their land
and cattle to be seized.12 After reading the proclamation to a group of Herero
prisoners, he proceeded to hang thirty men, and then, after handing out
printed copies of the document in the Herero language, drove the women
and children out into the Kalahari Desert.

10 ‘Memorandum on Treaties Between the Law Government and Various Native Tribes in
South‐West Africa’ (author’s name illegible) 4 September 1922 National Archives of
Namibia 457, South West Africa.
11 Werner (n 4 above) 43‐44. This data represents a cataclysmic social change: there were
virtually no German farmers before the early 1890s. It took scarcely the decade of the
1890’s for German herds to grow larger than Herero herds.
12 Quoted in Gewald (n 3 above) 172‐173. Gewald has dismissed the view that Von Trotha’s
proclamation has been interpreted ‘out of context’ concluding that the proclamation
meant what it threatened, a policy of genocide. The fact that it was printed in the Herero
language and distributed to women and children about to be driven out into the desert, so
they could widely distribute it, demonstrates that it was well planned.
16 Property law in Namibia

The details of the Herero War are well known and are not in serious
dispute.13 Historian Jan‐Bart Gewald constructs a convincing account that the
war was used as a pretext by the Germans to annihilate the Herero.
Whichever account is accepted, it was a war over land. At least some Herero,
offended by increasing German movement on to Herero lands, and subjected
to demeaning and inhumane treatment by colonists and traders, rose in
revolt. Once the revolt was under way, the Germans refused all attempts for
a negotiated resolution.14 This was not the only colonial war in Namibia:
there was a series of such wars. The Nama, in fact, took advantage of the
Herero War, attacking the Germans from the south, and carrying on a
guerrilla war for several years after the Herero were defeated.15 But tribes in
the north did not directly experience this war, or this violent dispossession of
their lands. This reality structures the land reform process in Namibia: most
blacks have lost no land to colonisation and therefore the demand for ‘land
reform’ is not equally felt in all segments of the black population.16 The
government has rejected any model of ‘restitution of ancestral lands’ in the
land reform process.17 Thus, unlike South Africa where the land reform
process includes a form of restitution for blacks dispossessed since 1913,18
land reform in Namibia is not based on restitution of particular land to
aggrieved parties. The purpose is to promote national unity but a model of
restitution of ancestral land would provide redress to the people of central
Namibia who were dispossessed of their land, as opposed to the people of
Ovambo and Kavango to the north who were not so dispossessed.
Accordingly there is a political advantage to this position.19

2 Classification of land in Namibia

In the early era of colonial expansion, as indicated above, protection treaties

and rights of conquest were the most prominent tools of land expropriation

13 Like much of German history, there is a right wing ‘revisionist’ interpretation of the Herero
War that denies that genocide occurred. ‘Researcher into the Waterberg Tragedy of 1904
Presents a New Radical Version’ Windhoek Observer July 21, (2001) 2, summarising a
University of Hamburg (Germany) Masters thesis by an unknown author, claims that: fewer
Herero were killed in the Herero War than modern scholars claim; and that these deaths
were not due to the actions of the German army but to starvation. A point‐by‐point
rebuttal was published a few weeks later: J Silvester et al ‘Waterberg tragedy of 1904
triggers hot debate’ Windhoek Observer 4 August 2001. The major accounts of the Herero
War (n 3 above) agree on the essential details of the deaths of over 60 000 Herero people.
14 Gewald (n 3 above) 141‐191 is the best account of the war. The two previous standard
accounts are Dreschler (n 3 above); and JM Bridgman ‘The revolt of the Hereros (1983) 17
Canadian Journal of African Studies 132‐163. Neither accounts dispute that the immediate
cause of the Herero uprising was the loss of their land but Gewald challenges the idea that
it was a widely planned general revolt of the Herero people.
15 J Bridgman (n 14 above) 132‐163.
16 W Werner, ‘Land reform and poverty alleviation: Experiences from Namibia’ NEPRU
working paper, no 78, Aug (2001) 1.
17 SL Harring ‘German reparations to the Herero Nation: An assertion of Herero Nationhood
in the path of Namibian development?’ (2001‐2002) 104 West Virginia Law Review 393.
18 H Klug ‘Historical claims and the right to restitution’ in J Van Zyl et al (eds) Agricultural land
reform in South Africa: Policies, markets and mechanisms (1996) 390‐422.
19 Harring (n 17 above) 3.
 Chapter 2: Skewed land policies and land tenure 17

and alienation. After 1915, however, land alienation by Europeans and the
introduction of new property rights were implemented in a more systematic
manner by legislation,20 resulting in the classification of land which can
legitimately be regarded as the genesis of the imbalances in land distribution
and ownership in present‐day Namibia.

The legal mechanism that was used by the colonial powers in South‐West
Africa was legislation that was primarily geared at dividing the land on the
basis of the settler‐native dichotomy. This was done by the initial declaration
of the territory as crown land, followed by the declaration of tribal and trust
land or communal land over land originally belonging to the natives.
Ownership of land in the area demarcated as crown land vested in the
colonial power, whilst part of the land was reserved for the occupation and
use of the natives. Within the area of crown land the received law of the
settlers was applied. Customary law applied to areas reserved for the natives.
In most cases, the reservation of land for the occupation and use of the
natives did not imply the complete ownership of that land by that particular
tribal group. The rights of the tribal group were rather rights of occupation
and use, or rights of usufruct.21 The residual rights were vested in the colonial
administration.

2.1 Creation of crown and state land

The formal declaration of land inhabited or owned by the tribal groups as

crown land was effected by a series of laws. The Transvaal Crown Land
Disposal Ordinance of 1903 was the initial piece of legislation used for this
purpose. This ordinance was made applicable to South‐West Africa by virtue
of the Crown Land Disposal Proclamation 13 of 1920. Firstly, the ordinance
proclaimed the territory as crown land and, secondly, in terms of section 12
certain areas of crown land could be reserved ‘for the use and benefit of
aboriginal natives’. The extension of Transvaal ordinances was made lawful
and possible by virtue of section 4(1) of the Treaty of Peace and South‐West
Africa Mandate Act 49 of 1919.22

The general effect of this ordinance was to vest ownership of tribal land
in the state or, to be more precise, the mandatory power, South Africa. In
1967 another piece of legislation, the Reservation of State Land for Natives

20 Amoo (n 1 above) 91.

21 See also MO Hinz ‘Communal land, natural resources and traditional authority’ in
FM d’Engelbronner et al (eds) Traditional authority and democracy in Southern Africa
(1998) 183‐88.
22 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.
18 Property law in Namibia

Ordinance 35 of 1967 was passed with similar provisions reserving state land
for the use and occupation of the natives. The declaration of the territory as
crown land and subsequently as state land meant, by necessary implication,
that the received law was to be used to determine property relations, but this
did not rule out completely the application of the relevant customary law in
areas where the land was substantially occupied by tribal groups. In this
regard mention should be made of section 4(3) of the Treaty of Peace and
South‐West Africa Mandate Act which authorised the Governor‐General ‘in
respect of land contained in any such reserve to grant individual titles to any
person lawfully occupying and entitled to such land’. The novelty of this
provision was the introduction of the concept of private ownership to a
community whose land tenure system was community‐based. Property
relations were to be determined by the received law, which allowed
individual rights as opposed to the community‐oriented land rights practised
by the indigenous people.

2.2 Reserves and trusts

The classification of land in South‐West Africa after the declaration of crown

land was determined according to identifiable tribes grouped under native
reserves and tribal trust areas. The Native Administration Proclamation 11 of
1922, issued by the Governor‐General, the official representative of the King
of Great Britain on whose behalf South Africa administered the mandate,
empowered the administration to establish native reserves. In 1928 the
Native Administration Proclamation 15 of 1928 inter alia gave the
administrator the power to define tribal areas. Government Notice 122 was
issued under the said Native Administration Proclamation 11 of 1922 and as
early as at the end of 1923 about 14 native reserves had been established.
The creation of the native reserves therefore cut the ties that natives had to
their ancestral land, adding another dimension to the classification of land in
South‐West Africa.23

Land allocation and utilisation in the reserves were regulated by the

Native Reserve Regulation 68 of 1924. These regulations vested ownership of
the land in the Administration and further provided that, after the land had
been set aside as a reserve, ‘it [could] not be alienated or used for any other
purpose except with the consent of both Houses of Parliament of the Union
of South Africa’. As pointed out by Adams and Werner,24 traditional leaders
in the Police Zone had no powers of their own with regard to the allocation of

23 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 millions 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 F Adams et al The land issue in Namibia: An inquiry (1990) 9‐20.
24 Adams & Werner (n 23 above) 31.
 Chapter 2: Skewed land policies and land tenure 19

land in the reserves. The regulations did make provision for a communal land
tenure system, but the allocation of land for residential and agricultural
purposes could only be made by Reserve Superintendents.25

The next step in the process of depriving the indigenous people of their
rights to their ancestral lands was the ‘conversion’ of the reserves into trusts.
By virtue of the Development Trust and Land Act 18 of 1936, the native
reserves were to be placed under a trust, known as the Development Trust,
and the administration of native affairs was transferred from the
Administrator of South‐West Africa to the responsible South African Minister.
Under section 5(2) of this Act, all land placed under the Development Trust
was declared the property of the state, to be administered by the State
President of South Africa as trustee. In 1978, by virtue of section 2 of the
Administration of the South African Bantu Trust in South‐West Africa
Proclamation AG 19 of that year, the trusteeship was transferred from the
South African State President to the Administrator‐General of South‐West
Africa.

2.3 Creation of areas for native nations

The next development in the land policy of the colonial administration was
the creation of ‘areas for native nations’. This was effected by the
Development of Self‐Government for Native Nations in South‐West Africa Act
54 of 1968. This Act gave the various pieces of land assembled in the
Development Trust special status by transforming them into areas for ‘native
nations’. Section 2 of the Act listed Damaraland, Hereroland, Kaokoland,
Okavangoland, Eastern Caprivi, and Ovamboland as such areas. Section 2(g)
empowered the State President of South Africa to ‘reserve and set apart such
other land or area for the exclusive use and occupation by any native nation
by proclamation’. This was, for example, done for Bushmanland in terms of
the Bushman Nation Advisory Board Proclamation R208 of 1976. Section 2 of
the Proclamation recognised Bushmanland, as defined in GN 1196 of 1970, as
an area ‘for members of the Bushman Nation’.26

2.4 Creation of communal land

By virtue of various pieces of legislation, the areas that had been designated
for native nations were declared communal land. Examples of such pieces of
legislation were: the Representative Authority of the Caprivians Proclamation
AG 29 of 1980; the Representative Authority of the Kavangos Proclamation
AG 26 of 1980; and the Representative Authority of the Ovambos
Proclamation AG 23 of 1980. The Development of Self‐Government for Native

25 As above.
26 See also Hinz (n 21 above) 184‐88.
20 Property law in Namibia

Nations in South‐West Africa Act was repealed by section 52 of the

Representative Authorities Proclamation.

In the Representative Authorities Amendment Proclamation AG 4 of

1981, the Administrator‐General was made trustee of the communal lands.
More importantly section 48(3) of this proclamation gave the executive
authority of the representative authority – to the extent that it was
authorised by an ordinance of the legislative authority or any other law – the
power to confer ownership, or any other right into or over, any portion of
such communal land, thereby maintaining the alien concept of private
individual ownership among the tribal communities.27 The Representative
Authorities Proclamation, and those proclamations establishing
representative authorities, were amended by the Representative Authority
Powers Transfer Proclamation AG 8 of 1989, which dissolved the
representative authorities and transferred the powers back to the
Administrator‐General. Article 147,28 read with Schedule 8 of the Namibian
Constitution,29 repealed the remaining parts of the various representative
authorities proclamations. However, as argued by Hinz:

All those amendments and repeals, including the repeal by the Constitution …
did not alter the status of the land being communal land … This follows from the
Interpretation of Laws Proclamation 38 of 1920, which provides in section
11(2)(c) for the continuous legal validity of acts performed under the Act
repealed. This appreciation for legal certainty also must apply to acts directly
instituted by the repealed law itself.30

2.4.1 Land tenure after independence

2.4.1.1 Commercial farms

The historical classification of land is the genesis of the imbalances in land

distribution and ownership in present‐day Namibia. Land set aside for private
ownership is for the most part owned by white settlers. At the time of
independence it was recorded that this constituted about most of the
commercially viable farming land, while the remainder of such land was held
by the indigenous people in the communal areas.

27 Note that the executive authority of the representative authorities was established under
the various Representative Authorities Proclamations. See also SK Amoo (n 1 above) 88‐89.
28 Article 147 of the Namibian Constitution deals with repeal of laws, and repeals all laws set
out in Schedule 8 of the Namibian Constitution.
29 Schedule 8 of the Namibian Constitution is a list of repealed laws, mostly Representative
Authority Proclamations.
30 Hinz (n 21 above) 185. It must be mentioned that the Namibian legislature has
promulgated the Communal Land Reform Act 5 of 2002, which provides for the allocation
of rights in respect of communal land. The Act under section 17 vests all communal land
areas 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.
 Chapter 2: Skewed land policies and land tenure 21

As stated by the Prime Minister, Hage Geingob, in his opening address to

the Land Conference on Land Reform in 1991:

There are about 6292 farms. Out of these, 6123 farms are white‐owned, and
cover 95 per cent of the surface area of the commercial districts (34.4 million
hectares). Within this ownership category the overwhelming majority of farms
belong to individual white farmers, including non‐Namibians. To be more
specific, a total area of 2.7 million hectares (382 farms) belong to foreign
absentee farmers, that is to say 0.9 million hectares belonging to citizens from
Austria, France, Italy and Switzerland, while the bulk of 1.7 million hectares is
owned by South African residents. Similarly, there are individual Namibian
farmers with more than two large farms, as against thousands of their landless
fellow countrymen who live in squalid poverty.31

It is therefore clear that the imbalances in the distribution of land cannot be

redressed without government intervention, a process to which the SWAPO
government has committed itself. Pursuant to various national conferences
on the land question,32 the Agricultural (Commercial) Land Reform Act 6 of
1995 was promulgated. This Act was meant to provide the Namibian
government with the necessary legal tools to acquire commercial farms for
the resettlement of displaced persons, and for the purposes of land reform.
The implementation of the Act has, however, not been free from problems.
As pointed out by the Minister of Lands, Resettlement and Rehabilitation,
Pendukeni Ithana, the government’s policy of ‘willing seller, willing buyer’ has
imposed constraints on its ability to acquire fertile and more productive
commercial farms.33 However, a possible solution to this constraint may be
found under the provisions of Chapter IV of the Act. Section 20, read with
section 14(1), empowers the Minister to expropriate any commercial land for
purposes of land reform in case of failure to negotiate the sale of property by
mutual agreement. The report adds that by April 1997, the Ministry of Lands
had bought 22 farms in various regions of the country, consisting of 109 287
hectares at a cost of N$ 18 891 282 and that the land had been distributed
among some landless Namibians.34

As indicated earlier, the government of Namibia has the sovereign power

to expropriate private property.35 Consistent with the norms of international
law,36 the Namibian Constitution provides for the justification of such

31 See Republic of Namibia National Conference on Land Reform and the Land Question
Consensus Document (1991).
32 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. References to appropriate legislation and the White Paper are made elsewhere
in this book.
33 See T Nandjaa ‘The land question: Namibians demand urgent answers’ Namibia Review
(1997) 1‐4.
34 As above.
35 See art 16(2) of the Namibian Constitution and secs 14(1) and 20 of the Agricultural
(Commercial) Land Reform Act 6 of 1995.
36 See the Resolution on permanent sovereignty over natural resources, 1962 adopted in
Texaco v Libya 1977 53 ILR 389.
22 Property law in Namibia

expropriation on grounds of public interest and the payment of

compensation. The power to expropriate, therefore, is a legal matter, while
the decision to expropriate and determine the public interest is a political
one. It is worth mentioning also that this clause is not entrenched and
therefore can be derogated from should a state of emergency be declared
under articles 24(3) and 26 of the Constitution. The Namibian government
has to date expropriated about nine farms. This may be attributed both to
political reasons and budgetary constraints relating to the payment of
compensation.

2.4.2 Land tenure in urban centres

2.4.2.1 Freehold titles

The historical classification of land in South‐West Africa along racial lines led
to the development of urban centres in the southern and central parts of the
country in the areas designated as non‐communal areas reserved principally
for white settlement. These urban centres maintained the dominance of
white settlement through the pass law system, and through the reservation
of property ownership to whites. Black settlement was only allowed as a
source of labour. The black workforce lived in separate locations, which
basically comprised less‐developed formal settlements and undeveloped
informal settlements.37 Black residents in the less‐developed formal
settlements who were able to satisfy the requirements for registration in
terms of surveying and adequate planning were granted freehold titles to the
properties. This form of tenure, however, constituted the exception rather
than the rule. Occupants of settlements without adequate surveying and
planning could not get their properties registered and therefore did not
qualify for titles. Informal settlements did not attract any grant of security of
tenure.

Article 16 of the Namibian Independence Constitution guarantees

everyone the right to private ownership of land. This provision means that
black Namibians are constitutionally entitled to own properties with freehold
titles. Freehold titles over land in urban centres may be acquired either
through alienation of land hitherto vested in local authorities under the Local
Authorities Act 23 of 1992,38 or through private treaties between individuals.

37 I Tvedten & M Mupotola ‘Urbanisation and urban policies in Namibia’ Discussion Paper 10,
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.
38 See secs 3(3)(a), 3(5)(b) and 30(1)(t) of the Local Authorities Act 23 of 1992.
 Chapter 2: Skewed land policies and land tenure 23

2.4.2.2 The permission to occupy

Apart from freehold title, the other form of the title granted to residents in
the urban centres was the Permission to Occupy (PTO). Before independence,
this constituted the only form of title to land, other than rights under
customary law that was available to the indigenous population of Namibia (ie
considering the prevailing political, social and economic constraints on the
capacity of blacks to obtain freehold title).

The PTO was formally introduced into the territory by the Development
Trust and Land Act 18 of 1936. It is a licence granted by the Act which allows
the licensee to occupy state land under conditions attached to the PTO
certificate. There are two types of PTO: rural and urban. The former is issued
by the Ministry of Lands, Resettlement and Rehabilitation, and the latter by
the Ministry of Regional Local Government and Housing. The urban PTOs are
issued in respect of land that falls within the ‘old settlement areas’.39 All
other PTOs are in designated rural areas.

Despite the existence of the PTO since 1936, it was the establishment of
the Bantustans, after the Odendaal Commission’s Report in 196440 that
resulted in the proliferation of this form of tenure. The 1960s saw the growth
of the capitals of the Bantustans or the communal areas of the northern
regions of the territory as a response to the administrative and military needs
of the colonial administration. Since these urban centres were situated in the
Bantustans, it was a contradiction in terms for the colonial administration to
grant freehold titles. To suit the apartheid design, the most appropriate title
in the circumstances was the PTO. PTOs were granted mainly to residents
who occupied government houses in the formal areas and to private persons
who developed plots in the formal areas. They were designed to provide the
residents thereof with some security of tenure for the development of a
surface structure which could be in the form of a house or a shop. In
accordance with the overall objective of apartheid, therefore, the PTOs

39 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.
40 In 1962, the South African Government appointed a commission of inquiry 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.
24 Property law in Namibia

satisfied the colonial administration’s need for a limited form of title for the
indigenous population. As stated earlier, the interest granted by the PTO is a
licence and as such, it is similar to leasehold. A PTO conveys no rights of
ownership but it does contain an option for the holder to obtain secure title
to the land if at any time during the currency of the PTO such title becomes
available. As indicated by Christensen and Hojgaard,41 a PTO provides a
limited right to occupy an identified site for a limited period. As stated by
Parker J the rights conveyed by the PTO do not amount to freehold tenure.42
In theory it cannot be transferred or mortgaged. In practice, however,
because PTOs are the only form of legally recognised title in unproclaimed
towns, they are ‘transferable’, by cancellation and reissue to the purchaser.
In certain instances PTOs have also been used as collateral. The inherent
limitations of the PTOs have, however, created a lack of confidence in the
system among the holders and also the general public.43 Current government
policy44 is thus to phase out PTOs in the urban areas as the full range of
existing and projected tenure forms becomes available.45

2.4.3 Land tenure in resettlement areas

As mentioned earlier, the land reform programme has land resettlement as

an essential component. The Namibian Government’s Resettlement involves
both redefining and reconstructing of land rights that need to be vested in the
settlers. The determination of appropriate land rights in these resettlement
areas has been premised by the Government’s objectives of resettlement.
The National Resettlement Policy (2001) states two objectives of
resettlement: firstly, to enhance the welfare of the people through
improvement of productivity; and secondly, to develop the destination areas
where people are supposed to earn a living.

In view of the fact that with the acquisition of these holdings by the state,
it is not only the freehold title but logically the allodial title that are vested in
the state, the position of the Government in the reconstruction of adequate
titles for the resettlement areas is the retention of the freehold and allodial
titles and the granting of lesser titles to the settlers. Consequently, the tenure
system in the resettlement areas is based on non‐freehold where the
Government provides long‐term leases of 99 years to current holders and

41 See n 37 above.
42 Nekwaya & Another v Nekwaya & Another (A262/2008) 2010 NAHC 8.
43 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, trusted
by the target group until it gains popular acceptance.
44 White Paper on National Land Policy.
45 These projected forms of tenure are the starter title and the landhold title. From the
perspective of the holder, landhold or freehold title would be the more appropriate titles
to obtain in the place of a PTO.
 Chapter 2: Skewed land policies and land tenure 25

future generations. The leasehold tenure system allows settlers to use a lease
as collateral to secure a loan from lending institutions for agricultural
production purposes. However, the reality of the actual situation on the
ground is that resettlement areas cannot be used for collateral purposes for
the following reasons:

(1) The state is the registered owner of the property.

(2) The ownership structure makes it difficult for the banks to repossess this
land in the event of default in payment of loans.
(3) The leasehold of 99 years granted by the Government is not transferable or
‘non‐tradable’.

The land rights may be granted as individual, group or co‐operative holdings.

2.4.4 Security of tenure in the informal areas

With the advent of independence, more Africans were absorbed into the
public service and, to a lesser extent, into the private and commercial sectors.
This has resulted in the influx of more affluent Africans into the urban
centres. The character of black settlement in the urban centres has
consequently become more heterogeneous and, with the right of private
ownership guaranteed by article 16 of the Constitution, more black urban
dwellers are able to acquire property in the form of freehold title. Although
this phenomenon may have corrected to a certain degree the effects of past
racial discrimination, urbanisation has its own inherent problems. It was
estimated in 1995 that urban areas in Namibia were growing at a rate of 3.75
per cent per annum on average. The fastest growing towns, Walvis Bay,
Katima Mulilo and Rundu, were estimated to be growing at a rate of
approximately 6.5per cent. Windhoek, whose total population was 34.5 per
cent of the entire urban population of Namibia, increased by 5.45 per cent
from 1991 to 1995. It is estimated that in 1995 about 30 000 families lived in
informal settlements in urban areas without security of tenure.46 The 2001
National Housing and Population Census recorded that about 67 per cent, 1
226 718, of the Namibian population lived in rural areas with only 33 per cent,
603612 in urban areas. Out of the total 603 612 persons living in 31 urban
localities, Windhoek accounted for 38.7 per cent with the remaining 61.3 per
cent found in the remaining 30 urban localities recorded at that time. In 2006
the estimated population of Windhoek was 288 000 which was expected to
increase to 355 000 in 2011, and to 437 000 in 2016. The population of the
informal settlement was projected to reach 76 000 in 2006 and 119 000 in
2011.47

46 Christensen & Hojgaard (n 37 above).

47 Namibia Planning Commission‐NPC (2003). Population and housing census 2001: National
Report – Basic analysis with highlights. Windhoek: Central Bureau of Statistics. See also
F Maanda et al Where to now? Creating a sustainable community: Case of Windhoek.
Unpublished Conference Paper.
26 Property law in Namibia

This growth means that there is not only need for more land for urban
settlement, but also for security of tenure for people whose rights are not
recognised by the existing system. Most of these residents are squatters on
land belonging to individuals or local authorities.

One reason for the non‐existence of a more secure tenure system for
urban settlements in the former Bantustan areas was the deliberate policy of
the colonial administration to deny these urban centres official recognition as
municipalities. This would have led to the establishment of local authorities
with the jurisdiction to grant freehold title after the satisfaction of
infrastructural and surveying requirements.48

The first democratic government of Namibia reacted to this situation by

establishing local authorities in these areas under the Local Authorities Act 23
of 1992. The formalisation of urban centres in terms of this statute involves,
firstly, the proclamation of the area as an urban area under the jurisdiction of
the relevant local authority. This step is then followed by the registration of
the town in the name of the state or relevant local authority. The
proclamation and subsequent registration enable the local authority to
subdivide urban land into plots or erven. The occupants of such plots receive
freehold title. In the formal areas, the intention is to sell existing erven to the
relevant local authority, ‘subject to the holders of Permissions to Occupy
being given the first option on the plots they occupy at the sale date’.49

3 Summary and concluding remarks

The current land policies and land reform programmes in Namibia are based
on a pedigree of land tenure systems and consequential titles that claim their
legitimacy from constructs of colonial racist administrations that illegally
dispossessed the indigenous people of Namibia of their ancestral rights to
their land and, in the construction of new land tenure and land rights,
deprived them of comprehensive titles to their land. The German occupation
of the territory was followed by its declaration as a Protectorate and a Crown
Colony. Thereafter, a series of statutes was used by the South African
administration to classify the land into state land, private land and communal
land. This classification was based on the native‐settler dichotomy which
made access to private land the exclusive right of white settlers. The
communal lands were the creation of legislation which inter alia deprived the
indigenous people of their allodial rights. Individual rights over communal

48 The White Paper on urban land and the proclamation of local authorities states that prior
to independence many urban areas had developed but, because of the discriminatory
policies of the colonial regime, they were never proclaimed as municipalities or townships
in which the administration of local authorities could develop. The White Paper on national
land policy requires the establishment and proclamation of urban and urbanising areas as
townships and, where appropriate, as municipalities, to promote decentralisation of
government and the close involvement of communities in their own administration.
49 As above.
 Chapter 2: Skewed land policies and land tenure 27

land took the form of rights of usufruct or rights of use, with limited security
of tenure. It follows that on the eve of Namibia’s independence most private
land was owned by whites. The majority of the indigenous people, with the
exception of those few who held the so‐called PTOs in the urban centres, held
rights of usufruct or use over the communal lands.

For purposes of legal continuity and political expediency, the framers of

the Namibian Independence Constitution condescended to recognise the
pre‐existing land titles. If the Namibian Independence Constitution is
accepted and recognised as the Grundnorm that confers legitimacy on the
pre‐existing rights, then this approach glosses over certain fundamental
questions relating to the validity of current titles and the policy of the
Government relating to the right of the people of Namibia to their ancestral
land.
 3
THE LEGAL CONCEPT OF A THING
CHAPTER

1 Introduction

It was indicated earlier in Chapter 1 that the law of property deals with the
relationship between the individual and the thing. A thing therefore can be
regarded as constituting the centrality of the estate or patrimony of the
individual or legal subject. A thing has often been defined in the context of
rights and its characteristics. Van der Walt and Pienaar1 for example, describe
a thing as the legal object of a real right and is therefore, for the law of
property, the most important legal object. The value of a thing lies in the fact
that it is juridically destined to satisfy the needs of a legal subject. From this
basic premise they proceed to define a thing in terms of its characteristics as
a corporeal or tangible object, external to persons and which is an
independent entity subject to juridical control by a legal subject to whom it is
useful and of value.2

From the above definition the characteristics of a thing may be said to be

its corporeality, its impersonal nature and therefore its existence external to
man; its existence as an independent entity; its susceptibility to human
control and its usefulness and value to a legal subject.

2 Corporeality

Both Roman and Roman‐Dutch law draw a distinction between corporeal and
incorporeal or tangible and intangible things and from this basic premise a
thing is defined in terms of its corporeality. This definition notwithstanding,
both corporeal and incorporeal things were regarded as things in the legal
sense.3 This is also the principle in current Namibian and South African

1 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 13.
2 As above.
3 DG Kleyn et al Silberberg and Schoeman’s the law of property 3rd ed (1993) 9‐15.

28
 Chapter 3: The legal concept of a thing 29

property jurisprudence. In Roman law, corporeal things were described as

things which could be felt or touched or otherwise perceived by the ordinary
senses, and incorporeal things refer to things which cannot be perceived by
the five senses. Nowadays, however, the definition incorporates things which
are capable of sensory perception and which do not occupy space. This
definition includes natural forces such as gravity, heat, radioactivity, light,
sound, and electricity, which do not occupy space. The position therefore is
that the legal concept of a thing is given a wider definition to include any
other subjective right, such as copyright, usufruct4 and mortgage,5 other than
a corporeal thing, which serves as the object of a real right.6

3 Impersonal nature

The abolition and proscription of slavery under international norms and

contemporary human rights jurisprudence, such as the principles embodied
in article 4 of the Universal Declaration of Human Rights and the Namibian
Constitution7 underlie the principle that human beings cannot be the object
of commerce and therefore are res extra commercium. This is consistent with
this legal characterisation of a thing. Under this characterisation, things are
seen as external to human beings and therefore of an impersonal nature.
Thus generally speaking, a human being is a legal subject who can be the
holder of a right with respect to some objects, but a human being, consisting
of a body and its parts, can never be an object of a right.8 This aspect entails
that a human being does not constitute a thing in a legal sense and therefore,
traditionally, human bodies and their parts are classified as res extra
commercium. However, parts of the body of a living human being which can
no longer be connected to a human being and a human corpse can be
regarded as negotiable things. For example, it is not unusual to find
legislation aimed at the promotion of medical health and science providing
for the donation or offering for remuneration human reproductive organs.
Namibia currently does not have a particular piece of legislation with such
provision but under the National Health Act 61 of 2003 of South Africa,9
human tissue, blood, products and gametes from living and deceased persons
can be donated or given for remuneration.

4 Independence

The characteristic of independence implies that the thing must constitute an

independent entity in law. In other words, the thing must be a separate and

4 Ex parte Eloff 1953 1 SA 617 (T).

5 Sec 81 of the Deeds Registries Act 47 of 1937.
6 AJ van der Walt & GJ Pienaar (n 1 above) 13‐14.
7 Art 9(1) of the Namibian Constitution provides that no person shall be held in slavery or
servitude.
8 Kleyn et al (n 3 above) 15‐16.
9 The National Health Act 61 of 2003 repeals the Human Tissue Act 65 of 1983.
30 Property law in Namibia

distinct entity that has an independent legal existence. Even though the
definition of this characteristic includes physical independence, the existence
of sectional ownership and communal ownership over an entity, for example,
indicates that a more realistic approach is a holistic one incorporating
juridical independence. One example is a sectional title. The Sectional Titles
Act 66 of 1971 has introduced the concept of ownership in a section of a
building as well as joint ownership in the land on which it stands. In the
context of this characteristic the entire complex may have a distinct entity but
each holder has a right to a separate unit, section or entity. Independent
existence in the physical sense alone will not adequately describe this
concept. Juridical independence can be considered as a more accurate
description. Other examples which could be mentioned to illustrate this point
are composite things such as cars and trees with branches and fruit. The
components of these composite things lack individuality and therefore in law
individuality or independence is accorded to the composite unit as opposed
to the components.10 Further examples are the atmospheric air, running
water and gaseous substances which are not considered as property because
they do not fulfill the requirement of independence or individuality. They,
however, fulfill this requirement if they are juridically individualised in which
case they become property.

In accordance with the maxim superficies solo cedit a building or a

structure erected on land, even though it can physically be regarded as one
unit, is juridically recognised as part of the immovable land.

5 Susceptibility to human control

This characteristic of a thing in a broader sense means that as an object of a

legal right, the thing must be susceptible to legal sovereignty. This conversely
means that objects over which a legal subject cannot exercise legal control
cannot be classified as things. Some classic examples are the sun, the moon
and aspects of nature such as the sea, water and free air. In Namibia
ownership of water resources below and above the surface of the land
belongs to the state and it is the responsibility of the state to ensure that
water resources are managed and used to the benefit of all people.11
However, objects such as the atmospheric or free air, water and gaseous
substances can be classified as things susceptible to legal sovereignty if they
are placed in containers, bottles and gas cylinders.

10 PJ Badenhorst et al Silberberg & Schoeman’s the law of property 5th ed (2006) 20‐21.
11 Art 100 of the Namibian Constitution and secs 4(a) and (b) of the Water Resources
Management Act 24 of 2004.
 Chapter 3: The legal concept of a thing 31

6 Usefulness and value to human beings

A thing must be useful and valuable to a legal subject. If it is not valuable and
useful a legal relationship cannot be established between subject and object.
The value may be economic or sentimental. The test to determine whether
something is of value is an objective one.

7 Summary

A thing is commonly defined as a corporeal object which is external to man

and which is an independent legal entity, susceptible to private ownership
and of value to man. In order to qualify as a thing, a physical object must in
law constitute an independent entity with a well‐defined existence in space.
Thus atmospheric air, the sea, running water and gaseous substances do not
meet these requirements and are not things. However, such substances
acquire individuality and become things as soon as they are placed in a
container or compressed in a gas cylinder. Certain things, although to some
extent used and enjoyed by humans, are not susceptible of appropriation by
an individual. These are the so‐called res extra commercium which, although
outside commerce, may be freely used and enjoyed by members of the
general public. Over and above these requirements it is also essential that, for
a thing to qualify as a legal object of a real right, it must be of use and value
to persons. When an individual is capable of exercising the right of ius fruendi
or the right of dominium, the object is of use and value.
32 Property law in Namibia

8 Classification of things

8.1 Diagram

8.2 Introduction

The above diagram is meant to assist the reader in following the classification
of things.
 Chapter 3: The legal concept of a thing 33

A thing as a legal object may broadly be classified with regard to its

relation to a person or with regard to its relation to nature.

8.3 Classification of a thing with regard to its relation to a person

In this classification a thing may be classified as res in commercio, things

within the field of commercial dealings or things that are susceptible to
private ownership, and res extra commercium, things not within the province
of commercial dealings or things not susceptible to private ownership. In
terms of its nature a thing may be classified as movable or immovable,
consumable or non‐consumable, divisible or non‐divisible, fungible or non‐
fungible, single or composite, corporeal or incorporeal, tangible or intangible.
We shall now proceed to explain the classification in more detail.

8.3.1 Res in commercio: things within the province of commercial

dealings

Things are regarded as res in commercio if they are susceptible to private

ownership or if they are things which can function as objects of private
property rights. There are two categories of things that are regarded as res in
commercio, namely res alicuius and res nullius.

8.3.2 Res alicuius: things owned by a person

Res alicuius are things that are owned by a person, a legal subject, and
therefore are things in commercio. These are things that are privately owned
by a legal subject, a natural or juristic person, at a particular point in time and
may be divided into res singulorum and res universitatis. Res singulorum are
things that are owned by individuals and res universitatis are things that
belong to corporate bodies. Res universitatis include things which belong to
corporate bodies such as a municipality and even the state as opposed to
things that are privately owned or owned by individuals. The traditional
common law examples are race courses, theatres, markets, city churches etc.
However, today, some of these common law examples are subject to private
ownership.

8.3.3 Res nullius: things not owned by a person

Res nullius consists of things which, although they are susceptible to private
ownership, do not belong to anyone at a particular point in time and there are
three categories:12

12 PJ Badenhorst et al (n 10 above) 32‐33.

34 Property law in Namibia

(a) Things in commercio, or things which are susceptible to private ownership

but which have never been privately owned. Traditional examples are birds, wild
animals, fish, etc. The principle is that before they are captured, before effective
control is exercised over them, the state exercises control. For example, game in
areas declared as conservancies or game reserves in terms of the Nature
Conservation Ordinance 4 of 197513 is protected by the state. Ownership over
such wild animals is acquired only after proper authority for hunting has been
granted by the appropriate government ministry. The state, through the
appropriate ministry, grants the licence for hunting through which ownership
may be acquired. State control and protection do not mean state ownership and
in this regard ownership is obtained through the method of original acquisition
of ownership. This is one of the reasons why the acquisition of res nullius is
classified under original acquisition as opposed to derivative acquisition.14
(b) The second category of res nullius relates to birds or wild animals which
have regained their freedom from the one who acquired them.
(c) The third category comprises abandoned things or res derelictae. These are
things which have been lost or are abandoned by the owner with the intention of
giving up ownership. With regard to acquisition of right of ownership over res
derelictae the person asserting ownership has to prove abandonment and
intention to abandon or to relinquish ownership on the part of the owner.15

8.3.4 Res extra commercium: things that cannot be privately owned

Res extra commercium are things which cannot function as objects of private
property rights or which cannot be privately owned. They include res divini
iuris or religious things, res omnium communes or common things, res
publicae or public things and res universitatis or things belonging to corporate
bodies.

8.3.5 Res divini iuris: religious things

Under Roman law these were res sacrae, res religiosae and res sanctae.

Res sacrae were things that were consecrated to the gods and therefore
sacred, for example temples, churches and sanctuaries for gods. Res
religiosae were things that were recognised as sacred as a result of a private
act, as opposed to consecration by a pontiff. Burial grounds on private
premises could acquire such sacred status. Res sanctae were things protected
by the laws and the imposition of sanctions, eg city walls and gates. This
classification, however, is now obsolete.

13 Sec 24(a) of the Nature Conservation Ordinance 4 of 1975.

14 R v Mafohla & Another 1958 2 SA 373 (SR); Dunn v Bowyer 1926 NDP 516;S v Frost, S v
Noah 1974 3 SA 466 (C).
15 Minister van Landbou v Sonnendecker 1979 2 SA 944 (A) 947.
 Chapter 3: The legal concept of a thing 35

8.3.6 Res omnium communes: common things

Voet and Grotius16 define res omnium communes as things which by natural
law are common to all people but belong to no one. This is a general rule but
it is possible to acquire ownership of a specific portion of things of this nature
if they are compressed or otherwise contained in, for instance, cylinders or
bottles. When things classified as res communes are converted into a
contained format, such as compressed air or gas in cylinders or water in
bottles, they become res in commercio. At common law the air and the sea
were regarded as common to all, and according to Voet running water was
regarded as part of res communes. In Roman law any interference with a
person’s enjoyment of res communes could be visited with the actio
iniuriarum but this action could only be instituted had the injured party
suffered a violation of his or her right of personality in his or her attempt to
protect the enjoyment of the res communes against a physical onslaught from
the wrongdoer. As mentioned earlier, in Namibia ownership of water
resources below and above the surface of the land belongs to the state and it
is the responsibility of the state to ensure that water resources are managed
and used for the benefit of all people.17

8.3.7 Res publicae

As was pointed out above, res publicae are things that belong to the entire
civil community and are not intended for private ownership, and res
universitatis are things that belong to corporate bodies and not individuals.
However, nowadays it is possible for certain things, which were traditionally
regarded as res publicae or res universitatis, to be held in private ownership.
Note also that, as was mentioned in the course of the discussion of res in
commercio above, it could be argued that even things that are generally
classified as res universitatis could in certain circumstances also be
recognised as privately owned things. The reason for this is that traditionally
res publicae and res universitatis were dealt with under the broad or general
rubric of res extra commercium but because of the changes effected to
modern property law, today some things which were traditionally considered
incapable of private ownership have now attained the quality to be held in
such ownership.

8.4 Classification of a thing with regard to its relation to nature

Under this broad rubric things are classified as corporeal or incorporeal

things.

16 Inst 2 1 1; D 1 8 2; Voet 1 8 3; Grotius 2 1 16.

17 Namibian Constitution (n 11 above).
36 Property law in Namibia

8.4.1 Corporeal or incorporeal things

Traditionally, two basic criteria are used to distinguish corporeal from

incorporeal things and these are whether they are tangible or intangible, and
whether they can or cannot be perceived by the external senses. Tangible
things are classified as corporeal and intangible things as incorporeal and
things which can be perceived by external senses are classified as corporeal
and vice versa.

Siberberg18 argues that if perception by external senses is used as a

criterion for classification then various gases that can be perceived by the
external senses but which are intangible can be regarded as property. He
adds that in modern South African/Namibian law a corporeal thing is
considered to be an object which occupies space and is capable of sensory
perception by any of the five senses. In the light of this he goes on to say that
natural forces such as heat, sound and electricity are considered as
incorporeal things because they do not occupy space.

Incorporeal things are things that cannot be classified as corporeal under

the above criteria but in a form of rights they can function as objects of rights
or limited real rights and therefore can be considered as property.

8.4.2 Movable or immovable things

Generally, the term ‘immovable’ refers to land and everything that is

attached to land by natural or artificial means. A thing is movable if its
condition is such that it can be removed from one place to another but having
regard to its nature and position.

Note that there is no single decisive factor to determine whether an

object is movable or immovable. For example, in terms of the concept of
inaedificatio, fixtures or movable things can be attached to immovables by
natural or artificial means in such a way that they lose their identity and
become part of the immovable thing. Whether this has occurred is
determined with reference to the degree of annexation, manner of
attachment, nature of the movable thing and intention of the owner.

The difference between movable and immovable property is not only an

academic issue. It is also relevant in practical situations. The following are
some examples to illustrate this point. In regard to transfer of ownership,
whether transfer of a thing is effected will depend on whether the thing is
movable or immovable. Transfer of ownership in movable property is
effected by delivery whereas in cases of immovable property it is effected by
registration in terms of the provisions of the Deeds Registries Act. Of further
relevance in this regard are the requirements of a valid contract of sale. In the

18 Kleyn et al (n 3 above) 30. See further PJ Badenhorst et al (n 10 above) 33‐34.

 Chapter 3: The legal concept of a thing 37

case of immovable property, which involves the registration of the contract,

there are formal requirements demanded by the Act. In the case of movables,
on the other hand, there are no mandatory formal requirements. Under the
Magistrates Court Act 32 of 1944, a judgment debtor’s immovable property
can be attached for execution only if the value of the movable property is not
enough to discharge the debt or the judgment. In terms of the Namibian
principles of private international law, the law applicable to immovable
things is the lex loci rei sitae, the law of the place where the immovable
property is situated, while the lex loci domicilli, the law of the place where the
owner is domiciled applies to movables. The common law offence of arson
can only be committed in respect of immovable property.

In the case of Khan v Minister of Law and Order,19 the applicant had been
dispossessed of his motor vehicle by a member of the South African Police.
He brought an application in terms of section 31(1) of the Criminal Procedure
Act 51 of 1977 (the Criminal Procedure Act) for the return of the vehicle. The
applicant's supporting affidavit contained sufficient averments to render the
initial seizure of the vehicle in terms of section 20, read with section 22, of the
Criminal Procedure Act, unlawful. The vehicle, which had been registered as
a built‐up vehicle, consisted of a rear portion, including the interior, which
could positively be identified as having been stolen; the engine and inner
front portion, which could positively be identified as belonging to the
applicant; and other components, some of which were probably from the
same stolen vehicle as the rear portion of the car and others which had been
obtained from a different source. It was contended by the applicant that the
components and rear portion identified as having been stolen had acceded to
the applicant's car and the applicant as owner was therefore entitled to
possession of the car.

J du Plessis stated as follows:

Where one movable is joined to another in such a manner as to form an entity,

the owner of the principal thing becomes the owner also of the thing joined to it
(die bysaak). Deciding which of the things is the principal thing ordinarily is a
matter of pure and simple common sense.
I agree with Van der Merwe and De Waal (op cit) (and see also Van der Merwe
Sakereg 2nd ed at 230‐1) that the principal things is that one that gives the
ultimate things its character, form and function. Grotius Inleidinge 2.9.1 seems to
apply a pure value test, although the word that he uses, namely ‘waerdiger’
might also carry the meaning of ‘worthy’ in the sense of that portion of the
whole that really gives the whole its identity.
(See Scheltinga's Dictata on De Groot.) Voet 41.1.14 merely says that the matter
must be decided on what accedes to what or, put differently, on what is added
for purposes of adorning the other. Huber RHR 2.6.2 gives various examples. Of
these examples, one, the diamond added to the ring clearly indicates that he
applies in essence the character, form and function test. In my view the

19 Khan v Minister of Law and Order 1991 3 SA 439 (T) 442.

38 Property law in Namibia

authorities show that the decision really is an application of common sense. One
must view the thing that was ultimately formed, and decide what the identity of
that thing is, and the component that gives the ultimate thing its identity will be
the principal thing, while the other will have acceded to it. It is also in cases of
doubt that the various guidelines, depending upon the facts of each case, need
be used. Applying to the present facts the character, form and function test, I am
of the view that the vehicle can be said to be a 1988 model, to which a 1985
engine modified to conform to a 1988 engine was added and to which small
portions of a 1985 body were added.
Under the circumstances the car cannot be said to be that of the applicant,
because the stolen parts were added to his 1985 wreck. In my view it was the
other way around and the car in character, identity, form and function is
Rheeder's stolen 1988 model.

8.4.3 Divisible or indivisible things

Divisible things are things that are legally capable of being divided without
losing their natural and functional integrity. The nature and function of each
of the parts remain similar to those of the whole, so that the total value of the
parts is not substantially less than the value of the whole.20 The focus of this
distinction is on legal divisibility rather than physical divisibility. This
distinction is important for co‐ownership. A plot of land, for example, can be
divided into two or more parts without any substantial changes in its nature,
function and value. It can therefore be classified as a divisible thing. Things
such as a car, a chair, a bicycle, a painting, however, cannot be divided
without changing their value and function and therefore can be classified as
indivisible things.

8.4.4 Consumable or non‐consumable things

Consumables are objects that are used up or destroyed by use or have their
substance changed by use. Typical examples are food, drinks and oil. Non‐
consumable things, such as land, houses and paintings, are objects which are
not substantially changed or reduced through their use.

8.4.5 Fungible or non‐fungible things

Fungibles are things that are weighed, measured or counted out and for this
reason they are usually not individually determined. Examples of fungibles
are textile materials, coal and milk. In contracts of purchase and sale, where
the price is expressed at a certain amount per measure (ad mensuram), the
risk in the thing (merx) sold does not pass to the purchaser until it has been
set aside, or appropriated for him or her. Non‐fungibles are things that have
been individually determined and have distinctive individual qualities that

20 H Mostert et al The principles of the law of property in South Africa (2010) 38.
 Chapter 3: The legal concept of a thing 39

make them different. Examples of non‐fungibles are paintings and other

works of art.

8.4.6 Single or complex (composite) things

Single things may be corporeal, movable or immovable objects, such as

books, plots, stones, pieces of metal and organic matter that, according to lay
rather than scientific perceptions, form an entity.21 Certain objects have a
commercial value only when dealt with in quantities, such as grains of corn,
salt, or sand, or bees. The particular quantity of the object is also considered
to be a single thing.22

Complex or composite things consist of totalities or generic objects that

have lost their individuality on being united organically into a single entity
and that cannot be separated from the composite thing without destruction
or alteration of their substance of the composite thing. Examples are a house,
a motor vehicle, a ship and a potted plant. The various components
comprising the entity, for instance, the engine, the chassis, the tyres, can
exist independently but have no separate identity while the union lasts.23

9 Summary and concluding remarks

Traditionally, things have been classified with reference to their relation to

man and in relation to the nature of the thing itself. Under this broad
categorisation, things have been classified with respect to their susceptibility
to private ownership. Hence, things have been classified on the one hand as
either res in commercio or res extra commercium and on the other hand as
corporeal or incorporeal, and movable or immovable. The various categories
of things emanating from these broad categorisations have relevant
applications in terms of the law and therefore cannot be regarded as serving
only academic purposes. Some of these classifications are however, obsolete.

21 F du Bois Wille’s principles of South African law 9th ed (2007) 420.

22 As above.
23 As above.
 4
PROPERTY RIGHTS, REAL RIGHTS AND
CHAPTER
PERSONAL RIGHTS

1 Introduction

As stated earlier, the property rights of a person or a legal subject include

rights in both corporeal and incorporeal things and rights deriving from the
performance of an obligation by another person. The distinction between
corporeal and incorporeal things has already been dealt with in Chapter 3
(paragraph 8.4.1) with regard to the various categories of rights that
constitute the property rights of a person. Hosten,1 with reference to the
various legal objects to which a legal subject might have a right, classifies
rights into four broad categories, namely, real rights, personality rights,
personal rights and immaterial or industrial property rights. In this context he
defines a real right as the right that vests in the holder an immediate control
or right over corporeal or material things; examples of real rights are
ownership, servitude and pledge. A real right may also be defined as a claim
of a legal subject to a thing as against other persons.2 A personality right may
be defined as the right that a person has to certain aspects of his or her
personality, for example, his or her body or reputation, and also the right to
privacy. If the object of a right is a performance or action by another person,
this right or claim is classified as a personal right. This may arise, for example,
from a contractual obligation or a delict. The last category of rights is referred
to as immaterial, incorporeal or industrial property rights. These are rights
that a person may have over his intellectual property, such as copyright,
patent and trade mark.

The above represents a brief explanation of the various categories of

property rights. For present purposes, it is only necessary to point out that
although these various categories of property rights exist in Namibian law,
the methods of acquisition, control and protection are different. In this
regard, a clear understanding of the difference between a real and a personal

1 WJ Hosten et al Introduction to South African law and legal theory 2nd ed (1997) 544.
2 PJ Badenhorst et al Silberberg and Schoeman’s the law of property 5th ed (2006) 47.

40
 Chapter 4: Property rights, real rights and personal rights 41

right is essential, especially in view of the provisions of section 63(1) of the

Deeds Registries Act.

The following examples illustrate that the determination of whether the

right derived from a particular legal relationship is a personal right or a real
right will affect the formalities to be complied with, the protection of the
rights, and the applicable law.

The purchase of a house involves the transfer of a real right, namely

ownership in immovable property. Transfer of ownership in immovable
property resulting in the alienation of that property is effected by
registration. The relevant areas of the law in terms of which immovable
property is transferred are the law of property, conveyancing and contract.
Section 63(1) of the Deeds Registries Act provides for the registration of real
rights and limited real rights. A deed or a condition in a deed, purporting to
create or embodying any personal right, as a matter of principle, shall not be
capable of registration. However, a deed containing such a condition may be
registered if, in the opinion of the registrar, such condition is complementary
or otherwise ancillary to a registrable condition or right contained or
conferred in such deed.

The creation of a servitude vests in the holder of the servitude a limited

real right. In terms of section 63(1) of the Deeds of Registries Act, as stated
earlier, this right is capable of registration and the formalities regulating the
process of registration are governed by the rules of conveyancing. The
registration of the servitude attracts certain consequences which determine:
the legal relationships between the owner of the property and holder of the
right of servitude; between the said owner and third parties; and between
the owner and any successor in title. The principles governing these
relationships are not only covered by the law of contract but also the law of
property.

The principles governing the purchase of a car, for example, involve the
interplay of the law of purchase and sale and the law of property. The
conclusion of the contract confers certain rights and obligations on the
parties. The seller has the obligation to deliver a thing, and the corresponding
right to receive payment. These rights and obligations are enforceable at the
instance of the parties themselves and therefore constitute creditors’ rights,
falling under the larger category of subjective rights3 known as personal
rights, and are generally governed by the law of contract and specifically
under the law of purchase and sale. Delivery constitutes the transfer of the
real right of ownership from the seller to the purchaser by which the

3 A subjective right may be defined as a legally recognised and valid claim by a subject to a
certain object. When a legal subject acquires a right in a thing or object as a result of a
lawful real relationship with the thing, the right is a subjective right. There are four
categories of subjective rights, each distinguishable from the others by the nature of the
object attaching to the right. These are real rights, personal rights, personality rights and
immaterial property rights.
42 Property law in Namibia

obligation of the seller to effect such transfer is satisfied. Upon transfer of the
thing the purchaser becomes the owner of the thing. The principles relating
to the right of ownership are governed by the law of property.

2 Categories of real rights

A real right is a subjective right to a material (or immaterial) thing, such as

book, a table, a motor car, a cow, a dog, a house, a farm, et cetera. The holder
of a real right is entitled to exercise immediate control over the material thing
(the object of the right). A real right, like any other subjective right, is
enforceable against the whole world; everybody must respect it. The
following are examples of real rights: ownership, servitudes, pledge,
mortgage, right of trekpath, right of outspan, lease of land, statutory
leasehold, mineral rights and sectional title unit.

2.1 Ownership

Ownership is the most complete real right in the sense that the holder of such
right, the owner, in principle, has the widest powers in respect of a thing but
it must be borne in mind that ownership may sometimes be limited by
another (limited) real right, such as usufruct held by a person who is not the
owner of the thing.

If Joseph grants his neighbour, Andrew, the right to use a road over
Joseph’s farm, Andrew acquires the right to a certain limited use of Joseph’s
property, while Joseph’s ownership remains intact although it is diminished
temporarily by the existence of a servitude. Joseph’s right of ownership is
diminished in the sense that he can no longer exclude Andrew from using the
road as determined by the servitude.

The important point is that a limited real right empowers the holder of
such right to use and enjoy property belonging to someone else, thereby
causing the diminution of the owner’s entitlements of use and enjoyment.
Long term leases and mineral rights are registered as immovable incorporeal
property. It is sometimes difficult to decide whether rights which were
created in a contract or a will and which pertain to corporeal things are
limited real rights or creditors’ rights (personal rights).

The Deeds of Registries Act governs the registration of deeds pertaining

to rights in immovable property. According to section 63(1) of the Act only
rights in immovable property may be registered. Therefore, if it is a creditor’s
right, it may not be registered. Real rights are registrable in the Deeds
Registry because they pertain to rights and obligations over legal objects or
res in commercio and need to be documented. In the case of personal rights,
the necessity for registration may not be as imperative as in the case of real
rights because they pertain to legal actions or legal relationships between
 Chapter 4: Property rights, real rights and personal rights 43

legal subjects. The following are examples of rights that have been recognised
as limited real rights.

2.2 Servitudes

A servitude is a limited real right over the property of another. The holder of
the servitude has certain powers of use and enjoyment over the property, or
the power to prevent its owner from exercising one or more of the powers of
an owner.4

A servitude is an ius in re aliena; it diminishes the owner’s dominium in a

thing.

One must distinguish between personal and praedial servitudes.

A personal servitude can exist over land (immovable property) or over

movable property in favour of a particular person (res servit personae). That
person is the holder of the servitude. The servitude vests in such holder in his
or her personal capacity and cannot be alienated.

A personal servitude normally ceases to exist, at the latest, on the death,

in the case of a natural person, of the holder of the servitude. It is important
to note that although this servitude is known as a personal servitude, it is not
a personal right but a real right, because the object of this real right (the
servitude) is a thing and not a performance, as in the case of a personal right.
The expression ‘personal’ servitude denotes that the right vests in a person in
his or her personal capacity, unlike a praedial servitude where the right also
vests in a person but in his or her capacity as owner of the dominant
tenement. A servitude may be personal but it is still a burden upon the land,
and may be enforced against any and every possessor of the land.5

Usufruct is a classic example of a personal servitude.

A praedial servitude, also known as a real servitude, is a burden on land

(the servient tenement) in favour of another piece of land (the dominant
tenement). It can only exist over land and cannot be transferred and be
separated from the land to which it is attached.6 The owner of the dominant
tenement is the holder of the servitude. If ownership of the dominant
tenement is transferred to a new owner, the new owner becomes the holder
of the servitude. The servitude is incidental to and passes with the ownership
of the dominant land to which it is inseparably attached, while it burdens the

4 Lorentz v Melle & Others 1978 3 SA 1044 (T).

5 See also AF Maasdorp & CG Hall Maasdorp’s Institutes of Cape Law, book 2, ch 16, para 5.
6 Webb v Beaver Investments (Pty) Ltd & Another 1954 1 SA 13 (T) 25.
44 Property law in Namibia

servient land irrespective of who the owner is.7 In this case res servit rei is
created. The servitude exists as long as the land exists.

The distinctive feature of a praedial servitude is that it burdens the land

to which it relates and that it provides some permanent advantage to the
dominant land as distinct from serving the personal benefit of the owner
thereof.8 The usual manner of establishing a praedial servitude is by
agreement in the form of a notarial deed between the owners of the two
tenements, followed by its registration against the title deed of the servient
land. It is an ius in re aliena and, for the sake of clarity, it could also be
registered against the title deed of the dominant land.9 The mere fact of
registration of a notarial deed does not, however, create any rights of a
servitudal character.10 It may be that only personal rights are created and
that registration should not have taken place.

There are various types of praedial servitudes and among these are
various servitudes of way, namely servitude of foot‐path, right of trekroad,
which grants a right to drive cattle over the land of another, and a general
right of way. In Namibia, on account of ecological conditions, there is a
scarcity of grazing land and water. Consequently, cattle owners and farmers
enter into various types of agreements granting grazing and water rights over
the servient tenement. These include a servitude of grazing, a servitude
pertaining to water and a servitude of outspan. A servitude of outspan is a
servitude whereby the owner of the dominant tenement has a right to graze
and give water to his cattle on the servient tenement.

2.3 Pledge

A pledge is a limited real right which a debtor creates in favour of a creditor

over movable property to secure the repayment of a debt. It is a security over
property and creates limitations on the right of ownership and therefore is a
limited real right. If the debtor fails to fulfill his or her obligation to the
creditor, the creditor has the legal right to sell the pledged property in
execution. In the event of the debtor’s insolvency, the creditor enjoys the
preference on the proceeds of the pledged property.

2.4 Mortgage

A mortgage is a real right in respect of the immovable property of another,

securing a principal obligation between a creditor and a debtor. This real right

7 HR Hahlo & E Kahn The Union of South Africa; The development of its laws and constitution
(1960) 601.
8 Hahlo & Khan (n 7 above) 602.
9 Van Vuren & Others v Registrar of Deeds 1907 TS 289 and 295; CG Hall & EA Kellaway
Servitudes 3rd ed (1973)27.
10 Hollins v Registrar of Deeds 1904 TS 603 607; Schwedhelm v Hauman 1947 1 SA 127 (E)
136; Van der Merwe v Wiese 1948 4 SA 8 (C) 26.
 Chapter 4: Property rights, real rights and personal rights 45

is created by registration in the deeds registries pursuant to an agreement

between the parties.11 The agreement is normally known as the mortgage
bond which contains the rights and liabilities of the mortgagee and the
mortgagor. As indicated in the Namibian case of Namib Building Society v Du
Plessis12 a mortgagee should in principle be entitled to realise the property
over which a mortgage bond was registered for the very purpose of securing
the debt on which he or she sued. Such a mortgagee has advanced money on
the understanding that he would have a preferential claim on the proceeds of
the mortgaged property.

2.5 Lease

Letting and hiring (conductio or huur en verhuring) is a contract whereby one

person (the lessor) agrees to give another (the lessee) the use of a thing, or
his own services or those of another human being or of an animal, and the
lessee agrees to pay the lessor an amount of money (the rent) in return.13 A
contract of this nature is termed a lease.14 In terms of a contract of lease
pertaining to property, the lessor’s right of ownership is limited to the extent
that the lessee acquires a limited real right to the lessor’s property which
allows him or her (the lessee) the temporary use and enjoyment of the
property in return for payment of rent.15 In Namibia, leases are governed by
common law and the provisions of the Formalities in Respect of Leases of
Land Act 18 of 1969.

2.6 Statutory leasehold

Statutory leasehold is a right of leasehold over state land granted in terms of

statutory provisions, normally for a period of 99 years. In Namibia, for
example, under the provisions of the Communal Land Reform Act 5 of 2002,
rights of leasehold for 99 years have been provided for and can be granted
over communal land.16

2.7 Mineral rights

In Namibia mineral rights are governed by the provisions of article 100 of the
Namibian Constitution and the Minerals (Prospecting and Mining) Act 33 of
1992. As a consequence of the rights of sovereignty created by article 100 of
the Namibian Constitution ownership of natural resources vests in the

11 Roodepoort United Main Reef GM Co Ltd (In Liquidation) & Another v Du Toit NO 1928 AD
66.
12 1990 NR 161 (HC).
13 De Jager v Sisana 1930 AD 71.
14 F du Bois Wille’s principles of South African law 9th ed (2007) 907.
15 WE Cooper Landlord and tenant (1994) 2. PJ Badenhorst et al (n 2 above) 427.
16 See sec 19 and 34 of the Communal Land Reform Act 5 of 2002
46 Property law in Namibia

state.17 In terms of section 2 of the Minerals (Prospecting and Mining) Act any
right in relation to the reconnaissance, prospecting, mining, sale, disposal and
the exercise of control over any mineral or group of minerals vests in the
state, regardless of any right of ownership that a person may have over any
land.

Strydom ACJ in the case of Namibia Grape Growers and Exporters

Association & Others v Ministry of Mines and Energy & Others18 confirmed
that article 100 of the Constitution vests mineral rights in the state, in so far
as they are not privately owned. In regard to Namibia, mineral rights have
vested in the state ever since Colonial times.19

2.8 Sectional title unit real right

Sectional title unit real right was introduced by the Sectional Titles Act 66 of
1971, which was repealed and replaced by the Sectional Titles Act 95 of 1986.
The Act introduced into South Africa a new concept of ownership which may
be obtained in respect of parts of buildings (so‐called sectional title units).
The Sectional Titles Act 66 of 1971 applies in Namibia but Act 95 of 1986 was
not applicable to South‐West Africa (Namibia). Namibia has promulgated a
new sectional titles act, the Sectional Titles Act 2 of 2009, which will replace
the South African act, the Sectional Titles Act 66 of 1971, when it comes into
force.

Sectional title entails a res or thing, namely a unit, which comprises a

section of a building and a share in common property. It therefore provides
for both sole ownership and joint ownership.

A person acquiring sectional title ownership acquires ownership of a unit,

which comprises a section together with an undivided share in the common
property, being the land on which the building is situated as well as the rest
of the building which is not included in any sectional unit, such as stairs, lifts,
playrooms, swimming pools, et cetera.

3 Registration of real rights

As stated earlier, under section 63(1) of the Deeds Registries Act, only real
rights can be registered. The section provides that no deed or condition in a
deed purporting to create or embodying any personal right, and no condition

17 Art 100 of the Namibian Constitution provides that land, 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.
18 2004 NR 194 (SC).
19 See the Imperial Mining Ordinances for German South‐West Africa, 8 August 1905; and
Proc 21 of 1919; Proc 4 of 1940; Ord 26 of 1954; Ord 20 of 1968; and presently the
Minerals (Prospecting and Mining) Act 33 of 1992.
 Chapter 4: Property rights, real rights and personal rights 47

which does not restrict the exercising of any right of ownership in respect of
immovable property, shall be capable of registration. There is a proviso that
permits the registrar to register a personal right if such right is
complementary or ancillary to a registrable condition, specifically a real right
or a limited real right.

3.1 The classical and personalist theories

There are two theories that have been propounded to explain the differences
between personal rights and real rights: the classical theory and the
personalist theory.

3.1.1 The classical theory

According to the classical theory rights may be classified in accordance with

the differing nature of their objects. In terms of this classification the object
of a real right is a thing. The thing itself is bound to the holder of the right. A
real right consequently establishes a direct legal connection between a
person and a thing, the holder of the right being entitled to control that thing
within the limits of his rights ‘zonder noodigh opzicht op een ander mensch’,
particularly ‘without necessary relation to another man’. In terms of a
personal right, on the other hand, a person becomes bound to the holder of
the right to render a particular performance, specifically to do or not to do
something, the performance itself being the object of the right. It never
establishes a direct legal connection between its holder and the thing, if any,
in respect of which a performance has to be rendered.20

3.1.2 The personalist theory

The personalist theory, on the other hand, distinguishes between real rights
and personal rights with regard to the persons against whom the respective
rights are enforceable. The holder of a real right has a right to a thing which,
as a general rule, is enforceable against all other persons, particularly against
any person who seeks to deal with the thing to which a real right relates in
any manner which is inconsistent with the exercise of the holder’s power to
control it, and in so far as a person may have a limited real right to another
person’s thing, that limited real right is also enforceable against the owner of
the thing. Real rights, therefore, belong to the category of rights known as
absolute rights.

In contradistinction to the absoluteness of a real right, a personal right is

usually said to be enforceable only against a particular person or association
of individuals on the basis of a special legal relationship, such as a contract,

20 PJ Badenhorst et al (n 2 above) 50‐51.

48 Property law in Namibia

the commission of a delict or some other good or sufficient cause.

Consequently, personal rights are often referred to as being relative rights.
The protection granted to the holder of a real right in respect of his interests
in the thing which is the object of his right is consequently compared with the
protection granted to the holder of a personal right in respect of his or her
interests in a thing in connection with which a performance, for example,
delivery has to be rendered, the performance and not the thing itself, being
the object of the right.

3.2 Evaluation of the theories

As theories, the classical and personalist theories do not provide answers to

all questions relating to the distinction between personal rights and real
rights. As indicated by AJ van der Walt & GJ Pienaar,21 generally speaking,
neither the classical nor the personalist theory has provided a simple and
consistent solution to the practical problems presented by the distinction
between real and creditor’s (personal) rights. In many cases the failure of
these theories can be attributed to misunderstandings and inconsistent
applications of the theories but it is also true that both socio‐economic
circumstances and the understanding of rights in general have changed
considerably since these theories were originally formulated. A number of
alternative theoretical approaches have been suggested recently, but none of
them succeeded entirely.

With regard to the classical theory, Silberberg and Schoeman22 express

the criticism that the theory ignores the fact that real rights also constitute
legal relationships between legal subjects mutually, and on the other hand,
that certain personal rights (such as a lease of a movable thing) also, to some
extent, affect control over a thing.

3.3 Criteria or requirements developed by the courts to

determine the capability of a right to be registered

In addition to the two theories to illustrate the distinction between real rights
and personal rights (or creditor’s rights), given above, the courts have
developed their own approach to this problem. The following criteria or
requirements were laid down in the case of Cape Explosive Works Ltd &
Another v Denel (Pty) Ltd & Others.23

The intention of the person who creates the real right must be to bind, not only
the present owner of the land, but also his successors in title; and

21 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 29.
22 DG Kleyn et al Silberberg and Schoeman’s the law of property 3rd ed (1993) 43.
23 2001 3 SA 569 at 578.
 Chapter 4: Property rights, real rights and personal rights 49

The nature of the right or condition must be such that registration of it results in
a ‘subtraction from the dominium’ of the land against which it is registered.

3.3.1 The intention of the parties

This test was laid down by Nestadt J in the case of Lorentz v Melle & Others24
as follows:

Whether a contractual right amounts in any given case to a servitude – whether

it is real or only personal – depends upon the intention of the parties to be
gathered from the terms of the contract construed in the light of the relevant
circumstances. In case of doubt, the presumption will always be against a
servitude: the onus is upon the person affirming the existence of one to prove it.

In Willoughby's Consolidated Co Ltd v Copthall Stores Ltd25 Innes CJ said:

I would add that I do not read the passage and authorities quoted as meaning
that the parties’ intention (as gathered from the terms of the contract) is the sole
criterion in deciding the issue. If a contractual right is of such a nature that it is
incapable of constituting a servitude, then obviously the intention of the parties
(as expressed) to do so, is irrelevant.

This was reiterated by Streicher JA in Cape Explosive Works 26 who stated that
the intention with which transfer was given and received was required for the
transfer of the property subject to the conditions creating the rights in
question.

There is the necessity to interpret the will or the contract in question to

determine the intention of the party or parties who created the right.27 Apart
from its subjectivity, intention of the parties is not the sole criterion in
determining whether a term of a contract creates a real or personal right.

From the Ex parte Geldenhuys28 decision it may be inferred that such an

intention cannot override principles of law. Regardless of the intention, it is
impossible to create a real right if the right in question clearly places the
obligation upon the debtor in his or her personal capacity. However,
wherever possible, the intention of the parties is an important clue which
might help the court in deciding whether the obligation was supposed to be
real or personal.

24 n 4 above, 1050.
25 1918 AD 1 16. See also Hotel De Aar v Jonordan Investment (Edms) Bpk & Others 1972 2 SA
400 (A) 406 and Elelor (Pty) Ltd v Champagne Castle Hotel (Pty) Ltd & Another 1972 3 SA
684 (N) 689‐690.
26 n 23 above.
27 See also Hollins v Registrar of Deeds (n 10 above); Chiloane v Maduenyane 1980 4 SA 19
(W).
28 1926 OPD 155.
50 Property law in Namibia

3.3.2 The subtraction from the dominium test

3.3.2.1 The formulation of the test in Ex parte Geldenhuys

The subtraction from the dominium test was formulated in – Ex parte

Geldenhuys.29 In the process of this formulation, the court had to consider
the following issues:

(1) the effect a condition that creates a servitude has on the right of dominium;
(2) whether the obligation to pay money to someone constitutes a real right or
a personal right; and
(3) whether the mere intention to create a real right satisfies the criterion
necessary to create such a right.

In this case, by the mutual will of Adriaan Geldenhuys and his wife, certain
land was bequeathed to their children in equal shares subject to the usufruct
of the surviving testator or testatrix. The will further provided that as soon as
the first child reached his or her majority the survivor of the testators would
be bound to divide the said land in equal portions and distribute it among the
children, such distribution to be made by the survivor and the major child
concerned by drawing lots, and that the child who by such lot obtained the
portion comprising the homestead of the farm should, within a specified
period of time, pay the sum of £200 to the other children. The testatrix died
in 1923 and the applicant, who was the surviving testator and the executor of
the estate of the deceased testatrix, asked the court for an order instructing
the Registrar of Deeds to register the said land in undivided shares in the
names of the children, subject to the conditions of the mutual will. The
Registrar of Deeds had no objection to a mere transfer of the farm to the
children in undivided shares but he objected to the registration against the
title deed of the conditions pertaining to the subdivision, the drawing of lots
and the payment of £200. The grounds of his objection were, firstly, that the
said conditions merely created ‘personal rights’, and, secondly, that the
conditions, even if registered, would only be binding on the legatee, and not
on any transferees to whom the legatees might transfer their undivided
shares.

3.3.2.2 The formulation of the test in the context of servitudes or usufructs

In his judgment, De Villiers JP in confirming the subtraction from the

dominium test as a criterion to draw the distinction between personal rights
and real rights, referred to the statement of Innes CJ in Hollins v Registrar of
Deeds30 that only real rights may be registered against the title deed of land,
specifically rights constituting a burden upon the servient land and are a

29 As above.
30 n 10 above.
 Chapter 4: Property rights, real rights and personal rights 51

deduction from the dominium, and that that statement represents the
correct position of the law in regard to registrable rights. In arriving at this
conclusion, the court had to consider the nature of a usufruct to determine
its registrability and noted that a usufruct is a personal servitude, but it is also
a burden upon the land and it ‘may be enforced against any and every
possessor of land’.31 Some servitudes are personal because they are
constituted in favour of a particular individual without reference to his being
the owner of any particular land. Other servitudes are praedial because they
are constituted in favour of a particular piece of land but all servitudes are
real rights and burdens upon the land which is subject to them. Consequently,
as a general principle, a usufruct can be registered against the title deed
except in certain exceptional cases. Generally speaking, therefore, any validly
constituted usufruct could be registered against the land, just as any other
real right in land may be so registered. Servitudes which are said to be
constituting personal rights may not be registered, because the rights are
merely binding on the present owner of the land and do not bind the land
itself, and thus do not constitute iura in re aliena over the land, and do not
bind the successors in title of the present owner. These are the personal
rights which are not registrable.32 The determining criterion is for one not to
look so much at the right but to the correlative obligation. If that obligation is
a burden upon the land, a subtraction from the dominium, the corresponding
right is real and registrable; if it is not such an obligation but merely an
obligation binding on some or other person, the corresponding right is a
personal right, or right in personam, and it cannot as a rule be registered.

3.3.2.3 Application of the test to determine registrability of conditions in

the will

Applying that distinction in the case, the court pointed out that each of the
legatees, while being an owner of an undivided share of the land, was subject
to certain conditions or obligations. With regard to the first condition that the
land be subdivided into defined portions to take place at a specified time,
specifically as soon as the eldest surviving child reaches his or her majority,
and in a certain manner, that is by means of a drawing of lots, which is to be
performed by the surviving testator and such major child, the court held that
the limitations formed a real burden, an ius in re,on each undivided share and
not merely an obligation on the person of each child and consequently that
the condition was registrable against the title deeds of the undivided shares.
This conclusion was based on the consideration that those limitations as to
time and mode of subdivision so directly affected and adhered to the
ownership that they had to be regarded as forming a real burden or
encumbrance on that ownership. This reasoning was based on the common
law principles of co‐ownership. By the common law, each owner of an

31 See also Maasdorp (n 5 above).

32 The Hollins case (n 10 above) and the case of Kotze v Civil Commissioner of Namaqualand
(17 CSC 37).
52 Property law in Namibia

undivided share has the right to claim a subdivision at any time, and can claim
that it be effected either by agreement or by the court. The will, therefore,
modified the common law right of ownership (or dominium) held by an owner
of an undivided share. That this can validly be done by a will, and presumably
also by agreement inter vivos, is clear in principle, because the rights in an
undivided share are not sacrosanct or unalterable any more than the rights in
a defined share are. Portions of the dominium of an owner of an undivided
share can be parted with as undoubtedly as portions of the dominium of an
owner of a defined share can be parted with. This position is supported by
Grotius,33 who states that an owner of an undivided share can by will be
deprived for a specified time of his right to claim a partition. The rights of a
joint owner in regard to partition can therefore be validly limited, by last will
at any rate, and the limitations now under discussion, strictly speaking,as to
the time of partition and as to the drawing of lots, are therefore valid. This
position is also supported by the case of Ex parte Mulder34 where the court
ordered that land should be transferred to certain legatees in undivided
shares subject to the condition imposed by the will; that upon partition a
certain one of those legatees should receive the homestead and certain land
round it.

3.3.2.4 Obligation to pay money to someone else and registrability of

personal rights intimately connected to real rights

The court, in Geldenhuys then proceeded to determine the registrability of

the other condition that, upon partition in the manner stipulated in the will,
the child who got the homestead should pay £200 to the remaining children
within five years after reaching majority. In order to make this determination
the court had to consider whether the condition (or obligation) to pay the
money constituted an ius in personam or an ius in re forming a burden on the
undivided shares. The court held that it was an ius in personam and said:

[F]or the obligation to pay money cannot easily be held to form a jus in re, unless
it takes the form of a duly constituted hypothec; moreover the obligation is
altogether uncertain and conditional, for it is impossible to foretell what the
drawing of lots will decide. This direction of the will therefore does not
constitute a real right and is not per se registrable. And yet it is intimately
connected with a direction which is registrable, as already decided. If the
direction as to the time of the partition and the drawing of lots were registered,
without the direction as to the payment of the £200, the result would be an
incorrect representation, and an imperfect picture of the testamentary direction,
which would be most misleading to strangers who may purchase undivided
shares from the children before the partition takes place. It seems to me
therefore that in the special circumstances of the case the difficulty can only be
solved by registering the entire clause of the will.35

33 Grotius 3.28.6, AF Maasdorp and CG Hall Maasdorp’s Institutes of Cape Law, bk2, ch 14.
34 4 Prentice‐Hall G 3.
35 n 28 above, 165‐166.
 Chapter 4: Property rights, real rights and personal rights 53

However, as stated by RamsbottomJA in the case of Nel NOv

Commissioner for Inland Revenue36 an ius in personam if registered, on the
principle applied in the Geldenhuys37 case, would not convert into an ius in
re. Innes CJ had earlier stated in the case of British South Africa Company v
Bulawayo Municipality38 that an ius in personam does not become an ius in
re because it is erroneously placed upon the register.

This decision by the court concerning the right of payment of a sum of

money has been interpreted to mean that the right to a one‐off payment of
money which affects a person personally and not in his capacity as owner of
the land in question can never be a real right. However, subsequent cases
where the issue of the obligation to pay money was considered in order to
determine whether such an obligation constituted a real right or a personal
right – a determination which had to be made in order to make a finding as
to its registrability – involved other aspects of such conditions, namely
whether other rights to receive payment of money, which are not one‐off
payments but periodic payments, and rights to either one‐off or periodic
payments, that rest upon persons in their capacity as owners of the land in
question and not on them personally, are real rights or personal rights. For
example in the Nel case39 Ramsbottom JA had to decide whether a burden,
imposing an obligation to pay money, that will bind successors in title, either
for a definite or ascertainable time or in perpetuity, can in South African law
be imposed upon land and registered against the title.

This question was addressed in several later cases, three of which are
discussed below.

Lorentz v Melle and Others40

This case was an appeal from the grant by a single judge, sitting in the
Transvaal Provincial Division, of certain declaratory orders in favour of the
first respondent, Melle. During 1905, Johannes Gerard van Boeschoten, the
father of Melle, and one Herincus Lorentz, the father of Lorentz (the
appellant), were about to acquire in co‐ownership certain immovable
property situate in the district of Pretoria and being the remaining portion of
the middle portion of the farm Zwartkop. Prior to the registration of the farm
in their names, they, on 7 April 1905, executed a notarial deed. In terms of
this deed the parties recorded that they had agreed to a division of a portion
of the property to be acquired so that Van Boeschoten would receive transfer
of portion ‘B’ of the middle portion of the farm, whilst Lorentz would receive
transfer of the contiguous portion ‘A’ of the farm.

36 1960 1 SA 227 (A).

37 As above.
38 1919 AD 84 93.
39 n 37 above, 232.
40 n 4 above.
54 Property law in Namibia

The remainder of the ground was to remain their joint property. In terms
of the deed Van Boeschoten and ‘his heirs, executors and assigns’ would have
certain other rights over portion ‘A’. The deed further provided that ‘if
Lorentz lays out a township on his portion, Van Boeschoten shall have one‐
half of the net profits arising from the sale of such township payable from
time to time as each lot or erf is sold, but Van Boeschoten shall not be entitled
to any share in such profits until Lorentz shall have reimbursed himself for all
expenses of such township out of the proceeds of stands sold …’. The deed
provided for similar rights in favour of Lorentz over the portion registered in
Van Boeschoten`s name. The notarial deed was registered simultaneously
with the title deed and therefore also registered against the title deeds. The
provisions of the notarial deeds remained registered against the title deeds
of the owners of certain of the subdivisions of Van Boeschoten’s and
Lorentz’s portions, including the subdivisions registered in the names of
appellants and respondents. First respondent Melle was one of Van
Boeschoten’s successors’ in title and intended to sell her portion to a
company for the purposes of establishing a township thereon. She wanted to
ensure that the purchaser would not be obliged to pay more than half of the
profits which might accrue from the establishment of a township. She applied
for an order declaring, inter alia, that the rights created by the township
clause created personal rights to Van Boeschoten and Lorentz which could
only be transferred to their ‘heirs, executors, administrators and assigns’. The
rights accordingly had no real effect in the sense that they could also bind
later purchasers such as the company to which she intended to sell her
portion. A single judge granted the application.

The respondent's case was based on two alternative submissions.

According to the first submission the notarial deed had created a praedial
servitude and none of the orders sought could therefore be granted. The
second submission was based on the argument that, even if mere personal
rights and obligations had come into existence, these were freely
transferable to and binding upon all Van Boeschoten's and Lorentz's
successors in title, the applicant, would therefore, not, even in relation to
portion 203, be entitled to an order declaring that the township clause had
not conferred any rights on the respondent, though she was entitled to some
of the other orders sought.

In terms of the first submission the court was obliged to decide the case
on the basis of the principles relating to the nature and creation of servitudes
because if a praedial servitude had been created, then clearly the appeal had
to succeed.

The court in principle confirmed the ‘subtraction from the dominium’ test
formulated as follows in Geldenhuys:

If an obligation is a burden upon land, a subtraction from the dominium, the

corresponding right is real and registrable; if it is not such an obligation, but
 Chapter 4: Property rights, real rights and personal rights 55

merely an obligation binding on some person, the corresponding right is a

personal right, and it cannot, as a rule, be registered.41

The court held that:

The right (and obligation) under consideration, so it appears to me, is essentially

a personal one sounding in money and cannot be equated to the servitudes
referred to … and this for the reason that the conditional obligation to pay
attaches of necessity not to the land (which is not burdened) but merely to the
owner thereof. His rights are curtailed but not in relation to the enjoyment of the
land in the physical sense.42

The court held further that:

In particular, I do not regard them as deciding that a monetary obligation

imposed on an owner of land of the type we are dealing with necessarily
constitutes an encumbrance against such land.
In the result I am of the opinion that that part of the notarial deed under
consideration, namely the township clause, confers only personal rights, which,
even on (their incorrect) registration, were not capable of becoming and did not
become a praedial servitude. Because of the basis of this conclusion, which is
arrived at irrespective of what the intention of the parties as expressed in the
deed was, it is unnecessary to consider the various submissions which were
respectively made on behalf of both parties and which were founded on what
was contended to be the proper construction thereof and in particular of the
township clause. I repeat what was said above, namely that, if a contractual right
is of such a nature that it is incapable of constituting a servitude, then the
intention of the parties (as expressed) to do so, cannot avail.43

The novelty of this case in the formulation of the test to determine the
distinction between a real right and a personal right is that even if the
condition amounts to a subtraction from the dominium, the right created by
such condition will only constitute a real right if the owner’s entitlements to
the land are curtailed in the physical sense. In this regard, this case adds
another standard to the original test laid down in the Geldenhuys case and
within this limited application creates a numerus clausus (a closed list) of real
rights. As pointed out by Van der Walt & Pienaar this limited test tends to
produce a result which conflicts with the nature and effect of many
traditionally recognised limited real rights, such as mortgage bonds and
mineral rights.44

Pearly Beach Trust v Registrar of Deeds45

The applicant applied to court for an order declaring that a certain condition
embodied in a deed of sale was capable of registration in terms of section

41 Headnote of Geldenhuys; and Lorentz 1050.

42 Lorentz (n 4 above) 1052.
43 Lorentz (n 4 above) 1055.
44 Van der Walt & Pienaar (n 21 above) 33.
45 1990 4 SA 614 (C).
56 Property law in Namibia

3(1)(r) of the Deeds Registries Act. The Registrar of Deeds had refused to
register the deed in question which provided that a third party was entitled
to receive from the transferee and its successors in title one third of the
consideration received from the grantee of any option or rights to prospect
for minerals on the property, and one third of the compensation received in
consequence of expropriation.

The Registrar, who objected to the application, based his objection on

the following statutory provisions:

(1)Section 3(1) (r) of the Act in terms of which the Registrar is required to register
‘any real right, not specifically referred to in this subsection’.
(2)Section 63(1), a general provision relating to rights in immovable property, in
terms of which ‘(n)o 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 rights of ownership in respect of immovable property, shall be
capable of registration’.

In terms of s 63(1) neither a personal right nor a condition which does not
restrict the exercise of any right of ownership of immovable property, is
capable of registration.

It was common cause that, insofar as the condition in this case would
bind not only the owner of the land, but also his successors in title, it did not
create a personal right.

However, it was contended by the Registrar that the condition did not
restrict any right of ownership in the land and was on that ground not
registrable.

The basis of the Registrar’s objection was that: in order to qualify for
registration the right had to be such as to amount to a subtraction from the
dominium of the land; in this case the right of successive owners of the land
to grant mineral rights or to sell the land was not per se restricted in any
manner; there was merely an obligation to pay a third party a share of the
proceeds of such grant, sale or expropriation; there was no obligation on the
owner to grant any rights to the land; and as far as expropriation was
concerned there was no limitation of rights of the owner until expropriation
would occur and that would only constitute a personal liability to share the
compensation, and a similar liability would arise with regard to disposal of the
land.

King J, in his judgment, referred to and confirmed the test for

determining whether or not a right is personal and therefore not capable of
registration laid down by De Villiers JP in Geldenhuys46 as follows:

46 At 164.
 Chapter 4: Property rights, real rights and personal rights 57

One has to look not so much to the right, but to the correlative obligation. If that
obligation is a burden upon the land, a subtraction from the dominium, the
corresponding right is real and registrable; if it is not such an obligation, but
merely an obligation binding on some person or other, the corresponding right is
a personal right, or right in personam, and it cannot as a rule be registered.

After reviewing relevant authorities on the issue, the court in applying the
subtraction form the dominium test, rejected the Registrar’s objection and
held that one of the rights of ownership was the ius disponendi and if this
right was limited in the sense that the owner was precluded from obtaining
the full fruits of the disposition, it could be said that one of the rights of
ownership was restricted. Consequently, the condition creating such
limitation was capable of registration in terms of section 3(1) of the Act. This
case thus confirmed the subtraction from the dominium test as perhaps the
primary benchmark to determine the distinction between personal and real
rights and their registrability.

The following conclusions may be made from this case.

Firstly, this decision implies a rejection of the restrictive test laid down in
Lorentz and the reaffirmation of the original Geldenhuys test. Consequently,
adherence to the restricted standard laid down in Lorentz would have
resulted in a different conclusion. Secondly, since it did not restrict the
owner’s right to the use of the property physically, the condition could not
have resulted in the creation of a real right. Thirdly, the decision lays down
the principle that some obligations to pay money could constitute limited real
rights. This position has been criticised for its potentially negative impact on
land owners and the economy.

Cape Explosive Works Ltd & Another v Denel (Pty) Ltd & Others47
This was an appeal against a judgment in the Transvaal Provincial Division
reported as Denel (Pty) Ltd v Cape Explosive Works Ltd & Another.48 The main
issue to be decided in this appeal was whether certain conditions registered
in a title deed and erroneously omitted from subsequent title deeds were
binding on the then current (present) owner of the relevant property.

During 1973 the first appellant, Cape Explosive Works Ltd (‘Capex’) sold
two immovable properties to the second respondent, the Armaments
Development and Production Corporation of South Africa Limited, whose
name was subsequently changed to the Armaments Corporation of South
Africa Limited (‘Armscor’). The properties were Farm No 1065, measuring 459
6830 ha, and Portion 3 of the Farm Helderberg Sleeper Plantation No 787,
measuring 11 3903 ha. Both properties were situated in the Administrative
District of Stellenbosch. In terms of clause 6 of the deed of sale Armscor
undertook that the properties would only be used for the development and

47 n 23 above.
48 1992 2 SA 419 (T).
58 Property law in Namibia

manufacture of armaments and in terms of clause 7(a) thereof Armscor

granted to Capex the ‘first right to repurchase’ the properties, at a price to be
determined in a prescribed manner, in the event of the properties no longer
being required for the use set out in clause 6. Armscor agreed in terms of
clause 7(a)(vii) to the registration of the right conferred on Capex in terms of
clause 7(a) against its title deeds to the properties in the Deeds Office. Clause
7(b) provided that in the event of Capex repurchasing the properties Capex
would have the right to purchase all or any of the improvements and other
facilities erected on the properties which Armscor was desirous of selling, at
a price and on such further terms as might be agreed upon between Capex
and Armscor.

A dispute arose between Capex and Denel as to whether Capex would be

entitled to repurchase that portion of Erf 635 which formed part of Farm 1065
in the event of it no longer being required for the use set out in condition 1.
As a result Denel applied for an order declaring that its ownership of Erf 635
was not in respect of any portion thereof subject to condition 2. Capex, in a
counter‐application, applied for an order directing the Registrar of Deeds,
Cape Town to rectify the Certificate of Consolidated Title T 33717/77, the
Deed of Transfer T 75861/92 and the Certificate of Consolidated Title T 1178/
94 so as to include conditions 1 and 2 in so far as they related to the portions
of Farm 1065 which had been incorporated into the Remaining Extent of Erf
635 Firgrove; an order directing the Registrar of Deeds to rectify Certificate of
Registered Title T1179/1994 so as to include the conditions; orders declaring
that Denel was bound to comply with the conditions; an order interdicting
Denel from failing to comply with the provisions of the conditions; and an
order interdicting Denel from selling or transferring the restricted properties
to any person without complying with condition 2.

The court a quo found that clause 6 was registrable in terms of section
63(1) of the Deeds Registries Act in that it restricted the exercise of Armscor’s
right of ownership in respect of the properties but the parties did not intend
the restriction to be binding on Armscor’s successors in title and specifically
agreed not to register it against the property.49 Clause 7 did not affect the
property or curtail Armscor’s right of enjoyment of the property in the
physical sense. On its own it was not registrable in terms of section 63(1). It
was not ancillary to clause 6 and therefore not registrable on that basis
either.

On the strength of these findings the court a quo dismissed the counter‐
application and granted an order declaring that Denel’s right of ownership in
erven 635 and 637 Firgrove was in no way encumbered by condition 2.

49 Section 63(1) of the Deeds Registries Act provides as follows: ‘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, shall
be capable of registration: Provided that a deed containing such a condition as aforesaid
may be registered if, in the opinion of the registrar, such condition is complementary or
otherwise ancillary to a registrable condition or right contained or conferred in such deed’.
 Chapter 4: Property rights, real rights and personal rights 59

3.3.2.5 Requirements to determine registrability of conditions

Streicher JA, in his judgment found as a fact that Armscor intended to receive
transfer of the properties subject to conditions 1 and 2. Denel similarly did
not allege that Capex and Armscor had not intended to pass and receive
transfer of the properties subject to conditions 1 and 2. The matter therefore
had to be decided on the basis that Capex and Armscor intended to pass and
receive transfer subject to conditions 1 and 2. The issue which had to be
decided on that basis was whether conditions 1 and 2 were capable of being
registered and what the effect of their omission from subsequent title deeds
was.

In terms of section 3 of the Deeds Registries Act all real rights in respect
of immovable property are registrable. To determine whether a particular
right or condition in respect of land is real the court restated that two
requirements must be satisfied:

(1) The intention of the person who creates the real right must be to bind not
only the present owner of the land, but also his successors in title; and
(2) The nature of the right or condition must be such that the registration of it
results in a ‘subtraction from dominium’ of the land against which it is
registered.50

The court a quo further elucidated the dictates of this test as follows:

One compares the right in question and the correlative obligation to see whether
the obligation is a burden upon the land itself or whether it is something which is
to be performed by the owner personally. If it is the former, the right is capable
of being a real right. If it is the latter, it cannot be a real right. In order to
ascertain whether the obligation is a burden upon the land, two useful concepts
which have been used are that the curtailment of the owner’s rights must be
something in relation to the enjoyment of the land in the physical sense … or
that the obligations ‘affect the land’ or ‘run with the land’.51

In applying the test to the two conditions in question, the court held that with
regard to clause 6 (the restriction on the use of the land) the condition
curtailed the right to use the land and that it therefore amounted to a
subtraction from dominium. It therefore fell squarely within the definition of
section 63(1) of the Deeds Registries Act and could in principle be registered
as a real right. The condition contained in clause 7, the first right to
repurchase, did not constitute a subtraction from the dominium.

The court, however, explained that the use restriction according to

condition 1 was materially different from the use restriction according to
condition 1 read with condition 2. The two conditions were not independent

50 See also Erlax Properties (Pty) Ltd v Registrar of Deeds & Others 1992 (1) SA 879 (A) 885.
51 Denel (n 47 above) 435.
60 Property law in Namibia

of one another and they could not be separated. They formed a composite
whole. They were specifically stated to be binding on the transferee, being
Armscor, and its successors in title. Furthermore, they constituted a burden
upon the land or a subtraction from the dominium of the land in that the use
of the property by the owner thereof was restricted. The right embodied in
conditions 1 and 2, read together, therefore, constituted a real right which
could be registered in terms of the Deeds Registries Act.

Accordinlgy, Capex was entitled to orders interdicting Denel from acting

contrary to the provisions of conditions 1 and 2. Denel was interdicted from
selling or transferring the restricted properties to any person without
compliance with pre‐emptive conditions and restrictions on rights of
dominium.

This case demonstrates the application of the test of the intention of the
parties by the court to determine whether a condition creates a real right or
a personal right. The court’s decision not to separate conditions 1 and 2 was
based on the intention of the parties to bind the successors in title of Armscor
as embodied in the original agreement. The position of the court not to
regard the two conditions as mutually exclusive, and to hold that both
collectively constituted a real right, is a further demonstration of the
unsettled status of the test in Lorentz, and the degree of recognition accorded
to it by the courts.

4 Summary and observations

In the cases discussed above, the conditions purporting to create limitations

on rights of ownership were created in either a contract, notarial deed, or a
will. In order to determine their registrabilty in compliance with the dictates
of section 63(1) of the Deeds Registries Act, the courts had to draw
distinctions between real and personal rights. Almost invariably, the courts
determined the issues from the premise of the creation of a servitude. If the
impact of the conditions amounted to the creation of a servitude, then it
would clearly lead to a burden on the land, and thus satisfy the subtraction
from the dominium test and the requirements for their registrability. In the
context of payment of money, the obligation to pay a sum of money that does
not come out of the fruits of the property will be lacking in the essential
features of servitudes and therefore cannot constitute a subtraction from the
dominium. Looked at from this premise, therefore, payment of money, as
one‐off payment, cannot amount to a real right. In fact the criterion of the
condition curtailing the ius fruendi or the owner’s entitlement of use and
enjoyment in the physical sense laid down in Lorentz eliminates the
possibility of the burden to pay money to someone constituting a real right.
From this point of view, a numerus clausus of real rights has potentially been
created. In order to put the debate over the creation of a numerus clausus of
real rights in perspective, it may be useful to quote from the judgment of
Nestadt J in Lorentz52 when he stated as follows:
 Chapter 4: Property rights, real rights and personal rights 61

At first sight every personal obligation in terms of which an owner undertakes to

deal – or not to deal – with his property in a particular manner restricts him in
the exercise of his dominium so that the corresponding right which another
person acquires as a result of such an undertaking would prima facie be a
potential real right. However, the law of property would disintegrate if every
personal right relating to a thing could be converted into a real right, while on
the other hand, circumstances might arise which make it desirable that a further
type of ‘mere’ personal right should be added to those which are capable of
being converted into real rights.

The position inSouth African law and to that extent Namibian law is that there
is no numerus clausus of real rights. Consequently, the restrictive test
inLorentzmay not stand the test of time.

A final point that may be added with respect to the registration of rights
is the statement made by Wessels J in Hollins53 that neither by the common
law nor by Proclamation (legislation) can one have registration of a right, the
birth of which is dependent upon a contingency.

52 Lorentz (n 4 above) 1051, quoting from Silberberg The Law of Property.

53 n 10 above, 608
 5
OWNERSHIP
CHAPTER

1 Introduction

Article 16 of the Namibian Constitution grants all persons the right to acquire
and dispose of all forms of immovable and movable property individually or
in association with others, and to bequeath their property to their heirs and
legatees. The Namibian Constitution therefore recognises ownership and
other forms of property rights.

In the case of Gien v Gien1 ownership was defined as follows:

Ownership is the most complete real right a person can have with regard to a
thing. The point of departure is that a person as far as an immovable is
concerned can do and bequeath property as he likes. However this apparently
unlimited freedom is only partially true. The absolute entitlements of an owner
exist within the boundaries of the law. The restrictions can emerge from either
objective law or from restrictions placed upon it by the rights of others. For this
reason, no owner ever has the unlimited right to exercise his entitlement in
absolute freedom and in his own discretion.

There are two initial comments flowing from this definition. Firstly,
ownership is defined in terms of a real right and it has to do with both the
relationship between a legal subject and a thing and with the relationship
between legal subjects regarding the thing. These relationships are
indeterminate and therefore abstract. They are indeterminate because they
may differ from time to time or from relationship to relationship. The extent
of the owner’s entitlements, for example, is limited by the rights of others.

Secondly, there is an element of apparent absoluteness to a real right.

This element is notional and fictional as the right of ownership is limited in
terms of objective law or the rights created by the owner in favour of others

1 1979 2 SA 1113 (T) 1120.

62
 Chapter 5: Ownership 63

over his real right to his property. Van der Walt2 states that these limitations
on entitlement can be determined by reference to the subtraction from the
dominium principle or creditors’ rights or by the interests of the community
and in this regard the principle of limitation on entitlement will include social
factors.

In the light of the above Silberberg, with reference to modern South

African legal theory, states that the definition of ownership generally upheld
in South Africa is that:

[O]wnership is the real right that potentially confers the most complete or
comprehensive control over a thing, which means that the right of ownership
entitles the owner to do with his or her thing as he or she deems fit, subject to
the limitations imposed by public and private law.3

2 Content of ownership

Ownership vests in the holder a multitude of entitlements, ius fruendi, which

include the right to control, use, encumber, alienate and vindicate. The
entitlement of control gives the holder the right of physical control over the
thing. A concomitant right of control is the right of use which entitles the
holder to lawfully use and benefit from the thing. The holder also has the right
to alienate or transfer ownership and to encumber the property as a security
for a loan. If he or she is unlawfully divested of ownership, they have the right
to vindicate property by lawful means.4

A species of ownership is co‐ownership, a concept which received some

attention inEx Parte Geldenhuys.5

3 Nature of co‐ownership

Joint ownership, also known as co‐ownership or ownership in common,

consists of ownership by more than one person in the same thing, each
having an undivided share in it, the shares being equal or unequal. It arises
mainly by virtue of will, partnership, joint purchase or private treaty.

Silberberg6 states that the term ‘joint ownership’, or ‘co‐ownership’, or

‘ownership in common’: ‘denotes that two or more persons own a thing at
the same time in undivided shares, that is to say, each co‐owner has the right
to a share in the entire thing, but the various shares need not be equal. Joint
ownership covers various legal relationships in so far as the business partners

2 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 43‐44.
3 PJ Badenhorst et al Silberberg and Schoeman’s the law of Property 5th ed (2006) 91.
4 Van der Walt & Pienaar (n 2 above) 41.
5 1926 OPD 155.
6 Badenhorst et al (n 3 above)133.
64 Property law in Namibia

and members of an unincorporated association (other than a universitas)7

are also co‐owners of the property said to be owned by the partnership or the
association’.

From the above definition, the elements of the nature of co‐ownership

can be summarised as follows:

(a) the thing is owned by several persons in undivided co‐ownership shares;

(b) it is only one ownership which vests in several persons in ideal undivided
shares;
(c) the co‐owners cannot divide the thing physically while the co‐ownership still
exists and a co‐owner cannot alienate or encumber the thing without the
consent of the other co‐owner(s);
(d) it is possible for a co‐owner to alienate or encumber his undivided co‐
ownership share; and
(e) the entitlements to the thing are not divisible, but the co‐owners must
exercise the entitlements jointly in accordance with the undivided shares.

The rights of co‐owners to their joint property will very often be regulated by
agreement between them, and the co‐ownership is then referred to as bound
common ownership.8 For instance, if the co‐owners are members of a
partnership the extent to which they may use and dispose of the partnership
property will normally be spelt out in the partnership agreement. In the
absence of a specific agreement, in free co‐ownership, the law gives each co‐
owner the usual rights of an owner to the possession, enjoyment and disposal
of the joint property, proportional to his or her share in it. These rights, and
the restrictions which the law imposes on them in the interests of the other
owners, are the following:

3.1 Rights of possession

The extent to which the co‐owners are entitled to possess their joint property
depends partly on agreement between them and partly on the nature of the
property. For example, a farm can be occupied by several co‐owners jointly
but a joint property such as a motor‐car, can only be possessed – in the sense
of being controlled – by one person at a time. Subject to any such agreement
and the nature of the property, however, a co‐owner is entitled to have
access to any portion of the jointly‐owned property.

7 A universitatis is a juristic person quite distinct from the members composing it, having
rights and liabilities apart from those of the members, and it may sue and be sued as a
separate entity.
8 Van der Walt & Pienaar (n 2 above) 50‐51.
 Chapter 5: Ownership 65

3.2 Rights of use and enjoyment

We have seen that a co‐owner is entitled to reasonable use of property jointly

owned, for the purposes for which the property is intended, but in proportion
only to his or her share in such property. In this connection, the following
points arise:

(i) A co‐owner cannot separate a portion of the property for his or her own
separate use, unless he or she has the express or implied consent of the other co‐
owners. Thus, in Oosthuysen v Muller,9 it was held that a co‐owner could not,
without the consent of all the other co‐owners, use common soil to make bricks,
even though the bricks were to be used on the common property.
(ii) A co‐owner cannot convert the property to be used for purposes other than
those for which it was intended, unless he or she has the consent of all the other
co‐owners. He cannot apply it to new uses or change its character; thus he
cannot convert pasture land into arable land, nor can he build on pasture land,
nor can he indiscriminately cut down trees. In the case of Erasmus v Afrikander
Proprietary Mines Ltd10 it was stated that in the event of any dispute about the
conduct of a co‐owner and the manner in which he has made use of the joint
property, the court would have to consider whether the conduct complained of
constituted an unreasonable use inconsistent with the use to which the property
was destined, to the detriment of the rights of the other co‐owner, and unless
the conduct of the former co‐owner can be described as unreasonable,
inconsistent and detrimental in the said sense, interdict proceedings against him
or her will not succeed.
(iii) Any profits or losses connected with the common property must be shared
proportionately, and any joint owner may sue for profits accrued from or be sued
for expenses incurred in connection with the property; the owners naturally have
a right of recourse against each other. In Sauerman v Schultz11 land was rented
out by one of the co‐owners without the permission of the others. The co‐owner
who received the rent was obliged to share it with the other co‐owners in
accordance with their share in the joint property.
(iv) The majority of co‐owners cannot bind the minority with regard to the
manner in which the property should be used, unless the co‐owners have
previously agreed that the views of the majority should prevail. Under such
circumstances, the minority is entitled to veto the decision of the majority. These
circumstances may lead to the termination of the co‐ownership or an application
to the court to test the reasonableness of the co‐owners and for an appropriate
declaratory order, or prohibitive interdict.12

If a co‐owner exceeds his or her proportionate share of the use of the

common property, the others must act timeously to interdict him or her from
doing so; otherwise their delay will be regarded as an implied consent.

9 (1877) 7 Buch 129.

10 1976 1 SA 950 (W).
11 1950 4 SA 455 (O).
12 Pretorius v Nefdt and Glas 1908 TS 854.
66 Property law in Namibia

4 Creation and establishment of co‐ownership

Co‐ownership arises by virtue of a will, partnership, joint purchase or private

treaty. These may be manifested by inheritance, conclusion of a marriage in
community of property, mixing, estate holdership, voluntary association
without legal personality and or contract.13

4.1 Inheritance

When a testator bequeaths an indivisible thing to two or more persons or a

divisible thing to two or more persons, provided that it may not be divided, it
is owned by the heirs in co‐ownership.14 In the case of agricultural land,
transfer of such land to co‐owners is prohibited in terms of the provisions of
section 3 of the Subdivision of Agricultural Land Act 70 of 1970, except in
those cases where the Minister of Agriculture has, in terms of section 5, given
permission for such an inheritance. This Act applies in Namibia.

Section 3 of this Act provides inter alia that:

(a) agricultural land may not be subdivided;

(b) no undivided share in agricultural land not previously held by any person,
shall vest in any person;
(c) no portion of an undivided share in agricultural land shall vest in any person,
if such portion is not at present held by any person’;
(d) no long‐term lease in respect of a portion of agricultural land may be
entered into; and
(e) no portion of agricultural land may be sold or advertised for sale and no
right to such portion may be sold or granted by virtue of a long term lease or
advertised for sale or for lease unless the minister of agriculture has consented
thereto in writing.

Subsection (b) is obviously aimed at preventing the sole owner of agricultural

land, not holding the land in undivided shares, from transferring any
undivided share to another person without the Minister’s consent first having
been obtained. It implies the prohibition of the creation of any additional co‐
owner or co‐ownership.

Section 3(b), however, does not prohibit the registration of a farm as a

partnership asset in the name of a partner. Upon registration, the other
partner or partners do not acquire a real right in the property but only a
personal right against the partner in terms of which he or she is bound to
treat the property as a partnership asset. Section 3(c) is intended to prevent
the holder of an undivided share in the ownership of agricultural land from

13 Van der Walt & Pienaar (n 2 above) 48‐50.

14 Van der Walt & Pienaar (n 2 above) 49.
 Chapter 5: Ownership 67

transferring a ‘portion’ of his or her undivided share to another without such

consent. There is, however, nothing which prevents the holder of two or
more undivided shares in the ownership of a single piece of land from
transferring one, or more of these shares to another, whether or not the
latter already holds any share in the ownership of such land. The intention of
the legislature was, therefore, to prevent the uncontrolled division of
agricultural land into smaller (uneconomic) units, as well as the further
division of existing undivided shares in the ownership of such land into
smaller ‘shares’.15 An option to extend a lease of nine years and 11 months
for a further period of nine years and 11 months is invalid in the light of the
provisions of section 3(d). Section 3(e) prohibits in express terms the sale or
lease of a portion of agricultural land without the Minister’s consent. A sale
of a portion of agricultural land is void ab initio.

In essence sections 2 and 3 prohibit the alienation or bequest of co‐

ownership shares of agricultural land which is not already co‐owned, or which
the Minister has not approved for co‐ownership after the commencement of
the Act. This is an example of a statutory prohibition.

4.2 Conclusion of a marriage in community of property

The conclusion of a marriage in community of property implies that, for the

duration of the marriage, the parties to the marriage share equally in all
assets of the joint estate.

Under the common law (Roman‐Dutch law) a marriage concluded in

community of property is said to be concluded in community of profit and
loss as well. Under this property regime the properties of the spouses,
wherever situated, in present or in future, movable or immovable and all
debts, are merged into one joint estate in which the spouses hold equal and
indivisible shares regardless of their contributions. The general principle is
therefore that the conclusion of a marriage in community of property creates
co‐ownership of property.

Under the traditional common law rule, the husband has the marital
power over the property. However, in Namibia, by virtue of the Married
Persons Equality Act 1 of 1996, the concept of the marital power of the
husband has been abolished but the concept of marriage in community of
property has not been abolished.

4.3 Mixing (commixtio)

When movable things of different owners are mixed, without the permission
of the owners, in such a way that the mixture creates a new thing, it is owned

15 Badenhorst et al (n 3 above) 108.

68 Property law in Namibia

by the owners in co‐ownership. The previous owners of the mixed things

become co‐owners of the new thing in relation to which their respective
properties have contributed to the new thing (mixture).16

4.4 Estate holdership

The surviving spouse in a marriage in community of property continues the

community of property with the heirs of the deceased spouse.17

4.5 Voluntary association without legal personality

The members of such an association are co‐owners of the assets of the

association in undivided shares. Members may not, however, alienate or
encumber their respective undivided shares because of the unique
consequences flowing from their contract of membership with the
association.18

4.6 Contract

By means of a contract two or more persons can jointly buy a thing and have
the ownership transferred in undivided shares through delivery or
registration.19

5 Limitations on ownership

5.1 Introduction

As pointed out earlier, ownership is defined in absolute terms, but it is also

recognised in both law and practice that there are limitations imposed on
ownership by both public law and private law. The limitations are imposed by
the constitution, legislation, the common law and private treaty.

Article 16(1) of the Namibian Constitution provides that:

All persons shall have 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:
provided that Parliament may by legislation prohibit or regulate as it deems
expedient the right to acquire property by persons who are not Namibian
citizens.

16 Van der Walt & Pienaar (n 2 above) 49.

17 As above.
18 As above.
19 Van der Walt & Pienaar (n 2 above) 50.
 Chapter 5: Ownership 69

Article 16(2) provides as follows:

The State or a competent body or organ authorised by law may expropriate

property in the public interest subject to the payment of just compensation, in
accordance with requirements and procedures to be determined by Act of
Parliament.

Article 16 of the Namibian Constitution comes under the fundamental human

rights and freedoms provided for and entrenched by Chapter 3 of the
Constitution. It is an entrenched provision but in terms of the provisions of
articles (24)(1) and (3), the right to property granted under this article may be
suspended when a state of emergency has been duly declared under the
provisions of article 26. In context, therefore, apart from the restrictions
imposed on the acquisition of property by foreign nationals and the right
granted to the state to expropriate private property, there is no explicit
constitutional provision as the legal basis for any form of limitations on the
right of use or ius fruendi of ownership, either under legislation or the
common law.

However, in the Namibian case of Namibia Grape Growers and Exporters

Association and Others v The Ministry of Mines and Energy and Others20 the
Supreme Court of Namibia had the occasion to make a pronouncement on
this issue. The case was an appeal from the judgment of a single judge
dismissing the application brought by the appellants on an urgent basis and
discharging the rule nisi. The matter concerned, more particularly, certain
provisions of the Minerals (Prospecting and Mining) Act33 of 1992 (the
Minerals Act). The appellants inter alia applied for a rule nisi to be issued
calling upon the respondents to show cause, why the provisions of Part XV of
the Minerals Act could not be declared ultra vires the provisions of clause
16(2) of the Namibian Constitution and thus null and void and of no effect.

In his judgment Strydom ACJ stated as follows:

[T]he protection granted by the article encompasses the totality of the rights in
ownership of property. This article, being part of Chapter 3 of the Constitution,
must be interpreted in a purposive and liberal way so as to accord to subjects the
full measure of the rights inherent in ownership of property. (See in this regard
Minister of Defence v Mwandinghi, 1993 NR 63 SC).21
The owner of property has the right to possess, protect, use and enjoy his
property. This is inherent in the right to own property … It is however in the
enjoyment and use of property that an owner may come into conflict with the
rights and interests of others and it is in this sphere that regulation in regard to
property is mostly needed and many instances absolutely necessary. Such
regulation may prohibit the use of property in some specific way or limit one or
other individual right without thereby confiscating the property and without
thereby obliging the State to pay compensation. There are many such examples

20 2004 NR 194 (SC).

21 At 209.
70 Property law in Namibia

where, to a greater or lesser degree, the use or enjoyment of property, be it

movable or immovable, is regulated by legislation …22

The court reasoned that it was inconceivable that the founding fathers of the
Namibian Constitution were unaware of the vast body of legislation
regulating the use and exercise of rights applicable to ownership, or that it
was their intention to do away with such regulation. Without the right to such
control it would be impossible for the Legislature to fulfill its function to make
laws for the peace, order and good government of the country in the best
interest of the people of Namibia. The right to ownership in property under
article 16(1) of the Namibian Constitution like the right to equality before the
law in terms of article 10(1), is not absolute but subject to certain constraints
which, in order to be constitutional, must comply with certain requirements.

5.2 Limitations imposed by the Constitution

5.2.1 Expropriation

Expropriation may be defined as the power of the state to compulsorily but

lawfully, and for reasons deemed to be in the public interest, acquire
ownership or some of the powers associated with ownership in respect of
property, to the extent that the owner is deprived of the power to use or
alienate his or her property as he or she deems fit. Expropriation constitutes
a limitation on the right of ownership.

Silberberg23 defines expropriation as follows.

Expropriation in the strict sense means that the owner is deprived of his right of
ownership in his property which then becomes vested in the state or some other
public authority or corporation authorised by the state to acquire ownership of
the property.

In general terms, the origin of expropriation can be traced to state

sovereignty by virtue of which the state is empowered to exercise the right of
expropriation. In the Namibian context the legal authority to expropriate is
provided for in article 16(2) of the Namibian Constitution. The article
empowers the state, or any competent body or organisation authorised by
law, to expropriate property in the public interest subject to the payment of
just compensation.

Under the Namibian Constitution the authorised bodies can therefore

expropriate but the normal practice is that an Act of Parliament has to be
promulgated to vest an organ of state or any authorised body the power to
expropriate. For example, the Minister responsible for land under the

22 At 210J‐211A‐B.
23 DG Kleyn et al Silberberg and Schoeman’s the law of property 3rd ed (1993) 316‐317.
 Chapter 5: Ownership 71

provisions of the Agricultural (Commercial Land Reform) Act 6 of 1995 is given

the power to expropriate private property with a statutory procedure to
follow.24 Similarly, under the Expropriation Ordinance 13 of 1978, any
municipality or local authority has the power to expropriate property for
public purposes, subject to certain requirements. These provisions are
discussed in more detail under paragraph 5.3.

As stated earlier, the power given to the state to expropriate private

property in the public interest is derived from state sovereignty which vests
the control of the natural resources in the state. Under the doctrine of
eminent domain, the state is given the power to expropriate private property
for infrastructural development or public utility such as the construction of
bridges, railways and roads.

HM Seervai25 discussing articles 19(1)(f) and 31of the Indian Constitution

which deal with the right of citizens to acquire, hold and dispose of movable
and immovable property, points out that the sovereignty of the state involves
three elements, namely the power to tax, ‘police power’ and ‘power of
eminent domain’. The author further refers to the definition of ‘police power’
as:

the inherent power of a government to exercise reasonable control over person

and property within its jurisdiction in the interest of general security, health,
safety, morals and welfare, except where legally prohibited (as by constitutional
provision).
The accepted definition for ‘eminent domain’ is “the power of the sovereign to
take property for public use without the owner’s consent upon making just
compensation.

The distinction between the exercise of the state’s police power and its
power of eminent domain is similar to South African expropriation law.26 This
distinction between the state’s police power and its power of eminent
domain is also found in the property jurisprudence of Namibia specifically
under articles 16 and 100 of the Namibian Constitution. Articles 16(1) and 100
can be compared to the state’s police powers and Art 16(2) to its powers of
eminent domain.

Traditionally, under the doctrine of eminent domain the power of the

state to expropriate is limited. The eminent domain concept was
incorporated in legislation but there was no uniformity in these pieces of
legislation in terms of the purpose of expropriation. There were two models.
In the first model the power to expropriate was limited to infrastructural
development. In the second model, however, the purpose for expropriation

24 See secs 14 and 20.

25 HM Seervai Constitutional law of India: A critical commentary 3rd ed (1984), Vol. 11, para
14.24.
26 See in this regard: A Cachalia et al Fundamentals rights in the new Constitution (1994) 243.
72 Property law in Namibia

was formulated in an open textured manner, generally in terms of public

interest, and in most cases no precise definition was given of what constitutes
public interest.

Under international law, nationalisation of private property by the state

or expropriation is allowed but subject to the condition that nationalisation
or expropriation is effected in the public interest and subject to payment of
compensation. The UN Resolution on Permanent Sovereignty over Natural
Resources, 1962, which was adopted in the case of Texaco v Libya,27 provides
that:

Nationalization, expropriation or requisition shall be based on grounds or

reasons of public utility, security, or the national interest which are recognized as
overriding purely individual or private interests, both domestic and foreign. In
such cases the owner shall be paid appropriate compensation in accordance with
the rules in force in the State taking such measures in the exercise of its
sovereignty and in accordance with international law. In any such case where the
question of compensation gives rise to a controversy, the national jurisdiction of
the State taking such measures shall be exhausted.

What constitutes public interest, however, is not defined under international

law and is therefore subject to municipal laws of a particular jurisdiction.
Under the Namibian Constitution, article 16(2) gives the state the power to
expropriate property in the public interest, but here again, the public interest
is not defined.

Public interest, therefore, is a legal requirement falling within the sphere

of political definition. It is therefore the power of the state/government of
the day, or of any authorised state organ/authority to determine what
constitutes public utility or public interest. In the Namibian case of Kessl v
Ministry of Lands and Resettlement & Others28 the welfare and interests of
farm workers on commercial agricultural farms earmarked for expropriation,
was considered as one of the variables to determine what constitutes public
interest.

As mentioned earlier, the traditional concept of public interest as

contemplated within the context of eminent domain, includes infrastructural
development and public utility. Since the constitution leaves the definition of
public interest undefined and open textured, the attempts at definitions are
found in a particular piece of legislation. Currently in Namibia, depending on
the relevant portfolio, pieces of legislation have been promulgated to
empower the state or an appropriate authority to expropriate private
property for various purposes but the most prominent among such pieces of
legislation is the Agricultural (Commercial) Land Reform Act 6 of 1995. In this
Act public interest has been defined to include agricultural and resettlement

27 1977 53 ILR 389.

28 2008 1 NR 167 (HC).
 Chapter 5: Ownership 73

purposes in the context of the government’s land reform and poverty

alleviation programme.

Since expropriation involves the deprivation of the right of the individual,

it is important that procedural mechanisms and requirements are put in place
to prevent any potential abuse of the power to expropriate. Mere substantive
rules are not enough; procedural rules are equally important. The procedure
involved in the process of expropriation therefore becomes a legal
requirement in the sense that it is aimed at ensuring procedural justice,
transparency, recognition of the rule of law and the protection of individual
rights.

The details of the procedure may vary from jurisdiction to jurisdiction,

and as stipulated in the relevant legislation but the most important criterion
is that of compliance with the principles of natural justice and reciprocity. For
example, this will imply that the individual whose property is to be
expropriated is involved, to a certain degree, in the expropriation process and
given a fair hearing not only with regard to the amount of compensation but
also with regard to the decision concerning expropriation. This is necessary to
reduce the possibility of corruption, the irregular promotion of individual
interests and the arbitrary use of state power. Article 16(2) of the Namibian
Constitution clearly stipulates that the power to expropriate can only be
exercised following the promulgation of an Act of Parliament. Therefore, the
power becomes statutory and discretionary in nature and must be exercised
subject to the provisions of article 18 of the Namibian Constitution which
enjoins administrative officials to comply with the principles of natural justice
in the execution of administrative and executive powers. This was confirmed
in Kessl by Muller J where he held that article 16 of the Namibian Constitution
does not stand alone. This means, therefore, that the requirements of article
18 are applicable to the exercise of the powers of expropriation granted to
the Minster by the Agricultural (Commercial Land) Reform Act and that the
conduct of the administrative official, the Minister, must be fair and
reasonable, as well as legitimate. The ultimate objective is to ensure that the
power to expropriate is not abused.

The two requirements of article 18 are, firstly, that the principle of

natural justice must be satisfied in order to ensure some involvement of the
owner whose property is to be considered for expropriation and, secondly,
that the said owner must be given a fair hearing. This should apply not only in
the context of assessing the amount of compensation but also in the decision
to expropriate the property concerned. As stated by Muller J, before the
Minister can take a decision to expropriate, he or she is duty‐bound to apply
the audi alteram partem principle. It implies that he or she must afford the
landowner an opportunity to be heard in order to persuade him or her that
he or she should not take the decision to expropriate his or her property.
Subjecting the Executive’s power of expropriation to the concept of
reciprocity implies justifiability of rights and judicial review of powers of
expropriation.
74 Property law in Namibia

Since expropriation amounts to deprivation of one of the fundamental

rights provided for by Chapter 3 of the Namibian Constitution, article 16(1),
any legislation purporting to vest the power of expropriation in the state or
an organ of state must be of general application in compliance with the
provisions of article 22 of the Constitution. In terms of article 22, limitation of
any fundamental right or freedom is only lawful if it is provided for in
legislation, if the limitation is generally applicable, and not aimed at a
particular individual. The latter two requirements were confirmed in the case
of Cultura 2000 & Another v Government of the Republic of Namibia and
Others29 with regard to article 22(a).

Expropriation also involves deprivation of the rights of the individual and

more especially his entitlements of ownership, and therefore, both in law and
on grounds of equity, the individual must be compensated for his loss. This is
a principle recognised under international law as stated in the case of
Texaco.30 Most municipal laws authorising the state to expropriate private
property incorporate the right to compensation in the relevant laws.
However, the contentious issue has been the determination of the amount of
compensation. Under international law compensation has to be prompt,
adequate and effective. This criterion does not, however, find automatic
translation and incorporation into the provisions of the municipal legislation
which falls under the domain and jurisdiction of the Government of the day.

In Namibia, section 25 of the Agricultural (Commercial) Land Reform Act

provides for variables to be taken into consideration for the determination of
compensation. These include the current value of the property and
improvements made by the state.

5.2.2 Extract: the exercise of the rights of sovereignty and the laws
of expropriation of Namibia, South Africa, Zambia and
Zimbabwe31

5.2.2.1 Sovereignty and development

One of the essential elements of statehood is the occupation of a territorial

area within which state law operates. Over this area supreme authority is
vested in the state. Hence there arises the concept of territorial sovereignty
which signifies that within this territorial domain jurisdiction is exercised by
the state over persons and property to the exclusion of other states.32

29 1992 NR 110 (HC). This principle was also affirmed in Kessl (n 28 above).
30 n 27 above.
31 SK Amoo in MO Hinz, SK Amoo & D van Wyk The Constitution at work: 10 years of
Namibian nationhood: Proceedings of the conference ten years of Namibian nationhood,
11‐13 September 2000 (2002) 255‐267.
32 JG Starke & IA Shearer Starke’s International Law (1994) 144.
 Chapter 5: Ownership 75

The learned Max Huber, arbitrator in the case of Island of Palmas

Arbitration,33 and Max Sorensen,34 in their definition of sovereignty also
emphasise the concepts of independence and the power of a state over its
territory and citizens. Territorial sovereignty therefore embraces the concept
of the rights of a state over its territory and citizens. It includes the right to
control and utilise the natural resources of a state for the benefit of all its
citizens.35 The development of the natural resources of the state, however,
should be done with the aid of and within the parameters of the law. The
functional role of the law in development has been recognised, not only as a
political and practical necessity in the process of the execution of the
functions of government, but also as a legal theory. Jurists who advocate the
relationship between law and society, and law and development, emphasise
that the law must not only reflect the ethos of a society but must also be used
to engineer the society.

Friedman,36 recognising the appropriateness of the functional theory of

the law as the jurisprudential justification for the development programmes
of developing countries, advocated the reappraisal of the role of the law in
developing countries as follows:

A reappraisal of the role of the law, and of the function of the lawyer is needed in
the great majority of nations that have recently acquired political independence
because of a generally very low and static economic and social level. The
characteristic feature of an undeveloped country is a stark gap between its
economic and social state and the minimum aspirations of a mid‐twentieth
century state modelled upon the values and objectives of the developed
countries of the west. All these countries have an overwhelming need for rapid
social and economic change. Much of this must express itself in legal change – in
constitutions, statutes and administrative regulations. Law in such a state of
social revolution is less and less the recorder of established social commercial
and other customs. It becomes a pioneer, the articulated expression of the new
forces that seek to mould the life of the community to new patterns.

Much of the areas of emphasis described by Friedman may come within the
scope of the rationale that has generated this interest in law and
development in the governments of developing countries. However, the
governments of African states have taken a strong partiality to this dimension
in jurisprudence within the scope of the general outcry against the evils of
colonialism and in particular colonial laws, on the ground that the colonial
laws, some of which are still to be found in the statute books of some African
states, had no relevance to the African, and therefore serve no purpose in the
quest for the realisation of the social, economic and political aspirations of
the African society. In a speech marking the formal opening of the Accra

33 ‘Judicial decisions involving questions of international law – The Island of Palmas (or
Miangas)’ (1928) 22 American Journal of International Law 867 875.
34 M Sorensen Manual of public international law (1978) 8‐14.
35 In Namibia, eg, art 100 of the Constitution vests ownership of the natural resources of the
nation in the state.
36 W Friedman Legal theory (1967) 429.
76 Property law in Namibia

conference on legal education and of the Ghana law school, the late Dr
Kwame Nkrumah emphasised the need for the identification of the legal
system with the ethos of the society:

There is a ringing challenge to African lawyers today. African law in Africa was
declared foreign law for the convenience of colonial administration, which found
the administration of justice cumbersome by reason of the vast variations in local
and tribal custom. African law had to be proved in court by experts, but no law
can be foreign to its own land and country, and African lawyers, particularly in
the independent African states must quickly find a way to reverse this judicial
travesty.
The law must fight its way forward in the general reconstructions of African
action and thought and help to remould the generally distorted African picture in
all other fields of life. This is not an easy task, for African lawyers will have to do
effective research into the basic concepts of African law, clothe such concepts
with living reality and give the African a legal standard upon which African legal
history in its various compartments could be hopefully built up. Law does not
operate in a vacuum. Its importance must be related to the overall importance of
the people, that is to say, the state.37

At independence, most developing countries have been faced with the

problem of a choice of ideologies and policies. Most of the countries have
been confronted with this problem because it has been argued that the
colonial laws and policies had been formulated to serve the interests of
colonial powers. In the process of the search for alternative ideologies and
economic policies which will serve the interests of the nation, some post‐
independence governments in developing countries embarked on policies
which were a complete departure from those of the colonial governments.
Some of them opted for the establishment of socialist‐oriented economies,
or more recently as a result of pressure from the IMF, the World Bank, donor
countries from the West and the fall of the Eastern Block, they have opted for
mixed economies. In an attempt to develop the economy in the interest of
the ordinary citizen, these governments have taken an interventionist role in
the economy and many reforms have been undertaken including, in some
cases, nationalisation of foreign firms and radical land reforms and
expropriation of land. In essence, the drive in search of new policies has been
generated by the need to exercise the full powers of sovereignty, natural
resources and wealth and the desire for the exercise of the powers of self‐
determination in both economic and political affairs.

5.2.2.2 The expropriation of land

The power of a state to exercise the rights of sovereignty over its natural
resources is recognised under international law and as pointed out by the late

37 K Nkrumah ‘Ghana: Law in Africa’ (1962) 6 Journal of African Law 103 105.
 Chapter 5: Ownership 77

Chris Ushewokunze,38 with regard to the exercise of state sovereignty over

land, the particular land tenure system of a state is a product of the political
and economic ideology of the society. The legal framework may be taken as
an expression of that ideology defining the rights and duties in relation to
land and the procedure for its acquisition, use and disposal. In the context of
land expropriation, however, international law prescribes certain norms.

The Resolution on Permanent Sovereignty over Natural Resources, the

relevant section of which is quoted above, was adopted in Texaco,39 and was
respected because it is a reflection of customary international law. The
consensus of the majority of states belonging to the various representative
groups indicated the universal application of the rule incorporated in the
resolution relating to nationalisation and expropriation and its conformity
with international law.

One of the fundamental principles of the theory of law and development

as an aspect of law and social change is that it is the function of the law to
provide the legal basis for infrastructural development. This invariably
includes land tenure laws. Land is not only an index of development but also
an index of the degree of the exercise of sovereignty and independence. As
Mary Kingsley40 puts it: ‘unless you preserve your institutions, above all, your
land, you cannot … preserve your liberty’. Within this context, therefore, land
has been the subject of much legislation in most developing countries.41

It has been a constant tug of war between governments which advocate

and practise active state participation in the economy, and elements which
stand in the way of these governments against development in the context of
their economic programmes. In developing countries the source of these
problems may be varied ranging from the existence of subsistence economy
with all the antecedent problems attached to customary land tenure and the
concept of ownership, to the inhibitions imposed by colonial governments in
the attempt to promote their own versions of economic development and
inherited skewed land policies that favour the white settlers. Most of the laws
used in the land tenure centred on what some authors have called the right
of eminent domain, and the legislation used in this context has been
described as eminent domain legislation. Eminent domain legislation has
been used to extinguish private ownership of land when it conflicts with
group plans for the use of the piece of land concerned. The colonial
administration, for example, passed such legislation for the necessary legal
authority to compulsorily acquire land for the public service.

38 Ushewokunze A Survey of the legal aspects of land tenure, mineral production and
manufacturing industries including sanctions in Zimbabwe: Towards a new order, vol 1,
United Nations (1980) 176.
39 n 27 above.
40 AG Russel Colour, race and empire (1944) 89
41 HC Dunning ‘Law and economic development in Africa: The law of eminent domain’ (1968)
68 Columbia Law Review 1286. KL Kaarst & KS Rosenn Law and development in Latin
America: A case book (1975) ch 3.
78 Property law in Namibia

Such legislation was passed in the Gold Coast in 1876,42 in India 189443
and in East Africa44 in 1899. The point that must be emphasised, however, is
that most of these statutes provided for compensation and where eminent
domain legislation was effected by constitutions, the constitutions had
entrenched provisions relating to the payment of compensation in the event
of expropriation. The point to be noted is that the area of departure from the
pattern of these statutes enacted by most post‐independence African
governments, on attainment of independence, is that the new governments
defined their economic policies in terms of active state participation which
meant amendments to these laws, which included the public purpose
doctrine. Most of these new governments have found that the legal
framework of the old laws is inadequate for the achievement of their goals.
In the new statues the scope of public purpose was tremendously expanded,
as Dunning puts it:

The relationship between the State and the development process has an
important bearing on the public purpose limitation in the law of eminent
domain. In the past, the public purpose doctrine has meant that the State could
only take property by eminent domain where that property was needed for
‘public’ activities. Compulsory acquisition was limited to traditional state
activities – such as defence, highways, and education. But the modern African
government seeking active economic development acts in all spheres. The state
either engages directly in production or takes important action to enable private
persons to produce and develop … When the State has a dominant [and] rapidly
increased production, any productive purpose becomes a public purpose.45

Compulsory acquisition therefore was only justified by the use of eminent

domain legislation only for the purposes of the public. From the earlier
legislation, therefore, it will appear that compulsory acquisition was justified
on grounds of public interest or purpose. In Zambia, as in Namibia, the
colonial government divided land, into state land trust and reserves. The law
applicable to state land was the English land law. All land in the reserves and
trust areas was held under customary land law. This division was effected by
the Northern Rhodesia Order in Council of 1924. This proclamation was
followed by the enactment of the Public Lands Acquisition Ordinance of 1929,
which applied only to state land. Under section 53 of the Public Land
Acquisition Ordinance of 1929, the Governor was empowered:

[T]o acquire any lands required for any public purpose for an estate in fee simple,
or for a term of years as he may think proper, paying such consideration or

42 The Public Lands Ordinance, Gold Coast 1876, 3 Laws of the Gold Coast Cap 134 (revised ed
1951).
43 Indian Land Acquisition Act, 1894.
44 The Indian Lands Acquisition Act 1894 applied in East Africa, eg, 3 Laws of Uganda Cap 120
(rev ed 1951).
45 Dunning (n 41 above) 1298‐1299. Kaarst & Rosenn (n 41 above) ch 3.
 Chapter 5: Ownership 79

compensation as may be agreed upon or determined under the provisions of the

Ordinance.46

After independence, however, the Zambian government felt that the then
existing legislation relating to land had certain inadequacies located
specifically in the provisions of clause 18 of the Constitution. Clause 18
provided for compensation in the event of expropriation, but compensation
had to be paid and certain conditions had to be satisfied. The circumstances,
under which compulsory acquisition could be allowed, came generally within
the scope of the orthodox definition of the right of eminent domain. These
circumstances were substantially identical to those given under section 53 of
the Northern Rhodesia Public Lands Acquisition Ordinance of 1929, which
after independence became known as the Public Lands Acquisition Act.

In addition to these conditions, it was provided that the Government had

to pay adequate compensation immediately after expropriation, and
provision had to be made for the guarantee of the remittance of money
outside the country free from any deduction, charge or tax made or levied in
respect of its remission.

This clause was entrenched and could only be repealed by referendum.

In 1969 a referendum was held to amend clause 18 of the Independence
Constitution. It was argued that since the existing laws of expropriation
embodied in clause 18 of the Constitution and the Public Land Acquisition Act
were designed to serve the economic interests of the colonial government
and were therefore obsolete as a result of the shift in emphasis of economic
planning towards rapid development and state participation, the existing
laws of expropriation had to be repealed.

The government made it an objective of the new Public Land Acquisition

Act47 to eliminate a society of powerful landlords on the one hand and
tenants and workers on the other hand. The Act denied the right of
compensation in respect of undeveloped or unutilised land except for
unexhausted improvements. Even for unexhausted improvements no
compensation was payable if the land was unutilised land belonging to an
absentee landowner. In addition, it is interesting to note that the power to
acquire land was not restricted only to cases where it was needed for public
purpose. In fact, ‘public purpose’ was eliminated from the Act. Section 3 of
the Act reads as follows:

46 The definition of ‘public purpose’ included the following: ‘Any land (1) for the exclusive use
of the Government or Federal Government or for general public use; (2) for or in
connection with sanitary improvements of any kind including reclamations; (3) for or in
connection with the laying out of any new municipality, township in Government station or
the extension or improvements of any existing municipality, township or Government
station; (4) for obtaining control over land contiguous to, or required for or in connection
with any port, airport, railways, roads, or other public works of convenience, constructed
or about to be undertaken by the Government or Federal Government’.
47 Public Lands Acquisition Act cap 296 of The Laws of Zambia.
80 Property law in Namibia

Subject to the provisions of the Act, the President may, whenever he is of the
opinion that it is desirable or expedient in the interest of the Republic so to do,
compulsorily acquire any property of any description.

This provision was more liberal than the provision of the earlier Act. For
‘public purpose’ the latter Act substituted ‘interests of the Republic’48 which
is not defined in the Act and which is determined only at the discretion of the
President.

In Zimbabwe the land question was one of the issues that had to be
settled at the Lancaster House Conference. The Lancaster House Constitution
that brought an end to colonial rule in Rhodesia under part III had an
enshrined provision that protected fundamental rights to private property
and restricted the right of the state to compulsorily acquire land for
agriculture or resettlement. Any compulsory acquisition had to be
accompanied by prompt and adequate compensation49 and it was
negotiated and agreed that the British government had to make funds
available for that purpose. The circumstances under which the state could
compulsorily acquire property in the public interest were clearly defined in
the Constitution. Property could not be compulsorily acquired except under
the authority of law and only after reasonable notice of the intention to
acquire the property had been given to any person owning the property or
who would be affected by such acquisition.50 The purposes for which land
could be compulsorily acquired included the interests of defence, public
safety, public morality, public health and town and country planning. Land
acquired in this manner would need to be used for a purpose beneficial to the
public generally or a section thereof. The provision further specified that
under‐utilised land could only be acquired for the settlement of land for
agricultural purposes.51 The entrenched provision, including the provision
that reserved twenty seats for whites, could not be amended before ten
years after the implementation of the Constitution.

In 1990 the Constitution, including section 16, was amended to give the
state more power to remove some of the restrictive provisions and to give the
state more leverage in its authority to compulsorily acquire property for
agricultural and resettlement purposes. This amendment affected the
requirements relating to payment of compensation. The amendment
required that compensation be paid but that the compensation had to be
‘fair’ and be made available ‘within a reasonable time’. The amendment
implied that ‘fair compensation’ is necessarily less than adequate
compensation, which is market related, and that the state would be in a
better position to acquire land since it will not be compelled to pay ‘promptly’
but within a ‘reasonable time’.

48 Public Lands Acquisition Act, s 3.

49 Sec 11(c) of the Constitution of Zimbabwe.
50 Sec 16(1)(a); and L Tshuma & K Makamure ‘Land policy in Zimbabwe: The legal framework’
in Conference on land policy in Zimbabwe after Lancaster (1990).
51 Sec 16(1)(b) of the Public Land Acquisition Act cap 296 of The Laws of Zambia.
 Chapter 5: Ownership 81

The amendment was followed by the Land Acquisition Act of 1992.

Section 3 of the Act empowers the President to compulsorily acquire any
land, where, inter alia:

(1) the acquisition is reasonably necessary in the interests of defence, public

safety, public order, public morality, public health, town and country planning or
the utilization of that or any other property for a purpose beneficial to the public
generally or to any section of the public;
(2) any rural land, where the acquisition is reasonably necessary for the
utilization of that or any other land –
(i) for settlement for agricultural or other purposes; or
(ii) for purposes of land reorganization, forestry, environmental conservation,
or the utilization of wild life or other natural resources; or
(iii) for the relocation of persons dispossessed in consequence of the utilization
of land for a purpose referred to in sub‐paragraph (i) or (ii).

The new Land Acquisition Act provided for fair compensation within a
reasonable time, and it also introduced the concept of deprivation.52

After the referendum that rejected the Draft Constitution, the

constitutional provisions relating to land acquisition were amended to
include some of the provisions of the Draft Constitution.53 The amended law
makes provision for compensation but compensation is not automatic. It
gives the government the power to compulsorily acquire agricultural land for
the resettlement of people in accordance with the programme of land
reform. However, with due regard to the fact that the people of Zimbabwe,
as a consequence of colonialism, were unjustifiably dispossessed of their land
and additional resources without compensation, consequently took up arms
to regain their land and political sovereignty and, therefore, must be enabled
to reassert their rights and gain ownership of their land, the Act54 imposes on
the former colonial power the obligation to pay compensation for agricultural
land compulsorily acquired for resettlement through a fund established for
that purpose. Therefore, if the former colonial power fails to pay
compensation through such fund, the government of Zimbabwe has no
obligation to pay compensation for agricultural land, compulsorily acquired
for resettlement. Furthermore, the amended provision states that even
where compensation is to be paid, the following factors must be taken into
account in the assessment of any compensation that may be payable:

52 In the case of Davies v Minister of Lands, Agriculture and Water Development 1996 9 BCLR
1209 (ZS), the Supreme Court of Zimbabwe in its interpretation of section 11(c) of the Land
Acquisition Act, Chapter 20:10 (Zimbabwe) drew a distinction between an acquisition and
deprivation and held that section 11(c) did not afford protection against deprivation of
property by the State where the act of deprivation fell short of compulsory acquisition or
expropriation. It further held that no compensation was required for a deprivation of rights
in property and that it was not every deprivation which amounted to a compulsory
acquisition of property. Nor did every deprivation require that compensation be paid.
53 See sec 3 of the Constitution of Zimbabwe Amendment Act 16 of 2000.
54 See 16(A) as amended by s 3 of the Constitution of Zimbabwe Amendment Act 16 of 2000.
82 Property law in Namibia

(a) the history of the ownership, use and occupation of the land;
(b) the price paid for the land when it was last acquired;
(c) the cost or value of improvements on the land;
(d) the current use to which the land and any improvements on it are being put;
(e) any investment which the State or the acquiring authority may have made
which improved or enhanced the value of the land and any improvements on it;
(f) the resources available to the acquiring authority in implementing the
programme of land reform;
(g) any financial constraints that necessitate the payment of compensation in
instalments over a period of time; and
(h) any other relevant factor that may be specified in an Act of Parliament.55

The positions in Namibia and South Africa will now be discussed separately.

5.2.2.3 Namibia

The provisions of the Namibian Constitution relating to the power of the state
to compulsorily acquire private property are provided under article 16.56 The
purpose of the limitation in the traditional eminent domain clause is an
entrenched provision. Article 100 of the Namibian Constitution vests the
sovereign ownership of the natural resources of Namibia in the state.57
Article 16, however, acknowledges private ownership but empowers the
state to compulsorily acquire private property in the public interest subject to
the payment of just compensation. Article 16 further states that an Act of
Parliament should be promulgated for the exercise of the power of
expropriation. The article does not define ‘public interest’. In the premise,
therefore, the determination and definition of ‘public interest’ lies within the
subjective jurisdiction of the state. In the context of the constitutional and
political history of Namibia, land resettlement and agrarian reform will
legitimately come within the definition of public interest. It is in this context
that one can see the justification for the promulgation of the Agricultural
(Commercial) Land Reform Act. The purpose of the Act is to provide for the
acquisition of agricultural land by the state for the purpose of land reform and
for the allocation of such to land to Namibian citizens who do not own or
otherwise have the use of any or of adequate agricultural land.

The Act gives the Minister two options: the power to acquire land on the
basis of the willing buyer willing, seller option or compulsory acquisition.
Section 14 of the Act grants the Minister the general authority to acquire, out

55 Sec 16(A)(2) of the Constitution of Zimbabwe as amended by the Constitution of

Zimbabwe Amendment Act 16 of 2000.
56 Art 16 of the Namibian Constitution is quoted on pages 68‐69 above.
57 Art 100 of the Namibian Constitution states that land, 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 belong to the state if they are not
otherwise lawfully owned.
 Chapter 5: Ownership 83

of moneys appropriated by Parliament for that purpose, agricultural land for

implementation of land reform and resettlement policies. It is therefore clear
that expropriation is not the only option; it is the last option.58 Section 14(2)
provides as follows:

The Minister may under subsection (1) acquire:

(a) any agricultural land offered for sale to the Minister in terms of section
17(4), whether or not the offer is subsequently withdrawn;
(b) any agricultural land which has been acquired by a foreign national, or by a
nominee owner on behalf or in the interest of a foreign national, in
contravention of section 58 or 59; or
(c) any agricultural land which the Minister considers to be appropriate for the
purposes or contemplated in that subsection.
Under the authority granted by these provisions and additional relevant laws,
the Minister on behalf of the government to date, has acquired 461 000
hectares of land, including 22 605 hectares which were donated. Total
Government expenditure is N$ 52 451 355. 79 for the purchase of 79 farms
and it must be emphasised that all these farms were purchased on a willing
buyer, willing seller basis. During the NDP1 the government spent
N$ 45 921 168. 79, and a total number of 22 083 people were resettled. It is,
however, now estimated that about 34 000 Namibians have been settled
through the government’s resettlement programme,59 and the Ministry
intends acquiring an additional 360 000 hectares of land in the next five years
and approximately 1 080 people will be resettled.

The criteria used by the Ministry for the selection of people to be

resettled are embodied in the Government Resettlement Policy. The policy
places people to be resettled into three categories. The first group consists of
Bushmen, and any landless former disadvantaged Namibians; the second
group consists of landless livestock owners; and the third group comprises
people who receive an income but who do not own any land. The
resettlement programme aims at improving the living standards of the
previously disadvantaged Namibians. Therefore, the resettlement schemes
are not restricted to the provision of land for only agrarian purposes. The
resettlement schemes have a broader social agenda. They include provision
of training facilities and housing. People who are resettled hold the land
under leasehold titles of 99 years.

58 Sec 20(1) of the Agricultural (Commercial) Land Reform Act 6 of 1995.

59 As stated in The Namibian 30 August 2000. To date it is estimated that 5000 families and
cooperatives have been resettled.
84 Property law in Namibia

The power to expropriate privately owned farms is the alternative option

granted to the Ministry by the Act. Under section 2060 in the event that the
Minister, acting on the recommendation of the commission, and the owner
of the property are unable to negotiate the sale of the property by mutual
agreement, the Ministry may provide for the condition that the exercise of
the power to expropriate be subject to the payment of compensation.

5.2.2.4 South Africa

Section 25(1) of the Constitution of the Republic of South Africa, 1996 gives
and protects the rights of the individual to own property. However, section
25(2) empowers the state to expropriate property provided that it is done so:

• in terms of a law of general application;

• for a public purpose or in the public interest; and
• subject to compensation determined in the prescribed manner.

The spirit of these provisions is reflected by section 25(3) in terms of which

the compensation and the time and manner of payment must be just and
equitable and must reflect an equitable balance between the public interest
and the interest of those individuals affected by the expropriation. However,
notwithstanding this spirit of the compensation provision section 25(3)
specifically provides that when compensation is being assessed, regard must
be had to all relevant circumstances, including:

(a) the current use of the property;

(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
(e) the purpose of the expropriation.

The significance of these factors in the Zimbabwean and South African

Constitutions is that in assessing the amount of compensation the court will
not only have to use the market value of the property but will also have to
take these specified factors into consideration.

The South African constitutional provision gives the South African

government the power to acquire land for land resettlement and reform.

60 Sec 20 provides as follows: ‘(1) Where the Minister decides to acquire any property for the
purposes of section 14(1) and the Minister, acting on the recommendation of the
Commission, and the owner of such property are unable to negotiate the sale of such
property by mutual agreement, or the whereabouts of the owner of such property cannot
be ascertained after diligent inquiry, the Minister may, subject to the payment of
compensation in accordance with provisions of this Act, expropriate such property for such
purpose’.
 Chapter 5: Ownership 85

Apart from the constitutional provisions pertaining to compensation the

Restitution of Land Rights Act 22 of 1994 provides for the restitution of rights
to land for persons or communities dispossessed of such rights after 19 June
1913 as a result of past racially discriminatory laws or practices. For the
purpose of claiming restitution this Act also established the Land Claims
Court.

5.2.3 Consequences of expropriation and land resettlement

5.2.3.1 Protection of the rights of the individual

The individual’s right to own property and the protection of that right are
recognised as fundamental rights of the individual under international law.
This right can be found in most constitutions and international conventions.
Article 17 of the United Nation’s Universal Declaration of Human Rights 1948
provides that everyone has the right to own property alone as well as in
association with others; and no one may be arbitrarily deprived of property.
In terms of article 5(d)(v) of The International Convention on the Elimination
of all Forms of Racial Discrimination, state parties undertake to eliminate
racial discrimination in all forms and to guarantee the right of everyone to
own property alone as well as in association with others.61 The protection of
this right is contained in various provisions such as substantive law
provisions; provisions for the payment of compensation; procedural
requirements to guarantee the application of the rules of administrative
justice in the exercise of the powers of expropriation; and procedural
mechanisms meant to safeguard against the abuse of the power to
expropriate.

Since this right is recognised as a fundamental right, in most jurisdictions,

the right is enshrined and guaranteed by the Constitution and therefore the
power to deprive the individual of this right can only be granted by the law on
justifiable grounds. It is for this reason that in earlier constitutions the right
to expropriate could only be justified on grounds of public utility and was
subjected to the purpose limitation in the eminent domain clause. The
determination of what constitutes public utility is a political one and
therefore, the individual might not be competent to make any
pronouncement on the validity of that decision. But the individual must be
involved in the process of deciding what property must be subjected to
expropriation, for example, the individual must be given the opportunity to
suggest alternative land equally suitable for expropriation under the public
utility justification.

61 See also art 1 of the First Protocol to the European Convention for the Protection of Human
Rights and Fundamental Freedoms of 1950; Art 23 of the American Declaration of the
Rights and Duties of Man of 1948; Art 21 of the American Convention on Human Rights of
1969; and Art 14 of the African Charter on Human and People’s Rights of 1981
86 Property law in Namibia

In most Southern African countries that achieved independence through

liberation wars, it is common knowledge that colonial land policies and land
tenure systems constituted the major causes for the liberation struggles.
Therefore, at the time of independence, governments had to embark on land
reform and resettlement programmes to correct the injustices of the past. In
the context of the laws of expropriation the traditional public utility rationale
for expropriation was found wanting. The orthodox grounds for expropriation
had to be expanded to accommodate resettlement and agrarian reform. In
Namibia, for example, land resettlement and agrarian reform have come
under the domain of public interest within the context of the provision of
article 16 and the government can therefore exercise the powers of
expropriation for its resettlement and agrarian reform schemes. Confronted
with such onerous provisions justifying the deprivation of his or her rights,
the individual can only be assured of equity and justice if the right to
compensation is assured.

5.2.3.2 Compensation

The payment of compensation is one of the requirements in customary

international law for the validity of the power to expropriate private property
by a sovereign state. This right to expropriate is within the competence of a
sovereign state but the compensation requirement imposes a legal
restriction on this competence.62 In Texaco63 the requirement that was
adopted as a rule of public international law is that the expropriating
sovereign state must pay ‘prompt, adequate and effective compensation’.
The 1962 Resolution on Permanent Sovereignty over Natural Resources also
makes provision for the payment of compensation. It provides that in case of
expropriation, ‘the owner shall be paid appropriate compensation’.

In Texaco it was further stated that the standard of ‘appropriate

compensation’ in the resolution ‘codifies positive principles’, but there is no
uniform standard for the quantum of compensation under municipal law. The
expropriation laws of Zambia, Zimbabwe, Namibia and South Africa all make
provision for the payment of compensation. In the case of Zambia, the
Government was required to pay ‘adequate compensation’ and in the case of
Zimbabwe, the Lancaster House Constitution provided for the payment of
‘prompt and adequate’ compensation. This was amended to ‘fair
compensation’ but only for improvements. The South African Constitution
makes provision for the payment of ‘just and equitable’ compensation and
stipulates factors64 that must be considered in the assessment of

62 In some jurisdictions such as Zimbabwe, South Africa and the USA, the distinction is drawn
between expropriation of property and deprivation of property. The former involves the
payment of compensation but deprivation has been held not to involve the payment of
compensation. In America, expropriation falls under eminent domain and deprivation is
known as police power.
63 n 27 above.
64 See secs 25(1)‐(3) of the South African Constitution.
 Chapter 5: Ownership 87

compensation. Article 16(2) of the Namibian Constitution inter alia provides

that the state may expropriate property ‘subject to the payment of just
compensation’. One is therefore obliged to come to the conclusion that the
amount of compensation is a political decision within the competence of the
government of the day. If this is accepted as a valid conclusion, this matter
must be justiciable. The jurisdiction of the courts in this matter must not be
ousted.

The Namibian Agricultural (Commercial) Land Reform Act65 empowers

the Minister, upon the recommendation of the Land Reform Advisory
Commission, to offer the owner concerned, in the appropriation notice, the
amount of compensation for the property which is being expropriated. In
assessing the amount of compensation, the Act stipulates under section
25(5)(a) and (b) that the Minister must take into consideration the
enhancement of the value of the property in consequence of the use thereof
and the improvements made after the date of notice on or to the property in
question, provided that the amount does not exceed the aggregate of the
amount which the land would have realised if sold on the date of notice on
open market by a willing seller to a willing buyer and an amount to
compensate any actual financial loss caused by the expropriation.66 The Act
also provides that if the parties fail to reach an agreement regarding the
amount of compensation, compensation is to be determined by the Lands
Tribunal on the application of any party, and resettlement to be effected by
arbitration in terms of the Arbitration Act 42 of 1965.67 The Act is silent on
the individual’s right of appeal to the courts but it does not specifically oust
this right either.

5.2.3.3 Procedural and administrative protection

The additional legal mechanisms used to protect the rights of the individual
and to safeguard against the arbitrary use of the power to expropriate are the
procedural rules. These are meant to ensure that in the exercise of the power
of expropriation the individual is protected through the due process of law.
Under the Namibian Constitution the exercise of this power will be subjected
to the provisions of article 18 of the Constitution, which demands the
application of the principles of natural justice. The Agricultural (Commercial)
Land Reform Act has provisions to that effect. It also contains provisions to
ensure that the power to expropriate is not concentrated in the hands of only
one person. The power is exercised in consultation with the Land Reform
Advisory Commission and, as mentioned earlier, the determination of the
amount of compensation in the event of a disagreement, is subject to the
jurisdiction of the Lands Tribunal which is established under section 63 of the
Act.

65 Secs 23 and 25.

66 Secs 25(1)(a)(i) and (ii).
67 Secs 27(1)‐(3).
88 Property law in Namibia

Social and economic consequences of expropriation

The decision to expropriate is a political one but it has legal, economic and
social implications that impact not only on the individual but also on the
budget of the nation. In Zimbabwe, for example, it was reported in the The
Herald of 21 August 2000 that over 240 000 farm workers were likely to lose
their jobs after the conclusion of the acquisition of over 3 000 commercial
farms for resettlement. The paper added, however, that the government
intended resettling these farm workers. Furthermore, it must be noted that
expropriation without compensation erodes the confidence that the banks
have in title deeds. It reduces title deeds to mere pieces of paper.

5.2.3.4 Conclusion

Under international law, states have a sovereign right over their natural
resources. Public international law also recognises the individual’s right to
property. The problem that could result from these potentially conflicting
rights could be resolved by the application of the principle that the right of
the community overrides the right of the individual. On this premise, the
power of the state to extinguish the individual’s right to property could only
be justified on grounds of public utility, and where expropriation is justified
on grounds of public utility, the individual must be compensated for the
deprivation of his or her rights. The demands of natural justice and equity
enjoin the expropriating authority to comply with the principles of natural
justice since in essence the right to expropriate is discretionary. The spirit and
the letter of the Namibian Constitution relating to expropriation are
consistent with the principles of international law relating to expropriation,
and the Namibian government, to date, has not compulsorily expropriated
any private property.68

5.3 Statutory Limitations

Statutory limitations on the right of ownership are contained in both pre‐ and
post‐independence legislation. An attempt is made below to highlight and
discuss some of these pieces of legislation, which do not purport to represent
an exhaustive list of all legislation that imposes restrictions on ownership.

5.3.1 Ordinance 18 of 1954

Section 29 of Ordinance 18 of 1954, as amended by the Town Planning

Amendment Act 27 of 1993, authorises local authorities to expropriate land
for development purposes. The section further provides that the responsible

68 This statement represents the situation at the time of going to press. In 2004 on account of
the Namibian Government’s realisation of the failure of the willing buyer willing, seller
process, the then Prime Minister, Theo‐Ben Gurirab, announced that land expropriation
would begin. To date only one farm has been successfully expropriated.
 Chapter 5: Ownership 89

authority may, with prior approval of the Minister, purchase land required for
any of the purposes of a scheme and exchange it for alternative land within
the same scheme. If a local authority is, however, unable to purchase by
agreement required land or interest in such land, it may, with prior approval
of the Minister, under the provisions of the Expropriation of Land Ordinance
of 1927, ‘expropriate the same as though it were a municipal council’.

5.3.2 The Expropriation Act 63 of 1975

The Act deals with the expropriation of land. It came into operation on 1
January 1977, in terms of RSA Proclamation 273 of 1976. The Act applied to
South‐West Africa (SWA) only in respect of expropriations by the Railway
Administration. However, the National Transport Corporation Act 21 of 1987
repealed section 4 of the Expropriation Act 63 of 1975 which contains the
provision which made the Act applicable to SWA. The National Transport
Corporation Act 21 of 1987 was repealed by the National Transport Services
Holding Company Act 28 of 1998 with effect from 1 April 1999. The point
worth noting here is that the 1998 Act does not contain any express provision
vesting the Railway Administration, currently known as Transnamib, with
powers of expropriation.

5.3.3 The Expropriation Ordinance 13 of 1978

This Ordinance deals with the expropriation of land and was promulgated
before independence and therefore issues may be raised about its
applicability and compatibility with the provisions of the Namibian
Constitution. The opinion being canvassed here is that since the Ordinance
has not been repealed by Parliament, it remains valid to the extent to which
its provisions are not inconsistent with the Constitution. Section 2 of the
Ordinance gives the Executive powers to expropriate any property for public
purposes. Section 3(1) provides for the conferment of powers to expropriate
upon a local authority by the executive committee. Therefore, the local
authority can expropriate through the conferment of powers to the extent
provided for in section 2. These powers may be conferred in general or in
relation to particular land or in respect of a particular case. The expropriation
of property is subject to the payment of compensation the determination of
which is provided for under section 9.

5.3.4 The Local Authorities Act 23 of 1992

Section 30 of the Local Authorities Act 23 of 1992 gives the local authorities
the power to purchase any immovable property with the prior authority of
the Minister. This power equates to a right of pre‐emption which constitutes
a restriction on the right of ownership. Furthermore, under section 73 the
local authorities are empowered to impose various types of rates on
90 Property law in Namibia

property. These include a general rate for example for refuse collection, site
value rate and improvement rate.

5.3.5 Transfer Duty Act 14 of 1993

If property is being transferred from one person to another under the

provisions of sections 2 and 3 of the Transfer Duty Act, 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, has
to pay transfer duty. However, if the property that is the object of the transfer
is a commercial property, a value‐added tax (VAT) and not a transfer duty, is
imposed. One may also add that under section 76 of the Agricultural
(Commercial) Land Act the Minister is empowered to impose land tax on
commercial farms.

5.3.6 The Stamp Duties Act 15 of 1993

Under section 3 of the Stamp Duties Act, read with schedule 1 thereof, a
stamp duty is imposed on a transfer deed relating to immovable property
unless an exemption has been granted in respect of a scheduled instrument.

5.3.7 The Electricity Act 2 of 2000

The Act provides for the establishment and functions of the Electricity Control
Board. In terms of the provisions of the Act a person who holds a licence duly
granted by the Minister may establish or carry on any undertaking for the
generation, transmission, supply, distribution, importation and export of
electricity. Section 33 provides that a licensee may, with the approval of
Cabinet and subject to such conditions as Cabinet may impose, by
expropriation acquire any land or right over or in respect of land, as the
licensee may require in the public interest, for any purpose associated with
the generation, transmission, distribution or supply of electricity by the
licensee. Cabinet may grant approval to a licensee only after considering and
being satisfied with a report from the Board.

5.3.8 The Agricultural (Commercial) Land Reform Act 6 of 1995

The Agricultural (Commercial) Land Reform Act regulates the purchase and
redistribution of privately owned farms. The relevant sections of the Act in
respect of acquiring agricultural land and expropriation of such land are
section 14, providing for the purchasing of agricultural land by the state on a
willing buyer willing seller basis, and section 20, providing for expropriation
of such land and requirements therefor.
 Chapter 5: Ownership 91

The Act also provides for the appointment, composition, powers and
duties of the Land Reform Advisory Commission. The technical commission
on commercial farm land was mandated to investigate the entire land tenure
situation in Namibia and make recommendations as far as absentee
foreigners are concerned.

The Act was promulgated as the legislative tool for the implementation
of the Government’s land reform programme. In the context of legislative
restrictions on the right of ownership, the Act imposes dual restrictions. The
first type of restriction entails the pre‐emptory right, the so‐called willing
buyer willing seller option granted to the Minister, in terms of section 17(3),
and the second type of restriction arises from the Minister’s power to
expropriate agricultural land for the purposes of land reform, resettlement of
the landless and poverty alleviation in terms of section 14 but subject to the
requirements and procedures provided for in sections 14 and 20. These
requirements include the payment of compensation and the public interest
provision.

These requirements appear to accord with international standards. In

Texaco69 it was held that nationalisation of property by the state or
expropriation is allowed but subject to the condition that nationalisation or
expropriation is done in the public interest, subject to payment of just
compensation. Similar provisions are to be found in the 1962 UN General
Assembly Resolution on Permanent Sovereignty over Natural Resources,
which states, inter alia, that expropriation shall be based on grounds or
reasons of public utility, security or the national interest which are recognised
as overriding purely individual and private interests.

The State’s power to expropriate agricultural land which is exercised by

the Minister under the Act to advance the Government’s land reform and
poverty alleviation programme, was considered by the court in Kessl,70 which
was described as a ‘test case’ by Muller J. In this case the applicants applied
for an order to review and set aside the decision of the Ministry of Lands and
Resettlement to expropriate certain farms belonging to the applicants in the
Otjozondjupa Region of the Republic of Namibia. The applicants initially
conceded that the Government of the Republic of Namibia has the right to
expropriate farms under certain conditions and therefore only two main
issues needed to be considered by the court. Firstly, the question whether
the audi alteram partem principle was relevant in expropriation cases such as
those before the court and, secondly, whether the procedure that was
followed in all these three cases before the court was in conformity with the
law.

As stated earlier, since the Act in principle imposes restrictions on the

constitutional right of ownership, the court reiterated the principle that an

69 n 27 above.
70 n 28 above.
92 Property law in Namibia

act or statute that provides for actions that may infringe fundamental rights
should be interpreted restrictively in such a manner as to place the least
possible burden on subjects or to restrict their rights as little as possible. The
rights of the public should be properly balanced against those of the
individual by adhering to the requirement of ‘public interest’ in article 16(2)
and the provisions of section 14 of the Act.

On the issue of the relevance of the audi alteram partem principle in

expropriation cases such as those under consideration, the court held that
article 16(2) is not a self‐contained or ‘walled‐in’ provision, excluding the
application of the audi alteram partem71 principle which was therefore held
to be applicable. In the context of the Act the exercise of the powers of
expropriation granted to the Minister was therefore subject to the provisions
of article 18 of the Namibian Constitution and the common law grounds for
review of administrative discretion.72 In terms of the said article the Minister
may only act within the limits of his statutory discretion and should apply his
mind to the requirements of the enabling Act. In order to expropriate land, it
must be done within the provisions of the Act and involves a double‐barrel
process, firstly, in terms of section 14 and then, in terms of section 20. This
provision is peremptory and must be complied with before the Minister takes
a decision. Furthermore, the court held that under the provisions of section
20(6) the Commission is obliged to consider the interests of the persons
employed and lawfully residing on the land and the families of such persons
residing with them. This factor becomes a variable in the determination of
what constitutes public interest.73

The Land Reform Advisory Commission established under section 2 of the

Act is mandated to make recommendations to the Minister or advise the
Minister in relation to any power conferred upon the Minster by the Act. The
court held that such consultation between the Minister and the Commission
was a prerequisite before embarking upon the section 20 expropriation
process, and that such consultation should take place at the section 14 stage
when a determination as to whether there was a willing buyer and a willing
seller must be made and before the Minister decides to purchase a particular
farm. The requirements of this provision go beyond a mere consultation; they
demand genuine consultation.74

71 The decision in Westair Aviation (Pty) Ltd & Others v Namibia Airports Company Ltd &
Another 2001 NR 256 (HC) in respect of applicability of the audi alteram partem principle
was confirmed.
72 Chairperson of the Immigration Selection Board v Frank & Another 2001 NR 107 (SC).
73 See also Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources
1998 NR 147 (HC).
74 Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd
[1972] 1 ALL ER 280 (QB); Robertson & Another v City of Cape Town, Truckman‐Baker v City
of Cape Town 2004 5 SA 412 (C); Maqoma v Sebe NO & Another 1987 1 SA 483 (CK); and
Stellenbosch Municipality v Director of Valuations & Others 1993 1 SA 1 (C).
 Chapter 5: Ownership 93

5.3.9 The Water Resources Management Act 24 0f 2004

This Act deals with the management, development, protection, conservation,

and use of water resources. Section 126 of the Act vests in the Minister the
power to expropriate any property, to authorise the temporary use of any
property, or issue a written authorisation to a water management institution
for the temporary use of property or effluent if this is in the public interest.

5.3.10 Additional relevant legislation

Examples of additional legislation imposing restrictions on the right of
ownership are the Weeds Ordinance 19 of 1957,controlling the eradication of
weeds on land; the Marketing Act 59 of 1968, controlling the sale of
agricultural products; the Agricultural Pest Act 3 of 1973, controlling
agricultural pests; the Meat Industry Act 12 of 1981, controlling the meat
industry; the Stock Brands Act 24 of 1995, making it compulsory to brand
cattle; the Animal Diseases and Parasites Act 13 of 1956, controlling animal
diseases; Soil Conservation Act 76 of 1969, dealing with soil erosion; and the
Subdivision of Agricultural Land Act 70 of 1970, prohibiting the subdivision of
land under certain circumstances.75 The above legislation is aimed at the use
of land and agricultural products.

Examples of control over further property are the Local Authorities Act,
controlling the sale of alcohol; the Arms and Ammunition Act 7 of 1996,
controlling the use of arms and ammunition; the Road Traffic Ordinance 30 of
1967 and the Road Traffic and Transport Act 22 of 1999, controlling the use
of motor vehicles; the Price Control Act 25 of 1964, controlling he price of
certain goods; the Water Resources Management Act 24 of 2004, controlling
the price of water under certain circumstances; and the Credit Agreements
Act 75 of 1980 which regulates transactions where movable goods are
purchased or leased on credit.

5.4 Common law limitations

The common law limitations may be broadly categorised under the following
headings: creditors’ rights of third parties against the owner of property;
limited real rights of third parties in the property; and neighbour law.76

5.4.1 Creditors’ rights of third parties against the owner of property

These are rights arising out of a contract with a third party and can prima facie
be considered as personal rights. As personal rights they are not registrable.
Geldenhuys77 establishes the principle that if such creditor’s right is closely

75 The provisions of the Subdivision of Agricultural Land Act are discussed in more detail
under para 4.1 above.
76 Van der Walt & Pienaar (n 2 above) 86‐88.
94 Property law in Namibia

related to a registrable limited real right in respect of the immovable property

it can be registered but such registration does not convert the nature of the
personal right to a real right.78 Hence, they do not create any burdens on the
land and they are enforceable as a general rule against the owner in his or her
personal capacity as a party to the contract. They create limitations on an
owner’s rights of use and entitlement but do not subtract from the dominium
and are not enforceable against the owner’s successors in title. Limitations
brought about by short term leases are examples of the limitations now
under consideration.

A short‐term lease is a lease of immovable property for a term shorter

than ten years and is not registered.79 The lease agreement is not sufficient
to constitute a real right, as it creates creditors’ rights only. However, the
lessee acquires a real right as soon as the lessee takes possession of the
property and this alters the relationship between the lessee and new owners
of the property. Firstly, new owners who had knowledge of the lease
agreement are bound by its terms by virtue of the application of the doctrine
of notice. In terms of this doctrine, the lessee is protected for the duration of
lease, since the new owner who had knowledge of the lease agreement is
deemed to have acquiesced in the lease agreement before purchasing the
property.80 The lease agreement is therefore enforceable against the new
owner. Secondly, the lessee is protected for the duration of the lease by the
application of the common law principle of huur gaat voor koop (lease
agreement takes precedence over a sale).

5.4.2 Limited real rights of third parties in the property

When considering the principles relating to the distinction between real

rights and personal rights, we saw that rights over the landowner’s
entitlements created in favour of third parties constituted limited real rights.
In terms of the test laid down in the Geldenhuys81 such rights are registrable,
since they constitute encumbrances on the land. We also saw that such
conditions or rights can be created inter vivos by a contract, notarial deed or
by testamentary disposition. Such limited real rights therefore, as a general
rule, impose limitations on an owner’s exercise of entitlements.

77 n 5 above.
78 Nel NO v Commissioner for Inland Revenue 1960 1 SA 227 (A) 235.
79 Under sec 102 of the Deeds Registries Act 47 of 1937, the definition of immovable property
includes: ‘any registered lease of land which, when entered into, was 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 amount in all to not less than ten years’.
80 F du Bois Wille’s principles of South African law 9th ed (2007) 627; Van der Walt & Pienaar
(n 2 above) 289‐90.
81 n 5 above.
 Chapter 5: Ownership 95

5.4.3 Neighbour law

We saw from the definition of ownership that the element of absoluteness in

the definition is notional in that there are restrictions imposed on the owner’s
exercise of entitlements. In the province of neighbour law such restriction is
placed on the interest of the individual at the micro level rather than in the
interest of the community at the macro level.

The basis of neighbour law is that land must be used in such a way that
another person is not prejudiced or burdened (sic utere tuo ut alienum non
laedas). If an owner or occupier of land, in the exercise of entitlements,
should inconvenience a neighbouring owner or occupier by creating or
allowing a situation as a result of which his or her neighbour suffers damage
or if the neighbour is disturbed in the use and enjoyment of his or her
property, he acts unreasonably.82 It regulates the way in which conflicts
between neighbours in the use of their entitlements can be resolved and
creates a balance between the rights of the owner and the interests of the
neighbour.

As a general rule neighbour law comprises common law restrictions

relating to nuisance, encroachment, damage of surface waters, lateral
support, trees, overhanging branches, fallen leaves and intruding roots.
These are restrictions or limitations on the exercise of the owner’s
entitlements in ownership, in the interests of landowner or user adjacent
land or nearby land. They are not restrictions on the interests of the
community at large.

In the case of King v Dykes83 MacDonald ACJ laid down the general
principle of an occupier’s duty with regard to his neighbour as follows:

‘When an owner knows that there is a danger present on his land, not placed
there by him, but which he foresees will cause his neighbor damage (natural
danger is not discussed here) , there rests a duty upon him in my view to act as
long as it is reasonably possible to render the danger harmless’ … Whether in a
particular case such a legal duty exists is to be decided in the main by factors
such as those mentioned in Goldman’s case – ‘knowledge of the hazard, ability to
foresee the consequences of not checking or removing it, and the ability to abate
it … and a balanced consideration of what could be expected of the particular
occupier as compared with the consequences of inaction’.

The law of neighbours is based on the principles of reasonableness and

fairness. From the authorities cited above, the principle of reasonableness
means that although landowners, and occupiers of land, can do with their
property as they like, they must exercise their rights with due regard to the
rights of neighbours. The principle of fairness means that landowners can

82 Gien (n 1 above), as translated by Van der Walt & Pienaar (n 2 above) 88.
83 1971 3 SA 540 (RA) 545, quoting from Goldman v Hargrave 1967 1 AC 645.
96 Property law in Namibia

only be held responsible for damage caused to a neighbour in the use of their
land when or where it is fair to expect them to avert the damage in question.
This implies that owners of land are not only liable for any nuisance caused
by themselves but also by others on their property.84 Authorities, however,
draw a distinction between the liability of the actual creator of the nuisance
and the successor in title to the land upon which the nuisance continues to
exist. The liability of the successor is less than that of the perpetrator.
Whereas the criterion for the liability of the latter is a physical possibility, the
acceptable basis of the liability of the former is the failure to take reasonably
practicable steps to prevent the nuisance or the alternative situation
complained of.85

The purpose of this limitation is said to be to harmonise the interests of

neighbours and to strike a balance between the respective rights and
interests of neighbours.86

5.4.4 Nuisances

Silberberg and Schoeman are of the view that in the sphere of neighbour
relations in our law, nuisance:

includes ... conduct whereby a neighbour’s health, well‐being, or comfort in the

occupation of his land is interfered with (also referred to as annoyances) as well
as the causing of actual damage to a neighbour

With regard to annoyance they say:

(I)t has been regarded that an annoyance amounts to an infringement to a right

of personality namely the right of the neighbour to have an unimpeded
enjoyment of his land. On the other hand it has been suggested that the right
infringed may be the right of ownership itself.87

This definition draws a distinction between interference with personality

rights and patrimonial rights, which amounts to a diminution in utility. This
distinction can also be found in the definition by Van der Walt &Pienaar. In
their definition of nuisance they refer to the first part of Silberberg’s
definition as nuisance, in the narrow sense, and in this regard they define
nuisance as follows:

[N]uisance in the narrow sense consists in an infringement on the neighbour’s

use and enjoyment and use of his land which constitute an infringement of
personality right (for example his health) or an entitlement of use (for instance
his right to the undisturbed enjoyment of his property) by means of noises,
smells, gases, etc.

84 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) 116‐7.
85 Regal (n 84 above) 116.
86 Van der Walt & Pienaar (n 2 above) 88.
87 Badenhorst et al (n 3 above) 111.
 Chapter 5: Ownership 97

They define nuisance in the wider sense as: ‘consisting in the

infringement of the neighbours exercise of entitlements in general, or actions
by the neighbouring owner or occupier that cause damage’. They maintain
that: ‘in such circumstances compensation can be paid or the infringement
can be prohibited by means of an interdict’.88

The primary requirement to establish nuisance in the sense of

annoyance, nuisance in the narrow sense, is the standard of the reasonable
user. In applying this standard the question to be answered is whether a
reasonable man finding himself in the position of the complainant would
have tolerated the nuisance. Reasonableness is therefore a variable criterion
but from the authorities, one can deduce some established requirements to
determine what amounts to reasonableness and what interference would be
regarded as nuisance.

The first criterion relates to the continuing nature of the nuisance.

Nuisance in the sense of an annoyance denotes a continuing wrong so that an
isolated infringement would, as a general rule, not found a cause of action
unless there is a reasonable suspicion that it will be repeated.89

The second requirement relates to the acceptable degree of tolerance as

laid down in the case of Prinsloo v Shaw.90 In this case the plaintiff brought an
action for an order restraining or indicting Prinsloo (the respondent) from
causing or committing a nuisance on his property or from allowing or
permitting other persons to cause or commit a nuisance on the property by
conducting or holding religious or other services or exercises accompanied by
very loud and strident singing and yelling, singing in a monotonous whine and
chant, frenzied praying, stamping of feet, clapping of hands and groaning, all
in such a manner that the applicant and his family were seriously
incommoded, disturbed, disquieted and interfered with, their comfort
seriously diminished and the value of applicant’s property diminished. In the
supporting petition the applicant applied in the alternative for a temporary
interdict pending action.

The court set out the law as follows:

A resident in a town and more particularly a resident in the neighbourhood, is

entitled to the ordinary comfort and convenience of his home, and, if owing to
the actions of his neighbour he is subjected to annoyance or inconvenience
greater than that to which a normal person must be expected to submit in
contact with his fellow‐men, then he has a legal remedy. The standard taken
must be the standard not of the perverse or finicky or over scrupulous person,
but that of a normal man of sound and liberal taste and habits.91

88 Van der Walt & Pienaar (n 2 above) 89‐90.

89 Badenhorst et al (n 3 above) 111.
90 1938 AD 570.
91 At 575.
98 Property law in Namibia

In the case of Laskey & Another v Showzone CC & Others92 the court
stated that the factors which have been regarded as material in determining
whether the disturbance is of a degree which renders it actionable, include,
where the disturbance consists in noise: the type of noise, the degree of its
persistence, the locality involved and the times when the noise is heard. The
test is an objective one in the sense that not the individual reaction of a
delicate or highly sensitive person who truthfully complains that he finds the
noise to be intolerable, is to be decisive, but the reaction of ‘the reasonable
man’ ‒ one who, according to ordinary standards of comfort and
convenience, and without any peculiar sensitivity to the particular noise,
would find it, if not quite intolerable, a serious impediment to the ordinary
and reasonable enjoyment of his property.

Even though Laskey dealt with interpretation and application of the

provisions of a particular piece of legislation, the Noise Control Regulations
made by the Provincial Minister in terms of section 25 of the Environment
Conservation Act 73 of 1989, the test laid down is of general application in
accordance with common law principles.

It has been suggested that some of the factors to determine reasonable

usage include the general character of the area in question or the situation of
the land, the class of the person, the habits of the residents and social
utility.93

The second part of the definition of nuisance, referred to as nuisance in

the wider sense, deals with actions where the alleged nuisance actually
causes patrimonial damage as opposed to an infringement of the right of
personality. If the action for nuisance is based on an unlawful threat to utility
of the land, then the possessor or occupier is entitled to an interdict, and if it
is a diminution in utility, an action for compensation is the appropriate route
to follow. In an action based on patrimonial damage the plaintiff could
institute the actio legis Aquiliae and apply for an interdict, where appropriate.
In the case of nuisance that actually causes patrimonial damage the plaintiff
will have to establish the five elements of delict and claim for compensation
and an interdict where relevant, to stop or abate the alleged nuisance, if it still
exists.

It was indicated in Regal that in an action based on nuisance culpa

(culpability or fault) is not a requirement if the remedy sought is an interdict.
The court left open the question whether culpa would be required for a claim
of damages but in an obiter Steyn CJ and Rumpff JA indicated that any case
based on damage caused to one landowner by the unreasonable use of

92 2007 (2) SA 48 (C).

93 See Laskey (n 92 above); Badenhorst (n 3 above) 112; Du Bois (n 80 above) 479; and
Gibbson v South African Railways and Harbours 1933 CPD 521 at 531.
 Chapter 5: Ownership 99

neighbouring property must be decided on the basis of Aquilian liability for

which culpability in the form of negligence or intent is required.94

In Regal95 the appellant, in his declaration, alleged that the previous

owner of the respondent’s land, which bordered on his, in quarrying for slate,
had left slate waste where the flood waters of the Elands River could reach it;
that it had been washed to the bed of the river on the appellant’s ground; and
that the respondent had failed to take the necessary steps to deflect the
further carrying of slate by flood waters from his land to the appellant’s land.
The appellant had alleged that he had a right to an order forbidding the
respondent to continue or renew the nuisance and had asked that the
respondent should be prevented by way of an interdict from allowing the
slate waste to be washed by the river water across the boundary between the
two farms towards appellant’s land.

The court held as follows:

(1) English law of nuisance had not been substituted for our law and it was
necessary to investigate our own common law sources.
(2) If it was reasonably practicable to avert the still threatened damage by a
wall on the respondent’s – not appellant’s – land, then the failure to do so would
be unlawful and then the appellant would have a basis for a petition for an
interdict and possibly also for a claim for compensation for damage which he
might suffer but that the appellant had failed to show that the erection of a wall
would be reasonably practicable.
(3) The respondent was liable only for such damage as was caused by his own
use of the Elands River as a conduit pipe for carrying slate waste from his
property onto appellant’s property. To grant the order prayed for would be to
equate the respondent’s liability to that of his predecessor and to disregard
these considerations of fairness and equity which were the bases of the law
between neighbours.
(4) The respondent would, during the duration of his ownership, be liable to
the appellant for damage, which might be caused by the slate waste on the
appellant’s land, and the appellant was not entitled to the interdict asked for to
prevent damage.
(5) The only acceptable basis of liability was a failure to take reasonably
practicable steps to prevent the situation complained of, and the appellant had
failed to show that the matter complained of could have been prevented by
reasonably practicable measures.

Ogilvie Thompson JA observed that the situation thus created by the

respondent’s predecessor continued to exist and held that, under
circumstances such as those present in this case, the law ought to attach
some liability to the respondent, as the owner occupying the land whence the
invading slate debouched and would continue to debouch upon the

94 See also Dorland & Another v Smits 2002 5 SA 374 (C).

95 n 84 above.
100 Property law in Namibia

appellant’s land, which appear to be eminent. The vital question for decision,
however, was about the extent and scope of that liability which does not
depend upon negligence. The court held that the liability to be attached to
the respondent was not absolute as it was distinguishable from the liability of
the creator of the opus manufactum, the respondent’s predecessor. Having
regard to the cardinal fact that the apprehended slate invasion had not been
caused by or contributed to by any positive act on the part of the respondent,
the latter could not be burdened with an absolute liability. In determining
liability in cases of nuisance the court must therefore distinguish between the
liability of the actual creator of the nuisance and that of the successor in title
to the land upon which such a nuisance continues to exist, as the liability of
the successor is regarded as less than that of the perpetrator.

With regard to nuisance involving actual infliction of patrimonial damage,

the test is also one of reasonableness. The main factor that has to be taken
into account is that of the ordinary and natural user.96 In the case of
Malherbe v Ceres Municipality,97 in an action for an order directing the
defendant Municipality to abate a nuisance caused by three oak trees located
or situated on its property directly opposite a building on the plaintiff’s
property the plaintiff had averred that the said trees constituted a nuisance
in the sense that:

(1) the leaves from the trees had blocked the gutters of his building causing the
walls to be damaged and damp from rainwater; and
(2) the roots of the trees had damaged the foundations and walls.

It was held that the planting of oak trees alongside streets of towns and
villages in the western province was to be regarded as putting such streets to
their natural and ordinary use. It was held further that if leaves from such
trees were blown onto neighbouring properties, then the owners thereof had
to tolerate the natural consequences of the ordinary user of the street by the
defendant. In the same case it was stated that the consequences of the
ordinary user by an owner of his land could not be regarded as an unlawful
obstruction of his neighbour’s land. An owner cannot object to leaves and
acorns from oak trees falling on his property when he allowed such tree
branches to hang over onto his property. He has an option either to allow the
overhanging branches or to ask the owner to cut the branches.

The court further held that if leaves from such trees were blown onto
neighbouring properties, then the owners thereof had to tolerate the natural
consequences of the defendant’s ordinary use of the street. Moreover, the
damage which the plaintiff complained of was due to his negligence to
disburse a small sum annually to have his gutters cleared. Finally, the court
held that the plaintiff was not entitled to an interdict in respect of the leaves

96 Badenhorst et al (n 3 above) 114.

97 1951 4 SA 510 (A).
 Chapter 5: Ownership 101

which fell on his roof from the overhanging branches in the absence of an
allegation and proof that he had asked the defendant to remove the branches
which hung over his property and that the defendant had failed to do so.

As indicated above, the remedies available to the plaintiff in the event of

nuisance include an action for an interdict and the actio legis Aquiliae under
the law of delict. To obtain an interdict, one does not have to establish culpa
(fault) but under the actio legis Aquiliae, being a delictual action, the plaintiff
has to establish the five requirements of delict, namely: an act or omission;
unlawfulness of such act or omission; intent or negligence (culpa); causality
or causation; and the actual damage incurred.

5.4.5 Lateral support

One of the entitlements of a landowner is the power to excavate the soil of

his land, in particular, though not only, for building and mining purposes. This
power is limited by the owner’s duty not to withdraw the lateral support
which the land affords to adjacent land. A landowner is entitled to the
support provided to his or her land by the neighbour’s land. A neighbouring
owner is therefore obliged to use the land in such a way that lateral and
surface support of adjoining land are not disturbed by excavations for
building or mining purposes. The obligation to lateral support does not have
a clear common law origin and is a South African development influenced by
English law.98

The obligation refers to the support provided by the land for adjoining
pieces of land. In other words, damage to structures affixed to adjoining land
does not provide the owners of the land with any type of remedy. It is
furthermore an inherent characteristic of landownership that a landowner is
entitled to the support of his or her land by the support of a neighbouring
owner’s land in its natural state.99 The duty of lateral support is not confined
to owners of private land. It is also imposed on public corporations and other
bodies so that a municipal authority which makes an excavation and causes a
subsidence of privately owned land cannot, as a general rule, avoid liability
for damages on the ground that it has acted within its statutory powers.100

This power and the corresponding duty have been defined in Demont v
Akals’ Investments (Pty) Ltd & Another 101 as follows:

An owner of land is normally entitled to expect and to require from land

contiguous to his own such lateral support as would suffice to maintain his land
in a condition of stability if it were in its natural state. A landowner can, of
course, alter the condition of his land, for example by excavating or building on

98 Van der Walt & Pienaar (n 2 above) 92.

99 Van der Walt & Pienaar (n 2 above) 92‐93.
100 Kleyn et al (n 23 above) 179.
101 1955 2 SA 312 (N) 316.
102 Property law in Namibia

it, but he cannot normally, by the mere fact of doing that, acquire greater or
different rights to lateral support. His basic rights, apart from contract or
(possibly) prescription, etc., remain the same whatever he may choose to do
with his land … They are rights ancillary to his ownership, and they are enjoyed
reciprocally by him and by all owners of contiguous land; and, while they exist
unimpaired, any infringement of them by the withdrawal or disturbance of
lateral support furnishes him with a cause of action. Looking at it from the other
owner’s point of view, unless he has acquired a right to do otherwise, he cannot
with impunity execute upon his ground works which have the effect of reducing
the above‐mentioned quantum of lateral support; and, if he does execute such
works, he is liable for the damage, if any, so caused. The duty to refrain from
causing this kind of damage normally corresponds with the basic rights
possessed by owners of contiguous ground, and, it would seem, is absolute. And
so, in proceedings for relief under this head, it would appear, in general sufficient
for the plaintiff to allege that, in fact, the defendant has withdrawn or interfered
with the lateral support of his land to an extent which infringes his basic rights,
and that this has produced damage. It is unnecessary for him to allege any
specific details of negligence.

As a general rule the question whether or not a subsidence is caused by intent

or negligence is irrelevant. Liability for damage suffered as a result of loss of
lateral support is, therefore, strict. The mere fact that the defendant took
what appears to be reasonable precautions will not deprive the plaintiff of a
claim for damages.

The principles relating to lateral support were explicated in the following

decisions.

Demont v Akals’ Investment (Pty) & Another 102

The plaintiff, Rose Demont, sued the defendants jointly and severally. She
owned a house in Durban. Her cause of action arose from the fact that the
first defendant, being the owner of a piece of land next to her house,
employed the second defendant and caused the second defendant to
construct a building on the first defendant’s piece of land next to the
plaintiff’s house. In the course of making excavations for that building the
second defendant removed earth from the vicinity of the plaintiff’s dwelling
house and negligently deprived it of lateral support from the first defendant’s
land. As a result, the foundations of the plaintiff’s house subsided, the walls
cracked and the building was condemned by the Durban Corporation and
became a total loss causing the plaintiff to suffer damage. The defendants did
not deny the damage but in their pleas argued that the plaintiff had in a
contract agreed to ‘release’103 the defendants’ subject to the payment of 300
pounds. This was the subject matter before the court. Selke J104 said the
following:

102 As above.
103 Demont 313.
104 Demont 316.
 Chapter 5: Ownership 103

[W]hether or not by executing the release the plaintiff precluded herself

thenceforth from claiming for damage caused to her property by the negligence
of the defendants in connection with the erection of the buildings.

As from 316 the court gives an outline of the law and a conclusion which can
be summarised as follows:

An owner of land is normally entitled to expect and to require from land

contiguous to his own, such lateral support as would suffice to maintain his land
in a condition of stability as if it were in its natural state.
A landowner may alter the condition of his land, for example by excavating or
building on it but he may not normally, by the mere fact of doing that, acquire
greater or different rights to lateral support. His basic rights, apart from possible
alteration through contract or, possibly prescription, remain the same whatever
he may choose to do with his land.

Rights to lateral support are ancillary to the right of ownership and they are
enjoyed reciprocally by a landowner and all owners of contiguous land. While
they exist unimpaired, any infringement of them by the withdrawal or
disturbance of lateral support furnishes the landowner with a cause of action.

From the point of view of the owner of adjacent land, unless he or she has
acquired a right to do otherwise, a landowner cannot with impunity execute
upon his ground works which have the effect of reducing the above‐
mentioned quantum of lateral support; and if he does execute such works, he
is liable for any damage if any, so caused. The duty to refrain from causing this
kind of damage corresponds with the basic rights of the owners of contiguous
ground and is absolute. The court dismissed the plaintiff’s claim based on the
finding that the document of ‘release’ had relieved the defendants from
liability for the kind of damage claimed in the action.

If lateral support of land is disturbed by excavations made by the

neighbouring owner, this owner is obliged to pay compensation. It is not
necessary to prove culpability in the form of intent or negligence, since the
very activity by means of which the lateral support was disturbed and damage
ensued, entitles the disadvantaged landowner to compensation. It is a form
of strict liability and the only requirement is that damage must have been
caused through the disturbance of the land as a result of the neighbouring
owner’s activities. In the circumstances of this case, however, the claimant
did not succeed with his compensation claim, because he had previously
exempted the defendant from his obligation to pay the compensation.

Gijzen v Verrinder105
The plaintiff and the defendant lived on adjoining properties. In 1956 the
defendant caused excavations to be made on his property near the boundary
line between the two properties. The plaintiff averred that by reason of these

105 1965 1 SA 806 (D) 811.

104 Property law in Namibia

excavations his ground was deprived of lateral support and that, as a result
continuous subsidence occurred on his land thereafter. The defendant had
attempted to build a wall on the common boundary to prevent further
subsidence but with little or no success. On the other hand, the defendant
admitted to the excavations but denied that they had caused any subsidence
on the plaintiff’s land in breach of the common law duty to provide lateral
support. The defendant further argued that the plaintiff was not entitled to
such support of his property from the adjacent property because it was not
in its natural state by reason of the erection of buildings and structures on it
(This defence was later abandoned). However, in claims in reconvention the
defendant alleged that the plaintiff had also caused subsidence on the
defendant’s land when the plaintiff had constructed a garage whose
construction had the effect of removing from his land the lateral support to
which he was entitled.

Hennings J said that the question to be considered was ‘whether the

defendant deprived the plaintiff of lateral support resulting in damage’.106

At the outset it is pointed out that a landowner’s right to lateral support

from adjacent land is a right given in the nature of things. The judge noted
that the defendant excavated right up to the boundary line and in so doing
effectively and directly impaired the stability of the plaintiff’s property, a
direct consequence of which was that in the normal course of events the
plaintiff was bound to lose some of his soil. In this regard the judge remarked
as follows:

I do not think that subsidence in the sense of falling down, collapsing or caving in
of land, is the only circumstance which would warrant a plaintiff having a cause
of action based on the removal of lateral support … [I]t would be unrealistic to
confine the right of action to circumstances in which loss is occasioned in this
particular manner. I can see no distinction between a situation where, following
upon the removal of lateral support, lumps of soil fall down during a rainfall and
a situation where the soil is gradually eroded by rain water.107

The judge went on to say that there was no magic in the word subsidence.108
It was further said that in each of the instances postulated there would be a
disturbance of the natural surroundings of the ground because of the
removal of lateral support.

The judge categorically stated that the defendant had deprived the
plaintiff of a right to lateral support to which he was entitled and in
consequence thereof the plaintiff suffered loss.109

106 At 810.
107 At 811.
108 As above.
109 At 811. In subsidence cases there is usually no unlawful act and the cause of action is
damage and damage only. In this respect they are distinguishable from cases based on
negligence in which the cause of action is an unlawful act plus damage and where, as soon
as the damage has occurred, all damages flowing from the act can be recovered, including
 Chapter 5: Ownership 105

In ruling in favour of the plaintiff, the judge averred that on the evidence
as a whole, the measures taken by the defendant fell well short of the extent
of lateral support which the plaintiff’s land had before the excavation was
made.110

The claimant need not prove culpability or unlawfulness but merely that
damage was caused by the removal of lateral support by the defendant.
Future damage cannot be claimed, but future disturbance can be prohibited
by means of an interdict.

Foentjies v Beukes111
In this case it was decided that the disturbance caused by the damage
violated the claimant’s use and enjoyment of his land and the claim was
therefore based on violation of a right (entitlement) resulting from the
ownership of the land and not a delict. The calculation of compensation is not
based on a delict, where the value of the property before and after the
disturbance is compared but on determining the cost of the restoration of
lateral support and repair of the damage.

East London Municipality v South African Railways and Harbours112

The plaintiff desired further ground for the construction of an electric power
station and entered into an agreement with the defendants in 1946. Under
this agreement, the plaintiff and defendants exchanged certain lands. The
plaintiff was to get an area within a quarry owned by the defendant and the
transfer of this land was to take place only after the defendant had levelled
the quarry at its own expense. The defendant commenced to level the quarry
in a southerly direction towards a road called Nuffield. In 1948 when the
defendant had levelled a substantial part of the quarry, a subsidence of a rock
occurred. This subsidence was preceded by cracks appearing on the Nuffield
road and as a result of this cracking and subsiding, a portion of the Nuffield
road had to be diverted and the electric cables had to be re‐laid, all at extra
costs to the plaintiff. The plaintiff instituted a claim to recover these costs but
the defendant denied liability. This was the issue before the court.

The plaintiff’s main cause of action is put up as follows:

[T]here was a duty or obligation resting on the defendant not to remove any
lateral support necessary, that this duty arises apart from any question of
negligence, and by reason of breach of this duty the damage complained of
occurred. The second is that in any event defendant was under a duty to exercise

109 prospective damages. In subsidence cases prospective damages are not recoverable and
each successive subsidence, although proceeding from the original act or omission, gives
rise to a fresh cause of action, the cause of action not being the act which caused the loss.
110 At 813.
111 1977 4 SA 964 (C).
112 1951 4 SA 466 (E).
106 Property law in Namibia

proper care in the levelling, that in breach of this duty there was negligence on
the part of the defendant, and that this caused damage.113

Reynolds J coined the issue of lateral support in a very simplified manner:

‘What was the duty of support, if any, to Nuffield road?’114

The court held inter alia that it could not be denied that the cause of
subsidence in the quarry, which in turn caused the deviation on Nuffield road,
was the operation of the defendant in quarrying out the portion it was
levelling. The judge went on to enquire as to whether the defendant owed
absolute duty not to remove lateral support to Nuffield road, and the court
said that this was purely a question of support due from land to land and not
buildings.

The court ruled inter alia that the right of a landowner to lateral support
from adjacent land is well recognised in our law and it rests on the foundation
that it is not so much a principle as a right given the nature of things.115

It was further held, that an owner of land, who had granted the
municipality and the public in general a public road over his property, must
be regarded as having included as part of the grant the right to such lateral
support as was required to enable the road to continue to function after it
came into existence.116

The court cited with approval Humphries v Brogden117 where mining had
caused the collapse of a surface which was owned by one person and
although there was no evidence of the actual terms of the grant, it was held
that the owner of the surface was entitled to have it supported by the
subjacent mineral strata.

In East London Municipality118 it was held, that by the creation of a public

road in 1931 a duty had been imposed on the defendant not to remove any
lateral support which would affect the road in a manner in which the
quarrying had affected that portion of the road constructed on the property
of the plaintiff. It was held that where a party makes an actual grant involving

113 At 471.
114 As above.
115 At 473. If that is so, it is difficult to see why persons having some vested interests in the
land should not be entitled to properly enjoy, within the limits of their vested right, the
benefits in terms of the right given to them, and it is difficult to see why they may not insist
on the right being respected where their enjoyment casts no additional burden on the
property which owes the duty of support.
116 At 474.
117 (1850) 12 QB 739.
118 n 116 above, 475.
 Chapter 5: Ownership 107

lateral support he does so by his own deed and contract and by his own
volition and must intend the consequences of his free action.119

The obligation towards lateral support is only valued for the land in its
natural state and not for the erection of fixtures or buildings. Therefore, if
excavations on neighbouring land cause damage to neighbouring buildings
the owner of the land on which the structures have been erected cannot
claim compensation. This principle is only valid, however, when the fixtures
caused an encumbrance regarding the natural state of the land. Natural state
means that the land to be supported is in such a state at the time of the
withdrawal of support that no extra (unnatural) burden that was placed there
artificially was necessary to increase the amount of support in order to avoid
any subsidence.

When this is not the case, compensation regarding fixtures like an

orchard can be claimed. To prevent problems in urban areas, building
regulations regarding the support of buildings have been formulated.

5.4.6 Series of successive subsidences

This phenomenon occurs where the same acts or omissions result in a series
of successive subsidences, or where there is an interval between the
withdrawal of the support and the occurrence of the subsidence or
subsidences resulting from the withdrawal of the support. For the purpose of
deciding whether or not a claim for damages has become prescribed, it is
therefore necessary to eliminate the stage at which the cause of action
accrues. It was held in John Newmark & Co (Pty) Ltd v Durban City Council120
that where a claim was made for damages in respect of subsidence resulting
from the removal of lateral support, it was the act causing injurious
consequences which gave rise to the cause of action ‘but the cause of action
does not accrue until the actual damage exhibits itself and prescription does
not commence to run until then’.121

5.4.7 Encroachment

There are two types of encroachments, encroachment from buildings and

encroachment from branches and roots of plants planted on the
neighbouring land.

119 At 477. If A and B own adjacent land where some natural support is required from the land
of A for the support of the land of B, then A can without permission from B excavate on his
land so long he does not remove the amount of natural support required. But If A
approached B and asked for permission to excavate within a stipulated distance from the
boundary of B, and received that permission, then it may be argued that B has released his
right of support pro tanto because A comes to him for permission to do something he (A)
could not lawfully do without that permission.
120 1959 1 SA 169 (N).
121 Kleyn et al (n 23 above) 179.
108 Property law in Namibia

One relevant entitlement of ownership embodied in the maxim cuius est

solum eius est usque ad coelum et usque ad inferos is that the landowner’s
entitlements extend into the air above the land and into the earth below the
land. However, these entitlements are subject to both statutory and common
law limitations.

Under the provisions of the Town Planning Ordinance 18 of 1954, every local
authority is required to prepare a town planning scheme for the development
of the local authority area. Under section 19(1) of the Ordinance, a scheme
with respect to buildings and building operations may contain provisions:
prescribing the space about buildings; limiting the number of buildings; and
regulating or enabling the local authority to regulate the size, height, design
and external appearances of buildings.

In terms of the common law relating to encroachment, a duty is imposed

upon every landowner not to wrongfully deprive or interfere with his
neighbour’s possession of the land. Therefore, a landowner must not cause
his building to project over his neighbour’s property. Projection of buildings
may be in the nature of foundations of buildings, roofs, balconies and sign
boards. The restriction is that these must not protrude from the land owner’s
land into the air space or the adjacent land which belongs to another owner.
Restrictions therefore relate to both vertical and horizontal structures.

Where a neighbour’s land has been unlawfully encroached upon, the

remedies available to the owner of the land which is encroached upon are the
following:

(a) an application for a court order compelling the neighbour to remove the
encroachment (removal);
(b) an award of compensation to the owner (compensation);
(c) transfer of the encroaching section to the encroacher and compensation to
the owner (transfer and compensation); and
(d) termination of occupation of the encroaching section by the encroacher and
compensation by the owner to the encroacher (termination and
compensation).122

These remedies will now be discussed in some detail.

5.4.7.1 Removal

In the case of Smith v Basson123 Coetzee J in tracing the rationale for this
remedy explained that encroachment amounts to inaedificatio or industrial
accession, and that an essential difference exists where the building is not
erected wholly on the ground of another but partly on the builder’s own

122 Van der Walt & Pienaar (n 2 above) 94.

123 1979 1 SA 559 (W).
 Chapter 5: Ownership 109

ground and encroaches on the ground of another. In this case, the law cannot
regulate the rights of the neighbour on the same simple basis as an
implantatio where by virtue of his acquired ownership he enjoys a free hand.
Unlike plants that are part of the structure which is on the neighbour’s land it
is still an integral portion of the whole which is not his property. It cannot
simply be demolished. It is treated rather as a trespass by the owner of the
building, giving rise, logically, to the action for removal of the encroachment.
This action flows from the duty to respect the neighbour’s possession of what
belongs to him or her or interfere therewith but the authorities nowhere
support the view that this is applicable to implantatio.

Hence, the owner of the land which is encroached upon may demand the
encroacher to remove the encroaching parts of the building or can approach
the court for an order compelling his neighbour to remove the
encroachment. He may not remove them himself.

5.4.7.2 Compensation

The owner of the land which is encroached upon may dispense with the right
to demand removal and demand an award of compensation in circumstances
where the award of compensation is more reasonable and equitable and
especially in circumstances where the facts of the case clearly indicate that
the innocent party is prepared to accept monetary compensation. In the case
of Trustees of the Brian Lackey Trust v Annandale124 the plaintiffs were the
owners of erven 880 and 881, Laaiplek, on the Cape West Coast. The
defendant owned the adjacent erf 878. The plaintiffs had acquired their
property at a purchase price of R140 000 per erf while the defendant had
purchased his erf for R130 000. All three stands were vacant upon purchase.
Subsequently, a luxury home was designed for the plaintiffs and a building
contract concluded. The contract price stipulated in the building contract was
in excess of R3 million. The intention was that the building would straddle
erven 880 and 881. After building operations had progressed to quite an
advanced stage, an inspection by a building inspector revealed that the
building was not straddling erven 880 and 881 but erven 880 and 878. It was
common cause that the structure covered approximately 80 per cent of the
surface area of erf 878, the defendant's property, rendering that property
completely useless to the defendant in that state. The plaintiff offered to
purchase the defendant's property at a price of R250 000. The defendant
refused to accept the offer and instead demanded the removal of the
encroaching structure. The dispute between the parties resulted in the issue
of a summons on behalf of the plaintiff claiming an order declaring that the
defendant was not entitled to the removal of the encroaching structure
subject to the payment of damages as determined by the court. The
defendant counterclaimed, claiming an order for the removal of the
encroaching structure and the restoration of the property to its original

124 [2003] 4 ALL SA 528 (C).

110 Property law in Namibia

condition. The main issue to be considered was whether the court had the
discretion to order what amounted to an involuntary deprivation of property
in those circumstances. Griesel J stated that despite the rule to demand
removal, the court can, in its discretion, in order to reach an equitable and
reasonable solution, order the payment of compensation rather than the
removal of the structure. This discretion is usually exercised in cases where
the costs of removal would be disproportionate to the benefit derived from
the removal. If the court considers it equitable it can order that the
encroaching owner take transfer of the portion of the land which has been
encroached on. In such circumstances the aggrieved party is entitled to
payment for that portion of land, costs in respect of the transfer of the land
as well as a solatium on account of trespass and involuntary deprivation of
portion of his land.

The court added that it was abundantly clear that there would be a
striking disproportionality of prejudice if a demolition order were to be
granted, as opposed to the position if damages were to be ordered. Apart
from the direct costs of demolition (approximately R100 000), the bulk of the
building costs incurred by the plaintiff to date (approximately Rl.75 million)
would be wasted. Moreover, in the intervening two years since the original
building operations commenced, building costs had escalated by more than
30 per cent, with the result that the same house would then cost more than
R4 million to build. In addition, there was likely to be further intangible
prejudice, for instance, the inconvenience of a lengthy delay before eventual
completion. As against the plaintiff's prejudice the defendant would
undoubtedly also suffer prejudice, in that he would inevitably lose his
property if a demolition order were refused. However, it was clear that this
would not have nearly the same disastrous consequences for the defendant
as demolition would have for the plaintiff. Because he had only acquired it
some two years before the problem arose, having disposed of his previous
(similar) property in the same development at a very handsome profit within
a period of only six months after purchase, he had as yet made no concrete
plans to develop the property in question.

The court’s discretion to award monetary compensation as opposed to

an order for removal was premised on considerations of reasonableness,
equity, disproportional prejudice and principles of neighbour law, which find
application where the circumstances of the case indicate that the innocent
party is prepared to pay compensation.

5.4.7.3 Transfer and compensation

From the case of Meyer v Keiser125 it is evident that an owner whose land has
been encroached upon may demand that the encroaching owner take
transfer of the encroaching portion upon which he has built against payment

125 1980 3 SA 504 (D).

 Chapter 5: Ownership 111

by the encroacher of compensation including all costs of transfer, costs of

survey and diagram. This is an additional order to the payment of
compensation. The encroaching owner however cannot claim transfer of the
whole property on which the encroachment took place against payment.

5.4.7.4 Termination and compensation

Another remedy available to the owner whose land has been encroached
upon is that he may have the builder ejected from his land subject to the
payment of compensation to the encroacher for the enhanced value of the
land. This remedy is only available when the building is complete.126

Different forms of encroachments in respect of which neighbour law has

been applied by the courts will now be discussed.

Trees, overhanging branches and intruding roots

The principle of law relating to circumstances where trees, branches and
leaves of plants encroach on the air space above a landowner’s land or the
roots of plants encroach on the land under the surface of the neighbour’s
land was explained in Smith.127 In this case Coetzee J pointed out that, unlike
in the case of an encroaching building, overhanging branches or roots which
have spread to the neighbour’s land may be chopped off on the boundary if
their owner has refused to do so after a request therefor has been made to
him. He may compel him or her to remove them by means of a mandatory
interdict, or chop them off himself. However, he may not keep them unless
their owner (that is, the owner of the trees) consents or fails to remove them
within a reasonable time after demand. In Malherbe v Ceres Municipality128
where leaves from oak trees planted by the defendant on a public street had
blocked the gutters of the plaintiff’s house, it was held that the plaintiff was
justified in demanding that the branches overhanging his property should be
trimmed but he was not entitled to an interdict as he had not previously
called on the defendant to lop off such branches. Furthermore, it was held
that if the owner of land allows the overhanging branches to remain, he
cannot compel the owner of the trees to remove the leaves and acorns which
fall from the branches on to his land. Where there has actually been a building
and planting on the neighbour`s land a difference in available remedy exists.
In both cases the owner of the land becomes the owner of what has acceded
to it through inaedificatio or implantatio in accordance with the rules
superficies solo cedit.

In the case of implantatio ownership of the plant is acquired only after it

has taken root. There is, however, a difference in remedies. Once the plants
have taken root and have become the property of the owner of the soil, he

126 See also Glaston House (Pty) Ltd v Cape Town Municipality 1973 4 SA 276 (C).
127 n 123 above.
128 1951 4 SA 510 (A) 518.
112 Property law in Namibia

may do with them what he likes including destruction, unless the land is in the
bona fide possession of the person who planted them. If trees are planted so
close to the boundary of land that their branches intrude into airspace of
adjacent land, the owner of such adjacent land may insist on such branches
being lopped by the owner of the trees.

Party walls and fences

Party walls and fences refer to built structures like fences, shrubs, foliage or
trees separating two properties and the law laid down in the case of De
Meillon v Montclair Society of the Methodist Church of Southern Africa129 is
that the two neighbours own a common boundary. It is irrelevant whether it
was erected by one or both of them. Both neighbours in co‐ownership own it
and, generally speaking, each can prevent the other owner from demolishing
any part of the common wall. The common wall cannot be demolished
without the consent of the other but if in the case of changes or construction
that might cause changes to the common boundary, then the law is that if
what is being constructed is a substantial improvement on the original
structure, then the neighbour can act without the consent of the other. In the
Namibian case of Passano v Leissler130 Maritz J citing Voet Commentarius ad
Pandectas131 stated that if the wall intermediate between two adjoining
erven is proven to be a party or common wall, the law vests a number of
rights in and imposes an equal number of obligations on the neighbouring
owners. Among them are the rights of the owners of the two adjoining
properties that the one may not, without the consent of the other, pull down
the common wall unless the demolition becomes absolutely necessary for the
protection of both properties. The court further held that not only may the
one landowner interdict the unlawful demolition of a party wall but also
require the offending neighbour to repair any damage caused to the wall in
the process.

Drainage of surface water

The law in this regard was laid down in the case of New Heriot Gold Mining Co
Ltd v Union Government (Minister of Railways and Harbours)132 in which it
was held that, with the exception of entitlements in terms of a servitude, no
one is entitled by means of artificial works to discharge upon a neighbour’s
land water which would not naturally flow there or, similarly, to concentrate
and increase the natural flow to the detriment of a neighbour. This principle
is not applicable when the discharge and the concentration are caused by
works which are carried out in terms of statutory authorisation, provided that
reasonable precautions have been taken to prevent injury or damage. If the
natural flow of water is disturbed in either of these ways, the aggrieved party
is entitled to two remedies: the actio aquae pluviae arcendae and the

129 1979 3 SA 1365 (D).

130 2004 NR 10 (HC).
131 8. 2. 15‐17.
132 1916 AD 415 421. See also inter alia Voet 39.3.2.
 Chapter 5: Ownership 113

interdictum quod vi aut clam. The actio aquae pluviae arcendae is an

interdict, which either orders the higher‐lying landowner to remove the
obstruction, or forbids him or her to erect such structures in future. These
remedies are available where the normal flow of water is disturbed in the
interests of agriculture;133 where the plots concerned are situated in an
urban and not in a rural area and considerable disturbance of the natural
topography by building has altered the flow of water; and where artificial
structures are erected under statutory powers. The interdictum quod vi aut
clam is an action for compensation and is available to the owner of a lower‐
lying tenement for damage caused by a change of the natural flow of surface
water. The aggrieved party need not prove fault on the part of the upper
owner but must prove that an obstruction has been erected by force or
secretly, causing unwarranted volumes of water to be discharged on the land.
However, no liability arises where the obstruction has been erected in the
interests of agriculture. The interdictum is available against a neighbouring
owner and also against any person who erected or approved the erection of
the obstruction, or obtained possession of the structure. Even if the
landowner has not erected the structure himself or herself, they must allow
the removal thereof.134

6 Conclusion and observations

As part of the introduction above, reference was made to the element of

apparent absoluteness pertaining to a real right. However, this concept of
absoluteness is fictional. The need for harmonious relationships between the
holder of the right of ownership and the other members of the community
necessitate the imposition of restrictions under both public and private law
on the exercise of the entitlements of ius fruendi.

133 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 171; Regal (n 84 above)
107.
134 Du Bois (n 80 above) 486‐7.
 6
ACQUISITION OF OWNERSHIP
CHAPTER

1 Introduction

There are two methods of acquisition of ownership, original and derivative

acquisition of ownership. Original acquisition of ownership refers to a
unilateral act by the acquirer without any cooperation from the predecessor
whereas derivative acquisition refers to a bilateral act involving the
cooperation from a predecessor in title.1

2 Original acquisition of ownership

This method of acquisition does not involve the transfer of rights from a
predecessor in title. It recognises the existence of certain factual
requirements leading to conferment of the legal right and title of ownership.
It is a unilateral act by the acquirer without any cooperation with the
predecessor owner and this may occur by occupatio, accessio, commixitio et
confusio, specificatio and acquisitive prescription as opposed to extinctive
prescription.

2.1 Occupatio (appropriation)

Occupatio as an original method of acquisition of ownership may be

described as a unilateral act by which a person obtains physical use over a
corporeal thing which can be owned (res in commercio) but which is not
owned by anyone (the thing is res nullius) and with the intention of becoming
the owner of the thing. The person laying claim to ownership by occupation
must satisfy the following requirements: actual physical control and intention
to control and acquire ownership, animus domini.2 The thing must not be

1 DG Kleyn et al Silberberg and Schoeman’s the law of property 3rd ed (1993) 67.
2 See also chapter 3 above at 8.3.3.

114
 Chapter 6: Acquisition of ownership 115

owned; it must be res nullius or res derelictae and must be in commercio but
at the relevant point in time not be owned.3

Res derelictae are abandoned things or things lost by the owner with the
intention of giving up ownership. A person may claim ownership of such res
derelictae if the following requirements have been met: actual abandonment
of the thing and an intention on the part of the owner to abandon the thing.4

2.2 Treasure

In terms of the law relating to the acquisition of ownership of treasure,

treasure found by a landowner on his or her own land belongs to him or her
as the owner of the land. If an independent person finds the treasure by
accident and not in consequence of a deliberate search, it must be divided
equally between the landowner and the finder.5 The finder is entitled to a
share only if the treasure is movable and valuable, was concealed in the
ground or elsewhere on the land, has been concealed since time immemorial,
and was discovered by accident.

Discovery of a treasure differs from occupation (occupatio) inter alia

because a treasure is not res nullius and because the landowner’s half share
is acquired automatically without any act of occupation on his or her part.
Neither can it be accommodated under accession since the landowner
acquires only half of the treasure.6

2.3 Accession

According to the judgment in Khan v Minister of Law and Order & Another7
ownership is acquired by accession where one movable thing is joined to
another in such a manner as to form one entity of which the original owner
of the principal thing becomes the sole owner. The owner of the principal
thing therefore also becomes the owner of the thing (the bysaak) joined to
the principal thing.8 In order to decide which is the principal thing, a number
of common law rules or guidelines have been devised. However, one test that
was applied in the Khan9 case is the so‐called value test. In terms of this test
the principal thing is the thing that defines the character, form and function
of the ultimate thing.10 In this case, the South African Police had seized a
BMW 320i motor vehicle which, at the time, was in the possession of the

3 R v Mafohla & Another 1958 2 SA 373 (SR); Dunn v Bowyer 1926 NPD 516; S v Frost, S v
Noah 1974 3 SA 466 (C).
4 Minister of Land v Sonnendecker 1979 2 SA 944 (A).
5 F du Bois Wille’s principles of South African law 9th ed (2007) 492.
6 Du Bois (n 5 above) 492.
7 1991 3 SA 439 (T).
8 CG van der Merwe Sakereg 2nd ed (1989) 242.
9 As above.
10 Grotius Inleidinge 2.9.1.
116 Property law in Namibia

applicant. The applicant applied for an order directing the respondent to

return the vehicle. The respondent argued that it was not obliged to return
the vehicle to the applicant in terms of the provisions of s 31(1) of the
Criminal Procedure Act 51of 1977 because it was a stolen vehicle.

The applicant had purchased the wreck of a 1985 model BMW 320i and
then entered into an agreement with the panel beater concerned called
Morris Panel Beaters (Morris) in terms of which the latter would rebuild the
wreck so that it would appear to be a 1988 model and not a 1985 model.
Morris succeeded in doing this by cutting through the 1985 wreck just in front
of the windscreen pillars of the car thereby separating the front and rear
portions of the 1985 model from each other and by then joining the rear
portion of a 1988 model to the front portion of the wreck. The entire car thus
formed was then sprayed the colour of the 1988 portion, namely dolphin
grey.

Expert evidence showed that virtually the entire body of the car was that
of a 1988 model BMW 320i. The only 1985 body components were the inner
portion of the front housing the engine compartment. The outer portions of
the body such as mudguards, bonnet, front fender and the valance were all
those of a 1988 model.

In applying the character, form and function test, the court held that the
vehicle could be regarded as a 1988 model, to which a 1985 engine modified
to conform to that of a 1988 model together with small portions of a 1985
body, had been added. In the circumstances the car could not be regarded as
that of the applicant, because the stolen parts had been added to his 1985
wreck. The court concluded that the car in character, identity, form and
function was the stolen 1988 model. The process of accession is traditionally
classified as natural, industrial or mixed. Each of these will now receive
separate attention.

2.3.1 Natural accession

Natural accession takes place with respect to the following: young animals,
alluvio, avulsio, island arising in a river, and a river changing its course.

2.3.1.1 Young animals

The general principle is that ownership of young animals is vested in the

owner of their mother who prima facie has the right to ius fruendi. Exceptions
to this general principle apply where the mother:

• is in the possession of a person who mistakenly, but bona fide, believes that
he or she is the owner thereof; and
• is the object of the right of usufruct or lease.
 Chapter 6: Acquisition of ownership 117

The mere fact the owner has entered into a contract in terms of which
another person shall have the right to possess and use his or her property
does not ipso facto transfer the ius fruendi in that property. But the parties to
such a contract may of course expressly or by implication vary the general
common law rule.11

2.3.1.2 Alluvio

The process of natural accession by alluvio has been described as a deposit of

earth upon the bank of a (non‐navigable) river so gradually that no one can
perceive how much is added at any specific moment; such deposit is
inseparable from the native soil of the bank and the owner of the latter
acquires the former by right of accession.12

This rule applies only if the land concerned is not delimited land (ager non
limitatus) and bounded by a public river. However, if the boundaries of the
land are artificial or (ager limitatus) then the owner is not entitled to any
addition to the land beyond its boundaries. Agri limitati are lands granted by
the state to private individuals and defined by artificial boundaries, such as
pillars, posts, walls, and fences.

On account of the climatic and ecological conditions of Namibia, most of

the riverbeds are silted up and therefore the process of natural accession is
of particular relevance to Namibia.

2.3.1.3 Avulsio

This occurs when a piece of land is torn off by the force of water and washed
up against another person’s land. The owner of the latter acquires ownership
of that piece of land as soon as it becomes firmly attached to his or her own
land, for example as a result of plants taking root.13

2.3.2 Industrial or artificial accession

Industrial accession refers to the conversion of two or more separate things.

Van Der Walt & Pienaar define this process as follows: the accession of
movables to immovables usually takes place through human activities
whereby a movable is permanently attached to an immovable; the owner of
the immovable (principal thing) becomes the owner of the composite thing
where the movable accessory was permanently attached to the principal
thing, and must in certain circumstances compensate the previous owner of

11 Kleyn et al (n 1 above) 200; see also Tucker v Farm and General Investment Trust [1966] 2
All ER 508 (CA); and Mlombo v Fourie 1964 (3) SA 350 (T).
12 Kleyn et al (n 1 above) 202.
13 Kleyn et al (n 1 above) 203.
118 Property law in Namibia

the movable accessory.14 Instances of industrial accession are building

(inaedificatio), planting and sowing (plantatio et satio).

Each of these forms of accession will be discussed below.

2.3.2.1 Building (inaedificatio)

Inaedificatio denotes a method of acquisition of ownership through the

accession of a movable to an immovable,15 such as buildings, pumps, walls or
other structures becoming part of land in accordance with the Roman
maxims superficies solo cedit and omne quod inaedificatio solo cedit which
mean anything which is built and attached to the soil forms part of the soil.

The accessories which are building materials or structures become part

of the principal thing, for example¸ where the owner of an immovable thing
buys cement and builds a house. The accessory thus loses its individuality and
becomes the property of the landowner of the principal thing by accession.
The test for the existence of inaedificatio, or for a movable to become an
immovable thing, was laid down in the case of Macdonald Ltd v Radin NO &
the Potchefstroom Dairies and Industries Co Ltd.16 In this case Innes CJ said
that the decision whether inaedificatio had taken place depended upon a
consideration of certain elements. He further explained as follows:

As was pointed out in Olivier v Haarhof each case must depend on its own facts;
but the elements to be considered are the nature of the particular article, the
degree and manner of its annexation and the intention of the person annexing it.
The thing must be in its nature capable of acceding to realty, there must be some
effective attachment (whether by mere weight or by physical connection) and
there must be an intention that it should remain permanently attached. The
importance of the first two factors is self‐evident from the very nature of the
inquiry. But the importance of the intention is for practical purposes greater still;
for in many instances it is the determining element. Yet it is sometimes settled by
the mere nature of the annexation.17

The following tests, elements or factors identified by the court will be

discussed in some detail below:

(a) The nature and purpose of the movable thing;

(b) The degree and manner of its annexation to the immovable thing; and

14 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 104.
15 W Freedman ‘The test for inaedificatio: What role should the element of subjective
intention play?’ 2000 117 South African Law Journal 667. See also McDonald v Radin NO &
the Potchefstroom Dairies and Industries Co Ltd 1915 AD 454, C Lewis ‘Superficies solo cedit
– Sed quid est superficies?’ (1979) 96 South African Law Journal 94, Olivier & Others v
Haarhof & Co 1906 TS 497, Pettersen & Others v Sorvaag 1955 3 SA 624 (A), Newcastle
Collieries Co v Borough of Newcastle 1916 AD 561, Standard Vacuum Refining Co of SA (Pty)
Ltd v Durban City Council 1961 2 SA 669 (A), Melcorp SA (Pty) Ltd v Joint Municipal Pension
Fund (Transvaal) 1980 2 SA 214 (W).
16 n 15 above.
17 At 466‐7.
 Chapter 6: Acquisition of ownership 119

(c) The intention with which the movable thing was attached to the immovable
thing.

The first two tests are objective tests and the third one is a subjective test.

(a) The nature and purpose of the movable thing

The movable thing must in its nature be capable of being annexed to an
immovable thing, and thus the purpose of the attachment must be to serve
the immovable thing on a permanent basis. When considering the purpose of
the movable thing the courts sometimes apply the so‐called integration test.
In order to apply this test the question to be determined is whether the
movable thing forms an integral part of an immovable after attachment. If the
movable thing is structurally integrated into the land, or is part of the fabric
of a building, it is likely to be regarded as having acceded to the immovable
through inaedificatio.18 For example, a borehole may be considered as
destined to serve the land. In other words, this criterion relates to the
functionality of the movable thing. For example, in Melcorp19 the court held
that a lift installation satisfied this functionality test because it could be
considered as an integral part of the multi‐storey flat building. However,
because of clause 14 of the contract this inference did not override the
express intention of the plaintiff that the lift installation must be considered
as movable until final payment.20

(b) The degree and manner of its annexation to the immovable

This element implies that if the movable thing is completely incorporated into
the immovable, it becomes part of the immovable. In a similar vein, the
consideration of the manner and degree of attachment entails that one must
determine whether the movable thing can be removed without damaging the
immovable thing. If the movable thing cannot be removed without damage
to itself or the immovable, the courts are likely to regard it as having become
immovable through inaedificatio.21

The objective tests, as discussed above, portray the outward

manifestations of permanent attachment to the public, and are therefore
consistent with the publicity principle.

(c) The intention with which the movable thing was attached to the
immovable
The third element entails an examination as to whether the movable thing
was annexed to the immovable with the intention that it should remain there
permanently. The courts have followed two different approaches in inferring
intention of permanency: the traditional approach, and the new approach.22

18 Freedman (n 15 above) 668.

19 n 15 above.
20 This case is discussed in more detail in the pages that follow.
21 Freedman (n 15 above) 669.
22 As above.
120 Property law in Namibia

According to the traditional approach, the subjective intention will only be

considered if an examination of the first two objective elements does not
produce a conclusive answer. If the first two elements do produce an
unequivocal result, then the subjective intention will not be taken into
account.

The new approach, however, stresses intention above the other two
factors. In this case, the nature of the object and the manner of its
attachment are not independent of intention. They are simply factors to be
taken into account when determining whether the owner or person who
annexed the movable thing intended the annexation to be permanent.23

In Macdonald,24 Potchefstroom Dairies had sold a building containing a

dairy plant to Jacobson. The price was payable in instalments. If Jacobson
should fail to pay the purchase price in due course Potchefstroom Dairies
would be entitled to rescind the contract of sale and to repossess the building
and plant together with all permanent, interim improvements made by
Jacobson. Ownership of the building and plant was to pass to Jacobson only
when the price had been paid in full. Shortly thereafter Jacobson acquired
certain machinery from Macdonald on hire‐purchase terms and installed the
same in the building instead of the original plant which was removed and
stored elsewhere. The new plant was embedded in solid concrete
foundations and firmly attached to the walls of the building by nuts and bolts.
Nevertheless, it could be removed without damage to the premises and the
old plant reinstated at a moderate cost. Before he had paid either
Potchefstroom Dairies or MacDonald in full, Jacobson’s insolvent estate was
sequestrated and MacDonald claimed the return of the new machinery,
whilst Potchefstroom Dairies claimed the return of the building, together
with that machinery, on the ground that it was a permanent fixture of the
immovable property.

In this case the application of the two objective tests was not conclusive
and therefore the court relied on the subjective test, particularly the test
pertaining to the intention of the owner of the machinery to determine
annexation. The intention was inferred from the intention of the parties to
the hire‐purchase agreement. This application of the tests obviously confirms
the court’s approach not to unjustifiably and without the consent of the
owner of the property deprive an owner of his or her ownership of the
property.

In the case of Theatre Investments (Pty) Ltd & Another v Butcher Brothers
Ltd25 the lessee undertook to proceed with the erection of a theatre and

23 See Freedman (n 15 above). See also Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale
(Pty) Ltd 1999 2 SA 986 (T) 998‐999.
24 n 15 above.
25 1978 3 SA 682 (A).
 Chapter 6: Acquisition of ownership 121

other buildings on property owned by the lessor. The lease was for 50 years
with a right of renewal. Clause 15 of the lease provided that:

[O]n termination of the lease or any renewal from any cause whatever all
buildings and improvements on the immovable property were to ‘revert to and
ipso facto become the absolute property of the lessors without their having to
pay or being liable to the lessees for any compensation in respect of the said
buildings or improvements’.

The theatre was erected and the lessee equipped it with theatre seats,
carpets, lighting and cinema projection equipment and air‐conditioning
equipment with the necessary ancillary fittings and ducting. At the expiration
of the lease the parties were unable to agree about the terms of the renewal.
The lessee claimed certain equipment as movable property belonging to it
and asserted the right to remove the movable things at the termination of the
lease. The lessor challenged this right on the ground that in terms of clause
15 of the lease these items constituted improvements which became the
absolute property of the lessor when the lease expired. The lessor applied for
and obtained an interdict restraining the lessee from removing the disputed
items. Some of these articles were held to be removable, for example the
carpets. The disputed items were held to constitute immovable property and
thus not to be removed by the lessee. In an appeal the court found that the
manner in which the seats had been annexed raised the reasonable inference
that the annexor contemplated them to remain there permanently.

It was held that if regard was to be had to the intended duration of the
original contract, including any period of its possible extension; to the fact
that the building was erected for the purpose of conducting therein a theatre;
and to the fact that the seats, the emergency lighting and dimmer‐board
constituted equipment essential to the effectuation of such a purpose, then
it was difficult to avoid the conclusion that such items of equipment when
they were attached to the building were intended to remain there
indefinitely.

Van Winsen AJA explained the intention consideration approach as

follows:

A generally accepted test … to be applied to determine whether a movable,

capable of acceding to an immovable and which has been annexed thereto,
becomes part of that immovable is to enquire whether the annexor of such a
movable did so with the intention that it should remain permanently annexed
thereto. Evidence as to the annexor`s intention can be sought from numerous
sources, inter alia, the annexor` s own evidence as to his intention, the nature of
the movable and of the immovable, the manner of annexation and the cause for
and circumstances giving rise to such annexation.26

26 At 688.
122 Property law in Namibia

When considering the intention of the parties the question that may arise
is whose intention must be taken into account: that of the owner of the
movable property or that of the person who actually attached the object to
the immovable property? This aspect was considered in Macdonald27 where
Innes CJ held that it was the intention of the owner of the erstwhile movable
thing which had to be considered. In this regard the court remarked as
follows:

[T]he intention required (in conjunction with annexation) to destroy the identity,
to merge the title, or to transfer the dominium of movable property, must surely
be the intention of the owner. It is difficult to see by what principle of our law the
mental attitude of any third party could operate to effect so vital a change.28

In Melcorp29 the plaintiff had contracted with the R Company for the supply
and installation of two lifts in a building to be erected by R. Clause 14 of the
contract read:

It is agreed that all apparatus furnished hereunder can be removed and we retain
title thereto until final payment has been made, with the right to retake
possession of same or any part thereof at your cost if default is made by you in
any of the payments, irrespective of the manner of attachment to the realty, the
acceptance of notes, extension of time for payment or sale, mortgage or lease of
the premises. For the purpose hereof you agree that the apparatus shall not
become a fixture in the building and shall remain a movable thing until fully paid
for.

The finance for the erection of the building had been largely provided by
means of a mortgage loan granted by the defendant. R fell into arrears with
its payment to the plaintiff and, under the bond, to defendant. Ultimately the
defendant as bondholder caused the property to be sold in execution and
purchased the property at the sale. Before the sale the plaintiff had sent the
defendant a copy of its agreement which the defendant had filed without
reading it. The plaintiff sought to enforce its right to remove the lift
installation against the defendant, also claiming damages resulting from the
delay in handing over. The defendant contended that the lift had acceded to
the building, notwithstanding that the greater part of the components could
readily be removed, averring that any rights of removal the plaintiff might
have had by virtue of Clause 14 were only personal rights enforceable against
R only. It was held that with regard to the objective condition of the degree
and manner of annexation, the evidence showed that the installation was not
so secure that separation would involve substantial injury either to the
immovable or its accessory, and that detachment could be effected with
more or less ease. With regard to the nature of the particular article it was
held that the lift installation was an integral part of the multi‐storey flat
building. However, the court added that the inference did not override the

27 n 15 above.
28 n 15 above, 467.
29 n 15 above.
 Chapter 6: Acquisition of ownership 123

expressed intention of the plaintiff as embodied in Clause 14 of the contract,

which was not an ipse dixit of the plaintiff made ex post facto but which
formed the very basis upon which the plaintiff had been prepared to install
the lifts in the building without prior payment therefor, including that the
installation could not become a fixture until fully paid for. The court therefore
found that the annexor’s intention was not to make the installation a
permanent one until such time as the plaintiff had been paid for it.
Accordingly the plaintiff was entitled to remove the lift installation.

In an action for damages in Pettersen30 an important issue was whether

a house which had been destroyed by fire was a movable or an immovable.
The house was a pre‐fabricated one which had been brought from Norway,
where it was regarded as a movable thing by a Norwegian who had erected it
on property belonging to another. It was very heavy and probably incapable
of being moved as a unit but was so constructed that it could be taken to
pieces which could be removed and put together again on another site. In the
process of assembling the house, the parts which were made up of wood and
iron, had been fitted into one another but nails had also been used. In its
completed state it was a large double‐storey house consisting of 14 rooms in
all, resting upon a brick or concrete foundation without being fixed to it. The
trial judge found, on the evidence, that the house had been erected for a
permanent purpose. In an appeal, it was held that regard being had finally to
the fact that the house appeared to have been regarded as a movable thing
by all the persons who had any interest in it, the respondent had established
that the house was a movable.

A prefabricated double‐storey 14 roomed house was said to be a

movable thing because it was designed to be dismantled and reassembled
somewhere else. The owner did not intend it to be a permanent fixture and
therefore the presumption as to the nature of the thing was rebuttable. The
courts have repeatedly said that the intention element is the most important
because it is the decisive element when, upon consideration of the first two
elements, a conclusive determination is impossible.

In appropriate circumstances consideration of the first two elements

might be conclusive or decisive in which case the third element would
become superfluous or otiose.

In Unimark31 the plaintiff instituted the rei vindicatio for the recovery of
certain articles, office installations on a factory site belonging to the
defendant company, valued at R188 500. Alternative claims were based on
the actio ad exhibendum, for the value of the articles no longer in the
defendant's possession, and on enrichment, for the sum by which the
defendant had been enriched as a result of the accession of those articles to
the factory site. The articles in question were: (1) chip‐core wall partitions

30 n 15 above.
31 n 23 above.
124 Property law in Namibia

and ceilings enclosing approximately 255 square metres of office space,

valued at R85 000; (2) an alarm system valued at R4 000; (3) an intercom
system valued at Rl 200; (4) an electrical system valued at Rl8 000; (5) a steel
under‐cover parking area valued at R18 000; (6) a steel canopy valued at R3
000; (7) steel security gates valued at R400; (8) air conditioners valued at R35
000; (9) carpet tiles valued at R7500; (10) a kitchen sink valued at R400; and
(11) fire extinguishers valued at R3 000. The plaintiff's claims were based on
the contention that the defendant was in possession of these goods,
alternatively that it had disposed of them with knowledge of plaintiff's
ownership. The defendant admitted possession of most of the articles in
question, with the exception of some of the office partitioning, the steel
canopy and the carpet tiles, but denied the plaintiff's ownership thereof,
pleading that the articles in question had acceded to its property. The
defendant furthermore denied the value attributed to the articles by the
plaintiff. It appeared that the plaintiff, the sublessee of the site, had been
evicted in terms of a court order some time after it had installed the offices.
As a result, a dispute arose as to the ownership of these articles in question:
the plaintiff regarded them as its property, which it was entitled to remove,
while the lessor refused to allow it to do so. During December 1994 the lessor
sold the site, including all improvements, to the defendant.

It was held that the plaintiff, in order to succeed with the rei vindicatio,
had to prove that it was the owner of the said articles, that they were in the
possession of the defendant at the commencement of the action and that
they were still in existence and clearly identifiable. If the plaintiff was able to
prove ownership but it appeared that some of the items were no longer in the
defendant's possession, the actio ad exhibendum would come into play so as
to compel the defendant to compensate the plaintiff for the value of those
articles. If the plaintiff had lost ownership of some of the items due to
accessio, the requirements of unjust enrichment would have to be applied in
order to determine whether the defendant had been unjustly enriched at the
expense of the plaintiff.32 It was held further, as to the issue of ownership
that the crucial question was whether the articles in question had acceded to
the immovable property. Three factors were relevant: (1) the nature of the
article annexed; (2) the manner of its annexation; and (3) the intention of the
owner of the annexed article at the time of its annexation. According to the
'traditional' approach, the intention was irrelevant if the first two factors
proved conclusive, while the 'new' approach stressed intention above the
other two factors. It was, however, clear that the nature of the article and the
manner of its annexation were not independent of intention. If a clear
inference as to intention could be drawn from an examination of the other
factors, nothing could be gained from evidence as to the owner's subjective
intention.33

32 At 995‐996.
33 At 998‐999.
 Chapter 6: Acquisition of ownership 125

The court also held that every case had to be decided on its own facts and
that common sense and reasonableness had to play a prominent role.
Because annexation involved conscious human conduct, the starting point
and most important factor had to be the intention of the owner of the
annexed property, which had to be determined within the context of all the
relevant facts.34 The court considered the element of what was referred to as
the ‘publicity principle’ and held that the question was not only what the
specific individual intended or believed possible or feasible, regardless of the
objective facts. An element of reasonableness or common sense, or the
prevailing standards of society, had to be invoked. In this context the
‘publicity principle’, or the impression created with others, including
prospective buyers, was also relevant. In other words, one of the factors to
be taken into account when an intention as to the annexation is formed, or
later determined, was how other people were likely to interpret the situation
on the basis of factual evidence. An intention that was totally insulated from
and devoid of reality could not be recognised and given effect to in law.35 The
court also held that as to whether the plaintiff had remained the owner of the
above‐mentioned articles, their nature and manner of attachment differed,
as well as the plaintiff's intention with regard to them, and that each article
accordingly had to be examined individually.

After applying the above‐mentioned principles, the court held that the
partitioning, the alarm system, the intercom system, the electrical system,
the air conditioners and the fire extinguishers had remained movable and had
thus remained the property of the plaintiff.36

By way of conclusion, the above exposition on the jurisprudence of

inaedificatio indicates that the application of the three elements to
determine whether in any particular case annexation has taken place will
depend on the peculiar facts of a particular case. Predictabilty of outcome of
the application of the tests is not possible. One does not have to take a
monolithic mentality to the appreciation and understanding of these cases.
The courts’ initial response to these issues has been the initial application of
what is dubbed ‘the traditional approach’ or by analysing a particular case
with the aid of the objective tests as the initial reference yardstick. But the
cases indicate that the courts are prepared to stretch their inquiry beyond the
objective tests and consider other variables to determine whether
annexation has taken place under the general rubric of the subjective test ‒
the intention of the annexor. As stated by Van der Westhuizen AJ in the
Unimark,37 the courts’ inquiry includes a consideration and application of the
‘publicity principle’. The variation in terminology notwithstanding, the
important point is that policy considerations cannot be ruled out as factors or
variables that inform the judgments of the courts. These cases invariably

34 At 1000‐1001.
35 At 100I.
36 At 1005.
37 As above.
126 Property law in Namibia

involve the potential deprivation of the ownership of property, which raises

constitutional issues. It has generally been recognised as the ratio decidendi
in the Macdonald38 that an owner cannot be deprived of his property without
his consent except in very limited circumstances. The decison of Pettersen,39
for example, could be explained in terms of the avoidance of a possible
absolution from a delictual or criminal liabilty. The judgments in the hire‐
purchase and the Melcorp40 cases may also be explained in terms of the
court’s insistence to enforce legally binding agreements.

2.3.2.2 Planting and sowing (plantatio and satio)

The rule relating to acquisition of ownership by planting or sowing is that

anything planted in the ground accedes to it so that the owner of the land or
soil becomes the owner of the plant through implantatio in accordance with
the rule superficies solo cedit. The crops accede to the soil after they have
been sown and get nourishment from the soil.41

2.4 Mixing (commixtio and confusio)

This form of acquisition takes place when things are mixed together in a
manner that the principal and accessory things lose their separate identities
and become inseparable and indeterminate. Since the nature of the
amalgamation makes it impossible to classify things as principal or accessory,
the rules relating to accession do not apply. Similarly, since a new thing is not
formed or since human creativity plays a subordinate role in the creation of
the final product, the rules relating to specificatio cannot apply either.42
There is a distinction made between the mixing of liquids and the mixing of
solids.

With regard to the mixing of liquids, the rule is that if the liquids can be
separated reasonably easily, for example, if oil and water are mixed, no
change of ownership in the liquids takes place. If, on the other hand, the
liquids cannot be separated the mixture becomes the common property of
the owners in proportion to their respective contributions.

In the case of mixing of solids, the rule is that if solids belonging to two
people are mixed together so that they can be separated easily, no change of
ownership takes place. If, however, they cannot be separated easily, the
mixture will belong to them jointly if the mixing took place with their consent.
If, however, they did not consent, each owner may vindicate a portion of the
mixture proportional to his or her contribution.

38 n 15 above.
39 n 15 above.
40 n 15 above.
41 Secretary for Lands v Jerome 1922 AD 103.
42 Du Bois (n 5 above) 507‐508.
 Chapter 6: Acquisition of ownership 127

One can conclude therefore that in both cases, the mixing of liquids and
the mixing of solids, the underlying criterion that determines ownership is the
consistency of the amalgamation to assess the degree of retention of the
separate identities of the various components.

2.5 Specificatio (manufacture)

This occurs where a person by his skill and labour converts another person’s
material, either wholly or partly into a new species or a new product without
any legal relationship between the parties.43 Examples include olive oil
produced from olives, wine from grapes, bread from wheat or corn, clothes
fashioned from wool, a ship made out of planks from trees, a statute
sculptured from marble or wood, and a patchwork quilt fashioned from
pieces of cloth. The following principles determine the ownership of the new
thing. Where the materials belong partly to another person and partly to the
maker, the new thing belongs wholly to the maker who must compensate the
other party for his or her share of the materials. Where the materials belong
wholly to another person and the new thing has been made without such
person’s consent, the question of ownership will depend on whether the new
article can be reduced to the original materials. If it can be dismantled or
reduced to its original materials, the article will belong to the owner of the
materials. If it cannot, be so reduced, as for example where beer is made from
corn or wine from grapes, the article will belong to the maker. These rules
apply only in the absence of an agreement between the parties.

2.6 Acquisitive prescription

There are two types of prescription: acquisitive prescription and extinctive

prescription.

The former is one of the original methods of acquisition of ownership or

real rights by the passage of time whereas the latter refers to various types of
obligations that may be extinguished or rendered unenforceable by the
passage of time.

The sources of the principles relating to acquisition of ownership by

prescription are two statutes, the Prescription Act 18 of 1943 and the
Prescription Act 68 of 1969, and the common law. In the Namibian case of
O’linn v Minister of Agriculture, Water and Forestry & Others44 Muller J stated

43 As above. See also DL Carey Miller & A Pope ‘Acquisition of ownership’ in R Zimmermann
et al (eds) Mixed legal systems in comparative perspective: Property and obligations in
Scotland and South Africa (2004) 637, 682‐4.
44 2008 2 NR 792 (HC) 797.
128 Property law in Namibia

that the 1943 Act was never applicable to Namibia or the old South‐West
Africa. The Prescription Proclamation 13 of 1943, promulgated on 25 May
1943, was applicable to the territory of South‐West Africa and it was based
on the South African Prescription Act 18 of 1943. Section 2 of the South‐West
Africa Proclamation was similar to section 2 of the South African Act of 1943.
The relevant South African decisions were also applicable in respect of the
Proclamation.

The Prescription Act of 1943 was later superseded by the Prescription Act
of 1969 which came into operation on 1 December 1970. It has no
retrospective effect45 and therefore has no application where the
prescriptive period was completed before the date it came into operation,
namely 1 December 1970. However, where the prescriptive period began to
run before the new Act came into force but was only completed afterwards,
the 1943 Act is applicable in respect of the period before 1 December 1970,
and the 1969 Act applies in respect of the period after 1 December 1970.46
This means that any claim to the acquisition of ownership through
prescription has to be determined, either partially or totally, with reference
to the 1943 Act. Thus, if the period of prescription began to run in 1950 the
first period, namely from 1950 until 1 December 1970, is governed by the
requirements of the Prescription Act of 1943,whereas the later period from 1
December 1970 onwards is regulated by the Prescription Act of 1969. The
1943 Act remains relevant to be applied to a prescriptive period running until
30 November 2000. Therefore, the requirements of both Acts must as a rule
be kept in mind to determine whether prescription has occurred in a
particular case.47

The Prescription Act 18 of 194348 defines acquisitive prescription as the

acquisition of ownership by the possession of movable or immovable
property belonging to another or the use of a servitude in respect of
immovable property continuously for thirty years, nec vi, nec clam, nec
precario. It stated clearly that the possessor automatically became owner of
the thing after the said period had expired.49

The first requirement of the 1943 Act is that the possession must be
continuous or uninterrupted for a full period of thirty years and must be nec
vi, nec clam and nec precario. The nec vi requirement means that the
possessor must retain his possession without force or peaceably. The nec
clam requirement is meant to satisfy the publicity principle in that the
possession must be overt or visible to demonstrate the intention to acquire
ownership. The two requirements are meant to indicate to the public that if
possession is exercised in such a manner, an owner who exercises reasonable

45 Section 5.
46 As above
47 See W A Joubert et al (eds) The Law of South Africa 2nd ed vol 21 (2010) 41, para 105.
48 Sec 2(1).
49 Sec 2(2).
 Chapter 6: Acquisition of ownership 129

care must be in the position to notice it and reclaim possession. The nec
precario requirement means that the possession must be without prior
permission of the owner or without consent.

In Malan v Nabygelegen Estates50 Watermeyer CJ said the following:

It will be seen from these references that ‘nec precario’ does not mean without
permission or without consent in the wide sense accepted by the learned Judge,
but ‘not by virtue of a precarious consent’ or in other words ‘not by virtue of a
revocable permission’ or ‘not on sufferance’. In order to avoid misunderstanding,
it should be pointed out here that mere occupation of property ‘nec vi, nec clam,
nec precario’ for a period of thirty years does not necessarily vest in the occupier
a prescriptive title to the ownership of that property. In order to create a
prescriptive title, such occupation must be a user adverse to the true owner and
not occupation by virtue of some contract or legal relationship such as lease or
usufruct which recognises the ownership of another.

Even though the requirements for acquisitive prescription in both Acts are
virtually the same, they have different provisions relating to the type of
possession required for prescription. Section 1 of the 1969 Act defines
acquisition of ownership by prescription as follows:

[A] person shall by prescription become the owner of a thing which he has
possessed openly and as if he were the owner thereof for an uninterrupted
period of thirty years or for a period which, together with any periods for which
such thing was so possessed by his predecessors in title, constitutes an
uninterrupted period of thirty years.

This Act differs from the old Act in so far as it has eliminated the nec vi
element and replaced the nec precario element with the requirement of
possession ‘as if he or she were the owner thereof’. As stated earlier, under
the 1943 Act possession must have been nec vi, nec clam, nec precario. The
1969 Act, however, requires only that a person must have been in possession
of the thing concerned openly and as if he or she were the owner. The
element of ‘as if he were the owner thereof’ requires the establishment of full
juristic possession for the acquirer to succeed in the claim for acquisitive
ownership. This means the establishment of possessio civilis, which was not
specifically set out in the 1943 Act. This means that both the mental (animus
domini) and physical (corpus) elements of possession must have been present
simultaneously and during the whole prescriptive period.51

In terms of section 2(1) of the Prescription Act of 1943, a servitude can be

acquired by prescription by the use of the servient property for 30 years nec
vi, nec clam, nec precario. In terms of section 6 of the Prescription Act of 1969,
a person may acquire a servitude by prescription if he or she has openly and

50 1946 AD 562 573‐4.

51 Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & Another 1972 2 SA 464 (W) 467;
Glaston House (Pty) Ltd v Cape Town Municipality 1973 4 SA 276 (C) 281; Barker NO v
Chadwick & Another 1974 1 SA 461 (D) 468.
130 Property law in Namibia

as though they were entitled to do so, exercised the rights and powers which
a person who has a right to such servitude is entitled to exercise for an
uninterrupted period of 30 years or, in the case of a praedial servitude, for a
period which, together with any period for which such rights and powers
were so exercised by his or her predecessors in title, constitutes an
uninterrupted period of 30 years.

In an application for the acquisition of a servitude by prescription Muller

J in the case of O’linn52 stated that the requirements for the acquisition of a
servitude through prescription were governed by the same principles
applicable to the acquisition of ownership by prescription, with the necessary
modifications, and that in order to establish the acquisition of a servitude by
prescription, it must be proved that the user of the servitude had de facto
been exercising the servitude as if he or she were entitled to do so for the
required period of prescription. He held further that full possessio civilis was
required for such acquisition through prescription and not mere detention.
For possessio civilis both possession as well as the animus (intention) to
possess the property were necessary. The possessor must have the intention
(animus) to keep the land as if he or she were the owner. In that case the
applicant had used a certain access road near his house for more than 30
years. The said road was adjacent to a river bank owned by the first
respondent. Over the years the applicant had used the road daily, had placed
a gate between the road and his property, had maintained the road and had
strengthened the river bank. He sought an order declaring that he had
acquired a praedial servitude over the road in terms of section 6 of the
Prescription Act 68 of 1969. The court held that from the uncontested
allegations by the applicant, it was apparent that he not only had physical
possession of the property, but in fact had the intention to use it as if it was
his own and did use it in such a manner for more than 30 years.The facts
clearly established possessio civilis and therefore the applicant had acquired
a praedial servitude to this access road by way of acquisitive prescription. The
state, as owner, could always have prevented him from using the access road,
but did not do so and it was clearly careless in not looking after its property.

The second requirement for acquisition of ownership by prescription is

that the possessor must have possessed the object for an uninterrupted
period of thirty years. In accordance with the notion of coniunctio temporis or
accessio possessionis a person relying on prescription may add to the period
of possession the period of possession of the predecessor or predecessors in
title. This requirement of continuity must relate not only to the physical
control (detentio) but also to the elements peculiar to prescriptive
possession, namely the nec vi, nec clam, nec precario elements of the 1943
Prescription Act.53

52 n 44 above.
53 Kleyn et al (n 1 above)235.
 Chapter 6: Acquisition of ownership 131

The possession must have been uninterrupted for a period of thirty years
and interruption of prescription can be either natural or civil (judicial).
Natural interruption occurs whenever the possessor loses possession of a
thing either voluntarily or involuntarily. Possession is lost voluntarily when
the possessor voluntarily surrenders the thing to the true owner or a third
party. It is also lost voluntarily if the possessor no longer fulfils the
requirements of possessio civilis, for example, if he or she acknowledges the
title of the owner.54 Involuntary loss can occur by stealth or by force as a
result of acts by the owner or an outsider, or by vis major, for example war
conditions or flooding.55 In the case of Volkskas Bpk v The Master & Others56
it was stated that the two chief causes of the interruption of acquisitive
prescription under the common law are acknowledgement of liability and the
institution of legal proceedings by someone who claims ownership of the
thing, referred to as judicial or civil interruption. Judicial interruption,
however, falls away and is of no effect if the claimant does not successfully
pursue his claim or if he or she abandons any judgment given in their
favour.57

Section 2 of the 1969 Act provides for involuntary loss of possession. It

provides that any interruption by involuntary loss of possession will fall away
if possession is regained at any time by legal proceedings instituted within six
months of such loss or if possession is lawfully regained in any other way
within one year after such loss.

If possession is interrupted, either by judicial interruption or by natural

interruption, and interruption does not fall away, the whole period has to
start again before the possessor can acquire ownership.

The Prescription Act of 1969, however, introduced a new provision based

on the consideration that a person’s possession need not be interrupted if
that person is dispossessed only temporarily by a thief, a robber or even by
the owner.58

At common law the course of prescription could be suspended for a

certain category of persons who as a result of some legal disability, incapacity
or other recognised impediments could not enforce their legal rights. Unlike
interruption, suspension only leads to a temporary interruption of the course
of prescription. Under the provisions of section 3(1)(a) of the Prescription Act
of 1969, if the person against whom the prescription is running (the true
owner of the property) is under a legal disability, that is, if he or she is a minor
or a lunatic or a married woman whose husband has legal control over her
separate property by virtue of marital power, or if he or she has been

54 Joubert et al (n 47 above) vol 27, 142, para 155.

55 Du Bois (n 5 above) 514‐5.
56 1975 1 SA 69 (T) 73.
57 Section 4(2) of the Prescription Act 68 of 1969.
58 Du Bois (n 5 above) 515.
132 Property law in Namibia

declared to be a prodigal and control of his or her property has been vested
in the curator, the prescriptive period will not end until three years after the
property ceases to be owned by a person under such disability. The provisions
also apply to the true owner of the property who has been prevented by
superior force (vis maior) from instituting the necessary legal process to claim
ownership. It must be mentioned that in terms of sections 2(1)(a) and (b) of
the Married Persons Equality Act 1 of 1996, the common law rule in terms of
which a husband acquires the marital power over the person and property of
his wife was repealed. The abolition of the marital power of the husband
effectively removes this legal disability from the prescription laws of Namibia.
This principle therefore ceases to have application to prescriptive periods
which run after the promulgation of the Act.

Section 3(1)(b) provides that if the person in favour of whom the

prescription is running, that is the possessor, is outside the country, the
period of prescription will not end until three years after he or she returns to
Namibia. The section further provides that if the possessor is married to the
person against whom the prescription is running, that is the true owner, or if
the possessor is a member of the governing body of a juristic person against
whom the prescription is running, that is the company that owns the
property, the prescriptive period will not end until three years after the
relevant impediment has ceased to exist. This may occur, for example, when
the marriage is dissolved or when the possessor ceases to be a member of the
governing body.

Section 3(2) has similar provisions with respect to the acquisition of

fideicommissary property by prescription. Where the property concerned is
the subject of a fideicommissum, the period of prescription will not end until
three years after the property has vested in the fideicommissary.

Under the provisions of section 2(2) of the Prescription Act of 43 and

section 1 of the Prescription Act of 1969, upon satisfaction of the
requirements for prescription, the former owner loses ownership by
operation of law and the possessor ipse jure becomes the owner of the
property without need for any further act. However, it is advisable for such
new owner who has acquired the property through prescription to apply for
a court order to have the property registered in the deeds registry in his or
her name for purposes of certainty and to satisfy the requirements of the
publicity theory.59

A possessor who is being threatened with dispossession or has been

dispossessed of the property, may apply for a restitutory interdict or
mandament van spoile.

59 Du Bois (n 5 above) 517.

 Chapter 6: Acquisition of ownership 133

3 Derivative acquisition of ownership

As mentioned earlier, derivative acquisition of ownership occurs as a result of

a bilateral transaction involving the cooperation of a predecessor in title.
Property is acquired from a person who has possession and presumably
ownership. Derivative acquisition is perhaps the most important way of
acquiring ownership today and is mainly referred to as traditio or transfer of
ownership and normally takes place in pursuance of a contract.

This method of acquisition of ownership or transfer involves the co‐

operation of a predecessor in title and almost invariably there must be some
juridical act to transfer ownership and in most cases this would be a contract
of sale or a donation. A donation can be inter vivos or by testamentary
disposition. One basic characteristic of this method of acquisition is the
juridical act of transfer. There are two ways of transfer of ownership, delivery
in case of movable property and registration in the case of immovables.

There are legal requirements that are needed for a transfer of title. The
first requirement is derived from the nemo quod non habet or the nemo plus
iuris rule. This principle simply means no one is capable of transferring more
rights than he or she has. There is also the element of legal capacity of the
transferor and transferee to transfer and accept ownership respectively.
There are various variables and natural dispositions that determine the legal
capacity and these include natural, financial and legal capacities in areas such
as marital status, mental disposition, age, and insolvency. Under the relevant
provisions of the Married Persons Equality Act 1 of 1996, the common law
rule in terms of which a husband acquires the marital power of his wife was
abolished.60 Consequently a husband and wife married in community of
property have equal capacity to dispose of the assets of the joint estate and
generally to administer the joint estate.61 However, except under certain
extraordinary circumstances, a spouse married in community of property
shall not, without the consent of the other spouse, alienate or enter into any
contract for the alienation of any right in the immovable property forming
part of the joint estate.62 With regard to an estate involving the rights of a
minor, as a general principle, consent of the guardian is a pre‐requisite.
However, if the value of the property to be transferred is N$100.000 and
above, the consent of the guardian is not enough. The consent of the Master
of the High Court is also required. If the value of the property is more than
N$100, 000, the consent of a High Court Judge is essential since the current
jurisdiction of the Master of the High Court in such matters is limited.63

60 Sec 2(1)(a).
61 Sec 5(a).
62 Sec 7(a).
63 Section 80(2) of the Administration of Estates Act 66 of 1965.
134 Property law in Namibia

The other requirement is that the property must also be in commercio;

that is the property must be susceptible to private ownership.

As mentioned earlier, transfer of ownership in law involves a juridical act

and almost invariably there must be an iusta causa or a cause or reason for
transfer of ownership. There are two systems of transfer of ownership,
namely the causa system and the abstract system.

Under the causal (causa) system the transfer of ownership takes place by
reason of the existing underlying agreement. If the cause for the transfer of
ownership is defective the ownership will not pass, notwithstanding that
there has been delivery or registration of the thing. In terms of the abstract
system transfer of ownership is not dependent on the existence of a valid
iusta causa or the obligation creating agreement, or obligatory agreement or
an agreement creating an obligation, and therefore under the abstract
system, even if the causa fails, the transfer will be regarded as valid but an
aggrieved party can bring a personal action against the defendant for breach
of the causa.64

3.1 Transfer of ownership under the abstract and causal systems

3.1.2 Obligation creating agreements versus real agreements

A contract of sale (or a contract of transfer of ownership) involves two

agreements, namely the underlying agreement (the obligation creating
agreement or the causa) and the ownership transferring agreement (the so‐
called real agreement). An ordinary contract of sale creates an obligation
between two parties, the seller and the buyer. The mutual intentions to sell
and purchase the thing constitute the causa or the underlying agreement. If
payment is made, the seller is bound by law to make delivery and transfer
ownership. This is known as the ownership transferring agreement (the real
agreement). If the seller therefore receives the purchase price but does not
deliver, the buyer has the right to claim delivery from the seller. The buyer’s
right to demand delivery is a personal right against the seller. The obligation
creating agreement thus relates to something that must be done in the
future. If delivery is executed, in other words, if the real agreement is
executed, a property relationship is created between the buyer and the thing.
Hence, the buyer has a real right over the property. The ownership
transferring agreement (or the real agreement) therefore creates a
relationship directly to the thing, a property relationship. This simple
illustration is meant to provide the basis for the two systems of transfer; the
abstract and causa systems.

64 See Commissioner of Customs and Excise v Randles, Brothers and Hudson Ltd 1941 AD 369;
Trust Bank van Afrika Bpk v Western Bank Bpk & Andere NNO 1978 4 SA 281 (A); Klerck NO
v Van Zyl & Maritz NNO & Another & Related Cases 1989 4 SA 263 (SE): Legator McKenna
Inc & Another v Shea & Others 2010 1 SA 35 (SCA).
 Chapter 6: Acquisition of ownership 135

3.1.3 The abstract and causa principles

An abstract approach to the transfer of dominium is concerned with the

parties’ intentions to pass and receive ownership, in the abstract, regardless
of whether this is supported by an underlying causa or basis. On the other
hand, the causal approach requires a linking causa or basis, typically an
underlying contract – which can be seen as the raison d’être for delivery.

The causal system prefers the interests of the owner, and ownership will
pass only if there is an agreed and legal basis for this. The abstract system, on
the other hand, takes more account of the interests of the transferee and
third parties; ownership passes if the parties so intended, regardless of
whether there is any agreed legal basis. A third party acquiring transfer from
the transferee under the abstract system is more likely to get title than under
a causal system.

Namibian property law is based on the abstract system of property law.

In the Namibian case of Oshakati Tower (Pty) Ltd v Executive Properties CC &
3 Others,65 Muller JJ referring to the application of the abstract system in
Namibia quoted Van der Merwe66 and stated as follows:

It is common cause between the parties that the land registration system, in
Namibia is an abstract system, which is the same in South Africa. In this system
two separate agreements are recognised, namely the underlying agreement and
the real agreement. A defect in the first agreement does not prevent valid
transfer. In respect of the real agreement it is a requirement it should not only be
voidable, but it should be void ab initio because of a mistake or fraudulent
misrepresentation. A forgery would certainly also render the agreement void.
For transfer, the owner must have the intention to pass ownership. If there was
no such clear intention to transfer ownership, ownership does not pass. The
authorities further make it clear that non‐compliance with a statutory
requirement may render contracts unenforceable, depending on the intention of
the legislature. In this regard non‐compliance with a statutory requirement, as
set out in section 228 of the Companies Act, may render the real agreement
unenforceable and void.67

The learned Judge further stated that under an abstract system of passing of
ownership the mere intention of the parties to pass ownership is sufficient
without reference to the underlying causa for the transfer. This principle
originated in Roman law and was developed further by natural law jurists of
the seventeenth century and pandectists, and accepted in modern law. The
abstract principle guarantees certainty in that it disallows the invalidity of an
underlying causa to affect the existence or validity of a transfer. The real
agreement to pass ownership is treated in abstracto, that is, totally

65 Case no: [P] A 20/2006 In The High Court of Namibia.

66 CG van der Merwe ‘Things’ in (WA Joubert et al Law of South Africa (Lawsa) (First Reissue)
(2003) 27, para 203.
67 Para [26].
136 Property law in Namibia

independently from the contractual agreement which provides the causa for
the transfer. Although the abstract system simplifies matters for the
transferee it does not leave the transferor, who has transferred an object by
virtue of an invalid causa, without a remedy. Since ownership passes to the
transferee, the transferor is deprived of his rei vindicatio. However, he or she
may still claim by way of condictio on the ground of unjust enrichment.

The abstract principle is by no means absolute and several exceptions

exist. Firstly, certain forms of invalidity of the contractual agreement are
considered so material that they affect the real agreement and also, for
example, where recognition of the validity of the transfer will conflict with an
absolute statutory prohibition. Secondly, it seems possible for parties to the
contractual agreement to provide that the transfer of ownership will only be
valid if the causa for the transfer is valid. Such a term can also be implied from
the circumstances of the case.

Van der Merwe68 discusses the effect of the abstract system on land
registration and what the requirements are.69 He makes it clear that the
owner of the property must have the intention to transfer ownership at the
moment when ownership passes. He deals with the difference between the
underlying agreement and the real agreement and states the following:70

In terms of an abstract system of the transfer, the passing of ownership is wholly

abstracted from the agreement giving rise to the transfer and is not made
dependent on such an agreement. It is immaterial whether such an agreement is
void, voidable, putative or fictional. The puristically‐minded do not even talk in
terms of a causa giving rise to the obligation to transfer but only require a
serious intention on the part of the parties to transfer ownership. In terms of the
abstract system a clear distinction is thus drawn between the agreement given
rise to the transfer (‘verbintenisskeppende ooreenkoms’) and the real agreement
(‘saaklike ooreenkoms’) in which the parties agree to pass ownership. Emphasis
is placed on the real agreement which exists independently of the agreement
giving rise to the transfer. The invalidity of the latter agreement has no influence
on the validity of the real agreement. If there is a serious intention to transfer
ownership, ownership passes to the transferee, who can in turn validly pass
transfer to a third party. The original owner in such a case loses ownership of his
thing and he has in appropriate circumstances only a personal action, namely the
condictio based on unjust enrichment on the ground of the loss suffered by him.

The real agreement is described as follows by Van der Merwe:71

Under the abstract system a real agreement, namely an agreement to transfer

and accept ownership, is required for transfer of ownership. In every instance it
must consequently be determined factually whether a real agreement had
indeed been reached. If the real agreement is merely voidable, for example as a

68 n 66 above.
69 n 66 above, paras 362 and 363.
70 n 66 above, para 363.
71 Para 365, at 300.
 Chapter 6: Acquisition of ownership 137

result of undue influence, ownership will pass if the agreement had not been
vitiated before transfer. If, however, the real agreement is void, having been
induced by the fraudulent misrepresentations or by mistake ownership will not
pass.

He continues:72

Certain contracts are unenforceable because they do not comply with certain
statutory requirements: thus writing, official approval or a certain manner of
achieving an object may be prescribed. Whether a real agreement or
performance in terms of such an enforceable contract is vitiated by the defect in
the preceding contract depends on the intention of the legislature in rendering
such a contract void on the ground of non‐compliance with a certain
requirement. The courts have to ascertain the intention of the legislature from
the statutes itself and in certain instances it may well be that the legislature
intended to render not only the preceding contract but also the real agreement
unenforceable.

In this case, the court granted the order for the de‐registration of the rights.
This case inter alia illustrates the principle that the application of the abstract
principle is by no means absolute and that the courts have the discretion in
appropriate cases to annul the registration of the transfer of property.

3.2 Delivery

As we saw earlier, transfer of a real right takes place when delivery to the
transferee is made, in the case of movable property, and when registration
takes place, in the case of immovable property. There are two types of
delivery, actual and constructive delivery.

3.2.1 Actual delivery

As the term suggests, actual delivery involves the actual physical delivery of
the property. However, where this is impossible or inconvenient, one of the
forms of constructive or fictitious delivery may be used.

3.2.2 Constructive delivery

This type of delivery refers to various methods of transferring ownership by

which no physical handing over of the thing takes place. The various modes
of constructive delivery are as follows:

72 Para 365, at 301.

138 Property law in Namibia

3.2.2.1 Symbolic delivery

By this method the physical control of property is transferred to the person

to whom delivery is made by the handing over of a symbol of the property.
For example, a person who has been provided with the keys to a warehouse
is in the position to exercise immediate power over the contents of the
warehouse.

3.2.2.2 Delivery with the long hand (traditio longa manu)

This mode of delivery takes place where the property is placed in the
presence of and at the disposal of the purchaser.73 In the case of Groenewald
v Van der Merwe74 Innes CJ stated as follows:

In the great majority of cases the physical factor takes the form of handing the
movable in question bodily to the transferee, who accepts it with the requisite
intention and thereby becomes owner. This is actual delivery. But physical
prehension is not essential if such movable is placed in the presence of the
would‐be possessor in such circumstances that he, and he alone, could deal with
it at his pleasure.

The court in this case pointed out that this mode of delivery is fictitious and
is most appropriate to transactions where owing to the weight or bulk of the
article concerned actual delivery is difficult.

3.2.2.3 Delivery with short hand (traditio brevi manu)

This form of delivery takes place where a person who already has the physical
possession of the property on behalf of the owner, acquires physical control
as owner of the thing in question. In Air‐Kel (Edms) Bpk h/a Merkel Motors v
Bodenstein & ’n Ander75 it was stated that traditio brevi manu takes place
when an owner and a detentor of a thing agree that the latter shall in future
hold the thing in his own right and further that the potential transferee must
be in physical possession of the article and must have the animus to hold it
for himself.

3.2.2.4 Constitutum possessorium

This form of delivery is the exact opposite of delivery with the short hand. This
operates in a situation where the seller continues to keep the goods in his
possession but holds them on behalf of the buyer and not on his own behalf.
Innes CJ in Goldinger’s Trustee v Whitelaw & Son76 remarked that

73 Xapa v Ntsoko 1919 EDL 177.

74 1917 AD 233 238.
75 1980 3 SA 917 (A) 922‐923A.
76 1917 AD 66 74.
 Chapter 6: Acquisition of ownership 139

constitutum possessorium is the converse of the tradition brevi manu and

that both are examples of transfer of possession and consequently ownership
due to a contractual change of intention on the part of the person who retains
the physical control. He cautioned that a process by which a change of
dominium may depend upon a mere change of mental attitude should be
carefully scrutinised. He therefore laid down the following safeguards:

(a) A constitutum is never presumed.

(b) The party alleging it must establish facts from which its existence clearly and
necessarily follows.
(c) A distinct causa detentionis (contractual reason for the possessor to retain
detention) is essential. If A, after selling a movable to B, intends to hold it on
behalf of the latter that change of mind would not effect a transfer of ownership.
There must be a clearly proved contractual relationship under which A becomes
the holder of the thing on behalf of the purchaser.

Constitutum possessorium has no application to pledge because pledge

always involves the actual delivery of the thing to the pledgee.

3.2.2.5 Attornment

If the property to be delivered is, at the time when the delivery is to be

effected, not in the possession of the transferor, but under the control of a
third party, who is holding it either as an agent on behalf of the transferor or
by virtue of some other relationship between him or her and the latter,
delivery of the property may be effected by attornment. In terms of this form
of delivery the transferor instructs the third party to hold the property in
question henceforth no longer on his or her behalf but on behalf of the
transferee.77

The essentials for this form of delivery are that the property must be held
by an agent who has actual control over the property concerned, and that
there must be an agreement between all three parties, the transferor, the
transferee and the agent, as to the change of ownership of the property.

3.3 Transfer by registration

Transfer of real rights in immovable property is effected by means of

registration. Section 16 of the Deeds Registry Act 47 of 1937 provides that:

Save as otherwise provided in this Act or in any other law the ownership of land
may be conveyed from one person to another only be means of a deed of
transfer executed or attested by the registrar, and other real rights in land may be
conveyed from one person to another only be means of a deed of cession
attested by a notary public and registered by the registrar.

77 Kleyn et al (n 1 above) 263.

140 Property law in Namibia

Registration may be defined as the recording of documents or books of

some facts or such other acts as the existence of a description of a corporal
thing or of a transaction or some event of a right. The object of registration is
to give notice of the ownership of a right in property to all persons concerned
and in particular to the creditors of the owner of the property or intended
purchaser of the property.

A right becomes a real right on registration if the following conditions are

met:

• the register must be kept at the state’s Deeds Registry;

• it must be open to inspection by the public; and
• the rights must be capable of and proper for registration.

As already stated, under section 16 of the Deeds Registries Act ownership in

land is acquired by means of a deed of transfer duly executed and attested by
the registrar. Section 3 imposes a number of duties and obligations on the
registrar to ensure inter alia an efficient system of registration which affords
security of title.

As regards prescription, it was stated in the case of Willoughby’s

Consolidated Co Ltd v Copthall Stores78 that when land was acquired by
prescription, the practice is for the party who had so acquired it, to institute
an action for the registration of his or her acquired rights in the deeds office.

The rights that may be registered are provided for by various provisions
under the Deeds Registries Act. Section 16 deals with ownership of land and
other real rights. Section 18(3) deals with unalienated state land and this may
be transferred from the state only by a deed of grant. Section 65 deals with
personal servitudes. It provides that:

[s]ave as provided in any other law, a personal servitude may be created by

means of a deed executed by the owner of the land and encumbered thereby
and the person in whose favour it is created, and attested by a notary public.

Such personal servitudes can be registered.

Mortgages can also be registered. They fall under section 50(1)(2) and (3)
according to which:

[a] mortgage bond shall be executed in the presence of the registrar by the
owner of the immovable property therein referred or by a conveyancer duly
authorized by such owner by power of attorney’.

78 1913 AD 267.
 Chapter 6: Acquisition of ownership 141

Section 50(2) provides that a ‘mortgage bond or notarial bond may be

registered to secure an existing debt or a future debt or both existing and
future debts’.

Section 56 provides that:

[n]o transfer of mortgaged land shall be attested or executed by the registrar and
no cession of a mortgaged lease of immovable property, or of any mortgaged real
right in land shall be registered until the bond has been cancelled or the land,
lease or right has been released from the operation of the bond with the consent
in writing of the holder thereof.

Section 16 of the Deeds Registries Act makes registration a precondition for

the conveyance of ownership of land. In the case of Crause & Andere v Ocean
Bentonite Edms (Bpk)79 it was held that in all cases in which a registered real
right is to be transferred as a result of an agreement, such real right cannot
vest in the acquirer without an act of registration in the deeds office.

Under Roman‐Dutch law the transfer of a real right, even though done in
performance of a contract, is always regarded and must be analysed as a
separate transaction from the contract itself because the contract merely
creates personal rights and obligations and therefore an additional act is
required to create the real right. The additional act is delivery in the case of
movables, and in the case of immovables delivery is effected by registration.

By virtue of the application of the doctrine of constructive notice, every

person is deemed to have knowledge of a duly registered document as a
result of which it becomes enforceable against the whole world at large in
accordance with the maxim nemo ex suo delicto meliorem suam conditionem
facere potest meaning nobody will be permitted to defeat another person’s
potential right for his own individual benefit if he or she knows of its
existence. Registration is therefore meant to protect real rights in immovable
property.

It must be mentioned, however, that according to the decision in Cassim

& Others v Meman Mosque Trustees80 registration is not an absolute criterion
for if there is a flaw in the title of ownership this flaw cannot be cured or
rectified by the mere fact of registration. Furthermore, in the case of sale or
transfer of land where the transferor or the plaintiff who has an effective title
is not the sole owner of the property, registration cannot exempt the
defendant from liability on the basis that the defendant should have been
aware of the fact that the plaintiff was not the holder or the sole holder of any
particular registered real right. In the case of Frye’s (Pty) Ltd v Ries81 the
defendant was co‐owner of land which was registered in her name and those

79 1979 1 SA 1076 (O).

80 1917 AD 154162.
81 1957 3 SA 575 (A).
142 Property law in Namibia

of her two daughters. The defendant entered into a contract with the plaintiff
company. In terms of this contract the company leased part of a building and
also obtained an option to buy the whole of the property. The contract
required the consent of two daughters who were co‐owners but they refused
to ratify the agreement. The plaintiff company was therefore unable to
enforce the lease or option and sued the defendant for damages for breach
of contract. The defendants relied on the doctrine of constructive notice and
argued that the plaintiff company was deemed to have knowledge of the
limited authority as the registrar of deeds showed that she was only a co‐
owner who required the consent of the two daughters. This argument was
rejected and the defendant was held liable.

In the case of Nel NO v Commissioner for Inland Revenue82 it was held

that registration of a personal right does not convert a personal right into a
real right and specifically with regard to an annuity, the right was not
registrable or, if registered, registration would not convert it into a real right.

3.3.1 Registration of servitudes

A duly executed agreement to grant a servitude gives rise to a real right only
when it has been registered. Prior to registration a third party, in particular a
purchaser of a servient property, without notice of the servitude, is not
bound to recognise it. Although the agreement becomes binding immediately
inter partes it was held in Frye’s that knowledge of a servitude on the part of
a buyer is material only in the event of an unregistered servitude.83 The buyer
of the servient tenement is not bound by the servitude unless he or she had
knowledge of the servitude at the time of buying the servient property.

In Grant v Stonestreet & Others84 Ogilvie Thomson JA said the following:

Having regard to our system of registration, the purchaser of immovable

property who acquires clean title is not lightly to be held bound by an
unregistered praedial servitude claimed in relation to that property. If, however,
such purchaser has knowledge, at the time he acquires the property, of the
existence of the servitude, he will … be bound by it notwithstanding the absence
of registration.

However, in that case the court was not dealing with a real right; it was
dealing with an agreement in terms of which reciprocal servitudes, which had
never been registered, had been granted. An agreement to grant a servitude
gives rise to a real right only when it has been registered.85 Dealing with the
distinction between real rights and contractual rights, in that case,

82 1960 1 SA 227 (A) 227.

83 See section 7.2.2.2.4.4.
84 1968 4 SA 1 (A) 20.
85 See Van Vuren & Others v Registrar of Deeds 1907 TS 289 at 295; Van der Merwe Sakereg
(n 8 above) 526‐527, and Kleyn et al (n 1 above) 380‐381.
 Chapter 6: Acquisition of ownership 143

unregistered servitudes, Ogilvie Thomson JA referred to Willoughby’s

Consolidated Co Ltd v Copthall Stores Ltd86 where Innes CJ said at 16:

Now a servitude, like any other real right, may be acquired by agreement. Such
an agreement, however, though binding on the contracting parties, does not by
itself vest the legal title to the servitude in the beneficiary any more than a
contract of sale of land passes the dominium to the buyer. The right of the
beneficiary is to claim performance of the contract by delivery of the servitude,
which must be effected coram lege loci by an entry made in the register and
endorsed upon the title deeds of the servient property.

Grant is therefore no authority for a proposition that a registered real right is

no longer maintainable against the whole world when it is erroneously
omitted from a subsequent title deed.

3.3.2 Positive and negative systems of registration

3.3.2.1 Positive system

This system guarantees the accuracy of the registration/registered

information to third parties or, at times, to bona fide acquirers of immovable
property or real rights to such property. It therefore follows that a bona fide
acquirer of a real right which has been registered can enforce such registered
right against everyone. The state guarantees the accuracy of the registered
information, including the registration of a title, and therefore there is a high
degree of state intervention securing the protection of a bona fide third
party. The system of registration in Namibia is consistent with this type of
registration.87

3.3.2.2 Negative system of registration

Under this system the accuracy of information is not guaranteed. If a third

party, acting in good faith, accepts incorrect data in the deeds office as
correct, and acts on this information, he or she will normally not enjoy
protection under the negative system of registration unless of course the
doctrine of estoppel could find application or he or she might have a claim for
delictual damages.88

4 Summary and concluding remarks

The principles and tests applied to determine whether dominium or

ownership has passed under the various methods of acquisition of ownership

86 1918 AD 1.
87 See also sec 99 of the Deeds Registries Act.
88 Kleyn et al (n 1 above) 99.
144 Property law in Namibia

discussed in this Chapter indicate that the actuality of certain factual

situations will give rise to the inference of the acquisition of ownersip by
operation of the law. These are guiding principles to assist the courts to draw
an inference of acquisition of ownership after considering the peculiar facts
of each case. They include the publicity principle, which deals with the
outward manifestations indicative of the intention to pass ownership. In
cases involving inaedificatio, for example, which may lead to the deprivation
of property, and consequently the violation of the constitutional right of the
owner of the movable property, the enquiry of the courts will be stretched to
determine the unequivocal intention and consent to transfer ownership.
 7
REAL RIGHTS OTHER
CHAPTER
THAN OWNERSHIP

1 Introduction

From the definition and nature of ownership, together with the principles
relating to registration under section 16 of the Deeds Registries Act 47 of
1937, we are able to internalise the principles that the holder of a real right
may create rights over his dominium in favour of another party. Depending
on the intention of the parties and the mode of creation of these rights, they
may constitute real rights. However, to the extent that these rights are not
complete rights of ownership they are referred to as limited real rights in
contradistinction to ownership, which is a real right. In Chapter 4, with
reference to the distinction between real rights and personal rights, we
discussed servitudes (2.2) as examples of limited real rights. In this Chapter
we shall look at servitudes as an established category of real rights in greater
depth and will also consider other examples of limited real rights, such as
lease, mortgage, pledge and lien.

2 Servitudes

2.1 Definition

A servitude may be defined as a limited real right to another legal subject’s

movable or immovable property which grants the entitled person, that is the
holder of the servitude, certain specified entitlements of use and enjoyment.
In the case of Lorentz v Melle & Others1 Nestadt J defined a servitude as a
right belonging to one person in the property of another entitling the former
either to exercise some right or benefit in the property or to prohibit the
latter from exercising one or other of his normal rights of ownership. The

1 1978 3 SA 1044 (T) 1049.

145
146 Property law in Namibia

legal effect of a servitude is to diminish the rights of the owner over property
for the benefit of another.

Because of this bearing, the right of servitude must be clearly

established. As a general rule, a servitude is only recognised as a real right if
it has been registered against the land in question, unless it was created by
statute or prescription.2 All servitudes are limited real rights. Examples of
servitudes are a right to draw water from the land of someone else; a right of
way over the property of someone else; and a right of grazing on the land of
someone else.

2.2 Classification

2.2.1 Distinction between active (positive) and passive (negative)

servitudes

An active servitude is one which entitles the holder of the servitude to do

something with regard to the servient property which the owner of the
servient property must endure, for example B’s right to draw water from A’s
dam.

A passive servitude entitles the holder of the servitude, to prohibit the

owner of the servient property from exercising any one or more of the
powers normally attached to ownership, for example where the owner of the
servient tenement is prohibited by the servitude from erecting on his or her
property any building higher than a certain height. Personal and praedial
servitudes can either be active or passive.3

2.2.2 Distinction between praedial and personal servitudes

As we saw at 2.2, there are two basic categories of servitudes, namely

praedial and personal servitudes. Praedial and personal servitudes may be
distinguished in the following ways.4

A praedial servitude requires at least two pieces of land. It is constituted

in favour of one piece of land, the dominant tenement, over another piece of
land, the servient tenement. It therefore confers a real benefit on the
dominant tenement and imposes a burden on the servient tenement. This
means that the owner of the land benefits from the servitude in his or her
capacity as landowner. Successive owners of the land will stand to benefit
from the servitude.

2 Coetzee v Malan 1979 1 SA 377 (O).

3 PJ Badenhorst et al Silberberg and Schoeman’s the law of property 5th ed (2006) 322.
4 Badenhorst et al (n 3 above) 322‐42; F du Bois Wille’s principles of South African law 9th ed
(2007) 593‐611; WA Joubert et al Law of South Africa (Lawsa) (First Reissue) (2003) 24,
para 388; H Mostert et al The principles of the law of property in South Africa (2010) 239.
 Chapter 7: Real rights other than ownership 147

A personal servitude, on the other hand, is always constituted in favour

of the individual in his or her personal capacity. It confers on this individual
the right to use the owner’s property.5 A praedial servitude is inseparably
bound to the land it benefits and therefore when the land is alienated the
new owner becomes the holder of the praedial servitude. A personal
servitude cannot be transferred by its holder. In terms of the common law
principle that a servitude always runs with the land, a praedial servitude, in
principle, can be granted in perpetuity or, in terms of section 75(1) of the
Deeds Registries Act 47 of 1937, for a limited period only. A personal
servitude, on the other hand, is extinguished when the period for which it is
granted lapses, or when the holder of the personal servitude dies. Where the
holder is a juristic person, the servitude lapses after 100 years. A praedial
servitude is indivisible, whereas personal servitudes are divisible.6 This
means that a personal servitude, in principle, can exist over a part of the
property, while a praedial servitude, in principle, exists over the whole of the
affected land.7

The diagram below is a graphic illustration of the distinction between

praedial and personal servitudes.

B, the owner of Farm Chalcot, grants A, in his capacity as owner of Farm

Schickoft, a right of way over Farm Chalcot. The right of way is a praedial
servitude to the extent that it is granted to A in his capacity as owner of Farm
Schickoft. Farm Schickoft, which is benefiting from the right of way, is
referred to as the dominant tenement and Farm Chalcot which serves, or is
burdened in favour of Farm Schickoft, is referred to as the servient tenement.
Should A later sell Farm Schickoft to D, D would of course become the owner
of that farm and would therefore be entitled to exercise the right of way over

5 Willoughby’s Consolidated Co Ltd v Copthall Stores 1913 AD 277 281; Ex parte Geldenhuys
1926 OPD 155 163‐164.
6 Mocke v Beaufort West Municipality 1939 CPD 135.
7 Mostert et al (n 4 above) 239.
148 Property law in Namibia

Farm Chalcot. If C, owner of Farm Kalkfeld, grants to A, in his or her personal

capacity, the right to draw water from the borehole on Farm Kalkfeld, this
right constitutes a personal servitude because the servitude is not granted to
A in his or her capacity as owner of Farm Schickoft but in his or her personal
capacity. Should A sell his property to D, D would not be entitled to exercise
the servitude merely because he or she has acquired ownership of the
property. His or her entitlement will be determined by an express grant by C.

Praedial servitudes will now be discussed in detail, while personal

servitudes and unregistered servitudes are discussed under 2.2.4 below.

2.2.3 Praedial servitude

2.2.3.1 Requirements

South African law (including Namibian law) knows no numerus clausus of real
rights, including servitudes, in respect of land. However, certain
requirements or pre‐requisites must be met before a right will qualify as a
praedial servitude.8 These requirements are discussed under separate
headings below.

One piece of land serves another

As stated earlier, there must be two tracts of land or erven, the dominant
tenement and the servient tenement. A praedial servitude cannot exist
without these two tenements. This accords with the rule of praedial
servitudes that one piece of land serves another. The owner of the dominant
tenement must derive some benefit from the praedial servitude in his or her
capacity as owner of the land.9

In Van der Vlugt v Salvation Army Property Co10 it was held that a right of
a municipality to lay a sewer over privately owned land was not a praedial
servitude because that right was not granted in favour of an identifiable
dominant tenement.

The servitude must offer some advantage, either present or future, to

the dominant tenement whereby its value or the enjoyment to be derived
from it is increased. The dominant and servient tenements must be situated
close enough to allow practical exercise of the servitude. The use made of the
servient land must be based on some permanent attribute or feature of such

8 Badenhorst et al (n 3 above) 322‐6, see also Mostert et al (n 4 above) 239.

9 Badenhorst et al (n 3 above) 323; Du Bois (n 4 above) 594; Joubert et al (n 4 above) Vol 24,
para 396; Mostert (n 4 above) 240.
10 1932 CPD 56.
 Chapter 7: Real rights other than ownership 149

land. This is expressed in the existence of a causa perpetua as a

requirement.11

Nobody can constitute servitude over his or her own property

Nobody can hold a servitude over his or her own property (nemini res sua
servit). This means that where a person owns two properties, he or she
cannot register a servitude as a burden over one property in favour of the
other one, not even if the ownership is held under two separate title deeds.12
There is an exception with respect to co‐owners because an owner can
acquire a servitude over land of which he or she is only a co‐owner and
conversely, co‐owners may acquire a servitude over land that is owned solely
by one of them.13 The exception which applies in relation to co‐owners can
be explained graphically as follows:

In the above scenario, A and B own Farm Chalcot in undivided shares as co‐
owners. B is the sole owner of Farm Okapuka. B can acquire a servitude over
Farm Chalcot and conversely, A and B can acquire a servitude over Farm
Okapuka.

There cannot be a servitude of a servitude

This requirement entails that the benefit of the servitude cannot be severed
or separated from the land to which it is attached in favour of another
property. It follows that a dominus is not permitted to assign his or her
servitude (or otherwise allow it to be utilised) for the benefit of another piece
of land other than the dominant tenement.14 Similarly, the holder of a
servitude cannot grant to another person a servitude in respect of the
servitude which he or she holds.15 The holder of a right of way, for example,
cannot grant to someone else a servitude to use the road.

11 Lorentz (n 1 above) 1052.

12 Badenhorst et al (n 3 above) 323.
13 Mocke (n 6 above); Badenhorst et al (n 3 above) 323.
14 Badenhorst et al (n 3 above) 323‐4; Mostert et al (n 4 above) 240.
15 Dreyer v Letterstedt’s Executors 1865 5 Searle 88.
150 Property law in Namibia

This rule can be explained graphically by another example:

If A has granted a grazing right over his or her land to B. B cannot cede the
right to C because he or she will then be creating a servitude over a servitude.

A servitude must not impose active (positive) duties on owner of servient

tenement
As stated earlier, a general characteristic of a servitude is that it exists over
land belonging to someone else. Its existence constitutes a diminution of
ownership. The holder of the servitude is entitled to some benefit from the
servient tenement. However, he or she is not entitled to demand some active
(positive) act on the part of the owner of the property.16 This means that a
servitude does not oblige the servient owner to render a performance
(servitus in faciendo consistere nequit). For example, the holder of a right of
way over his or her neighbour’s property cannot expect the owner of the
neighbouring property to maintain the road.

There are two servitudes constituting exceptions to the general rule that
the holder of a servitude may not demand any positive act from the owner of
the servient land. These servitudes are:

(a) servitus oneris ferendi, which is a servitude which imposes a duty on the
owner of a servient land to keep a wall in a good state of repair;17 and
(b) servitus altius tollendi, which is a servitude that compels the owner of a
servient property to construct a building of a certain height.

Praedial servitudes are indivisible

The rule is that a praedial servitude is prima facie imposed on the servient
tenement as a whole to the benefit of the dominant tenement.18 This rule is

16 Schwedhelm v Hauman 1947 1 SA 127 (E); Van der Merwe v Wiese 1948 4 SA 8 (C).
17 Badenhorst et al (n 3 above) 324.
18 Nolan v Barnard 1908 TS 142 151.
 Chapter 7: Real rights other than ownership 151

particularly important in cases involving joint ownership. The rule means that
a joint owner of the dominant tenement cannot acquire a servitude in favour
of his undivided share only. Similarly, a joint owner of the servient tenement
cannot grant a servitude over his or her undivided share only. Therefore, the
creation of a servitude will require the prior consent and cooperation of the
joint owners of both the dominant and servient tenements. A servitude
registered in favour of a dominant tenement which is subsequently
subdivided, extends in favour of each and every subdivided portion of the
dominant tenement. If the servient tenement is later subdivided, every
portion is subject to the praedial servitude as if the servitude had been
constituted at the outset against that particular tenement. For example,
where the dominant tenement is owned jointly by A and B, B cannot acquire
a right of way over the servient tenement for his undivided share only. The
servitude can only be granted to the dominant tenement as such. This implies
that the creation or acquisition of the servitude will require the prior consent
and cooperation of both A and B. Should the dominant tenement later be
subdivided between A and B, each would be entitled to make use of the right
of way over the servient tenement.19

Once a servitude involving two adjacent pieces of land is created, it is

immaterial who the owner of either tenement is at any given time. The
common expression is that ‘a servitude always runs with the land’. Therefore,
neither the benefit nor the burden can be detached from the piece of land on
which it is respectively conferred and imposed. Both are passed from one
owner to the next when the land is transferred. The praedial servitude is
granted to the owner of the dominant tenement in his or her capacity as the
landowner. Unlike personal servitudes that may be constituted over either
movables or immovables, praedial servitudes may only be constituted over
immovables. Traditional praedial servitudes include right of way, way of
necessity, water servitudes, grazing servitudes; and the power to prohibit the
erection upon the servient tenement of any building (or any building higher
than a specific height).

2.2.4 Distinction between rural and urban praedial servitudes

Praedial servitudes are traditionally divided into rural and urban praedial
servitudes. This distinction is often said to have no legal significance because
some servitudes can be both rural and urban. However, the significance of
the said distinction does not seem to be found in the locality of the tenements
concerned but in the purpose for which the properties concerned are used.
Rural servitudes relate to land or tenements used for agricultural purposes
while urban servitudes find application in residential or industrial
environments.

19 Badenhorst et al (n 3 above) 325‐326; Mostert et al (n 4 above) 243; Du Bois (n 4 above)

597; Joubert et al (n 4 above) 398.
152 Property law in Namibia

2.2.4.1 Rural praedial servitudes

The following are said to be the most important rural servitudes: rights of
way, water servitudes and grazing servitudes.20

(a) Right of way

In terms of this servitude the holder of the servitude is entitled to walk across
another person’s land or to drive cattle or vehicles across the land. When the
right to drive cattle across the land is accompanied by the right to allow cattle
to graze as they cross the land, the servitude concerned is called a servitude
of trek path.21

(b) Water servitude

This servitude confers on the owner of the dominant tenement the right to
draw water from the servient tenement, either in furrows or pipes; to water
cattle on the servient land; and to discharge water and store surplus water on
the servient tenement.22

(c) Grazing servitude

This servitude confers on the owner of the dominant tenement the right to
graze a specified or unspecified number of cattle on the servient tenement. If
the number of cattle is specified by the servitude, the owner of the servient
tenement (servient owner) may grant others similar servitudes, provided that
he or she does not prejudice the first grantee in the exercise of his or her
rights. In the absence of a specific provision the owner of the dominant
tenement has no exclusive right to any particular grazing area so that the
servient owner may make use of his or her land, provided that he or she does
not interfere with the owner of the dominant tenement’s grazing rights.
Where the number of cattle is not specified, the owner of the servient
tenement (servient owner) must restrict the use of his or her land to such an
extent as to give the owner of the dominant tenement a reasonable
opportunity to exercise his or her right; while the dominant owner cannot
exclude the owner of the servient tenement (servient owner) from grazing at
least a certain number of cattle which he or she requires for his or her farming
operations.23

2.2.4.2 Urban praedial servitudes

These servitudes consist mainly of prescribing the restrictive use of the

servient tenements. The following are examples of traditional urban
servitudes.24

20 Badenhorst et al (n 3 above) 326‐327.

21 As above.
22 As above.
23 Badenhorst et al (n 3 above) 327.
24 Badenhorst et al (n 3 above) 326.
 Chapter 7: Real rights other than ownership 153

(a) Beams and windows on servient tenement

The owner of the dominant tenement is entitled to insert one or more beams
of his or her building into the building on the servient tenement or to have a
window or other opening in a wall on the servient tenement.

(b) Prohibition pertaining to erection of building on servient tenement

The owner of the dominant tenement may prohibit the erection of any
building on the servient tenement, either at all or beyond a certain height, or
conversely, to compel the erection of a building of a certain minimum height
or type. This type of servitude is intended to prevent the owner of the
servient tenement from doing anything on his or her land to obscure the view
or light from or on the dominant tenement.

(c) Support on servient tenement

The right to service of support (servitus oneris ferendi) grants the servitude
holder the right to have his or her building supported by a building on the
servient tenement. The servitude holder has the right to build a house against
the wall of a house on the adjoining tenement and to have it supported by the
wall on the latter tenement. This is a reciprocal servitude and is meant to
prevent either owner from demolishing his or her building and thus
withdrawing the support from the adjoining building. The owner of the
servient tenement is bound to keep the wall concerned in good order at his
or her own expense.25

(d) Encroachment on servient property

This refers to the right to build or otherwise encroach upon the servient
property, for example, by having a verandah encroaching upon it or a balcony
protruding into its airspace or rain water discharging onto it.26

(e) Way of necessity

A way of necessity (via necessitatis) is a peculiar servitude with special
requirements. It can take any of the forms of a right of way. However, there
is one major difference between the conventional right of way and a way of
necessity. A way of necessity does not arise from agreement but it is granted
by court in order to afford a right of way in respect of land‐locked property.
It does not require the consent of the servient owner. It is a right which may
be claimed as of right by an owner of land when there is no other alternative
route available to such owner. It is a right of way granted in favour of property
over an adjoining property, constituting the only means of ingress to and
egress from the former property. Thus, if there is an alternative reasonable
and sufficient route, a claim to a way of necessity will fail. The criterion which
is applied in determining whether a way of necessity should be granted is not
convenience but necessity, though not absolute necessity.27 Any owner of

25 Badenhorst et al (n 3 above) 327.

26 Badenhorst et al (n 3 above) 328.
27 Illing v Woodhouse 1923 NPD 166 168.
154 Property law in Namibia

land is entitled to a reasonable and sufficient means of access to a public road

from the property or the land. If a way of necessity is granted, it extends to
all persons who wish to visit the owner of the land or who wish to gain access
to the landlocked tenement.28 The owner of the land concerned is not
entitled to claim the best and nearest access on the ground of necessity.29 In
Illing v Woodhouse,30 a way of necessity was granted to an owner of land
after it had been established that in the absence of a way of necessity the
landowner would have been compelled to travel 11 miles along a road
crossing a gorge which was difficult though not impossible to traverse, while
the road in respect of which he was granted a way of necessity was only 4
miles long and easy to negotiate.

As stated earlier, the criterion for the grant of a way of necessity is

necessity and not convenience. Consequently, an owner who has only himself
or herself to blame for not having access to the property cannot claim a way
of necessity. In Bekker v Van Vyk31 an owner of land had for his own
convenience applied for the closure of a public road to which he had perfect
access and subsequently sought a way of necessity through someone else’s
land. It was held that he was not entitled to such way of necessity.

The way of necessity may be granted either as a permanent right of way

(ius viae plenum) or as a precarious right of way to be used in cases of
emergency (ius viae precario). The grant of ius viae plenum will attract
payment of reasonable compensation whereas in the case of ius viae precario
the payment of compensation is not required.32

The following are some guidelines regarding the granting and the nature
of a way of necessity:

• Registration of a way of necessity against the title deed of the servient

tenement may only take place after such registration has been authorised
by a court order.
• The use of a way of necessity prior to the issue of the required court order is
unlawful and amounts to trespassing.
• The way of necessity can be established for use in emergency situations only
or for use on a continuous basis. In the latter case compensation will have to
be paid.
• In determining the route of an authorised way of necessity and its width the
least burdensome route over the nearest land between the landlocked
tenement and the public road must be chosen. This is in accordance with
the principle of ter naaste lage en minster schaden.
• Reasonable compensation must be paid in case of a permanent way of
necessity.

28 Badenhorst et al (n 3 above) 328.

29 Lentz v Mullin 1921 EDC 268 270.
30 As above.
31 1956 3 SA 13 (T).
32 Badenhorst et al (n 3 above) 328‐9.
 Chapter 7: Real rights other than ownership 155

• Although registration is neither a constitutive requirement for the

establishment of the way of necessity or for its enforcement against third
parties, the courts recommend that it be done.33
• The applicant must prove necessity and furnish reasons why the way of
necessity should encumber the defendant’s land and must also present
evidence concerning the width of the claimed way, the recommended route
and the compensation.
• After the court has decided that there is indeed a necessity, it will make a
finding as to the width of the way of necessity concerned and fair
compensation.

2.2.5 Creation of praedial servitudes

Apart from an original grant by state, servitudes, both praedial and personal,
normally originate from agreement between the respective owners of a
dominant tenement and a servient tenement. This agreement will contain
the extent of servitudal rights, the amount payable to the dominus in
consideration of the grant of the servitude and its intended duration unless it
is intended to remain in force ad infinitum.

It must be noted that a mere agreement whereby a servitude is granted

is not enough to constitute the servitude. The servitude as a real right comes
into existence only when the agreement between the owners of the
properties concerned has been registered. To take effect the servitude must
be registered against the title deed of the servient tenement.34 This may be
done either by means of a reservation in a deed of transfer when the property
is transferred in the circumstances envisaged under section 76 of the Deeds
Registries Act35 or by the registration of a notarial deed, accompanied by an
appropriate endorsement against the title deeds of the dominant and
servient tenements respectively.36 In addition, the general principles relating
to acquisition of real rights discussed in Chapter 6 apply equally to praedial
servitudes.

Servitudes may also be created by statute. Section 28 of Sectional Titles

Act 95 of 1986, for example, provides for the existence of implied servitudes
of subjacent and lateral support and of passage and provision of water and

33 Van Rensburg v Coetzee 1979 4 SA 655 (A) 676.

34 Secs 16, 65 and 75 of the Deeds Registries Act. If the servient tenement is subject to a
mortgage or another limited real right with which the servitude may conflict, the written
consent of the bondholder or holder of the other limited real right must be obtained
before the servitude can be registered.
35 In other words if: (a) the servitude is imposed on the land transferred in favour of other
land registered in the name of the transferor; or (b) the servitude is imposed in favour of
the land transferred on other land registered in the name of the transferor; or (c) the
transferor admits that the land to be transferred is subject to unregistered rights of
servitude in favour of land registered in a third person’s name, and the transferee consents
in writing to such servitude being embodied in the transfer, provided further that such
third person appears either in person or by a duly authorised agent before the registrar at
the time of execution of the transfer and accepts the servitude in favour of his or her land.
36 Badenhorst et al (n 3 above) 332.
156 Property law in Namibia

electricity, which are deemed to be incorporated in the title deeds of all

sectional owners.

As we saw in Chapter 6, a servitude can be created by prescription. Under

section 6 of the Prescription Act 68 of 1969, a servitude is acquired by
prescription when a person openly, and as if he were entitled to do so,
exercised the rights and powers of the holder of a servitude for an
uninterrupted period of 30 years. This applies to both praedial and personal
servitudes. In the case of praedial servitudes, any periods for which such
rights and powers were so exercised in the required way by the acquirer’s
predecessors in title would be taken into account to constitute jointly an
uninterrupted period of 30 years.

A servitude may also originate from an order of court. A classic example

is a servitude of a way of necessity. Registration is not a prerequisite for the
vesting of the servitude. In Van Rensburg v Coetzee37 the court left open the
question as to whether registration is a prerequisite for the vesting of the
servitude. The court, however, cautioned that it was advisable from a
practical point of view to have the servitude registered.

2.2.6 Powers and duties of owners of dominant and servient

tenements

The rights and duties of the owners of the respective tenements will be
determined with reference to the terms of the agreement between them
which must be interpreted according to the ordinary rules of interpretation.
In addition, well‐established principles relating to specific servitudes must
govern the construction of the servitude. It follows therefore that an
agreement which conflicts with the freedom of a servient owner to use his or
her property as he or she deems fit will be interpreted restrictively and its
terms construed in a manner which is least burdensome for him or her.38
Therefore, the owner of the dominant tenement must exercise his or her
servitudal rights in a civilised manner with due regard to the rights of the
servient owner (civiliter modo), which means that the servitude must be
exercised in a proper and careful manner so as to cause the least
inconvenience to the servient owner. But this principle does not restrict the
owner of the dominant tenement in the exercise of his or her rights merely
because doing so will prejudice the owner of the servient tenement.39

In Pieterse v Du Plessis,40 the holder of a servitude of aqueduct claimed

compensation for damage caused to his pipes by the servient owner while the
latter was ploughing his land. The court held that the onus was on the holder

37 (n 35 above) 676.
38 Badenhorst et al (n 3 above) 331.
39 As above.
40 1972 2 SA 597 (A).
 Chapter 7: Real rights other than ownership 157

of the servitude to show that the pipes had been laid at the depth stipulated
by the agreement and in a proper and workman‐like manner because to rule
otherwise would impose a restriction on the servient owner’s right to use
land as he or she saw fit. The court also held that the owner of the dominant
tenement must exercise his or her rights (civiliter modo) in a manner that
least inconvenienced the owner of the servient tenement.

In terms of the remedies which are available where a party’s rights have
been violated, either party is entitled to claim damages if the other party has
exceeded his or her rights, provided that the plaintiff can prove patrimonial
loss. If no such loss but only an erosion of rights can be proved the applicable
remedy would be an interdict to prevent further breaches.

If the holder of a limited real right exceeds his or her powers in the
exercise of that right in respect of the servient land, the owner of the servient
land may apply to the court for a declaration of rights.

Since a praedial servitude runs with the land, it may be exercised by

anyone who lawfully occupies the dominant tenement. A lessee, for example,
who occupies a dominant tenement, is entitled to exercise the limited real
right existing over the servient tenement in favour of the dominant
tenement. However, only the owner of the dominant tenement may institute
legal proceedings against the owner of the servient tenement in the event of
the latter disputing the existence or extent of the servitude.

In Setlogelo v Setlogelo41 it was held that only the owner of land is

entitled to institute proceedings or to a declaration that the land is free from
any alleged servitude, or, if the existence of a servitude is not in dispute, that
the holder of the servitude claims rights in excess of those granted to him or
her in terms of the servitude.

2.2.7 Termination of praedial servitudes

Praedial servitudes may be terminated in the various manners discussed

below under the appropriate headings.

2.2.7.1 Cancellation of a servitude by agreement

A servitude may be terminated by agreement between the owner of the

dominant tenement and the owner of the servient tenement.42 Between the
parties (inter partes) the agreement becomes effective immediately. The
cancellation is also immediately effective against third parties who have
knowledge of the cancellation. To be effective against other third parties, a
cancellation agreement must be registered against the title deed of the

41 1921 OPD 161.

42 Badenhorst et al (n 3 above) 336.
158 Property law in Namibia

servient tenement by a notarial deed entered into by the respective owners

of the dominant and the servient tenements. This means that if the
cancellation agreement has not been registered, a purchaser of the dominant
tenement will be entitled to exercise the servitude unless he or she had prior
knowledge of the cancellation agreement. A purchaser of the servient
tenement will be bound by the servitude unless, at the time of the sale, he or
she had knowledge of the cancellation agreement.43

The cancellation agreement can be either express or tacit. For example,

an agreement will be tacit where the owner of the dominant tenement allows
the owner of the servient tenement to do something which is inconsistent
with rights conferred by the servitude, for instance, if the owner of the
dominant tenement allows the owner of the servient tenement to build upon
the track of land over which there is a right of way.

2.2.7.2 Abandonment or waiver of a servitude by a holder

Abandonment of a servitude may be express or implied. An express

abandonment may be effected unilaterally or by agreement.44 An implied
abandonment may be effected where, for example, the owner of the
dominant tenement knows that the owner of the servient tenement is
obstructing access to a right of way and the owner of the dominant tenement
abstains from doing anything about it.45 The period of inaction and
acquiescence of the owner of the servient tenement is of great importance.

The same principles apply to waiver.46 Authorities insist that strict proof
of the intention to abandon the servitude will be required, although it may be
inferred from the conduct of the owner of the dominant tenement, provided
that such conduct is consistent only with the intention to abandon the
servitude.47 It must be noted that there are strong views to the effect that a
servitude may not be abandoned if it would cause serious injury to the
servient tenement.48

2.2.7.3 Extinction of a servitude by prescription

In terms of section 7(1) of the Prescription Act, a positive servitude is

extinguished by prescription if it is not exercised for an interrupted period of
30 years. In terms of section 7(2), a negative or passive tenement is not lost

43 Bezuidenhout v Nel 1987 4 SA 422 (N). See also Badenhorst et al (n 3 above) 336 and the
criticism against the proposition that the purchaser should know both of the registered
servitude and its cancellation.
44 Du Bois (n 4 above) 614.
45 Margate Estates Ltd v Urtel (Pty) Ltd 1965 1 SA 279 (N); Cowley & Another v Hahn 1987 1 SA
440 (E).
46 Note that most writers refer to termination by abandonment rather than waiver.
47 Badenhorst et al (n 3 above) 336.
48 Du Plessis v Philipstown Municipality 1937 CPD 335; CG Hall & EA Kellaway Servitudes
3rd ed (1973) 144.
 Chapter 7: Real rights other than ownership 159

as a result of non‐user, since its holder is deemed to exercise it as long as

nothing is done on the tenement which would impair the enjoyment of the
servitude by the owner of the dominant tenement.49 In other words, a
negative servitude is extinguished by prescription where the owner of the
servient tenement acts contrary to the servitude for an uninterrupted period
of 30 years, for example where an owner trades on his or her property for 30
years contrary to a servitude prohibiting it.50

2.2.7.4 Termination of a servitude by merger

A servitude is lost by merger if the owner of the dominant tenement also

becomes the owner of the servient tenement, provided that the rights of
ownership coincide exactly with regard to both tenements.51 This is
consistent with the principle that a person cannot have a servitude over his
or her own property.

2.2.7.5 Termination of a servitude by the destruction of either dominant or

servient tenement

The servitude is lost by destruction of either dominant or servient tenement

if the event renders the exercise of the rights of servitude permanently
impossible. For example, if the house to which a habitatio relates is
destroyed. The element of permanent impossibility becomes inoperative if
the destroyed tenement is restored, in which case, the servitude will revive.

2.2.7.6 Termination of a servitude by lapse of fixed time

If the servitude was granted for a specific period only, it will expire upon
termination of that period.

2.2.7.7 Termination of a servitude by order of court due to non‐compliance

A servitude can be terminated by an order of court due to the failure of one

of the parties to comply with the conditions pertaining to the servitude.

2.2.7.8 Termination of a servitude by an order of court in pursuance of an

application in terms of a statutory provision

A statute may make provision for the cancellation of a servitude upon

application to the High Court.52

49 Badenhorst et al (n 3 above) 337.

50 Hollman & Another v Estate Latre 1970 3 SA 638 (A); Hotel De Aar v Jonordon Investment
(Edms) Bpk & Others 1972 2 SA 400 (A).
51 Mocke (n 6 above).
52 Badenhorst et al (n 3 above) 338.
160 Property law in Namibia

2.2.8 Personal servitudes

2.2.8.1 Creation

A personal servitude is established in favour of a particular person over a

thing and may confer a variety of benefits to the holder.53 It can be created
for a fixed period of time or be granted until the occurrence of a future event
or until the death of the beneficiary but never beyond that. Personal
servitudes are normally created by agreement between the relevant parties
followed by registration. Registration takes place either by means of a
reservation in a deed of transfer, in the circumstances envisaged in section 67
of the Deeds Registries Act, or by the registration of a notarial deed
accompanied by an appropriate endorsement against the title deed of the
servient tenement.54

2.2.8.2 Classification

There are three main categories of personal servitudes, namely usufruct

(usus fructus), use (usus) and habitation (habitatio). Each of these personal
servitudes will now be discussed separately.

Usus fructus (usufruct)

Usufruct is a real right in terms of which a grantor confers on a usufructuary
(the holder of the servitude) the right to use and enjoy the thing to which the
usufructuary relates.55 The thing may be either movable or immovable
property. Examples of movable and immovable things that may be subject to
a usufruct in favour of the usufructuary are a herd of cattle or an entire estate
of the grantor. Normally, usufruct extends to the accessories of the thing
subject to usufruct, for example usufruct over a farm will normally extend not
only to the buildings but also livestock, farming equipment and other
furniture in the homestead, provided a contrary intention does not appear
from the agreement. It may also consist of natural fruits such as crops, or civil
fruits such as the interest earned on a capital invested or the rental received
on a lease of immovable property. Usufruct is commonly created in wills
where, for example, a testator bequeaths certain property to his children
subject to a usufruct in favour of his wife. A usufruct can also be established
(inter vivos) while the grantor is still alive, where for example, the owner of a
farm grants to someone the right to plant crops on a specific tract of land.

The right of the usufructuary is to enjoy and use the property concerned.
He or she does not acquire dominium over the property but they are entitled
to possession and the fruits of the property. The capital in its entirety remains
with the owner but the fruits of the servient property accrue to the

53 As above.
54 Badenhorst et al (n 3 above) 342; sec 65(1) of the Act.
55 Badenhorst et al (n 3 above) 338.
 Chapter 7: Real rights other than ownership 161

usufructuary, either wholly or in part. They do not have an ius abutendi (the
entitlement to consume and destroy) but as indicated earlier, the
usufructuary has the right to take, consume or alienate its fruits, whether
they are natural, industrial or civil. It follows that a usufruct cannot be created
over consumables because the usufructuary, when the usufruct comes to an
end, has to restore the thing(s) in respect of which the usufruct existed,
reasonable wear and tear excepted.56 Property which is subject to usufruct
can at any time be sold or let by the owner, subject to the servitude. In terms
of section 69(1) of the Deeds Registries Act, if the owner of the land subject
to a personal servitude and the holder of the servitude have disposed of the
land or any portion thereof with the rights of servitude to another, they may
together give transfer thereof to the person acquiring it. In this case,
however, the servitude lapses by virtue of the principle that a person cannot
have a servitude over his or her own property.

The usufructuary is obliged to maintain the property at his or her own

expense. In the absence of an agreement to the contrary, all the normal
expenses, relating to the property (such as taxes) must be paid by him or her.
He or she is not entitled to change the material nature of the property by, for
example, converting a farm into a restaurant or a holiday resort. The
usufructuary is not entitled to compensation for improvements effected by
him or her on the property but he or she is entitled to be compensated for
special or extraordinary expenses, such as the interest on an existing bond
over the property paid by him to the mortgagee.57

Usus (use)
Use confers the right to use the property of another person for daily needs.
The holder of the right is entitled only to those fruits that provide him or her
and their family with the necessities of life. Surplus fruits cannot be sold, nor
can the holder of the right alienate or let his use.58

Habitatio (habitation)
The servitude of habitation confers on its holder the right to dwell in the
house of another together with his or her family without detriment to the
substance of the property. Unlike a servitude of use, it carries with it the right
to grant a lease or sublease to others.59

2.2.8.3 Termination of personal servitudes

Personal servitudes may be terminated in the various manners discussed

below under appropriate heading.

56 Badenhorst et al (n 3 above) 340; Brunsdon’s Estate v Brunsdon’s Estate 1920 CPD 159 174‐
175.
57 Gordon’s Bay Estates v Smuts & Others 1923 AD 160.
58 Badenhorst et al (n 3 above) 341.
59 As above.
162 Property law in Namibia

(a) By agreement
A personal servitude may be terminated or cancelled by a bilateral
agreement between the parties, the owner of the land and the holder of the
servitude. Section 68(2) of the Deeds Registries Act provides that cancellation
of the registration of a personal servitude in pursuance of an agreement
between the owner of the encumbered land and the holder of the servitude
shall be effected by a notarial deed, provided that no such deed shall be
registered if the servitude is mortgaged, unless the mortgagee consents in
writing to the cancellation of the bond or the release of the servitude from its
operation.

(b) At expiration of time

A personal servitude will lapse at the expiration of a specified period or at the
death of the holder. It may also expire earlier upon fulfillment of a resolutive
condition.60 Under section 68(1) of the Deeds Registries Act the registrar is
obliged to note such a lapse on written application by or on behalf of the
owner of the encumbered land accompanied by proof of the lapse of the
servitude, the title deed of the land and , if available, the title deed, if any, of
the servitude.

2.2.8.4 Unregistered servitudes

A servitude, like any other real right, may be acquired by agreement. Such an
agreement however, though binding on the contracting parties, does not by
itself vest the legal title to the servitude in the beneficiary, any more than a
contract of sale of land passes the dominium to the buyer.61 An agreement to
establish a servitude will only create the real right concerned on
registration62 and upon registration the real right comes into force and
becomes binding on the parties as well as third parties. Where there is a
change of ownership certain questions and principles relating to the binding
effect of an unregistered servitude arise. The principles are that, firstly, prior
to registration a third party, in particular the purchaser of the servient
property, who has no knowledge of the servitude, is not bound to recognise
it. However, as regards the relation between the parties to the agreement,
the agreement would be binding although not registered. Secondly, an
unregistered servitude will bind a third party who has actual or constructive
knowledge of the servitude.63 Hoexter JA in Frye’s (Pty) Ltd v Ries64
summarised the law as follows:

As far as the effect of registration is concerned, there is no doubt that the

ownership of a real right is adequately protected by its registration in the Deeds

60 Mostert et al (n 4 above) 254.

61 Willoughby’s Consolidated Co (n 5 above) 16.
62 Badenhorst et al (n 3 above) 334‐335.
63 Badenhorst et al (n 3 above) 335.
64 1957 3 SA 575 (A) 582; Manganese Corporation Ltd v South African Manganese Ltd 1964 2
SA 185 (W) 189.
 Chapter 7: Real rights other than ownership 163

Office. Indeed the system of land registration was evolved for the very purpose
of ensuring that there should not be any doubt as to the ownership of the
persons in whose names real rights are registered. Theoretically, no doubt, the
act of registration is regarded as notice to all the world of the ownership of the
real right which is registered … If a servient tenement is sold, the buyer is bound
by the servitude registered in favour of the owner of the dominant tenement
and it is immaterial whether he did or did not know of the existence of the
servitude. Knowledge of a servitude on the part of a buyer is material only when
the servitude has not been registered. If it has not been registered the buyer of
the servient tenement is not bound by the servitude unless he had knowledge of
it when he bought. But if the servitude has been registered the buyer of the
servient tenement is bound by the servitude, not because he knew of it or
because he is deemed to have known of it, but because the servitude was
registered. It is true that it has been said that a buyer of a servient tenement is
bound by a registered servitude because its registration is notice to the world;
but that is merely a way of saying that registration is as effective as though in fact
everybody in the world had been expressly notified of the servitude.

Thirdly, in the case of Manganese Corporation Ltd v South African Manganese

Ltd65 it was laid down that when the owner of land who had no knowledge of
a servitude which had erroneously been omitted from his title deeds, and
who is accordingly not bound by the unregistered servitude, passes transfer
to a purchaser who has knowledge of the servitude, that servitude is binding
on the transferee.

Fourthly, in Van den Berg & ’n Ander v Van Tonder66 it was held that
where a servitude is created by agreement, the owner of the servient
tenement is bound to comply with it and the owner of the dominant
tenement can be forced or ordered to effect registration. A purchaser of the
servient tenement who had actual knowledge of the servitude at the time of
purchase, is also obliged to allow registration against his land, although he
was not a party to the agreement creating the servitude. He is therefore, prior
to registration, unlike his predecessor in title, not obliged to observe it. But if
disregard thereof will cause irretrievable damage to the owner of the
dominant tenement and observance thereof will cause no irretrievable
damage to the owner of the servient tenement, the owner of the servient
tenement can be obliged to comply with the servitude. It is done by a
procedure which is a combination of an interdict and a spoliation application,
and the order can always be purely temporary, pending an action for
registration.

Fifthly, a purchaser with knowledge of an unregistered servitude is

bound by the servitude notwithstanding the intervention between the
grantor and such purchaser of a prior owner of the servitude who had bought
without knowledge of the servitude. If such a purchaser repudiates the
servitude, he is acting mala fide. However, mala fides is not readily presumed

65 As above.
66 1963 3 SA 558 (T).
164 Property law in Namibia

and as a general principle, proof of actual knowledge of the agreement

constituting the servitude is required before the court will hold a purchaser
bound by an unregistered servitude. But, if a person willfully shuts his eyes
and declines to see what is perfectly obvious, he must be held to have had
actual notice.67 The case of Grant & Another v Stonestreet & Others68
illustrates these principles. In Grant, a right of aqueduct was created during
1865 by means of an agreement between the owners of farm A (the
dominant tenement) and farm B (the servient tenement) but it was never
registered in the deeds registry. The successor in title of the contracting
owner of farm B (the servient tenement) had no knowledge of the right of
aqueduct and it was never enforced against him. The next successor in title of
farm B, however, did have knowledge of the written agreement. When the
owner of farm A (the dominant tenement) tried to enforce it by means of a
court order, he claimed that the right of aqueduct was only a creditor’s right
in terms of the unregistered servitudal agreement. As a creditor’s right it was
enforceable only between the original contracting parties and, in any case, it
had been terminated since the successor in title of the contracting owner of
farm B had no knowledge of the agreement. The court held:

that the servitudal agreement was enforceable between the contracting parties;
that because the successor in title to the contracting owner of farm B had no
knowledge of the agreement, it was not enforceable against him but that if he
had had knowledge, it would have been enforceable against him in terms of the
doctrine of notice; that the next successor in title of farm B did have knowledge
of the agreement and, consequently, it was enforceable against him in terms of
the doctrine of notice; and that the agreement had not been terminated because
of the previous owner of B’s lack of knowledge of the agreement.69

3 Lease

As stated earlier (2.5 of chapter 4), letting and hiring (conductio or huur en
verhuring) is a contract whereby one person (the lessor) agrees to give
another (the lessee) the use of a thing, or his own services or those of another
human being or of an animal, and the lessee agrees to pay the lessor an
amount of money (the rent) in return.70 A contract of this nature is termed a
lease.71 In terms of a contract of lease pertaining to property the lessor’s right
of ownership is limited to the extent that the lessee acquires a limited real
right to the lessor’s property which allows him or her (the lessee) the
temporary use and enjoyment of the property in return for payment of
rent.72 In Namibia leases are governed by common law and the provisions of
the Formalities in Respect of Leases of Land Act 18 of 1969.

67 Grant & Another v Stonestreet & Others 1968 4 SA 1 (A).

68 As above.
69 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 245.
70 De Jager v Sisana 1930 AD 71.
71 F du Bois Wille’s principles of South African law 9th ed (2007) 906‐907.
72 Cooper (n 15 above), Badenhorst et al (n 2 above) 427.
 Chapter 7: Real rights other than ownership 165

A short–term lease is a lease of immovable property for a term shorter

than ten years and is not registered. The lease agreement is not sufficient to
constitute a real right, as it creates creditor’s rights only. However, the lessee
acquires a real right as soon as the lessee takes possession of the property
and this alters the relationship between the lessee and the new owners of the
property. Firstly, new owners who had knowledge of the lease agreement are
bound by its terms by virtue of the application of the doctrine of notice. In
terms of this doctrine, the lessee is protected for the duration of the lease
since the new owner, who had knowledge of the lease agreement, is deemed
to have acquiesced in the lease agreement before purchasing the property.73
The lease agreement is therefore enforceable against the new owner.
Secondly, the lessee is protected for the duration of the lease by the
application of the common law principle of huur gaat voor koop (the lease
agreement takes precedence over a sale).

Under the provisions of the Formalities in Respect of Leases of Land Act

a long‐term lease is described as one that 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 is renewable by the lessee indefinitely for periods
which, together with the first period of the lease, amount to a total of at least
ten years.74 An unregistered long‐term lease merely creates a personal right
against the lessor in terms of which the lessee may demand possession of the
property to which the lease relates. However, the situation changes if the
lessee takes possession of the real property. In this case the lessee acquires
the right to use the leased property. Such right is a limited real right in the
property of another ‒ an ius in re aliena ‒ for the duration of the lease and
subject to the common law principle of huur gaat voor koop.

The Act further stipulates that a long‐term lease must be registered and
if registered, it binds the owners and their successors in title because in this
case a real right is acquired on registration of the lease.75 However, if such
lease is not registered, it is not valid against a creditor or successor under
onerous title of the lessor for a period longer than ten years after the
conclusion of the lease agreement. It must be mentioned that this does not
oust the common law principle of huur gaat voor koop, which protects the
lessee for only the first ten years of the lease.

Furthermore, such unregistered long‐term lease shall be valid against

anyone who acquires the land with knowledge of the lessee’s rights under the
lease agreement, including the duration of the lease which may exceed ten
years. In this case the unregistered long‐term lessee is protected under the
doctrine of notice for the entire period agreed to in the lease agreement.

73 Du Bois (n 4 above) 627; Van der Walt & Pienaar (n 69 above) 289‐90.
74 Sec 1(2).
75 Executor of Hite v Jones (1902) 19 SC 235 at 244.
166 Property law in Namibia

4 Mortgage

4.1 Definition and general features

As indicated earlier (2.4 of chapter 4) a mortgage is a real right in respect of

the immovable property of another, securing a principal obligation between
a creditor and a debtor. The agreement is normally known as the mortgage
bond which contains the rights and liabilities of the mortgagee and the
mortgagor. The borrower is the grantor of the bond and the lender the
bondholder. The agreement per se constitutes only a personal right between
the borrower (mortgagor) and the bondholder (mortgagee). The real right is
created only when the mortgage has been registered in the deeds registries
pursuant to an agreement between the parties.76 A mortgage can only exist
where there is a valid principal obligation, such as a loan. Its existence and
continued existence depend on the existence of the principal obligation
which it secures.77 Consequently, a bond registered in the deeds registry
terminates when the debt is repaid in full.78 A mortgage is indivisible; this
means that the entire mortgaged property serves as security for the debt and
a partial satisfaction of the principal debt does not result in a proportional
reduction of the burden on the mortgaged property.79

4.2 The legal consequences of mortgage

A duly constituted mortgage entails certain legal consequences which will

now be discussed.

4.2.1 Powers of mortgagee and mortgagor

The mortgagee does not obtain the use and enjoyment of the mortgaged
property. This is retained by the mortgagor subject to certain restrictions. The
mortgagor may not, without the written consent of the mortgagee, grant any
servitudes or mineral rights over the encumbered property.80 However, the
mortgagee’s consent is not required if the mortgagor wants to let the
property or if he or she wants to grant further bonds against security of the
property, unless this consent is required in terms of the mortgage bond.
These further bonds will, however, be subject to the rights of any mortgagee
whose bond has been registered previously. This is based on the principle first
in time, first in rights.81 For example, where A is the holder of a first mortgage

76 Roodepoort United Main Reef GM Co Ltd (in Liquidation) & Another v Du Toit NO 1928 AD
66. 71; see also sec 50 of the Deeds Registries Act.
77 Du Bois (n 4 above) 631‐632.
78 Thienhaus NO v Metje & Ziegler Ltd & Another 1965 3 SA 25 (A).
79 Du Bois (n 4 above) 632.
80 Secs 65(3); 70(6); and 75(2) of the Deeds Registries Act.
81 HJ Delport (ed) South African property practice and the law: A practical manual for
property practitioners (2001) 66.
 Chapter 7: Real rights other than ownership 167

over a property and B is the holder of a second mortgage over the same
property, A is entitled to be refunded before B should the property eventually
be sold in execution. However, there is authority to the effect that the law
does not allow a mortgage on an existing mortgage.82

4.2.2 Restrictions upon disposal of mortgaged property

Section 56(1) of the Deeds Registries Act provides inter alia that no transfer
of mortgaged land shall be attested or executed by the registrar, and no
cession of mortgaged lease of immovable property, or of any mortgaged real
right in land, shall be registered until the bond has been cancelled or the land,
lease, or right has been released from the operation of the bond with the
consent in writing of the holder thereof. This in essence implies that the
mortgagor cannot transfer the property hypothecated under a registered
bond unless the mortgage bond has been paid in full and the bond has been
cancelled. However, in terms of section 57(1) if the owner of the
hypothecated land transfers to another person the whole of the land
hypothecated thereunder, and has not reserved any real right in such land,
the registrar may register the transfer and substitute the transferee for the
transferor as debtor in respect of the bond, provided that both the
mortgagee and the transferee give their written consent. For example, where
a building society or a bank holds a mortgage over a property which is sold to
X, X can take over the bond and X will be substituted as the mortgagor,
provided that the building society or the bank gives its written consent. The
transferee (X) is then substituted for the transferor (mortgagor) as the debtor
under the bond, and this is endorsed on the bond by the registrar of deeds.

4.2.3 Proceeds and fruit of, and additions to, mortgaged property

The mortgage covers the land and all the improvements on the land,
including improvements effected after the bond was registered. However,
the latter improvements may be removed at any time before the bond is
foreclosed. Until foreclosure the mortgagor is entitled to gather or collect all
natural and civil fruits of the property (such as rent) and to consume or
dispose of them. Once the bond has been called up the mortgagee becomes
entitled to the fruits.83

4.2.4 Sale in execution of mortgaged property

The mortgagee is entitled to have the property sold in execution if the

mortgagor fails to fulfill his or her obligations under the loan agreement. In
the Namibian case of Namib Building Society v Du Plessis84 the appellant, a

82 Du Bois (n 4 above) 632.

83 Delport (n 81 above) 67.
84 1990 NR 161 (HC).
168 Property law in Namibia

building society, granted a loan to the respondent. The loan was secured by
a first mortgage bond over immovable property. The respondent defaulted
on due payment of the monthly instalments owing under the bond. The
appellant inter alia applied for a declaration by the court that the mortgaged
property was executable but the court a quo refused an order to that effect.
It was held on appeal that except where, by judgment of the court,
immovable property has been declared executable, a writ of execution
against immovable property would not be issued by the registrar of the court
until a return on a writ against movables shows that they (the movables) will
not satisfy the debt. It was held further that a mortgagee plaintiff should in
principle be entitled to realise the property over which a mortgage bond was
registered for the very purpose of securing the debt on which he or she sues.
Such a mortgagee has advanced money on the understanding that he or she
would have a preferential claim on the proceeds of the mortgaged property.

If the bond is called up, the property must be sold subject to the limited
real rights which other persons may have over the property, provided these
rights existed at the time of the registration of the bond, or were registered
afterwards with the consent of the mortgagee.85

If the property is sold in execution, a bondholder has the preferential

right of purchase. In this case the purchase price is set off against the
mortgage debt.

4.2.5 Preferential claim of mortgagee

If the property hypothecated by mortgage is sold following the mortgagor’s

insolvency, the mortgagee has a preferential claim to the proceeds of the
property because the mortgagee is regarded as a secured creditor enjoying a
preference over other creditors of the insolvent. The machinery created and
laid down for the resolution of competing interests of the creditors is
provided for by the relevant provisions of the Insolvency Act 24 of 1936.

4.2.6 Alienation of mortgaged property without consent of

mortgagee

Whenever immovable property which has been properly burdened by a

mortgage is alienated to a bona fide third person without the mortgagee’s
consent and, contrary to the provisions of the Deeds Registries Act, there has
not been a proper cancellation of the mortgage, and therefore the mortgagee
does not lose his or her rights in the immovable property. There is no mention

85 Delport (n 81 above) 67.

 Chapter 7: Real rights other than ownership 169

in the Deeds Registries Act of a requirement that the deed of transfer in the
third party’s name should in such circumstances be cancelled.86

4.2.7 Court order essential for sale in execution of mortgaged

property

If the mortgagor is in default of his or her mortgage bond obligations, the

mortgagee can enforce his or her rights against the mortgagor only after a
court order has been obtained which authorises a sale in execution. The
mortgagee therefore cannot sell the property without first obtaining such a
court order. In Iscor Housing Utility Co & Another v Chief Registrar of Deeds &
Another87 it was held that an agreement permitting parate executie
(immediate execution) without recourse to the court, or, after default, to the
debtor in the case of immovable property, is void.

4.2.8 Consent of mortgagee necessary for merger of mortgaged

property (dominant tenement) with servient tenement in
respect of which praedial servitude exists

Under section 60 of the Deeds Registries Act, if the owner of the mortgaged
land which is entitled to rights of servitude over other land, acquires the
ownership of that other land, such acquisition of the additional land or rights
shall not be registered without the consent in writing of the holder of the
bond. The reason for this rule is that the acquisition of the additional property
creates a merger of the two properties. As mentioned earlier, a merger leads
to the termination of the servitude and this can affect the value of the
property.

4.3 Termination of mortgage

There are various grounds on which a mortgage can be terminated. The most
important ones will now be discussed.

4.3.1 Extinction of principal obligation

The mortgage bond is a security for the payment of the debt, the principal
obligation, and therefore there exists an accessory relationship between the
real right of mortgage and the principal obligation. A mortgage therefore is
extinguished by discharge of the principal debt and termination of the
principal obligation by release, novation, compromise, set‐off, merger or

86 Barclays Nasionale Bank Bpk v Registrateur Van Aktes, Transvaal, en ‘n Ander 1975 4 SA
936 (T).
87 1971 1 SA 613 (T); see also Bock & Others v Duburoro Investments (Pty) Ltd 2004 2 SA 242
(SCA).
170 Property law in Namibia

prescription.88 Upon complete fulfillment by the debtor of his or her

obligations to the mortgagee, the mortgagor can have the registration of the
bond against the property cancelled in terms of section 56(2) of the Deeds
Registries Act.

4.3.2 Effluxion of time or upon fulfillment of resolutive condition

Where the mortgage bond was originally granted for a limited period only or
upon the fulfillment of a resolutive condition upon which it was constituted,
the right of mortgage will be terminated.89

4.3.3 Destruction of mortgaged property

The total destruction of the mortgaged property will result in the termination
of the mortgage. However, if the property is partially destroyed, it will remain
subject to the burden and the mortgage will extend to any improvements
effected subsequent to such destruction. The mortgagor will be obliged to
effect a reconstruction to the destroyed property only where he or she is
under a duty to do so in terms of the bond.90

4.3.4 By court order

A mortgage may be set aside by an order of court if, for example, it is

established that its constitution was vitiated by mistake, undue influence,
duress or misrepresentation. Likewise, the court may terminate the
mortgage where it amounts to a fraudulent alienation under the common law
or a voidable or undue preference under the provisions of the Insolvency
Act.91

5 Pledge

5.1 Definition and general features

A pledge is a limited real right of security in a movable asset, created by the

delivery of the asset to the pledgee pursuant to an agreement between the
pledgee and the owner of the asset, by which it is sought to secure the
fulfillment of an obligation due to the pledgee by the pledgor, or a third
person.92 If the debtor fails to fulfill his or her obligations to the creditor, the
latter can sell the pledged property in execution.

88 Du Bois (n 4 above) 640‐641.

89 Joubert et al (n 4 above) vol 17, para 450.
90 As above.
91 Joubert et al (n 4 above) vol 17, para 451.
92 Joubert et al (n 4 above) vol 17, para 474.
 Chapter 7: Real rights other than ownership 171

As stated earlier, a pledge can be constituted only in respect of movable

property and only when the pledged property is delivered to the pledgee,93
as contrasted with a mortgage that is constituted by registration. The pledgee
is entitled to remain in possession of the property but not entitled to use it.94
The pledgee is obliged to take reasonable care of the pledged asset and to
return it to the pledgor when the pledge is extinguished.95 The pledgor is
usually the debtor but a third party may also agree to pledge his or her
property as security for payment of a debt due by another person.96 The
agreement creating a pledge need not be in writing to be valid.97

5.2 Termination of pledge

A pledge may be terminated in similar ways as a mortgage, namely by

discharge of the principal debt; destruction of the pledged property;
confusion or merger; effluxion of time or fulfillment of condition; agreement;
and sale in execution or upon insolvency.98

In addition, a pledge is terminated when the pledgee voluntarily

surrenders possession of the pledged object to a third party in terms of the
principle of mobilia non habent sequelam ex causa hypothecate, by express
or tacit renunciation of the pledge without the principal obligation
necessarily being affected.99

6 Liens

6.1 Definition and general features

A right of retention (ius retentionis) or lien is the right to retain physical

control of another’s movable or immovable property as security for payment
of a claim for money or labour expended on that property. It does not include
the right to have the property sold in execution and it could either be a real
(security) right that arises by operation of law or a personal right.100 It
functions as a defence to the owner’s rei vindicatio and like other real
(security) rights is accessory to a principal obligation, indivisible and incapable
of being assigned.101

93 Zandberg v Van Zyl 1910 AD 302; Vasco Dry Cleaners v Twycross 1979 1 SA 603 (A).
94 Visagie v Muntz & Co 1921 CPD 582.
95 Lourens v Du Toit (1878) 8 Buch 182; Daly v Chisholm & Co Ltd 1916 CPD 562; SA Breweries
v Levin 1935 AD 77.
96 Du Bois (n 4 above) 645‐646; see also Liquidators of Cape of Good Hope Permanent Land,
Building & Investment Society v Standard Bank (1899) 16 SC 324; Bokomo v Standard Bank
van SA Bpk 1996 4 SA 450 (C).
97 Joubert et al (n 4 above) vol 17, para 485.
98 Mostert et al (n 4 above) 320.
99 Du Bois (n 4 above) 650.
100 Du Bois (n 4 above) 661; Mostert et al (n 4 above) 328.
101 Volkskas Bpk v Esmail 1950 2 SA 74 (T) 77.
172 Property law in Namibia

6.2 Categories of liens

There are two main categories of liens, namely enrichment liens and debtor
and creditor liens. An enrichment lien arises when a person incurs a certain
type of expense in respect of the property of another, without the existence
of any agreement between the parties concerning the expense or its refund.
An enrichment lien is based on the principle that nobody is allowed to benefit
at the expense of another. A debtor and creditor lien arises where a person
incurs expenses in respect of the property of another person by reason of an
agreement between the parties. For example, where a tenant incurs
expenses in respect of leased premises in order to maintain the property in a
proper condition, such tenant is entitled to be compensated for expenses
incurred.

However, not every expense incurred in respect of property gives rise to

an enrichment lien. A person is only entitled to an enrichment lien where the
expenses incurred are necessary or useful but not luxurious. A distinction
must therefore be made between necessary, useful, and luxurious expenses.

Necessary expenses are those which are necessary to preserve or protect

the property, while useful expenses are those which increase the market
value of the property and which are considered useful according to the
economic and social views of the community. Luxurious expenses are those
expenses which are incurred at the whim of a particular person and which are
considered luxurious according to the economic and social views of the
community. They may also increase the market value of the property.102

Necessary and useful expenses are also discussed in the context of

salvage lien and improvement lien. A salvage lien secures a claim for
necessary expenses while an improvement lien is associated with a claim for
useful expenses. Both salvage and improvement liens are real security rights,
enforceable against the owner, any successors in title as well as any holders
of another limited real right in the property, even if the latter was created
before the lien came into existence.103

Unlike salvage and improvement liens (enrichment liens) which are

regarded as limited real rights, a debtor and creditor lien is a personal right
and not a real security right. The implication is that it is only enforceable inter
partes. Therefore, a debtor and creditor lien is not enforceable against the
owner of the property unless the owner is also the debtor or has consented
to the expenditure. In those cases where the debtor is the owner, the lien is
also enforceable against a gratuitous successor in title and a successor in title

102 Mostert et al (n 4 above) 331.

103 As above.
 Chapter 7: Real rights other than ownership 173

who knew about the existence of the lien at the time the transfer of
ownership took place.104

The most common form of a debtor and creditor lien relating to

immovable property is the so‐called builder’s lien. In Congress (Pty) Ltd &
Another v Gallic Construction (Pty) Ltd,105 a builder’s lien was described as a
debtor and creditor lien, which is a right of retention for a debt ex contractu.
By virtue of such a lien the creditor in possession of property can retain it
against the debtor until the latter has been paid all that is due under the
contract in respect of work done and expenses incurred upon the property.
But the creditor can have no right, in disregard of a contractual provision
regarding delivery, to retain the property until he or she has been paid money
which although owing is not yet due. Thus, under the standard form of
building contracts, retention monies become payable only some months
after delivery of the work done in terms of the contract. The builder cannot
claim a jus retentionis in respect of retention monies which are not yet due.

6.3 Termination of liens

Generally, a lien is terminated in the same way as other real security rights,
namely, by extinction of the principal obligation, total destruction of the
property subject to the lien, merger (confusion), and renunciation (waiver).

The owner of the property burdened by the lien or any person with a
possessory right to the property may defeat the lien by furnishing adequate
security for the payment of the debt secured.106

7 Concluding remarks

One of the cardinal principles of registration of rights under the provisions of

the Deeds Registries Act is that only real rights or limited real rights may be
registered. As a general principle, personal rights are not registrable and may
only be registered if they are complementary or ancillary to a registrable
condition or right contained or conferred in a deed. In this Chapter an
attempt has been made to describe and discuss some examples of limited
real rights. It does not, however, represent an exhaustive discussion of all real
rights.

104 As above.
105 1981 3 SA 73 (W) 76.
106 Du Bois (n 4 above) 665.
 8
POSSESSION
CHAPTER

1 Definition and elements of possession

Possession may be defined as the physical control (detentio) by a person of a

corporeal thing with the intention (animus possidendi) of keeping control of
it for his or her own benefit. It comprises two elements:

• physical control (detentio); and

• the intention to control the thing for oneself (animus possidendi)

These two elements will now be discussed.

1.1 Physical control (detentio)

The first requirement demands the exercise of actual physical control or

detention over the thing. This is usually acquired by taking hold of the thing,
or where this is not practicable, of exercising control over it. The type and
degree of control will of course vary according to the nature of the thing.
Small movable things can be possessed by holding them and immovable
property, such as land, can be possessed by living on it. Physical contact is not
necessary to constitute detention. Where the possessor does not have
immediate physical contact with the thing possessed, the question may arise
as to whether he or she has sufficient control over the thing to give them
possession. The certainty of their being able to exercise this power of control
is not essential. A probability that they will be able to do so will suffice. What
constitutes sufficient probability is a question of fact which must be decided
in each case from the circumstances. In general the following factors must be
taken into account:

(a) the nature, size, extent, purpose and function of the object of possession;
(b) whether possession of the thing is acquired by delivery or occupation; and

174
 Chapter 8: Possession 175

(c) whether acquisition or retention of possession is considered.1

This aspect of the definition of possession emphasises the factual or physical

domination of corporeal things on account of the physical or corporeal nature
of the objects of possession but as pointed out by WA Joubert2 the law also
recognises so‐called quasi‐possession or juridical possession (possessio juris).
This notion consists in the exercise of control over an incorporeal thing
coupled with an animus to exercise such control over the thing in question
and this is exercised whenever the thing is exploited in accordance with an
actual or presumed legal right, for example, a servitude or a contractual right
of use with regard to the thing.

1.2 Intention (animus possidendi)

This is the intention to hold an exercise control over the thing possessed for
one’s own benefit, not for the benefit of someone else. Consequently, if the
person who has detention of a thing has the intention of holding it for
someone else, he or she does not have legal possession of it: he or she is the
custodian, and the person on whose behalf he or she holds it is the true
possessor. Hence, an employee who holds his or her employer’s property on
behalf of his employer does not possess it in law; his or her employer is the
true possessor: the former is termed the holder and the latter the possessor.

Traditionally, the criterion used to draw the distinction between a mere

holder and a possessor was the form of intent (animus). The presence of the
will to possess (animus possidendi) determined whose possession should be
protected in law. Possession accompanied with the will to possess (animus
possidendi) was protected by the law whereas possession devoid of the
requisite animus possidendi was not protected by the law. The former was
described as possessio civilis and the latter possessio naturalis. The
authorities indicate that in South African law, however, the legal justification
for this distinction has lost much of its importance since the main reason for
distinguishing between mere holders and possessors, namely the question as
to whose possession should be protected, in law has fallen away. In current
South African (and Namibian) law almost all holders enjoy the protection of
the law.3

1 For details of these factors see WA Joubert et al (eds) The law of South Africa (First Reissue)
(2003) vol 27, para 58.
2 Joubert et al (n 1 above) para 52.
3 WJ Hosten et al Introduction to South African law and legal theory 2nd ed (1997) 627.
176 Property law in Namibia

2 Types of possession

2.1 Civil and natural possession

As stated earlier, the factual situation of possession arises from the existence
of physical control (detention) and the mental element (animus possidendi)
and this type of possession is referred to as civil possession (possessio civilis).
Natural possession (possessio naturalis), on the other hand, is a much wider
concept including not only the possession of an indirect or derivative
possessor, such as that of precarist (precario tenens),4 a stakeholder
(sequester),5 or a pledgee, but also the possession of a mere holder such as
the depositary, the borrower for use, the mandatary, the lessee, the
usufructuary and the representative or agent.6 There is a further distinction
drawn between holders, who are protected by possessory remedies, and
those who are not. The former comprise holders who have the intention of
securing benefit for themselves and the latter are those who merely hold for
someone else as servant or quasi‐servant. Examples of holders who are
protected are a usufructuary, a pledgee, a builder, a lessee and a person who
hires out his or her services. These holders in their various capacities exercise
physical control over the thing with the intention of securing benefit for
themselves and are therefore protected by the possessory remedies.
However, a servant is not protected because a servant cannot claim to have
the requisite intention and interest since he or she holds possession solely on
behalf of somebody else and does not exercise possession for his or her own
benefit.7 As stated by Steyn AJ in Mpunga v Malaba8 before a person can
bring spoliation proceedings he or she must show that the right of which he
or she has been ‘spoliated’ is something in which he or she has an interest
over and above that interest which he or she has as servant or as a person
who is in the position of a servant or as a quasi‐servant.

2.2 Lawful possession (possessio iusta) and unlawful possession

(possessio iniusta)

This distinction was employed in the Roman law systems of interdict to

determine which of the parties in vindication proceedings would have the

4 The legal status of a precarist is derived from the concept of precario, which is by consent
or permission. Land or a thing is said to be held precario or under precarium only when it is
held by permission revocable at the will of the person giving it. A precarist is a person who
has acquired possession through such derivative method. A preacio habens (or tenens)
may be entitled to compensation for improvements affected by him or her.
5 By the Roman law two parties who disputed about the ownership of a thing could
voluntarily agree to deposit such thing with a third person called a sequester pending the
settlement of the dispute. The sequester then held the thing on behalf of the successful
litigant.
6 F du Bois Wille’s principles of South African law 9th ed (2007) 452.
7 As above.
8 1959 1 SA 853 (W).
 Chapter 8: Possession 177

advantage of being the defendant but is no longer relevant as far as the

protection of possession is concerned.9

2.3 Bona fide and mala fide possession

Possession is in good faith (bona fide) when the possessor believes on

reasonable or probable grounds, that he or she has, for some or other reason,
ownership of the property possessed. If the possessor realises that he or she
does not have any real right in respect of the thing which is possessed, the
possession is known as possession in bad faith (mala fide possession).10

This distinction plays an important role as far as the acquisition of fruits

by a possessor is concerned. Traditionally, it played an important role with
regard to compensation for improvements to the thing affected by a
possessor thereof. However, since a claim for improvement is now based on
the principle of enrichment, the importance of the said distinction has
declined.11

3 The legal effect of possession

The right to the possession of a thing is referred to as ius possidendi and may
arise either from a personal right against the owner of the thing, for example,
a lessee, or from a real right in the thing, such as owner or usufructuary. The
ius possidendi may be exercised in the real sense by means of actual physical
possession of the thing or in a constructive sense. If a person has actual
possession of a thing, his or her ius possidendi empowers the possessor to
protect his or her possession against any infringement However, if a person
does not have actual possession of the thing, the ius possidendi enables him
or her to be given possession of the thing, for example, in terms of a contract
of lease.12

The right of possession is referred to as ius possessionis, and comprises

the rights, privileges and powers that flow from the mere fact of possession
and is available only to a person in actual possession of a thing. A person may
have an ius possessionis either with ius possidendi, as in the case of an owner,
or without ius possidendi, as in the case of a bona fide possessor.13 The
different powers of possession available to the finder of a lost thing and the
owner of the property, respectively, may be used to illustrate the difference
between the right to possession of a thing (ius possidendi) and the right of
possession to a thing (ius possessionis). A finder of a lost item, at the material
time that he or she is in possession of the lost item, has ius possessionis,

9 Joubert et al (n 1 above) vol 27, para 67.

10 Du Bois (n 6 above) 452.
11 Joubert et al (n 1 above) vol 27, para 67; Du Bois (n 6 above) 453.
12 Joubert et al (n 1 above) vol 27, para 52.
13 As above.
178 Property law in Namibia

which means the owner has ceased to have the ius possessionis because he
or she lost physical control over the thing. Nevertheless, the owner retains
the ius possidendi, the right to possession which entitles him or her to
demand or regain possession.14

Opinions differ as to whether possession is a fact or real right. It has been

suggested that the key solution to these divergent views lies in maintaining a
clear distinction between the fact of possession and the right flowing from
possession. If emphasis is placed on the fact of possession, possession can
easily be regarded as a mere fact. Conversely, if the rights flowing from
possession are emphasised, possession approximates a real right.15

Possession is an attribute of ownership. It is a requisite for various types

of acquisition of ownership, for example, as we saw in Chapter 6, for
acquisition of ownership by occupation, transfer and prescription. In this
regard possession serves a real function in that it facilitates the
transformation of a factual situation into a legal situation.16

We saw in Chapter 7 that one of the essential attributes of real securities,

such as pledge and lien, is possession. In this regard, possession fulfills an
important real security function. There is a rebuttable presumption in law
that the possessor of a movable thing is also the owner thereof. In this regard,
possession has a procedural function in indicating which of the two
contesting parties in a vindicatory action is the respondent.17 In the context
of criminal liability, possession is an element of various statutory crimes. For
example, section 2 of the Arms and Ammunition Act 7 of 1996 prohibits the
possession of arms without a licence. Under section 2 of the Stock Theft Act
12 of 1990, any person who is found in possession of stock or produce in
regard to which there is reasonable suspicion that it has been stolen and is
unable to give a satisfactory account of such possession, shall be guilty of an
offence. Section 2(b) of the Abuse of Dependence‐producing Substances and
Rehabilitation Centres Act 41 of 1971 prohibits dealing in, use or possession,
of prohibited or dangerous dependence‐producing drugs. It also provides for
the removal from jurisdiction of non‐citizens who are deemed to be
undesirable residents and for the detention of persons in possession of
information relating to drug dealing but who are unwilling to co‐operate with
law enforcement officers.

The general common law principle relating to possession as an element

of the crime of theft was discussed in S v Van Coller,18 which was followed in
the Namibian case of S v Hengua.19 The appellant, a medical doctor, had
removed medical equipment from Botswana to South‐West Africa in order to

14 See H Mostert et al The principles of the law of property in South Africa (2010) 67.
15 Joubert et al (n 1 above) vol 27, para 52‐3.
16 Joubert et al (n 1 above) para 54.
17 As above.
18 1970 1 SA 417 (A); S v Hengua 2007 2 NR 562 (HC) 562.
19 As above.
 Chapter 8: Possession 179

exert pressure on an official of the Botswana Government to withdraw

criminal charges against him – something which was undertaken by the
official but not carried out. The Appellate Division, Jansen JA writing the
judgment, held, after a thorough consideration of relevant cases, that, where
someone takes the property of another, for purposes of keeping it as security
for payment, it does not constitute the crime of theft as the accused
continues to acknowledge the ownership of the person from whom the
article was removed. Jansen JA concluded at 426 that the taking of another
person’s property with the intent to hold it as security, specifically to enforce
a debt, does not amount to taking with intent to deprive the owner of the
whole benefit of his ownership. There appears to be no reason in principle
why the position should not be the same, where the owner is held to ransom
for purposes other than for enforcing a debt.

4 Possession compared with ownership

Ownership, as indicated earlier, is an absolute right which the holder can

exercise against the whole world. Possession affords the possessor certain
powers, which are in the following respects distinctive from the powers
afforded by ownership:

(a) Possession of a movable thing raises a presumption of ownership. Any

claimants who do not possess must prove their title.20 There is no similar
presumption in relation to immovable property, because our system of land
registration creates a presumption that whoever is registered in the Deeds
Registry as the owner of any immovable property is indeed the true owner
thereof.
(b) In some cases a possessor can confer good title even though he or she is not
the owner but only a possessor. For example, in the case of negotiable
instruments, a holder in due course will not lose his or her title even if the person
from whom he or she has acquired the instrument was not owner.
(c) Possession concerns a factual relationship of a person to a thing which exists
irrespective of whether or not the person has any legal right to the thing. Thus,
even a thief acquires possession of the thing he or she steals. Conversely,
ownership concerns a legal relationship between a person and a thing.
Ownership requires a legal basis or title to the thing. An owner must be able to
prove right of ownership.21
(d) Long possession may confer ownership by prescription in terms of the
provisions of the Prescription Proclamation 13 of 1943, Prescription Acts 18 of
1943 and 68 of 1969.
(e) The acquisition of possession may establish ownership, for example, the
acquisition of possession of a res nullius.
(f) Possessors may be entitled to compensation for necessary and useful
expenditure.

20 Zandberg v Van Zyl 1910 AD 302.

21 Joubert et al (n 1 above) vol 27, para 55.
180 Property law in Namibia

(g) Possession is protected by various remedies, namely the mandament van

spolie, interdicts and possessory actions.22 These differ from the rei vindicatio,
the remedy by which ownership is protected. The procedure required for the
remedy of the mandament van spoile is less cumbersome and faster than in the
case of the rei vindicatio. To succeed with the mandament van spoile the
applicant has only to prove that he or she has been in peaceful possession and
that this has been disturbed. In the case of rei vindicatio the plaintiff must prove
his or her title to the thing. Whereas in the case of the mandament van spoile
the action can in principle only be instituted against the spoliator, in the case of
the rei vindicatio the action can be brought against whoever is in control of the
thing.

5 Loss of possession

Possession is lost when the possessor loses or gives up either or both of

physical control of the thing possessed and the intention to hold the thing.
This may occur in instances of abandonment or transfer of the thing to a new
possessor. In the case of movables, possession can be lost by the mere loss of
physical control. The principle is that a thing is lost if a diligent search was
made and was fruitless or if the recovery of the thing is at least uncertain and
unlikely. It is immaterial whether the movable has been stolen or has merely
been mislaid.23 In the case of immovables however, both the physical and
mental elements must be established because even if loss of physical control
is established, possession may be retained ‘with the mind only’ (solo
animo).24 Possession is also lost if the thing is destroyed, is no longer a res in
commercio or if the possessor dies. The establishment of loss of possession is
important because it interrupts the running of prescription25 and terminates
the availability of the mandament van spoile.

6 The possessory remedies: protection of possession

As stated in (g) above, the law protects possession by giving possessors the
benefit of the possessory remedies. The advantage of these remedies is that
the possessor is not obliged to prove ownership, which would be necessary if
he or she were to proceed as owner against a person who has dispossessed
them by vindicatio. The remedies available to a person who has been
deprived of peaceful and undisturbed possession are an interdict and a
spoliation order (mandament van spolie). These remedies are discussed in
more detail in the next Chapter.

22 See Chapter 9.
23 Joubert et al (n 1 above) vol 27, para 71. See also Holmes v Payne 1930 2 KB 301 where,
after an insurance claim had been settled, a necklace was found in the folds of an evening
cloak in which it had become concealed. It was held that the insurance company was
nevertheless bound by the settlement.
24 As above. Examples are given of summer and winter pastures (saltus aestivi et hiberni) and
a farmer who seldom visits the farm.
25 See Chapter 6.
 Chapter 8: Possession 181

7 Summary and concluding remarks

Possession as a legal fact and the right accruing from such legal fact are very
important areas in property law as possession is a common feature of human
interaction. Possession is constituted by the factual existence of physical
control over a thing accompanied by the mental attitude to have possession.
These are the minimum requirements since the exact content of possession
will depend on the context in which and the purpose for which it is used. In
the area of, for example acquisition of ownership by prescription, possession
serves a functional role in facilitating the transformation of a factual situation
into a legal situation. Possession, whether as a legal fact or a right flowing
from such legal fact, is protected in law by certain remedies that provide
relief for a claim based on possession. These are discussed in the next
Chapter.
 9
REMEDIES
CHAPTER

1 Introduction

In this Chapter the remedies available in terms of the Namibian law of

property are discussed, which include, as indicated in the previous Chapter,
the remedies available to a possessor who has been unlawfully deprived of
possession or whose possession is threatened. The remedies that are
discussed in this Chapter are by no means exhaustive and it is recommended
that other sources be consulted for further understanding. Some of the
recommended sources will be referred to in this Chapter. Appropriate case
law has been selected, but once again, the readers, particularly students, are
encouraged to read other cases apart from those cited in this Chapter. Before
we get into the details of the remedies to be discussed, it is important that a
correct meaning of the concept of remedies is clearly established.

2 What are remedies?

It is generally agreed in our Roman‐Dutch law that the law of remedies is

concerned with the character and extent of relief to which an individual who
has brought a legal action is entitled once the appropriate court procedure
has been followed. In Meyer v Hessling,1 the full bench of the Supreme Court
of Namibia supported the above general definition.2 The party seeking a
remedy must show that he or she has a substantive right that has been

1 (SA 7/91) 1991 NASC 7.

2 In this case the seller entered into a written agreement with the purchaser in terms of
which the seller sold to the purchaser a certain farm in the district of Omaruru for
consideration of R67 500 (equivalent to N$67 500). The purchaser occupied the farm
before paying the full purchase price as per agreement. It was stipulated that the transfer
of the farm must occur as soon as possible. The farm was duly transferred to the purchaser
on condition that the principal sum had to be paid within a period of three years upon the
date of registration. The first mortgage bond was registered on 10 May 1985. By 10 May
1987 no portion of the purchase price had been paid. The seller sent a notice purporting to
cancel the sale arguing that the purchase price had not been timeously paid. On page 5,

182
 Chapter 9: Remedies 183

infringed by the defendant. For instance, in Meyer3 the seller had to prove
that the purchaser had failed to comply with his contractual obligations of
paying the full purchase price as per agreement.

A remedy may also be defined as any of the methods available at law for
the enforcement, protection, or recovery of rights, for obtaining redress for
their infringement.4 It is important to note that since one of the central
themes of the law of property is the right of ownership, the remedies that are
available to an aggrieved person in the field of property relations relate either
directly to the protection of the right of ownership or the protection of any
other right or interest that may relate to the object of a right of ownership,
for example, possession.

3 Protection of ownership

One of the entitlements of dominium is the power of exclusive possession of

the res, with the necessary corollary that the owner may claim his or her
property wherever it is found, and from whomsoever is holding it. It is
inherent in the nature of ownership that possession of the res should
normally be with the owner, and it follows that no other person may withhold
it from the owner unless he is vested with some right enforceable against the
owner.5 The right to recover, rei vindicatio, is by way of vindicatory action,
and lies against anyone, even though such person may have acquired the
thing in good faith (bona fide) and given value for it, and the owner need not
compensate him or her. For example, if a thief steals a watch belonging to A,
sells it to B, and receives payment of the purchase price from B, who is totally
unaware of the theft, A is entitled to recover the watch from B without
compensating B for the purchase price. B may, however, claim damages from
the thief. The owner’s right to vindicate must be exercised by the institution
of court proceedings. If the person from whom the owner wishes to recover
the thing in question refuses to part with it, the owner is not allowed to take
the law into his or her own hands by, for example, physically seizing the
property. He or she must instead sue the possessor in court for the recovery
of the property.

There are various remedies that protect ownership and these include the
rei vindicatio, the actio negatoria, the archaic remedies based on neighbour
law, the actio ad exhibendum, the Aquilian action, the condictio furtiva, and
remedies based on enrichment.6 These are classified as real remedies

2 Mahomed AJA held inter alia, that on a proper interpretation of the sales agreement, the
seller had two remedies: (i) To cancel the sales agreement and take the property back; or
(ii) to transfer the farm to the purchaser and then demand payment of the outstanding
amount due to the seller.
3 As above.
4 Oxford Dictionary of Law.
5 Chetty v Naidoo 1974 3 SA 13 (A) 20.
6 F du Bois Wille’s principles of South African law 9th ed (2007) 538‐539.
184 Property law in Namibia

(pertaining to the law of property), delictual remedies, and remedies based

on unjustified enrichment.7 Real remedies restore physical control of the
property, or confirm the ability of an owner to exclude others from access,
use or enjoyment of the property. The rei vindicatio and the actio negatoria
are classified as real remedies. Delictual remedies are available to an owner
who has suffered financial loss either because the property itself has been
alienated, damaged or destroyed, or because the owner could not exercise
the entitlements available to an owner. These remedies provide a claim for
payment of compensation or damages and include the condictio furtiva, the
actio ad exhibendum and actio legis Aquiliae. In the event of unjustified
enrichment, an aggrieved owner is entitled to compensation where someone
other than the owner is unjustifiably enriched at the expense of the owner.8

3.1 Rei vindicatio

3.1.1 Definition

This is a common law remedy which may be instituted by an owner for an

order of ejectment to reclaim his or her movable or immovable property from
anyone who is in physical control thereof without the owner’s consent,
irrespective of whether possession is bona or male fide in accordance with
the maxim ubi rem meam invenio, ibi eam vindico (where my property is
found, there I may vindicate it).9

In approving this definition, the court in Khuzwayo v Dludla,10 held that

this common law remedy is a well settled principle in our law. Van der Walt
& Pienaar11 submit that this is an action whereby an owner may recover an
existing and identifiable thing from any person who is exercising unlawful
physical control over it.

3.1.2 Requirements

In Shingenge v Hamunyela12 Maritz J with respect to nature of the actio rei

vindicatio stated as follows:

The actio rei vindicatio is a remedy given in common law to an owner to recover
his or her property from any person who is in possession thereof (see Chetty v
Naidoo 1974 3 SA 13 (A) at 20C). Any person purporting to institute a vindicatory
action and who fails to prove any of these elements on a balance of probabilities
must fail. So, for instance, the action will be unsuccessful if the plaintiff cannot

7 H Mostert et al The principles of the law of Property in South Africa (2010) 215; WA Joubert
et al The law of South Africa (First Reissue) (2003) vol 27, para 182.
8 As above.
9 Du Bois (n 6 above) 539; Mostert et al (n 7 above) 217
10 (LCC33R/00) 2000 ZALCC 26.
11 AJ van der Walt & GJ Piennar Introduction to the law of property 6th Edition (2009) 145.
12 2004 NR 1 (HC).
 Chapter 9: Remedies 185

prove that he or she is the owner of the res (Vumane and Another v Mkize 1990
(1) SA 465 (W) at 467D) or that the defendant is still in possession thereof (Leal &
Co v Williams 1906 TS 554 at 558). It follows from the requirement of
‘ownership’ that, if the res has been consumed, acceded to or mixed or mingled
with another thing or has been used to manufacture a new product, it is no
longer in esse as a clearly identifiable thing and cannot be ‘owned’ as such.

It follows therefore that in order to succeed with the actio rei vindicatio the
plaintiff must prove:

(a) that he or she is the owner of the property;13

(b) that the property exists and is identifiable;
(c) that the property is under the defendant’s physical control at the time when
the action is brought before the court.

These requirements will now be discussed in more detail.

3.1.2.1 The plaintiff must be the owner of the property

The law places an onus on the person who institutes the rei vindicatio to
prove on a balance of probabilities that he or she is the owner of the
property.14 In the case of the recovery of a movable thing, there is a
rebuttable presumption of law that the possessor of a movable thing is also
the owner thereof and therefore the owner who is seeking to recover
possession must rebut the presumption of ownership arising from the
possession.15 For example, the registration papers of a vehicle or an invoice
can serve as evidence of proof of purchase and an inference of continued
ownership.16 In the case of immovable property proof of registration of the
property in the name of the owner will satisfy this requirement.17

In Pascheka v Bernstein18 an application for an order was sought ordering

the defendant to deliver a motor vehicle to the plaintiff since she (defendant)
had no bona fide defence to the plaintiff’s claim and since her defence was
entered solely for the purpose of causing a delay.

In his particulars of claim the plaintiff alleged that he was the owner of
the motor vehicle in possession of the defendant. In her opposing affidavit

13 In Pascheka v Bernstein (P16/05) 2005 NAHC 7 the owner of the car had to prove that he
was the lawful owner of the car. In other situations the defendant can challenge that
ownership.
14 Joubert et al (n 7 above) vol 27, para 183; Mostert et al (n 7 above) 218; Ebrahim v Deputy
Sheriff, Durban & Another 1961 4 SA 265 (N).
15 Zandberg v Van Zyl 1910 AD 302 308; McAdams v Flander’s Trustee and Bell NO 1919 AD
207 232; K&D Motors v Wessels 1949 1 SA 1 (A) 11; Gleneagles Farm Dairy v Schoombee
1949 1 830 (A) at 836; Ebrahim (n 14 above) 267; Du Bois (n 6 above)539; and Joubert et al
(n 7 above) vol 27, para 183.
16 Mostert et al (n 7 above) 218.
17 Joubert et al (n 7 above) vol 27, para 183; Du Bois (n 6 above) 539.
18 n 13 above.
186 Property law in Namibia

the defendant stated that the plaintiff had given her ‘the full right to possess
and use’ the vehicle on a permanent basis and by virtue of the fact that she
had rendered services to him personally and to his close corporation for
which she was never remunerated. According to her she had ‘obtained
vested and valid enrichment claims’ against plaintiff.

In considering the rei vindicatio the court inter alia referred to Arend &
Another v Astra Furnitures (Pty) Ltd19 and ruled that when a plaintiff reclaims
possession of property in terms of the rei vindicatio, the plaintiff must allege
and prove that he or she was the owner of the thing and that the defendant
was in possession of the property at the time of the institution of the action.20
To succeed with the rei vindicatio the owner is therefore required to prove
that he or she is the owner of the thing (the res) and that the defendant is
holding the res. The onus is on the defendant to allege and establish any right
to continue to retain possession against the owner. It appears immaterial
whether the owner alleges that the defendant’s possession is ‘unlawful’,
‘against the owner’s will’ or without any such qualification. However, if the
owner goes beyond alleging merely that he or she is the owner and that the
defendant is in possession, whether unqualified or described as ‘unlawful’ or
‘against the owner’s will’, other considerations come into play.

The other considerations referred to relate to a situation where for

instance a plaintiff concedes in his or her particulars of claim that the
defendant has had an existing right to hold the property. Plaintiff must then
ex facie his or her statement of claim prove the termination of such right to
hold.21

In Shimaudi v Shirungu22 Levy J said the following,23

In respect of occupation, the defendant may well admit such occupation but
contend that his occupation is lawful. The onus would then be on him to prove
such lawfulness but he or she is relieved of this onus if there is some form of
admission on the pleadings in terms whereof plaintiff concedes that he lawfully
parted with such occupation.

3.1.2.2 The property must exist and be identifiable

As explained by Mostert et al24 the objective of the rei vindicatio is the

restoration of physical control of the property to the owner and this can only
occur if the property is in existence and can be identified clearly. As stated in
Shingenge,25 if the res has been consumed, acceded to or mixed or mingled

19 1974 (1) SA CPD 298 304 F‐G.

20 See Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 1 SA 77 (A) 82; Chetty (n 5
above) 20; and Minister van Wet en Orde v Matshoba 1990 1 SA 280 (A) 286.
21 See Chetty (n 20 above) 21.
22 1990 3 SA 344 (SWA).
23 At 347.
24 Mostert et al (n 7 above)218.
 Chapter 9: Remedies 187

with another thing or has been used to manufacture a new product, it is no

longer in esse as a clearly identifiable thing and cannot be ‘owned’ as such. In
such case, the rei vindicatio is not the appropriate remedy, simply because
the property no longer exists. The facts of each case will determine the
appropriate remedy to be sought. A delictual remedy may in certain cases be
appropriate.26

3.1.2.3 The property must be in the defendant’s physical control at the time
when the action is brought before the court

As stated earlier, the objective of the rei vindicatio is the restoration of the
property to the owner and logically this objective can only be achieved if the
defendant is actually in physical control of the property at the time when the
action is brought before the court. This is therefore meant to ensure that the
order of the court does not result in futility.

3.1.3 Defences against rei vindicatio

The concept of rei vindicatio, as can be seen from what is said above, is
susceptible to an array of either common law or statutory defences which will
now be discussed separately.

3.1.4 Common law defences: Estoppel

O’Linn JA, in the judgment of the Full Bench of the High Court in Eysselinck v
Standard Bank Namibia Limited Stannic Division & Another,27 after referring
to several of the leading authorities on the requirements for a successful
defence of estoppel, stated the principles of the Namibian law of estoppel in
regard to ownership as follows:

Our law jealously protects the right of ownership and the correlative right of the
owner in regard to his property, unless, of course, the possessor has some
enforceable right against the owner. Consistent with this, it has been
authoritatively laid down by this Court that an owner is estopped from asserting
his rights to his property only –

(1) where the person who acquired his property did so because, by the culpa of
the owner, he was misled into the belief that the person, from whom he acquired
it, was the owner or was entitled to dispose of it; or
(2) (possibly) where, despite the absence of culpa, the owner is precluded from
asserting his or her rights by compelling considerations of fairness within the
broad concept of the exceptio doli.

25 As above.
26 Mostert et al (n 7 above) 218. Money in the form of coins and banknotes is not easily
identifiable and thus not easily vindicable. See Du Bois (n 6 above) 539.
27 2004 NR 246 (HC).
188 Property law in Namibia

See Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (AD);
Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (AD) at p 409.
These two cases relate to estoppel in respect of ownership of movables. There
seems no reason for not applying these principles to a case such as the present
one where the plaintiff seeks a declaration that it is the ‘owner’ of shares.

As to the formulation in (b) supra, the occasion has not yet arisen for its further
development by this Court. Certainly it does not arise in the present appeal,
having regard to the pleadings, the evidence, and the arguments in this Court.

As to (a), supra, it may be stated that the owner will be frustrated by estoppel
upon proof of the following requirements –
(i) There must be a representation by the owner, by conduct or otherwise, that
the person who disposed of his property was the owner of it or was entitled to
dispose of it. A helpful decision in this regard is Electrolux (Pty) Ltd v Khota and
Another 1961 (4) SA 244 (W), with its reference at p 247 to the entrusting of
possession of property with the indicia of dominium or ius disponendi.
(ii) The representation must have been made negligently in the circumstances.
(iii) The representation must have been relied upon by the person raising the
estoppel.
(iv) Such person’s reliance upon the representation must be the cause of his
acting to his detriment. As to (iii) and (iv), see Standard Bank of SA Ltd v Stama
(Pty) Ltd 1975 (1) SA 730 (AD).

This test has been consistently followed by the courts and was reaffirmed in
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd [1994] ZASCA 41;
1994 (3) SA 188 (A) at 198‐199 and particularly at 199 C‐G in the following terms:

In the Electrolux case referred to by Holmes JA, Trollip J said at 247B‐E:

‘To give rise to the representation of dominium or ius disponendi, the owner’s
conduct must be not only the entrusting of possession to the possessor but also
the entrusting of it with the indicia of the dominium or ius disponendi. Such
indicia may be the documents of title and/or of authority to dispose of the
articles, as for example, the share certificate with a blank transfer form annexed
…; or such indicia may be the actual manner or circumstances in which the
owner allows the possessor to possess the articles, as for example, the owner/
wholesaler allowing the retailer to exhibit the articles in question for sale with
his other stock in trade ... In all such cases the owner “provides all the scenic
apparatus by which his agent or debtor may pose as entirely unaccountable to
himself, and in concealment pulls the strings by which the puppet is made to
assume the appearance of independent activity. This amounts to a
representation, by silence and inaction … as well as by conduct, that the person
so armed with the external indications of independence is in fact unrelated and
unaccountable to the representor, as agent, debtor, or otherwise.”
(Spencer Bower on Estoppel by Representation at 208).’

Trollip J said further (at 247 in fine – 249 in pr):

‘It follows that to create the effective representation the dealer or trader must, in
addition, deal with the goods with the owner’s consent or connivance in such
 Chapter 9: Remedies 189

manner as to proclaim that the dominium or ius disponendi is vested in him; as

for example, by displaying, with the owner’s consent or connivance, the articles
for sale with his own goods. It is that additional circumstance that provides the
necessary “scenic apparatus” for begetting the effective representation.’

In the context of an attempted reliance on estoppel by conduct in respect of a

motor vehicle subject to instalments sale agreements it was held as follows in
Info Plus v Scheelke and Another [1998] ZASCA 21; 1998 (3) SA 184 (SCA) at 194‐
195:
‘The requirements for a successful reliance on estoppel in the context under
consideration have been set out in a number of decisions of this court. See, for
example, Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd [1994]
ZASCA 41; 1994 (3) SA 188 (A) at 198‐9. The first requisite is that there must be a
representation by the owner (or possessor) that the person who disposed of his
property (“the defrauder”) was the owner, or entitled to dispose, of it. In most
cases, of course, the ultimate representation is made by the defrauder. The real
question then is whether the conduct of the owner effectively contributed to the
making of that representation.’28

As stated earlier,29 to create the effective representation the dealer or trader

must, in addition, deal with the goods with the owner’s consent or
connivance in such a manner as to proclaim that the dominium or ius
disponendi is vested in him; as for example, by displaying, with the owner’s
consent or connivance, the articles for sale with his own goods. It is that
additional circumstance that provides the necessary ‘scenic apparatus’ for
begetting the effective representation.

3.1.5 Statutory Defences

Some statutory provisions exclude the rei vindicatio. Two such provisions are
discussed below.

Section 36(5) of the Insolvency Act 24 of 1936 provides that:

The owner of the movable property which was in possession or custody of a
person at the time of the sequestration of that person’s estate, shall not be
entitled to recover that property if it has, in good faith, been sold as part of the

28 For example in the Eysselinck case (n 27 above) the court ruled that the second defendant
had not relied upon a representation that, apart from ownership, the ius disponendi of the
Mercedes vested in Sharman Motors. As has appeared, Gavin represented to the second
defendant that Sharman Motors was the owner of the vehicle. No doubt the prior delivery
of the vehicle to Sharman Motors causally assisted Gavin in making that representation but
the mere delivery of property by one person to another does not by itself constitute a
representation that the latter is the owner (or is entitled to dispose) thereof: Electrolux
(Pty) Ltd v Khota & Another 1961 4 SA 244, cited with apparent approval in Oakland
Nominees (Pty) Ltd v Gelria Mining and Investment Co (Pty) Ltd 1976 1 SA 441 (A), and
Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) (Bpk) 1996 3 SA 273 (A). Nor does
the fact that the transferee is a dealer or trader in the particular commodity transform the
transfer of possession into such a representation.
29 Electrolux (n 28 above) 247‐8; see also Konstanz Properties (Pty) Ltd (n 28 above) 288 and
Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A) 428.
190 Property law in Namibia

said person’s insolvent estate, unless the owner has, by notice in writing, given,
before the sale, to the curator bonis if one has been appointed or to the trustee
of the insolvent estate, or if there is no such curator bonis or trustee, to the
Master, demanded a return of the property.

This implies that after the sale of the movable property of an insolvent estate,
the said property, after having been sold and transferred, may not be
vindicated by way of a rei vindicatio.

Section 70 of the Magistrates’ Courts Act 32 of 1944 provides that:

A sale in execution by the messenger shall not, in the case of movable property
after delivery thereof or in the case of immovable property after registration of
transfer, be liable to be impeached as against a purchaser in good faith and
without notice of any defect.

This means that the previous owner of movable or immovable property

cannot challenge the sale in execution of such property and the subsequent
transfer of ownership after delivery in the case of movable property and
registration in the case of immovable property.

The general effect of these provisions is that the owner of the property is
barred from redeeming the property through the application of the rei
vindication, thus limiting the usual effect of this remedy.30

3.2 Actio negatoria

WA Joubert et al31 state that in Roman law the actio negatoria was a remedy
in terms of which a landowner could restrict the exercise of unauthorised real
rights, especially servitudes, with regard to his or her land. In Roman‐Dutch
law this remedy was transformed into a remedy in terms of which any
physical disturbance of land could be challenged even though the disturbance
was not based on a presumed exercise of right. Mostert et al32 add that as a
real remedy, the actio negatoria permits an owner to deny the existence of
an alleged servitude or other right entitling the defendant to cause physical
disturbance to the land. In other words, it is a remedy granted to a landowner
to restrict physical disturbance of the land irrespective of the existence, or
otherwise, of a servitude. The application of the actio negatoria has been
extended to movables and therefore it can be applied to cases involving any
physical infringement of a person’s ownership. The following could serve as
examples where the remedy would apply in situations involving physical
infringement of a person’s ownership: where land is trespassed upon; where
movables are sold and delivered to third parties without the owner’s consent;
where structures are erected on land without the owner’s permission; where

30 See Mostert et al (n 7 above) 219‐220 for further explanation.

31 Joubert et al (n 7 above) vol 27, para 184.
32 Mostert et al (n 7 above) 226.
 Chapter 9: Remedies 191

a road is obstructed; and where the owner is physically prevented from

ploughing his land.33

For the owner to succeed with the actio negatoria he or she must prove
the ownership of the property; the existence of the property; and that it is
identifiable. Furthermore, he or she must establish that the defendant’s
conduct infringes on his or her right, either because it amounts to an
excessive exercise of an acknowledged limited real right or because the
defendant is exercising a non‐existent limited real right.34

3.3 Delictual remedies

As stated earlier, the real remedies are employed to restore the possession
of property to the owner, or to restore dominium or to prevent any
infringement of dominium. Delictual remedies on the other hand are
appropriate when physical restoration is not possible in which case the owner
must be compensated for his or her patrimonial loss. This may happen in
situations where, for example, the property has been destroyed, lost, or
damaged so that it cannot be identified or be used for its destined purpose.35
Under delictual remedies we shall specifically look at the condictio furtiva, the
actio ad exhibendum and the action legis Aquiliae (the general action for
damages).

3.4 Condictio furtiva

The condictio furtiva is a delictual action which can be instituted by an owner

against a thief or his or her heirs for the patrimonial loss (or prejudice)
suffered as a result of the theft. The condictio is aimed at the recovery of the
thing, together with its fruits, or its highest value since the commission of the
theft.36 It entitles the owner to the highest value of the thing between the
time it was stolen and litis contestatio. Therefore, to the extent that it can
also be employed for the recovery of the thing, it is possible to use the
condictio in the alternative to the rei vindicatio.37

In order to succeed with the condictio certain requirements must be

established by the claimant. As sated earlier, the condictio furtiva is a remedy
available to the owner of a thing, or someone with an interest in the thing,38
to claim damages from a thief and his or her heirs.39 The condictio will

33 Joubert et al (n 7 above) vol 27, para 184.

34 Mostert et al (n 7 above) 226.
35 Mostert et al (n 7 above) 227; Du Bois (n 6 above) 541.
36 Joubert et al (n 7 above) vol 27, para 187.
37 Mostert et al (n 7 above) 227; Joubert et al (n 7 above) vol 27, para 187.
38 Clifford v Farinha 1988 4 SA 315 (W).
39 Kruger v Navratil 1952 4 SA 405 (SWA) 408; John Bell & Co Ltd v Esselen 1954 1 SA 147 (A)
at 151‐152; Minister van Verdediging v Van Wyk & Andere 1976 1 SA 397 (T) 400; Crots v
Pretorius 2010 6 SA 512 (SCA) para 3.
192 Property law in Namibia

therefore only find application if the thing in question has been stolen. It was
held in Clifford v Farinha40 that the intention to appropriate the thing
permanently (a requirement for criminal theft) is not a requirement to
succeed with the condictio where furtum uses is concerned. The condictio
furtiva will be available where, for example, the defendant has deprived
possession of the thing from another, or has ‘taken’ the thing and used it with
the intention of later restoring possession. It follows that the person
instituting the condictio must prove that he or she is the owner of the
property or has a lawful interest in it.41 This interest must endure from the
time of the theft until the time the action is instituted.42

As mentioned earlier, the remedy is available only against the thief or, in
the case of death, his or her heir. The action cannot be instituted against any
subsequent (bona fide or male fide) acquirer of the stolen property.43

Since the condictio can be employed for the recovery of the thing, an
owner can in principle avail himself or herself of either this remedy or the rei
vindicatio if the thief is still in possession of the stolen thing. However, these
remedies are available in the alternative only. The owner has the discretion
to choose which one should be instituted. Since the highest value of the thing
attained in the interim period, specifically the period between the date of
deprivation of possession until litis contestatio, may be claimed, the condictio
furvita may in appropriate circumstances be more advantageous than the rei
vindicatio.44

In Roman law the actio ad exhibendum was usually instituted in

conjunction with the rei vindicatio to compel the possessor of a thing which
was not vindicated to produce it. If the defendant produced the thing, the
action for the rei vincatio was proceeded with. If the thing was not produced,
the defendant was ordered to compensate the plaintiff for its value.45 This
aspect of the actio ad exhibendum had become obsolete in Roman‐Dutch law
and never became part of South African (or Namibian) law.46

Currently, under South African (Namibian) law, the actio ad exhibendum

is instituted as a general action against a mala fide possessor, who has
fraudulently alienated, consumed or destroyed the thing, for the recovery of
its value since the thing itself can obviously not be recovered. It is also
available against any possessor, who after becoming aware of the title of the
owner, fraudulently alienated, consumed or destroyed the thing. Since the

40 n 38 above, 322C‐D.
41 Mostert et al (n 7 above) 227.
42 Minister van Verdediging (n 39 above).
43 Mostert et al (n 7 above) 227.
44 Joubert et al (n 7 above) vol 27, para 187.
45 Joubert et al (n 7 above) vol 27, para 185.
46 Du Bois (n 6 above) 542.
 Chapter 9: Remedies 193

basis of the liability is mala fides, the plaintiff must allege and prove it.47 For
the claimant to succeed the following requirements must be satisfied:

(a) the person who has instituted the action must be the owner of the
property;
(b) the defendant must have wrongfully and intentionally disposed of the
property; and
(c) the owner must have suffered patrimonial loss as a result of the disposal of
the property.

As stated earlier, it must be emphasised that since the property has been
disposed of, the amount claimed is the market value of the property at the
time of disposal.48

3.5 Actio legis Aquiliae

The actio legis Aquiliae as an action to claim compensation is of general

application in the sense that it can be instituted to claim damages in all cases
where property has been destroyed or damaged by the defendant in an
unlawful and culpable manner. The two delictual remedies discussed earlier,
the condictio furtiva and the actio ad exhibendum have particular application.
The former is utilised in the case of theft, whereas the latter is instituted
when the possessor has wrongfully disposed of the property in bad faith. The
Aquilian action lies for patrimonial loss caused wrongfully (unlawfully) and
culpably.49 For the plaintiff to succeed, it must be proved that he or she has
suffered patrimonial loss as a result of the wrongful conduct of the
defendant. The loss can be physical damage to person or property. The
wrongful conduct must have caused the loss. The plaintiff is also required to
establish blameworthiness in the form of dolus (intention) or culpa
(negligence) on the part of the defendant.

4 Unjustified enrichment

The doctrine of unjustified enrichment is based on an equitable principle that

prohibits one person from profiting or being enriched at the expense of
another person without making restitution for the reasonable value of any
property, services, or other benefits that have unjustifiably been received or
retained. In the law of property an owner may institute a condictio sine causa
on ground of unjust enrichment against a bona fide possessor who has
acquired a thing ex causa lucrativa (without consideration) in respect of any

47 Joubert et al (n 7 above) vol 27, para 185; Du Bois (n 6 above) 542; Mostert et al (n 7 above)
228.
48 Mostert et al (n 7 above) 228. For the scope of the application between the rei vindicatio
and the actio ad exhibendum see also Joubert et al (n 7 above) vol 27, para 185; and Du
Bois (n 6 above) 543.
49 Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 377.
194 Property law in Namibia

profit made when the property is sold. A condictio is available also where the
enrichment acquired ex causa lucrativa is a sum of money or land which has
been obtained as a result of accession.50

5 Protection of possession; the possessory remedies

The possessory remedies provide relief for a claim based on possession and
they include the mandament van spoile (spoliation) and interdict. They are
used to restore lost possession.51

5.1 Mandament van spolie (spoliation)

5.1.1 Definition

The mandament van spolie is a common law remedy available to the

possessor of property who has been dispossessed of that property by
another, either unlawfully or under the pretext that the said person was
entitled to dispossess the possessor.

5.1.2 Requirements

The requirements for obtaining the mandament van spolie are:

(a) a person must have been unlawfully deprived of the whole or part of his or
her possession of a movable or immovable thing; and
(b) a person must have been deprived unlawfully of his or her quasi‐possession
of a movable or immovable incorporeal thing.52

In Nino Bonino v De Lange53 Innes CJ defined spoliation as follows:

Spoliation is any illicit deprivation of another of the right of possession which he

has, whether in regard to movable or immovable property or even in regard to a
legal right.

50 Du Bois (n 6 above) 546; Joubert et al (n 7 above) vol 27, para 188; and Mostert et al (n 7
above) 229.
51 See Mostert et al (n 7 above) 75; Badenhorst et al Silberberg & Schoeman’s the law of
property 288; Du Bois (n 6 above) 453.
52 See Nino Bonino v De Lange 1906 TS 120; Shahmahomed v Hendriks & Others 1920 AD 151;
Mans v Loxton Municipality & Another 1948 1 SA 966 (C). The treatment of the mandament
in volume 27 of Lawsa under the title ‘Things’ by CG van der Merwe is extremely helpful.
53 n 64 above, 122.
 Chapter 9: Remedies 195

This definition was adopted from Augustini a Leyser Meditationes Ad

Pandectas and was approved inter alia in Sillo v Naude;54 Nienaber v
Stuckey;55 and Van Eck NO & Van Rensburg NO v Etna Stores.56

The question as to the utilisation of the mandament to protect

incorporeal rights has been the subject of wide‐ranging discussion in the case
law and amongst academics. In Telkom SA Ltd v Xsinet (Pty) Ltd57 Jones AJA
deals with the origins and development of the mandament as follows:58

Originally, the mandament only protected the physical possession of movable or

immovable property. But in the course of centuries of development, the law
entered the world of metaphysics. A need was felt to protect certain rights
(tautologically called incorporeal rights) from being violated. The mandament
was extended to provide a remedy in some cases. Because rights cannot be
possessed, it was said that the holder of a right has ‘quasi‐possession’ of it, when
he or she has exercised such right. Many theoretical and methodological
objections can be raised against this construct, inter alia, that it confuses
contractual remedies and remedies designed for protecting real rights. However,
be that as it may, the semantics of ‘quasi‐possession’ has passed into our law.
This is all firmly established.'

The facts of the case were that the appellant supplied the respondent (an
internet service provider) with a telephone system and a bandwidth system
in order for the latter to conduct its business as an internet service provider.
The appellant alleged that the respondent was indebted to it in a sum of
money in respect of one of the services provided, which the respondent
disputed. The appellant thereupon disconnected the respondent's telephone
and bandwidth systems. The respondent successfully brought an urgent
spoliation application in a Provincial Division. In an appeal it was held that
there was no suggestion that the appellant had interfered with the
respondent's physical possession of its equipment.59

It was held, further, that there was no evidence that the respondent had
ever been in possession of any of the mechanisms by which its equipment
was connected to the internet.60 It was held further, that the appellant had
not entered the respondent's premises and removed an item of respondent's
equipment in order to affect the disconnection.61 The court was of the view
that it was both artificial and illogical to conclude on the facts that the
respondent's use of the telephones, lines, modems or electrical pulses gave

54 1929 AD 21.
55 1946 AD 1049.
56 1947 2 SA 984 (A) 1000.
57 2003 5 SA 309 (SCA).
58 Para [9].
59 Para [13].
60 As above.
61 As above.
196 Property law in Namibia

it 'possession' of the connection of its corporeal property to the appellant's

systems.62

Furthermore, Jones AJA held that the quasi‐possession of the right to

receive the appellant's telecommunication services consisted of the actual
use of those services and that was a mere personal right.63 He further held
that the order sought was essentially to compel specific performance of a
contractual right in order to resolve a contractual dispute. This had never
been allowed under the mandament van spolie and there was no authority
for such an extension of the remedy.64

In Zulu v Minister of Works, Kwazulu, & Others,65 Thirion J grappled with

the question of incorporeal rights and accepted that ‘“the possession of
incorporeal rights is protected against spoliation”. (Nienaber v Stuckey 1946
AD 1049 at 1056)’. The judge then had the following to say:

In truth the mandament van spolie is not concerned with the protection or
restoration of rights at all. Its aim is to restore the factual possession of which the
spoliatus has been unlawfully deprived. The question of the lawfulness of the
spoliatus' possession is not enquired into at all. What then does a spoliatus have
to prove to establish the possession of ‘an incorporeal right’ and what such
‘rights’ qualify for protection by the mandament van spolie? … Accepting then
that what is protected by the remedy is the actual performance of acts which, if
lawfully performed, would constitute the exercise of a right, the question which
arises is what such acts are protected by the remedy.66

Thirion J in discussing this question considered Nienaber v Stuckey67 where

Greenberg JA observed as follows with reference to Voet;68 Wassenaar;69
and Lee:70
The fact that these authorities state generally and without any limitation or
exception that the possession of incorporeal rights is protected against spoliation
means that the holders of such servitudal rights as rights of way ... are entitled to
the relief against dispossession by spoliation.

Thirion J maintained that:

Too much should not be read into this statement. Greenberg JA was here simply
pointing out that possession need not be exclusive in order to qualify for
protection by the mandament. The question of what kinds of rights the
possession of which is protected by the mandament did not arise because the
spoliatus there had clearly been in physical possession of the land. It is true that

62 As above.
63 Para [14].
64 As above.
65 1992 1 SA 181 (D).
66 At 187 et seq.
67 1946 AD 1049 1055‐6.
68 43.16.7.
69 G Wassenaar Praktyk judicieel (1708) ch 14, art 1
70 RW Lee An Introduction to Roman‐Dutch Law 3rd ed (1931) 167.
 Chapter 9: Remedies 197

Wassenaar states in the passage referred to that the mandament van spolie may
be obtained in any case of a spoliation of ‘enige goederen of gerechtigheden’ but
I would not conclude from this bald statement that the dispossession of just any
right can be made the subject of spoliation proceedings. If the protection given
by the mandament van spolie were to be held to extend to the exercise of rights
in the widest sense then supposedly rights such as the right to performance of a
contractual obligation would have to be included – which would be to extend the
remedy beyond its legitimate field of application and usefulness.

The possession in Nienaber was fairly extensive and encompassed a whole

year from June 1945 during which period the appellant ploughed the lands.
From 1943 the appellant had leased the land in question. The court found
that he had not abandoned the possession in question and that when the
respondent locked the gate he effectively despoiled the appellant's
possession.71

5.2 Interdict

5.2.1 Definition

An interdict is an order made by a court prohibiting or compelling

performance of a particular act for the purpose of protecting a legally
enforceable right which is threatened by continuing or anticipated harm. In
this instance the interdict would be prohibitory, ordering the respondent to
desist or refrain from doing a particular act. Three requisites exist for the
granting of a high court interdict, namely a clear right, an actual or threatened
invasion of the right, and the absence of another suitable remedy. A further
requisite, namely that a balance of convenience favours the granting of the
interdict, exists where a temporary interdict is sought pending an action
between the parties.

5.2.2 Requirements

The requirements of an interdict were set out in an appeal judgment by the

Supreme Court of Namibia in the case of Van Ellinckhuijzen v Botha.72 For the
sake of completeness it is important to set out the salient facts in this case.

The applicant, Jan Botha, a businessman of Swakopmund in Namibia, and

the respondent, Koos van Ellinckhuijzen, an artist residing in Windhoek, had
entered into an agreement in terms of which Botha had commissioned van
Ellinckhuijzen, to paint for him a so‐called ‘relief map’ or ‘tourist perspective
map of Namibia’ as well as a ‘relief map’ of South Africa. The final price to be
paid by applicant to respondent for the paintings was N$36 000 for the

71 1057‐8.
72 (SA 11/01) [2002] NASC 11.
198 Property law in Namibia

Namibian map and N$45 000 for the South African map. After completion of
the maps they were delivered to the applicant.

Prior to the institution of litigation, the applicant had paid to the

respondent the full purchase price of the Namibian map and all but N$5 000
of the purchase price of the South African map. After keeping the maps in his
possession for a certain period, the applicant returned the maps to the
respondent for certain purposes.

Whilst the maps were in the possession and/or custody of the first
respondent, the applicant discovered that the first respondent was busy
selling the maps through the agency of the House of Art, the second
respondent, who had been placed in possession of the maps and who had
framed the maps on the instructions of first respondent.

The applicant immediately confronted the two respondents to state his

claim as owner of the paintings and got the following response from the
respondents. The first respondent said in effect: ‘I have done my homework
and am entitled to sell the paintings’. Second respondent, in reaction to a
letter from applicant’s attorneys, indicated by means of a letter from her
attorneys, that ‘she will not let the paintings out of her possession or control,
until such time as her retention rights, for work done on the pictures in the
amount of N$3 000,00 has been satisfied’. The applicant was not satisfied
with the aforesaid responses and applied to the court a quo on an urgent
basis for an interdict to prevent the paintings from being sold by the first
respondent.

After a settlement was reached with the second respondent and certain
agreements were reached with the first respondent relating to the procedure
to be followed for an expeditious finalisation of the dispute, the applicant and
respondents set out their respective cases in their affidavits and argued the
matter before the court a quo.

Gibson J after careful consideration made the following order, inter alia:

That first and second respondents are ordered forthwith, upon second
respondent’s right of retention in respect of work done in framing the paintings,
to place the applicant in possession of the aforesaid original paintings, failing
which the Deputy Sheriff for the district of Windhoek is authorized and directed
to attach and hand over to the applicant, the aforesaid painting.

This is part of the order against which an appeal was noted. The following
requirements for an interdict were confirmed in this case:

(a) a clear right;

(b) impending unlawful infringement; and
(c) no other effective remedy.
 Chapter 9: Remedies 199

In Passano v Leisslerk,73 a case that touched on a number of topics of

property law, Maritz J confirmed the requisites of an interdict by stating:

Seeking a final mandatory interdict, the applicant must satisfy the well‐
established requisites thereof: ‘(i) a clear right (ii) unlawful interference with that
right, actually committed or reasonably apprehended; and (iii) the absence of
any other satisfactory remedy.’74

6 Protection of servitudes

As we saw in Chapter 7, one basic characteristic of every servitude is the right

of use and enjoyment granted by the owner to the holder of the servitude.
Almost invariably the effective utilisation and enjoyment of these
entitlements involve possession of the object of the right. In this regard,
therefore, the remedies for the protection of servitudes will include the
possessory remedies and most of the remedies available to an owner,
discussed earlier. These will include an application for a declaration of rights
if the servitudal rights have been infringed or there is a risk of interference.
The holder of the servitude may also ask for a mandatory interdict compelling
the wrongdoer to restore the status quo ante and/or a prohibitory interdict
prohibiting the wrongdoer from perpetrating future infringements. This
replaces the old actio confessoria which may be instituted against the owner
of the servient property or any third party who unlawfully infringes the
holder’s right. In order to succeed, the plaintiff has to prove the existence of
the servitude; that he or she is the holder; and that the defendant has
unlawfully infringed the plaintiff’s use and enjoyment of the servitude.75 The
mandament van spolie is also available for the restoration of lost possession
of a right of servitude.76

7 Concluding remarks

Every legal system provides for rights and obligations and how these may be
enforced. In the law of property there are various remedies that are available
to the individual whose rights have been violated. These remedies may be
instituted to restore ownership, to recover property and for compensation
for patrimonial loss and prejudice. The remedies may be broadly classified as
real remedies because they pertain to the infringements of real rights,
delictual damage to property and unjustified enrichment where property is
involved. The choice of an appropriate remedy will be determined by the
peculiar circumstances of each case.

73 2004 NR 10 (HC).
74 Quoting Smalberger JA in Diepsloot Residents and Landowners’ Association & Another v
Administrator, Transvaal 1994 3 SA 336 (A) 344.
75 WJ Hosten et al Introduction to South African law and legal theory 2nd ed (1997) 650; Bon
Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 1 SA 508 (A) 513‐516.
76 Joubert et al (n 7 above) vol 25, para 105.
 10
PROPERTY RIGHTS OF WOMEN IN
CHAPTER
NAMIBIA

1 Introduction

The colonial policy of apartheid and more especially that of

‘bantustanisation’1 that generally deprived a certain sector of the South‐
West African/ Namibian community of their basic fundamental rights was
legitimised not only by the imposed political and social systems but also by
the legal system including legislation and some principles of the Roman‐
Dutch common law. In terms of property rights the general black population
was denied the rights to certain property rights, like for example, freehold
titles, as a result of the Bantustan policy. The policies of the financial
institutions requiring collaterals as a prerequisite for the granting of loans
totally disqualified the generality of the black population from qualifying for
the wherewithal and the empowerment necessary for the acquisition of
property, more especially immovable property. The situation was even more
pathetic in the case of women, who were not only subjected to the
application of some of the discriminatory principles of the Roman‐Dutch
common law relating to matrimonial property rights, in the case of women
who were subjected to the general law, but more especially the black women
whose property rights were governed by the customary law of their tribal

1 In 1962, the South African government appointed a Commission of Inquiry 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 also SK Amoo & M Conteh ‘Women’s Property Rights in
Namibia and HIV and AIDS: Myth or Reality?’ Namibia Law Journal vol 3, 1 January 2011, 3‐
27.

200
 Chapter 10: Property rights of women in Namibia 201

communities as a result of the Bantustan policy. In terms of property rights

therefore, it was not only the black women who did not have the full legal
rights to property and the means to acquire property but also the white
women whose property rights were governed by the general law that
recognised better titles of men to property.

In the context of the HIV/AIDS pandemic, gender inequality is a social

factor that has significantly contributed to the spread of the virus since
unequal power relations between men and women put women at a greater
risk of HIV/AIDS infection. Given this reality, the national policy on HIV/AIDS
was adopted in 2007. The policy addresses issues of gender inequalities in
terms of the burden of care placed on women and girls by the pandemic, the
cultural acceptance of intergenerational sex, especially sex of older men with
young girls, and gender based violence in general. In recent years, the impact
of structural factors such as gender inequalities on the severity and spread of
HIV has been noted with increasing alarm. Namibia’s Vision 2030 highlights
the HIV and AIDS epidemic as one of the most serious threats facing the
country. The epidemic is affecting health, livelihoods, economic perspectives,
demographic futures as well as many individual lives. HIV has reduced life
expectancy in Namibia significantly, and has left many families economically
vulnerable.2 Women are also diagnosed at a younger age than men, given the
median age of HIV diagnosis is 30 years old for women and 35 years old for
men. The percentage of young women living with HIV is 29 per cent
compared to only 8 per cent for young men.3

2 Background to property rights of women and HIV

and AIDS in Namibia

In Namibia there are 13 different ethnic groups, all of which demonstrate

gender inequality in the form of patriarchy to a greater or lesser extent.
Patriarchy is a dynamic system of male dominance over a woman that
manifests itself in, inter alia, male dominance over women’s economic and
social lives. As a system, patriarchy depends upon differential access to
power and resources and has different implications for women in each
community. In traditional African communities women had de facto social
power and exerted pressure on men both as mothers and wives.4 In some
cultures, such as the Nama and in the Kavango, women were traditional
leaders and chiefs. Women in many traditional communities had access to
property and were highly‐valued as agricultural producers. With the Owambo
communities, the economy was based on a mixed agricultural‐pastoral

2 Vision 2030: Policy Framework for Long‐term National Development (2003), Republic of
Namibia, Office of the President, Windhoek.
3 National Strategic Plan on HIV/AIDS Medium Term Plan (MTP III), (2004 –2009), Ministry of
Health and Social Services (MoHSS), Windhoek.
4 D LeBeau et al Women’s property and inheritance rights in Namibia (2004).
202 Property law in Namibia

system, the value socially attached to men’s products such as cattle was high
because of its ritual significance.5

At the time of independence the Government of the day was confronted

with the problem of adopting policies that would address the general policies
of discrimination that had affected not only the black population but also
disadvantaged groups, and in the case of property rights, the generality of
women in Namibia. These institutionalised and legally enforceable
discriminatory policies constituted the genesis of gender inequality in pre‐
independence Namibia. However, there is ample evidence that cultural and
customary practices reinforced the state sanctioned gender inequality.

Currently, there is still a confusing web of civil and customary laws, some
of which still cause gender‐based discrimination.6 There are several
government initiatives such as the Customary Law Bill, which will, among
others, recognise customary marriages and harmonise civil and customary
laws. As well as law reform, law enforcement and judicial responses to
violations of human rights do not yet guarantee women and men equitable
protection in Namibia. At independence, Roman‐Dutch law allowed a
husband to acquire power over his wife as well as property within the
marriage, even if the wife had acquired such property prior to marriage. The
Married Persons' Equality Act 1 of 1996 specifies equality of persons within
marriage and does away with the legal definition of the man as head of the
household. The Act also provides women who are married in community of
property equal access to bank loans and stipulates that immovable property
should be registered in both spouses’ names. However, the act only covers
couples married under civil, not customary, law, although one‐third of all
marriages are under customary law.7 The provisions of the Act relating to the
abolition of the marital power and the consequences of that abolition and
marriages in and out of community of property are not applicable to
marriages by customary law.

The most important piece of legislation in Namibia promoting gender

equality has been the Namibian Constitution adopted by the Constituent
Assembly in February 1990. Article 144 of the Constitution incorporates all
international instruments that Namibia has ratified into Namibia’s legislative
sphere. Therefore, a discussion now follows taking into consideration the
relevant articles of the Namibian Constitution and the International Covenant
on Civil and Political Rights (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR) that were ratified by Namibia on
28 February 1995 and the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) that was ratified on 23 November
1992. In terms of the ICCPR, everyone has the right everywhere to be

5 S La Font & D Hubbard (eds) Unraveling taboos: Gender and sexuality in Namibia (2007).
6 Le Beau et al (n 4 above).
7 Guide to the Married Persons Equality Act (2009) Legal Assistance Centre, Windhoek.
 Chapter 10: Property rights of women in Namibia 203

recognised as a person before the law8 and all persons are equal before the
law and are entitled, without any discrimination, to equal protection of the
law. In this respect, the law prohibits any discrimination and guarantees all
persons equal and effective protection against discrimination on any ground
including race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.9 The ICESCR confers
that in terms of equal rights the states parties to the Covenant undertake to
guarantee that the rights enunciated in the Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status,10 and that they undertake to ensure the equal rights of men and
women to the enjoyment of all economic, social and cultural rights set forth
in the Covenant.11

The Government of the Republic of Namibia has further committed itself

to the policy of non‐discrimination as enshrined in article 10 of the Namibian
Constitution and this underlies its National Policy on Land, including property
rights. The opening paragraph of the White Paper on the National Land Policy
reaffirms the Government’s commitment as follows:

Access to and tenure of land was among the most important concerns of the
Namibian people in their struggle for independence. Since 1990, and following
the 1991 National Conference on Land Reform, and the Consultative Conference
on Communal Land Administration 1996 Namibia’s democratically elected
Government has maintained and developed its commitments to redressing the
injustices of the past in a spirit of national reconciliation and to promoting
sustainable economic development. The wise and fair allocation and
administration, and use of the nation’s urban and rural land resources are
essential if these goals are to be met.

The Government’s position postulated in this policy is not only a political

commitment but it is also in compliance with a moral and legal
(constitutional) obligation.12 The relevant portion of article 95 of the
Constitution, that deals with the principles of State Policy and the Promotion
of the Welfare of the People, states as follows:

The State shall actively promote and maintain the welfare of the people by
adopting, inter alia, policies aimed at the following:
(a) enactment of legislation to ensure equality of opportunity for women, to
enable them to participate fully in all spheres of Namibian society; in particular,
the Government shall ensure the implementation of the principle of non‐
discrimination in remuneration of men and women; the Government shall
further seek, through appropriate legislation to provide maternity and related
benefits for women …

8 Art 16.
9 Art 26.
10 Art 2(2).
11 Art 3.
12 Article 95 of the Constitution has been declared to be obligatory on the Government.
204 Property law in Namibia

(e) ensurance that every citizen has a right to fair and reasonable access to
public facilities and services in accordance with the law.

These principles have been upheld in the case of Government of The Republic
of Namibia & Others v Mwilima & Others13 as ‘an expression by the state of
its willingness’ to provide those services and that ‘they are not enforceable in
any court of law’. In terms of access to property and the provision of the
necessary framework, legal or otherwise , for the attainment of these rights
by the erstwhile disadvantaged members of the community, especially
women, this may not be a justiciable right but the provision does impose a
standing obligation on the government to be seen to be measuring up to its
commitment. Furthermore, under the Constitutional provisions on Apartheid
and Affirmative Action14 the government is enjoined to pass legislation to
empower women, needless to say, to have access to property.

With regard to the rights to property, and more especially the rights of
women, the Namibian legislature, since independence, has promulgated
pieces of legislation aimed at redressing the injustices of the colonial legacy,
including the discriminatory laws and practices relating to property rights,
especially the rights of women. Apart from the Constitutions of the former
Soviet Union and the other Communist States in the former Eastern Bloc,
which made the provision of housing a constitutional obligation of the
government, not many constitutions in the world make the provision of
housing to its citizens a constitutional obligation of the state and therefore a
justiciable right of the individual. The Namibian government may therefore
not be under such obligation but it has the duty to provide within available
means adequate and affordable housing for members of the society in the
lower income group brackets. It is recognised that since the government’s
resources are limited and Namibia has a mixed economy the private sector
must of necessity play an important role in the provision of the wherewithal,
credit facilities, for the acquisition of property. It is however, the function of
the government to ensure that the policies of the private sector are not
discriminatory; especially against women and that credit facilities are
reasonably accessible to them. It is therefore the aim of this Chapter to
establish the following:

(a) whether the legislation promulgated by Parliament has adequately

redressed the injustices of the past with respect to the rights of women to
property;
(b) related to (a) above, whether the general rule inhibits women from enjoying
the same rights as women in terms of rights to property;
(c) whether the facilities provided by both the public and private sectors are
equally accessible to both men and women in their own rights;

13 2002 NR 235 (SC).

14 Art 23 of the Namibian Constitution.
 Chapter 10: Property rights of women in Namibia 205

(d) whether the promulgation of the Communal Land Act 5 of 2002 redresses
the inherent inequities of the communal land tenure systems with respect to the
rights of women, given the inarticulate premise, patriarchal biases and
predispositions of the male dominated traditional leadership;
(e) whether Proclamation 15 of 1925 should be amended, especially section
18(2), so as to ensure that cognisance be taken of the type of marital regime
applicable for the purposes of determining rights of widows in cases of
succession to immovable property; and
(f) possible national and international solutions.

3 Ownership of property and inheritance rights

The issue of women’s property and inheritance rights has been at the
forefront of many recent discussions and advocacy programmes in Namibia.
In some communities the customary norms whereby male relatives take all
property upon the death of a husband, as well as the customary practice of
demanding all property from a failed marriage are lately increasingly being
called into question. In Namibia the disinheritance of widows whose
husbands have died from AIDS related causes is a common occurrence.15 The
AIDS pandemic has been brought to the forefront by the realities of gender
based inequalities stemming from discriminatory property and inheritance
laws and practices. As indicated earlier, in some communities, a married
woman enjoys no right of ownership and upon her husband’s death she could
be left destitute. It is envisaged that the new bill on inheritance issues will
address this problem.

Half of the land in Namibia is communal land held under customary

tenure. Both men and women retain usufruct to communal land which
cannot be transferred in any manner. In reality, however, the right of
occupation and use is often transferred to a man who is regarded as the head
of the household. This in practice has led to the vulnerability and victimisation
of women despite existing legislation that guarantees them inheritance
rights, for example the Married Persons Equality Act of 1996 and the
Communal Land Reform Act of 2002.16

A major legislative development for rural women has been brought

about by the enactment of the Communal Land Reform Act 5 of 2002. In
terms of this Act, men and women are equally eligible for individual rights to
communal land and widows and widowers are entitled to equal treatment.
The new law has altered practices in certain areas where a widow was
previously dispossessed of the communal occupation fee. It is noteworthy
that the law, which provides a procedure for official recognition of traditional
authorities, requires that they ‘promote affirmative action amongst the
members of the community …’ particularly ‘… by promoting women to

15 LeBeau (n 4 above).
16 As above.
206 Property law in Namibia

positions of leadership’. Even though the Act contains no specific monitoring

or enforcement mechanism, it provides a basis for encouraging greater
participation by women in traditional leadership roles.

There was a complex background to this law. Parliament passed a

resolution requesting traditional leaders to allow widows to remain on their
land in 1992 and in 1993 traditional authorities in the north‐central regions
revised customary laws to help secure the land tenure of widows. The Act
gives women further protection by ensuring that, after a husband’s death, his
widow has a right to remain on communal land allocated to him even if she
remarries. One recent study concluded that customary land rights of widows
appear to be much more secure now than at the time of independence.17 The
infrequent eviction of widows which still occurs could, however, leave many
widows without the necessary means to cultivate their land, and sometimes
even without adequate shelter. This is a problem which must still be solved.18

Currently there has been government intervention on behalf of widows

who find themselves evicted from marital property, based on the arguments
that such practices violate a woman’s constitutional rights of property
ownership and gender discrimination as enshrined in article 10 of the
Namibian Constitution. The government is currently drafting a Succession Bill
that will harmonise methods of inheritance and property regimes for all
Namibians.

4 The links between gender inequality and HIV and

AIDS

The biannual serosurvey conducted amongst pregnant women gives an

indication of the extent of the sexual activity of the population. The survey is
done anonymously during routine antenatal care visits, which means that the
results cannot be linked to any particular individual. Monitoring the HIV
infections in Namibia is particularly important in informing policy makers on
the challenges and needs facing a large proportion of the Namibian
population. Results from the 2008 sero‐prevalence data has determined the
overall HIV prevalence in the country to be 17.8 per cent, a slight decline from
the 2006 prevalence of 19.9 per cent. The prevalence rate is the same in rural
and urban areas. The prevalence increased from 1992 (4.2 per cent) to 2002
(22 per cent) and then stabilised at 22 per cent before the decline to the
current prevalence rate. The highest age specific prevalence rate is observed
among those aged between 30‐34 years.19

17 W Werner Protection for women in Namibia’s Communal Land Reform Act: Is it working?
(2008).
18 As above.
19 Report of the 2008 National HIV Sentinel Survey (2009), Ministry of Health and Social
Services (MoHSS), Windhoek.
 Chapter 10: Property rights of women in Namibia 207

In a bid to attack the spread of the virus, government launched a series

of plans, namely the National AIDS Control Programme (1990); the First
Medium Term Plan (1992‐1998) initiated in 1992; the Second Medium Term
Plan (1999‐2004) launched in 1999; and the Third Medium Term Plan (2004‐
2009), launched in 2004.

It is estimated that about 200 000 people are living with HIV in Namibia.
60 per cent of these are women.20 Women are more prone to become
infected with HIV than men, which is in part due to the fact that women have
larger mucosal surface area than men and on account of the pooling of semen
during sexual intercourse. However, this does not fully explain why there are
more HIV‐infected women than men. Some of the most significant factors
that shape the spread of HIV and AIDS in Namibia include high mobility, cross
border travel, the high prevalence of sexually transmitted infections,
widespread alcohol and substance abuse, poverty, gender inequalities,
disintegration of families and ignorance

More than 25 years into the AIDS pandemic, gender inequality and
unequal power relations between women and men continue to be the major
drivers of HIV transmission. An array of societal beliefs, norms, customs and
practices that define masculine and feminine attributes and behaviour, play
an integral part in determining an individual’s vulnerability to infection, his or
her ability to access care, support or treatment and the ability to cope when
affected or infected. Gender inequality and harmful gender norms are not
only associated with the spread of HIV but also with its consequences.

Women and girls bear a disproportionate burden of responsibility for

families affected by AIDS and women who disclose their HIV‐positive status
have often faced greater stigma and suffered more extreme negative
reactions than men. Gender norms and expectations also influence male
sexuality, risk taking and vulnerability to HIV.

5 Property rights in Namibia and the enabling legal

regime

5.1 Land classification and land tenure in independent Namibia

In order to fully appreciate the nature of problems connected with property

rights of women in Namibia, it might be necessary to trace the genesis of
property rights in Namibia and the enabling legal regime. This is important
because the historical classification of land, together with the enabling legal
regime that legitimised the land tenure systems and titles attached to a
particular classification, is the genesis of the imbalances in land distribution

20 Report on estimates and projections of the impact of HIV/AIDS in Namibia (June 2008)
Ministry of Health and Social Services.
208 Property law in Namibia

and ownership in present‐day Namibia. As stated in Chapter 2, before the

Independence Constitution came into force, land in Namibia was classified as
state or crown land, communal land and private land. This classification by
and large has been maintained under the Constitution.21 Article 10022 and
Schedule 5(1)23 of the Constitution maintain the status of crown land; article
16(1) affirms the fundamental right to acquire, own and dispose of all forms
of immovable and movable property, more specifically it maintains the status
of private property; and by virtue of section 11(2)(c) of the Interpretation of
Laws Proclamation 38 of 1920, article 102(5) of the Constitution and the
promulgation of the Communal Land Reform Act 5 of 2002, it can be
authoritatively concluded that the status of communal land has also been
maintained.24 Consequently, land in Namibia may be classified as state land,
private land and communal land. The applicable law governing the first two
categories is the general law of Namibia, while the provisions of the
Communal Land Reform Act 5 of 2002 and customary law govern land tenure
systems in the communal areas subject to the internal conflict rules.

5.2 Private land/commercial farms

The primary legal regime governing property rights in Namibia is article 16 of

the Constitution that provides for the right to property as one of the
fundamental rights of the individual under the enshrined provisions of the
Constitution. It provides that:

All persons shall have 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:
provided that Parliament may by legislation prohibit or regulate as it deems
expedient the right to acquire property by persons who are not Namibian
citizens.

This provision comes under the entrenched provisions of the Constitution

and can only be derogated from under a state of emergency.25 The

21 See also SK Amoo ‘Towards comprehensive land tenure systems in Namibia’ (2001) 17
SAJHR 87.
22 Art 100 provides that ‘land, 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’.
23 Schedule 5(1) provides that: ‘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 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’.
24 See also Amoo (n 21 above).
25 Arts 24(1) and (3) of the Constitution of Namibia.
 Chapter 10: Property rights of women in Namibia 209

commercial farms of Namibia are held under private titles acquired and
legitimised under the provisions of article 16 of the Namibian Constitution.

6 Accessibility of commercial farms to Namibian

women

The Namibian courts have upheld the principles of article 10 of the

Constitution26 as one of the binding principles in the judicial and legislative
processes of the country. In view of the injustices of the colonial past of the
country and as a matter of principle and in the spirit of the strict application
and implementation of the law and Government policies relating to property
rights of, especially, the previously disadvantaged members of the
community, these rights must be accessible to all members of the society,
including women. It is one of the objectives of this Chapter therefore, to
ascertain the myths and realities of this desired position.

Before independence land set aside for private ownership was for the
most part owned by white settlers. At the time of independence it was
recorded that this constituted about 75 per cent of the commercially viable
farming land, whilst a paltry 25 per cent of such land was held by the
indigenous people in the communal areas.27 Since independence some
indigenous people, comprising mainly civil servants and members of the
private sector, have moved to the urban centres but the majority of the
indigenous African Namibians continue to reside in the communal areas. In
the context of the ownership of commercial farms the position of inequitable
distribution of land and imbalances in land distribution remains and most
Africans and particularly women, remain disadvantaged. This is compounded
by the fact that most commercial farmers are men. Women do not have
direct access and control over the commercial farms. Most women who
interact with the dynamics of commercial farming are either housewives or
workers.

The Namibian Government in its attempt to correct these imbalances

and empower the previously disadvantaged Africans, including women,
promulgated the Agricultural (Commercial) Land Reform Act 6 of 1995. Under
the authority of this Act the government has used the policy of willing buyer,
willing seller to purchase some commercial farms for resettlement and
farming purposes. To date the government has settled about 1512 families on
commercial farms at an average of 6 people per family giving a grand total of
9072 resettled persons. A total of 4617 people have been resettled on
communal farms, at an average of 6 people per family giving a grand total of

26 Art 10 of the Constitution states that: ‘(1) All persons shall be equal before the law; (2) No
person shall be discriminated against on the grounds of sex, race, colour, ethnic origin,
religion, creed or social or economic status’.
27 See Amoo (n 21 above) 96.
210 Property law in Namibia

28 380 persons resettled on communal farms. Of the total of both categories

of resettled persons, 48 per cent are women.

6.1 Rights of women to commercial farms before marriage

In terms of the general law, all single or unmarried women in Namibia have
the right to own any property including commercial land, subject to the laws
relating to capacity. This is in terms of the law but the questions of
accessibility to credit facilities and other wherewithal of empowerment
provided by both the public and private sectors will have to be addressed
separately.

6.2 Rights of women to commercial farms during marriage

There are two types of marriages in Namibia, civil law marriages and
customary law marriages and to a great extent marriage as an institution in
Namibia is one of the factors that govern the proprietary rights of women and
have contributed to some of the discriminatory laws and practices that
prevent women from getting access to property.

6.2.1 Civil law marriages

Until 1996 the proprietary consequences of marriage in Namibia were

governed by the Roman‐Dutch common law which provided that all
marriages were automatically in community of property unless, before
entering into the marriage, the parties had concluded an ante nuptial
contract, creating a property regime that was out of community of property.
Under the Roman‐Dutch common law principles relating to marriages in
community of property, the property of the spouses, wherever situated,
present and future, movable and immovable, including debts is merged into
a joint estate in which the spouses hold equal and indivisible shares
regardless of their contributions.28 The joint estate automatically falls under
the administration of the husband by virtue of his marital power. As
administrator of the estate the husband has the power to alienate, encumber
or otherwise deal with the property as he sees fit. More importantly, in terms
of proprietary rights, the wife may not enter into any contract to obtain
property or have property registered in her name without the consent of the
husband.29

These two types of marital property regimes are still recognised in

Namibia but the common law principles relating to the marital power of the
husband were substantially modified by the Married Persons Equality Act 1 of

28 Voet 32.2.85.
29 See generally WJ Hosten et al Introduction to South African law and legal theory 2nd ed
(1997) 590‐596.
 Chapter 10: Property rights of women in Namibia 211

1996. Section 2 of the Act abolishes the marital power of the husband
acquired under the common law and removes 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.30 It follows that during marriage a married
woman has the capacity to register any immovable property in her name.
However, if the property forms part of a joint estate, she will need the
consent of her husband if she wants to alienate, mortgage, burden with a
servitude or confer any other real right in any immovable property forming
part of the joint estate.31

With regard to marital proprietary rights of Black Namibians, the

applicability of the Roman‐Dutch common law rules relating to marriages in
and out of community of property depended on the geographical location of
the place that the marriage was contracted. The Native Administration
Proclamation 15 of 1928, part of which is still in force in Namibia, provides
that all civil marriages between natives north of the old ‘Police Zone’
concluded on or after 1 August 1950 are automatically out of community of
property, unless a declaration establishing another property regime was
made to the marriage officer one month before the marriage took place.

Marriages contracted under customary law are regulated by the

customary law of a particular tribal community. The proprietary rights of
women married under customary law are governed solely by a particular
customary law. Women can be allotted land in some communities but in
practice communal land is usually allocated to the husband. This has led to
the problem of widows in some communities being stripped of land and
household goods by the husband’s extended family members after his death.
This exacerbates women’s vulnerability to HIV and AIDS and creates an
overdependence on men.

6.2.1.1 Property rights of women after divorce

The property rights of spouses at divorce will be determined by Roman‐Dutch

law. This means that if they were married in community of property, they
share their property equally and if they were married out of community of
property, each takes the share that belongs to him or her. This is, however,
subject to the facts of each case with regard to the conduct of the parties
because under current Namibian law, the property rights of spouses, after
dissolution of marriage by divorce, are governed by the fault principle. It is
worthwhile mentioning that in the case of a marriage contracted by African
persons, the proprietary rights of the spouses will be governed by the
relevant provisions of the Native Administration Proclamation 15 of 1928,
which inter alia states that:

30 Sec 3(a)(i).
31 Sec 7(1)(a).
212 Property law in Namibia

such marriage shall not produce the legal consequences of marriage in

community of property between the spouses. There is a proviso to the extent
that in the case of a marriage contracted otherwise than during the subsistence
of a customary union between the husband and any woman other than the wife,
it shall be competent for the intending spouses, at any time within one month
previous to the celebration of such marriage, to declare jointly before any
magistrate or marriage officer that it is their intention and desire that
community of property and of profit and loss result from their marriage, and
thereupon, such community shall result from their marriage.32

In Mofuka v Mofuka33 the respondent sued the appellant for a divorce and
alleged in her particulars of claim that the parties had been married on 1
September 1995 at Onawa, Ovamboland,34 and that the marriage was in
community of property. The Supreme Court inter alia affirmed the finding of
the Judge a quo that section 17(6) of Proclamation 15 of 1928 applied to the
marriage and that it was out of community of property, unless declared or
agreed otherwise.

The common law principles which govern maintenance, the distribution

of the matrimonial estate and custody of children have very scant parallels in
customary law.35 The husband in most cases obtains the majority of the
marital assets and because of the application of the consequences of lobola
he has custody of the children.

LeBeau36 observes that with most communities in Namibia the law is

such that, even if the husband is at fault with regard to the divorce, the
customary court, where divorce proceedings take place, will grant the wife
little or none of the marital property, with the possible exception of cooking
pans or small household items. In other communities, such as Lozi, a wife may
receive a small amount of communal property if she can prove that her
husband was at fault for the break‐up of the marriage. In the Kavango the
person found at fault for the divorce, whether the husband or the wife has to
pay a ‘divorce fine’. However, given the fact that customary courts are only
held by men, that in many customary courts women may not be allowed to
attend or may not be allowed to speak, and that the men who are members
of the customary court are frequently related to the husband who is accused
of wrong‐doing, women often do not get a fair hearing before a customary
court. In Nama, division of property in the event of a divorce is probably the
most equitable because all divorces are done in a civil court. The Nama say
that in the past the husband got all of the livestock but now livestock are
shared between the couple. In most Namibian communities it is not a
requirement that lobola be returned, unless the wife is found to be at fault
for the divorce and in certain other circumstances, for instance, if she has not

32 Sec 17(6).
33 2003 NR 1 (SC).
34 Ohangwena Region.
35 TW Bennett A sourcebook of African customary law for Southern Africa (1996).
36 LeBeau et al (n 4 above).
 Chapter 10: Property rights of women in Namibia 213

yet had a child by her husband. In most Namibian communities, if lobola was
paid, it is not returned. However, in Herero society, when lobola was paid, the
extended family of the person at fault for causing the divorce has to pay the
other extended family a gift for getting divorced which is not considered as a
repayment of lobola but rather as a divorce fee.

Many people recognise that the manner in which property division takes
place upon civil divorce depends upon whether the couple is married in or out
of community of property. In the Khomas Region and with the Nama, there is
general consensus that civil law makes provision for property to be shared
equally and that civil law is more likely than other legal systems to protect
women’s rights to property during a divorce. In the Kavango and Omusati,
people say that under customary law property is divided according to who
owns the property, and as previously mentioned, the husband is considered
the owner of most marital property but under civil law, if the couple is
married in community of property, then the property is divided equally. In all
of the regions the vast majority of those interviewed say that people with
higher education and those that are urbanised are less likely to follow
customary rules for the division of property upon divorce. Several people
specifically mention that educated and/or urban women are more likely than
uneducated or rural women to want to divorce in civil courts because these
women feel they will get more of the marital assets than in a customary
divorce. However, urban and rural people are interlinked, with most urban
and educated people having their roots in the rural areas but primarily
accessing the legal system that gives them the greatest advantage in the
event of a divorce.37

6.2.1.2 Spousal inheritance

According to Le Beau,38 the practices of widow inheritance (levirate) and

widower inheritance (sororate) are still common among the Owambo,
Herero, Lozi and, to a lesser extent, the Kavango. Under these customary
laws, when a man dies one of his male relatives – usually the deceased
husband’s brother, nephew or uncle – ‘inherit’ his widow. The husband’s
extended family must decide who will inherit the widow and will send the
man decided upon to take over the household of the deceased man. If the
widow does not want to be inherited, she has to leave the household and all
of its property and return to her natal extended family. In most cases the
widow is expected to have sexual relations with the man who inherits her,
unless she is elderly in which case the couple will simply live together. Also in
Owambo, Hereo, Lozi and, to a lesser extent, Kavango custom a widower is
inherited by one of his deceased wife’s female relatives – usually the
deceased wife’s younger sister, cousin or niece. Again, the widower is
expected to have sexual relations with his new wife. Of interest is the fact that

37 As above.
38 As above.
214 Property law in Namibia

widowers are said to have more latitude in deciding whether or not they want
to be inherited. In most of the communities under consideration, people say
that the practice of spousal inheritance has only changed slightly due to the
advent of AIDS. However, people in the Kavango report that the practice of
widow inheritance has all but disappeared while the practice of widower
inheritance has been greatly reduced.39

6.2.1.3 Rights of women to property upon death of spouse

The proprietary rights of a surviving spouse depend on whether the deceased

spouse died testate or intestate. If the spouse died testate, the provisions of
Wills Act 7 of 1953 will apply. In the case of intestate succession there is no
uniform legislation applying to both whites and Africans. The Intestate
Succession Ordinance 12 of 1946, as amended by the Intestate Succession
Amendment Act 15 of 1982, applies to whites and the provisions of
Proclamation 15 of 1928 apply to Africans.40

In terms of the Intestate Succession Ordinance 12 of 1946 the surviving

spouse of every person who dies either wholly or partly intestate, is declared
to be an intestate heir of the deceased spouse according to the following
rules:

(a) If the spouses were married in community of property and if the deceased
spouse leaves any descendant who is entitled to succeed ab intestato, the
surviving spouse shall succeed to the extent of a child’s share or to so much as
together with the surviving spouse’s share in the joint estate, does not exceed
fifty thousand rand in value (whichever is the greater).
(b) If the spouses were married out of community of property and if the
deceased spouse leaves any descendant who is entitled to succeed ab intestato,
the surviving spouse shall succeed to the extent of a child’s share or to so much
as does not exceed fifty thousand rand in value (whichever is the greater).
(c) If the spouses were married either in or out of community of property, and
the deceased spouse leaves no descendant who is entitled to succeed ab
intestato but leaves a parent or a brother or a sister (whether of the full or half
blood) who is entitled to succeed, the surviving spouse shall succeed to the
extent of a half share or to so much as does not exceed fifty thousand rand in
value (whichever is the greater).
(d) In any case not covered by paragraphs (a), (b), or (c) the surviving spouse
shall be the sole intestate heir.

With regard to marriages contracted between two Africans, the proprietary

rights of the surviving spouse are governed by section 18(1) and (2) which
provide as follows:

39 As above.
40 See also Mofuka (n 33 above).
 Chapter 10: Property rights of women in Namibia 215

(1) All movable property belonging to a Native and allotted by him or accruing
under native law or custom to any woman with whom he or she lived in a
customary union, or to any house, shall upon his death devolve and be
administered under native law and custom.
(2) All other property of whatsoever kind belonging to a Native shall be capable
of being devised by will. Any such property not so devised shall devolve and be
administered according to native law and custom.

The customary rules on intestate inheritance are different in different

communities and inheritance depends on whether the tribal community
follows a matrilineal or patrilineal system of inheritance. It follows therefore
that with regard to immovable property, the rights of a widow of such
marriage will be determined by the relevant customary law. The provisions of
this Proclamation have been challenged as unconstitutional and
discriminatory.

6.2.1.4 Private land freehold titles

As mentioned earlier, article 16 of the Constitution guarantees everyone the

right to private ownership of land. This provision means that black Namibians,
including women, are constitutionally entitled to own properties with
freehold titles. Freehold titles over land in urban centres may be acquired
through alienation of land hitherto vested in local authorities under the Local
Authorities Act 23 of 1992,41 or through private treaties between individuals.

The rights of women discussed under the various scenarios above apply
mutatis mutandis.

6.2.2 The property rights of women under customary law

6.2.2.1 Communal Lands

Article 66 of the Constitution recognises the general application of customary

law as source of law in Namibia subject to the proviso that it shall remain valid
to the extent to which such customary law does not conflict with the
Constitution or any other statutory law. The proprietary rights of women
governed by customary law will be discussed within the general context of
customary land tenure systems that operate within the communal areas. The
relevant legal regime consists of the particular customary law of a tribal
community and the provisions of the Communal Land Reform Act 5 of 2002.42

The primary purpose of the Act is to make the process of land allocation
and land administration fair and transparent, and to enhance security of
tenure in the communal areas by giving statutory recognition to existing land

41 See Secs 3(3)(a), 3(5)(b) and 30(1)(t) of the Local Authorities Act.
42 See generally Amoo (n 21 above) 103‐108.
216 Property law in Namibia

rights and by creating new rights. It vests ownership of the communal lands
in the state and creates two rights that may be allocated in respect of
communal land: customary land rights and rights of leasehold. The Act thus
reaffirms customary rights of usufruct granted to occupiers of communal land
and confers statutory recognition on this tenure system. It does not grant full
rights of ownership to holders of customary rights of usufruct but it does
specify the duration of the customary land rights and makes provision for
registration. The Act has one provision relating to the allocation of land to a
surviving spouse in the event of the death of the holder of the right.43

In terms of the provisions of the Act, the proprietary rights of a woman

to a communal land under the various statutory titles are guaranteed by
legislation. But the Act fails to recognise the realities of the patriarchal nature
of the traditional society and how this will influence the allocation of land by
the traditional authorities and the Land Boards. It also fails to recognise the
leadership role that a boy/man plays in the family and therefore the
preferential, legitimate choice that is accorded him rather than the girl in
family relations, including land allocation.

In most communal areas in Namibia, traditional leaders such as

headmen, chiefs, indunas and kings, control land although communal land is
owned by the state.44 With the possible exception of the Nama, these
traditional leaders are mostly men. Land in the communal areas is distributed
by traditional leaders, who are generally male, to the males in the
community. Thus, those who use land are not necessarily the same as those
who control land. The Nama communities are an exception; the general
perception is that women use land, although men control land. Le Beau45
noted that there used to be the perception in the Khomas Region that due to
private land ownership, the person who controls, uses and owns land is one‐
and‐the‐same. However, people in Kavango, Owambo, Herero and Lozi noted
that traditional leaders and heads of households – identified as men – control
land, while women are the primary users of it.

The study also acknowledges that several customary practices in Namibia

discriminate against women in that they are denied access to property
accumulated during marriage. This lack of access to property, including lack
of access to land, serves to reinforce women’s subordination to men. Women
are caught in a cycle of poverty due to a lack of control over property, which
leads to a lack of economic independence. Most interviewees46 noted that
women are entitled to use most types of property. However, it was also said
that married women required the permission of their husbands to use
property. Property that women are most often said to be able to use with
impunity includes their own personal items such as clothes and shoes, as well

43 See sec 26 of the Communal Land Reform Act.

44 LeBeau et al (n 4 above); sec 17 of the Communal Land Reform Act.
45 LeBeau et al (n 4 above).
46 As above.
 Chapter 10: Property rights of women in Namibia 217

as household and kitchen items such as cooking pots and dishes. In most
communities under study,47 unmarried women have more rights to use
property than married women because the latter have to ask their husbands’
permission first. Unmarried women in the study often had their own homes
and could do as they pleased with their own property.48 Although it was
pointed out that in traditional societies unmarried women were not allowed
to live alone, the respondents felt that contemporary women in most
Namibian communities were better off if they did not marry because they
had greater freedom in the use of property. In most traditional households in
Namibia, once a woman marries, her husband takes over control of the
marital property, sometimes even including her own separate property
contribution. However, most people hold the ‘traditional’ attitude that land,
homesteads, livestock and large moveable property, such as cars and
tractors, should remain in the hands of men, and that men should, in general,
continue to dominate property ownership.

As regards property women are permitted to use without restriction,

unmarried women were said to be able to own more types of property than
married women.49 As with property use and ownership, women are limited
in types of property they can dispose of and married women cannot dispose
of any communal property without their husbands’ consent.

There are significantly differing opinions within and between

communities as to whether or not children born outside of marriage should
inherit from their father. In the Khomas Region respondents felt it was the
mother’s responsibility to find out if her children had inherited any
property.50 Others believed children had no right to inherit any property at
all. In general, respondents in Nama communities said that children born out
of wedlock have a right to inherit from their father’s estate. In Owambo and
Herero, interviewees felt that children born out of wedlock had no right to
their father’s estate – although in Herero communities, the father’s family
could ‘purchase’ the right for his children to inherit by paying the mother’s
extended family one head of cattle. In Kavango and Lozi communities,
children born outside marriage could inherit from their father if they had
already been recognised as being the children.51 However, it should be noted
that in the case of Frans v Pasche & Others,52 the High Court of the Republic
of Namibia ruled that the principle that illegitimate children could not inherit
was unconstitutional.

47 As above.
48 As above.
49 As above.
50 As above.
51 As above.
52 2007 2 NR 520 (HC) at 528‐529. See also sec 16(2) of the Children’s Status Act 6 of 2006.
218 Property law in Namibia

7 Access to credit

As indicated earlier, a mere provision of legal rights to property is not enough.

For one to fully realise the right to property one must be empowered or must
have access to the wherewithal that will make the realisation of the legal
rights possible. In other words, the individual or in this context women, must
have access to credit. NDP1 describes Namibia’s financial sector as small and
dualistic. It states that ‘as is the case in many developing countries, there is
on the one hand, a well‐developed financial system, mainly serving the urban
centers, while on the other hand, large portions of rural areas are left with
little or no access to financial services’. It has been observed that due to
women’s concentration in the rural areas, the distribution credit institutions
are a major barrier to rural women’s access to credit.

Formal sources of credit in Namibia include five commercial banks, two

building societies, seven parastatals, including the Namibian Development
Cooperation (NDC), National Housing Enterprise (NHE), and the Agricultural
Bank of Namibia (ABN). There is also the Build Together Programme (BTP)
administered by the Ministry of Regional and Local Government and Housing,
as well as NGOs and a number of credit unions and rural saving schemes.
Women’s Action for Development (WAD), although not a source of credit,
does provide financial support to a few female owned and operated income‐
generating projects.

Although there is, in theory, no discrimination against women by

commercial banks and all customers are supposed to be treated equally,
women tend to have more difficulty to acquire loans due to a lack of collateral
and credit record. There are no statistics on loans by these institutions which
distinguish between customers on the grounds of gender, so loan prevalence
rates cannot be determined. However, in the past women married in
community of property were required to have the consent of their husbands
to enter into contracts and obtain loans due to the husband's 'marital power'
over his wife. This situation has changed as from 21 May 1996 when the
Married Persons Equality Act 1 of 1996 was passed which abolished marital
power.

Commercial institutions such as banks do not have any programmes

directed specifically at women and they do not have any significant
programmes or activities in the field of micro‐economic enterprise
development. Interviews with bank officials reveal they do not feel that they
discriminate against women when extending credit. However, Standard Bank
officials say that women can get loans if they have repaid previous loans on
time. The City Savings and Investment Bank loans money for informal
investment if an applicant can meet a list of criteria including proof of regular
income. The Commercial Bank only gives loans to invest in the formal sector.
All of these various criteria, although not specifically directed at women, form
 Chapter 10: Property rights of women in Namibia 219

an effective barrier to women's access to credit, although women tend to

have better repayment records on home mortgage loans than men.53

The figures released by the Agribank to The Parliamentary Standing

Committee on Economics, Natural Resources and Public Administration
indicate that during the 2003/2004 financial year a total number of 553
farmers were granted loans.

The statistics on Gender Housing Occupancy from the NHE taken from a
sample of six of their German Development Funded Projects in Windhoek and
other towns in 2003/4 are as follows:

• 123 houses in Goreangab, Windhoek, 51/ 123 = 41.46 per cent females
• 95 houses in Freedom Square, Windhoek, 51/95 = 53.68 per cent females
• 99 core houses in Twahaagana, Walvis Bay, 23/99 = 23.23 per cent females
• 203 houses in Kuisebmund, Walvis Bay, 63/203 = 31.03per cent females
• 80 houses in Swakopmund, 30/80 = 37.5 per cent females

Namibia has inherited a history of several forms of social and economic

structural inequalities resulting from colonialism and South African
apartheid. This historical imbalance had a gender dimension which impacted
negatively on the rights of women to property and related social problems.
The HIV/AIDS pandemic has added its toll to the impact of discrimination that
women in Namibia face with regard to especially property rights, access to
credit facilities, unemployment and certain customary practices.

As a matter of general legal principle, the respect for human dignity and
equality and freedom from discrimination clauses in the Namibian
Constitution extend to all persons, including both persons living with AIDS
and those who are HIV positive. However, there are still some legal and
cultural norms and practices that do not accord with the letter and spirit of
the noble ideals of the Constitution.

In the area of property rights it has been mentioned earlier that the mere
provision of the right to the acquisition of property without the requisite
workable and enforceable empowerment strategies and policies by
government and the private sector will reduce the ideals of the Constitution
to a mere charade or façade. It will therefore be worthwhile to look at the
practices of the financial sector in relation to HIV/AIDS.

The financial sector comprises mainly the insurance companies and the
commercial banks. In the context of property rights of women living with
AIDS and those who are HIV/AIDS positive, the policies and practice of the
financial sector play a very crucial role in determining the realisation of the
rights of women to property.

53 EM Ipinge & D LeBeau Beyond inequalities, women in Namibia (2005).

220 Property law in Namibia

Insurance provides financial security against unforeseen and

unpredictable events such as death and disability. Therefore, it is regarded as
the key long‐term investment made by working individuals. More
importantly, it is also used as collateral in obtaining mortgage bonds for the
purchase of property, in particularly a home.

There are essentially the following four types of insurance cover that
present difficulties for people living with HIV/AIDS:

(a) Life insurance is obtained when the insurer, in exchange for the periodical
payments of premiums, agrees to pay an amount of money to a beneficiary
indicated by the insured person on the occurrence of the death of the latter.
Funeral insurance for more than $10 000 falls in this category.
(b) Assistance insurance is similar to life insurance except that the benefits
payable are valued at less than $10 000.
(c) Disability insurance usually forms part of life insurance. The benefit payable
is two‐fold. Should the insured person be unable to pay insurance premiums for
a certain period of time because of ill health (period of temporary disability), the
company waives payment of premiums for that period. Should the insured
person become permanently disabled, the insurer would pay the insured person
a large single amount of money or periodic smaller amounts.
(d) Health insurance covers payment for hospitalisation, major surgery, and
emergency transportation to hospital.. Health insurance is not the same as
medical aid.

A common factor with all these types of insurance is that the life expectancy
and health is the basis for cover. More especially, in the context of a woman
living with HIV/AIDS, wishing to obtain a home loan current policies and
practice of the insurance industry and commercial banks are closely
interrelated. Policy and practice in terms of profit‐making may make good
business sense and be justifiable but in terms of protecting the interests of
women infected and affected with HIV/AIDS, there is much to be desired. The
current situation is in need of legislative intervention or review by the
insurance industry itself.

To obtain a home loan from a bank, one needs to provide the bank with
some sort of security or collateral. Usually this is done by ceding a life
insurance policy to the bank. For people living with HIV this is not an option
as they are denied life insurance cover because of their HIV status.

Furthermore, insurance contracts usually contain exemptions or

exclusion clauses which exclude the liability of the insurance company if the
insured person was infected with HIV at the time of death or where, in the
opinion of the company, the claim is occasioned by infection with HIV. The
injustices inherent in these policies are evident in the subjectivity of the
absolute discretion given to the insurance industry in determining the cause
of death, irrespective of the actual cause of death. Women living with HIV/
AIDS are disadvantaged by this practice. In the first place, it is common
 Chapter 10: Property rights of women in Namibia 221

knowledge that Namibia is a patriarchal society and most households in

Namibia are headed by men. The Census Indicators for 2001 and 1991 show
that 55 per cent of households are headed by males and 45 per cent by
females. A widow cannot claim under the policy of a deceased husband in
such instances and, furthermore, the property which is not covered by a life
policy is subject to foreclosure irrespective of the widow’s wish to continue
with payment of instalments under the bond entered into between the
husband and the insurance company. In the case of a single mother living
with HIV/AIDS she is denied access to obtaining credit facilities or has to pay
a higher premium.

Some insurance companies have, under pressure from activists, revised

their policies to include coverage for people living with HIV/AIDS. However,
there is no indication that similar policy changes with respect to access to
mortgage bonds or house loans are in the offing.

Documented evidence of research conducted on information obtained

from various sources shows that lack of accessibility to property resulting
from acceptable commercial practices, not directly prohibited by the law, or
from customary practices impacts on lowering the social status of women vis‐
à‐vis men. Hence, women find themselves at risk of being exploited by men.
According to Le Beau,54 consequences of gender inequality and patriarchy,
such as gender‐based violence, women in poverty and women’s lack of access
to social and economic resources, place them at particular risk of HIV
infection.55 Barcelona is not the only forum on HIV/AIDS where gender
inequality and patriarchy have been linked to women’s risk of HIV infection.
At the Durban National Treatment Conference on HIV/AIDS, COSATU General
Secretary, Zwelinzima Vavi, said the following: ‘Quite clearly as long as we still
have a patriarchal society that undermines gender equality we are far from
defeating HIV/AIDS. Statistics bear testimony to this unequal relationship
between men and women. Indeed the Namibia UNDP report (2001:35)
concludes that in Namibia, the major area where differences between
women and men come to the fore is that of access to resources and decision‐
making’.56

8 Conclusion

This Chapter is an attempt to highlight some of the salient aspects of property

rights in Namibia, the impact of the gender inequality on women’s
vulnerability to HIV infection and to ascertain on the preponderance of the
current enabling laws and practices whether the issue of proprietary rights of
women in Namibia is a myth or reality.

54 LeBeau et al (n 4 above).
55 LeBeau et al Structural conditions for the progression of the HIV/AIDS pandemic in Namibia
(2004).
56 As above.
222 Property law in Namibia

The Government of the Republic of Namibia inherited a land tenure

system that was discriminatory. It was discriminatory against Africans in
general and women in particular. Property rights of women were governed
by both the general law and in the case of African women, customary law.
One of the challenges faced by women in contemporary Namibian society is
women's unequal access vis‐à‐vis men to property and inheritance rights,
which in turn limits women's ability to strive for gender equality within both
their personal and social spheres of life. The lack of ability to manipulate
property through use, ownership and disposition limits women's economic
choices and causes them to be economically dependent on men, which in
turn makes women more vulnerable to HIV and AIDS.

In the rural areas, women's lack of access to communal land in their own
right is a significant cultural impediment to greater gender equality because
women are dependent on men to access their main means of production. The
practice of widow inheritance is degrading to women and makes them
vulnerable to physical abuse at the hands of the inheriting husband, exposes
both men and women to the risk of HIV infection, and no longer serves the
purpose of protecting young widows and children. A similar problem can be
seen in widower inheritance whereby the new spouse, often younger than
the widower, is exposed to violence and HIV infection. Spousal inheritance
should be discouraged through information campaigns and possibly
addressed through legislative reform.

Any reforms in property regimes should also encourage greater

accumulation of property which women can customarily own. Of concern is
that, if civil law were changed to provide for the equal division of joint
property, it would preclude extended family members from inheriting all joint
assets, although they could, theoretically, inherit the deceased’s spouse's
portion of the joint assets. There is also scope for adapting the accrual
concept of sharing the gain from the marriage. Law reform should progress
towards a more equitable distribution of property during divorce or upon
death. These laws should specifically protect vulnerable groups such as rural
women and orphans.

The constitutional principle of equality needs to be applied to customary

law on inheritance. Customary inheritance rules need to be reformed so as to
ensure, for example, that, a woman born in a Herero community should not
have fewer rights to property than a man or a woman born in a Nama
community. Law reform should insist that boys and girls should be treated
equally as children for purposes of their intestate inheritance under
customary law. The principle of primogeniture (inheritance by the oldest
male child) was once the norm in Western civil law around the world but over
the years this principle has been discarded in favour of equality between the
sexes. A similar evolution is needed in the African customary law context. Law
reforms on inheritance, which could remove sex discrimination, need to be
officially formulated and then widely discussed and debated so that changes
in this highly personal and traditional area can be acceptable and workable in
 Chapter 10: Property rights of women in Namibia 223

practice. Much groundwork will be needed before rights given in theory can
be asserted in practice in this area.
 11
LAND REFORM IN NAMIBIA
CHAPTER

1 Introduction

As stated in the previous Chapter, the concern for land reform in Namibia is
raised in the opening paragraph of the White Paper in the following terms:

Access to and tenure of land were among the most important concerns of the
Namibian people in their struggle for independence. Since 1990, and following
the 1991 National Conference on Land Reform, and the Consultative Conference
on Communal Land Administration 1996 Namibia’s democratically elected
Government has maintained and developed its commitments to redressing the
injustices of the past in a spirit of national reconciliation and to promoting
sustainable economic development. The wise and fair allocation, administration
and use of the nation’s urban and rural land resources are essential if these goals
are to be met.1

Pursuant to various national conferences on the land question2 and

consistent with its avowed policy of land reform the Government had the
Agricultural (Commercial) Land Reform Act No 6 of 1995 promulgated. This
Act is meant to provide the Namibian government with the necessary legal
tools to acquire commercial farms for the resettlement of displaced persons,
and for the purposes of land reform. To date the implementation of the policy
has been facilitated by the state and by market‐assisted acquisition schemes
based on the ‘willing seller, willing buyer’ principle. In terms of the acquisition
scheme known as the National Resettlement Programme (NRP) the state
acquires land for resettlement purposes in the market under the auspices of
the Ministry of Lands and Resettlement (MLR). The Affirmative Action Loan
Scheme (AALS) is a programme implemented by the Agricultural Bank of

1 Government of the Republic of Namibia White paper on national land policy (1997).
2 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. References to appropriate legislation and the White Paper are made elsewhere
in this book.

224
 Chapter 11: Land reform in Namibia 225

Namibia on behalf of the Ministry of Agriculture, Water and Forestry. This

programme was introduced by the Agricultural Bank Amendment Act 27 of
1991 and the Agricultural Bank Matters Amendment Act 15 of 1992 with the
aim inter alia of resettling well‐established and strong communal farmers on
commercial farmland so as to minimise the pressure on grazing in communal
areas. It assists formerly disadvantaged persons to acquire land themselves
on the open market at subsidised interest rates. Between 1990 and October
2004 the two programmes together redistributed 4.31 million hectares, or 12
per cent, of the total area of freehold land in Namibia, benefiting some 2151
families. Since 1992 the AALS has distributed nearly four times the amount of
land the NRP has distributed since 1990, namely 3.47 million hectares
compared with some 874 000 hectares. In addition, the MAWF transferred
398 859 hectares to the MLR in 1992.3 In his address to the National Assembly
in May 2010 the Minister, Alpheus! Naruseb, indicated that the Ministry of
Lands and Resettlement had earmarked 15 million hectares of freehold land
to be redistributed by the year 2020.4 The Minister added that in the 2009/
10 Financial Year, the Ministry acquired eight farms covering a total area of
26 000 hectares at a cost of N$21.2 million, and he pointed out that this figure
fell short of the set annual target of 534 000 hectares. He explained that the
slow pace at which land was acquired had negatively impacted on the rate at
which government could resettle people.

The implementation of the Act has, however, not been free from
problems. As pointed out by the then Minister of Lands, Resettlement and
Rehabilitation, Pendukeni Ithana, the Government’s policy of ‘willing seller,
willing buyer’ has imposed constraints on its ability to acquire fertile and
more productive commercial farms.5 This constraint was also alluded to by
Minister Alpheus! Naruseb in his address mentioned earlier. However, an
option that is open to the Government as a possible solution to this constraint
may be found under the provisions of Chapter IV of the Act. Section 20, read
with section 14(1), in terms of which the Minister is empowered to
expropriate any commercial land for purposes of land reform in case of
failure to negotiate the sale of property by mutual agreement. Under article
16 of the Constitution the government of Namibia has the sovereign power
to expropriate private property.6 Consistent with the norms of international
law,7 the Namibian Constitution provides for the justification of such
expropriation on grounds of public interest and the payment of
compensation. The power to expropriate is therefore a legal matter, while
the decision to expropriate and determine the public interest is a political

3 ‘Strategic options and action plan for land reform in Namibia’ Government of the Republic
of Namibia, November 2005.
4 The Namibian Sun 20 May 2010.
5 See T Nandjaa ‘The land question: Namibians demand urgent answers’ Namibia Review
(1997) 1‐4 and note 89.
6 See art 16(2) of the Namibian Constitution and sec 14(1) and 20 of the Agricultural
(Commercial) Land Reform Act.
7 See the Resolution on Permanent Sovereignty over Natural Resources, 1962 adopted in the
case of Texaco v Libya (1977) 53 ILR 389.
226 Property law in Namibia

one. It is worth mentioning also that this clause is not entrenched and
therefore can be derogated from should a state of emergency be declared
under articles 24(3) and 26 of the Constitution.8 The Namibian government
has to date expropriated about nine farms. This may be attributed both to
political reasons and budgetary constraints relating to the payment of
compensation.

2 White agriculture in modern day Namibia

Just as land dispossession has its history, so does the white agricultural order
which followed. Namibian agriculture, under colonialism and apartheid, took
on particular forms. In a state where farm ownership is politically and racially
charged, it is not easy to determine exactly who owns the land because some
ownership is concealed through various legal devices.9 It is generally thought
that about 4 200 families own about 6 000 commercial farms, with up to 700
of these farms held by blacks. Since independence black businessmen and
politicians have purchased farms and about up to 700 black farmers have
been loaned money through various state affirmative action programmes to
buy commercial farms10 but the commercial agricultural sector is still
overwhelmingly white, and is so perceived by Namibian blacks. The 4 200
families referred to above represent much of the wealth in Namibia, with
many urban residents owning farms that they use on weekends and holidays.
At the same time, little of this wealth is actually generated by these farms, a
situation much different from Zimbabwe where white‐owned commercial
farms were major sources of income, particularly in the form of foreign
exchange. Many Namibian farms are held as ‘hobby farms’, one asset of
people wealthy from other areas of enterprise. Again, this data is difficult to
get access to but it is clear that the average Namibian farm is not a profitable
enterprise and is in fact suffering under severe debt. At least 60 per cent, and
up to as many as 70 per cent of all Namibian farms, are unprofitable. Debt
loads are large, with debt repayment amounting to about N$300 million a
year, representing about one‐third of Namibia’s estimated agricultural

8 This clearly means that the government, under such a state of emergency, can expropriate
private property without compensation.
9 Because these various legal arrangements are secret it is not possible to say precisely how
common these devices are, or even exactly what they are. Some ‘foreign’ ownership, for
example, is concealed by registering farms in the name of Namibian citizens. Other farms
are held in the name of relatives, or corporations. Corporately held farms may legally
appear in individual ownership. Still other farms may still be legally registered to their
former owners, although ownership has been secretly transferred by an unregistered legal
arrangement. Some affirmative action scheme farmers have apparently bought land from
whites at inflated prices, then leased these farms back to the original owners. There are
rumours that politicians do not want farms in their own names because it would reveal
wealth that cannot be accounted for, thus the number of politicians (mostly black) who
own farms is not known.
10 There is no firm data on the number of blacks who own commercial farms. While 700 loans
have been taken out under an affirmative action farm loan scheme, it is not clear that 700
farms have been purchased with this money.
 Chapter 11: Land reform in Namibia 227

income.11 Debt loads are also rapidly increasing: in 1991 the average
commercial farmer had to sell 31 per cent of his livestock to pay his debts; in
1998 this had increased to 64 per cent, effectively doubling debt in seven
years.12

Debt per farmer has doubled since 1990, increasing from N$112 000 to
N$227 000. Given that some farmers – perhaps as many as 30 per cent ‒ carry
no debt, the remaining farmers are even further in debt than these ‘average’
data would indicate.13 The farms of such remaining farmers, averaging about
8 000 hectares each, 20 000 in the south, are running at an increasing annual
loss. This means that the present generation of white farmers, averaging
about 55 years of age, are content with agricultural enterprises producing
little cash income and forcing them to borrow against their capital
investments in order to maintain their agrarian life styles.14

Ironically, it now seems that this was always the case with Namibian
farms: they were never profitable and always heavily subsidised by the state.
Initially, the German government, using the model of the yeoman German
farmer that worked so well in Canada and the United States, subsidised small
farmers in order to populate its colony with Germans, a necessary
requirement to create a colonial settler society on the model of North
America or South Africa. Later, the South African government moved
thousands of poor Afrikaners to Namibia, setting them up in a rural welfare
scheme, a bulwark of agrarian Afrikaner values.15 Even the choice of cattle or
small stock as the major ‘crop’ was determined by South African officials who
granted loans only for particular types of agricultural enterprises. A vast road
system was built which is still among the best in Africa.16 Wells were sunk all
over the country in order to insure a constant supply of water in a semi‐desert
environment.17 Dams and canal projects were built with plans developed to
divert water from the Kunene and Kavango Rivers into central Namibia.18

Even with elaborate state efforts to develop water sources, drought is a

periodic occurrence in Namibian agriculture. What rainfall that exists occurs

11 W Werner ‘Agriculture and Land’ in H Melber Namibia: A decade of independence (2000)

33.
12 As above.
13 As above.
14 M Adams & J Howell ‘Redistributive land reform in Southern Africa’ ODI (64) January
2001,4‐5. This is a logical conclusion, drawn from the above data. The farming sector is
distrustful of the Namibian government and may want to appear stronger and more
important to the nation’s economy than it is, therefore accurate economic data is not
easily gained. It should also be noted that the threat of expropriation has encouraged
farmers to use various devices to raise the value of their farms, both to discourage
expropriation and to increase the payment in the event of expropriation.
15 W Schmokel ‘The myth of white agriculture: Commercial agriculture in Namibia, 1900‐
1983’ (1985) 18 International Journal of African Historical Studies 1.
16 R Moorsom Transforming a wasted land(1982) 11‐14; JH van der Merwe (ed) National
atlas of South‐West Africa (1983) plates 10‐14; J Mendelsohn et al A profile of North‐
Central Namibia (2000) 9‐11.
17 C Stern & B Lau Namibian water resources and their management: A preliminary history
(1990).
18 HW Stengel Water Affairs in S.W.A Windhoek: Afrika‐Verlag der Kreis (1963).
228 Property law in Namibia

during a few months between November and March19 but rainfall, even in
the ‘rainy’ season, is often irregular. It is therefore difficult to plan for herd
development.20 Periodic drought has also resulted in high levels of
environmental degradation which ironically, is lowering the value of the
farms, making it easier for the government to purchase them but also making
it harder to successfully resettle black farmers on the land. Namibian grazing
lands are stressed even under good conditions. Drought forces overgrazing,
which has led to the permanent depletion of grasslands, desertification,21
and bush encroachment, as worthless species of brush take hold where grass
is gone, converting grasslands into shrubby wastelands.22

Since the 1950s, Namibian agriculture has become increasingly

monocultural: cattle are the main cash source, and most farms are now
‘ranches’, raising nothing but cattle.23 Cattle herds in the commercial areas
have declined by 27 per cent since 1990, now numbering under 1 000 000
head.24 Because Namibia has little grain, its cattle are grass fed, further
stressing the environment. This means that it takes longer to raise cattle to
market weight and they therefore produce an inferior grade of meat in the
world market.25 In the south, where there is too little grass for cattle, farmers
raise over 2 000 000 sheep.26 Namibia, a vast agricultural land, is self‐
supporting only in beef and mutton. Most of its food products must be
imported, almost exclusively from South Africa.27 Although cattle and small
stock production dominates Namibian agriculture, there are several regions
that support commercial crop production. A ‘maize triangle’ in the north,
where there is more rainfall, produces about half of Namibia’s corn and
wheat requirements.28

What are now left of Namibian agriculture are the remnants of a

wasteful, politically determined and subsidised system that never originally

19 See also Moorsom (n 16 above) 9‐36.

20 J Sweet ‘Livestock: Coping with drought: Namibia – A case study’ unpublished paper,
December 1998.
21 M Seely & K Jacobson ‘Desertification in Namibia’ Namibia Environment 1 (1996) 170‐174;
M Seely ‘Environment: Harsh constraints, political flexibility,’ in I Diener & O Graefe (eds)
Contemporary Namibia: The first landmarks of a post‐apartheid society (1948) 35‐52; J
Timberlake ‘Soils and land use’ in M Chenje & P Johnson (eds) State of the environment in
Southern Africa (1994) 105‐132; MK Seely & KM Jacobson ‘Desertification and Namibia: a
perspective 1994’ Journal of African Zoology 108(1) 21‐26.
22 B Bester ‘Bush encroachment: A thorny problem’ Namibia Environment 1 (1996) 175‐177.
Bush infestation is estimated to cover between 8 and 14.4 million hectares, the latter figure
about 50 per cent of the commercial farming area. J Sweet ‘Livestock – Coping with
drought’ 13.
23 B Lau & P Reiner 100 Years of Agricultural Development in Colonial Namibia (1993) 20‐22,
43.
24 Werner (n 11 above) 30‐31; Sweet (n 20 above) 4 puts the number of cattle on commercial
farms as 790 699 in 1997. The same year blacks held 1.3 million cattle in the communal
areas.
25 Cattle fed on poor grass take longer to mature and yield tougher, poorer quality meat.
26 Sweet (n 20 above) 4.
27 Lau &Reiner (n 23 above) 11‐14. W Elkan Namibian agriculture: policies and prospects
1992.
28 Sweet (n 20 above) 3.
 Chapter 11: Land reform in Namibia 229

belonged in Namibia but was introduced for concealed purposes which

related to a colonial policy that no longer exists.29 The irony here is striking:
even if those farms were vacated tomorrow, it is not clear that they should –
or even could ‒ be re‐occupied as farms. To do so would simply continue a
wasteful form of colonial era agriculture. If white farmers required vast
subsidies to operate in Namibia, black farmers will in all likelihood require the
same. Thus, the major expense of land reform is probably not the cost of the
land itself but the cost of government subsidies for future generations.

These commercial farms are at the core of an agrarian social structure

that may provide jobs for about 15 per cent of the population. In 1997, 42 277
farm workers were employed in the commercial agricultural sector. An
additional 38 125 were ‘unpaid family workers’. With an average household
size of 5.1, about 211 000 blacks are employed or supported by commercial
agriculture.30 Many black Namibians have worked on these farms their whole
lives, and often have known no other home. While farm wages are generally
low, farm workers may also draw benefits in terms of food, housing, and
medical care that are much better than similar benefits available to the
average Namibian. Any change in the ownership of these commercial farming
operations will therefore displace large numbers of poor blacks with no other
homes, low educational levels, and few other job skills.31 The irony of ‘land
reform’ is obvious: most of the people displaced are poor blacks while most
of the whites who own farms already live in cities.

3 Security of tenure in the informal areas

In terms of land holding rights and security of tenure, the other category that
needs to be considered are residents of the informal areas. Most of these
people obtain their rights of occupation from traditional leaders. Such rights
approximate to rights of usufruct. This category of residence has, however,
never been granted official land rights by the authorities. It is this group of
residents, together with those in the spontaneous settlements on the fringes
of proclaimed urban areas, at which the newly proposed form of tenure, the
starter title,32 is aimed.

With the advent of independence, more Africans were absorbed into the
public service and, to a lesser extent, into the private and commercial sectors.
This has resulted in the influx of more affluent Africans into the urban
centres. The character of black settlement in the urban centres has
consequently become more heterogeneous and, with the right of private
ownership guaranteed by Article 16 of the Constitution, more black urban

29 R Moorsom (n 16 above) 30‐36.

30 W Werner Promoting development among farm workers: Some options for Namibia 2002
4.
31 Werner (n 30 above) 6‐9.
32 These titles are the subject matter of the Flexible Land Tenure Act 4 of 2012.
230 Property law in Namibia

dwellers are able to acquire property in the form of freehold title. Although
this phenomenon may have corrected to a certain degree the injustices of the
skewed colonial land policies, the effects of past racial discrimination and
urbanisation had their own inherent problems. It is estimated that urban
areas in Namibia are growing at a rate of 3.75 per cent per annum on average.
The fastest growing towns, Walvis Bay, Katima Mulilo and Rundu are
estimated to be growing at a rate of approximately 6.5 per cent per annum.
Windhoek, whose total population was 34.5 per cent of the entire urban
population of Namibia, increased by 5.45 per cent from 1991 to 1995.33 This
growth means that there is not only need for more land for urban settlement
but also for security of tenure for people whose rights are not recognised by
the existing system. It was estimated in 1995 that about 30 000 families living
in informal settlements in urban areas did not enjoy security of tenure.34
Most of these residents were squatters on land belonging to individuals or
local authorities.

One reason for the non‐existence of a more secure tenure system for
urban settlements in the former Bantustan areas was the deliberate policy of
the colonial administration to deny these urban centres official recognition as
municipalities. A different policy would have led to the establishment of local
authorities with the jurisdiction to grant freehold title after the satisfaction of
infrastructural and surveying requirements.35

The first democratic Government of Namibia reacted to this situation by

establishing local authorities in these areas under the Local Authorities Act 23
of 1992. The formalisation of urban centres in terms of this statute involves,
firstly, the proclamation of the area as an urban area under the jurisdiction of
the relevant local authority. This step is then followed by the registration of
the town in the name of the state or relevant local authority. The
proclamation and subsequent registration enable the local authority to
subdivide the area and create plots or erven of urban land. The occupants of
such plots receive freehold title. In the formal areas the intention is to sell
existing erven to the relevant local authority, ‘subject to the holders of
Permissions to Occupy being given the first option on the plots they occupy
at the sale date’.36

33 See also Chapter 2 at 2.4.4.

34 SF Christensen & PD Hojgaard Report on flexible land tenure system for Namibia (1997) 6.
35 According to the White Paper on urban land and the proclamation of local authorities the
development of many urban areas prior to independence took place as a result of the
discriminatory policies of the colonial regime in terms of which such areas were never
proclaimed as municipalities or townships in which local authority administration could
develop. The White Paper on National Land Policy requires the establishment and
proclamation of urban and urbanising areas as townships and municipalities, where
appropriate, to promote decentralisation of government and the close involvement of
communities in their own administration.
36 As above.
 Chapter 11: Land reform in Namibia 231

4 Reform of customary land tenure

4.1 Nature of customary land tenure

Apart from the misdistribution of land along racial lines, the Namibian land
programme has to be analysed from the perspective of customary land
tenure systems that operated in the communal areas within the general
context of customary law. Some of the issues of customary land tenure
discussed in this book focus on the recognition and status of customary law
and the nature of customary land tenure.

One of the legacies of colonisation in Africa is the juxtaposition of the

received law emanating from the legal systems of the colonial countries
alongside the customary law of the indigenous African communities. This
juxtaposition subjected the application of customary law to various tests of
recognition. As Max Gluckman37 and other students of the jurisprudence and
legal systems of traditional African societies have acknowledged, before the
advent of colonialism African communities had their own laws and legal
systems regulating the behaviour of individuals in society. These laws
covered areas like civil and criminal liability, marriage, inheritance and
succession and land tenure systems. Faced with the problem of
accommodation, the colonial administration accorded limited recognition to
customary law by subsuming it under the received law and by subjecting it to
the all too familiar repugnancy clause test for equity, good conscience, and
morality. This precondition for the recognition of customary law still exists in
the constitutions and statute books of many African countries.

Customary law principles relating to criminal law generally did not

withstand scrutiny under the repugnancy clause test. In the area of land law,
however, the recognition and survival of indigenous legal principles
depended upon different factors and considerations, including the ultimate
colonial intent and design, economic factors, public domain concerns, and
environmental and land use preoccupations. The general pattern was that in
territories where the colonial administration did not intend to settle
immigrants from the colonial country or from elsewhere in Europe,
customary law relating to land tenure was given a fair amount of
recognition.38 In territories where the settlement of immigrants from Europe
was the ultimate goal of the colonial powers, indigenous land tenure systems
and property rights were given marginal recognition only and the indigenous

37 M Gluckman Judicial process among the Barotse of Northern Rhodesia (Zambia) (1967).
38 BJ da Rocha & CHK Lodoh Ghana land law and conveyancing (1995) 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 2 AC 399.
232 Property law in Namibia

communities were dispossessed of their property rights in favour of the

immigrants and their property rights regimes. By legislation land was
classified into crown (or state land) and native reserves (or communal lands)
so that, as pointed out by TW Bennett,39 ‘the authority of customary law
recognised in the administration of communal lands was a creation of
colonial authorities’. In other words, native land was not communal land until
the colonial authorities defined away all other forms of native land tenure.
The latter pattern was more prominent in Southern Africa so that in these
areas the characteristic feature of the customary law of land tenure is either
the adulteration or lack of development of the indigenous systems. The
Namibian pattern of classification, as described earlier, fits into this general
Southern African pattern.

With the promulgation of the Namibia Independence Constitution

customary law was recognised as one of the sources of law in Namibia. In its
recognition of customary law as a source of law,40 the Constitution removes
the repugnancy clause and equates customary law with the common law.
However, the Constitution left open the question of whether the new
constitutional status of customary law in Namibia means that ownership of
the communal lands is vested in the indigenous people as the holders of
allodial titles to their ancestral lands. Article 100 of the Constitution vests
ownership of all land in Namibia in the state, except for the land otherwise
lawfully owned. The application of customary law in the communal areas,
coupled with the fact that communal lands were the creation of legislation,
has left many uncertainties regarding the exact rights of the indigenous
people who occupy the communal lands and the administrative authority of
the chiefs.

The position adopted in the White Paper on National Land Policy is that
in terms of Schedule 5(1) of the Constitution, communal land is vested in the
state to be administered in trust for the benefit of traditional communities
and for the purpose of promoting the economic and social development of
the Namibian people. This position constitutes one of the underlying
principles of the Communal Land Reform Act 5 of 2002.

39 TW Bennett & NS Peart A source book of African customary law for Southern Africa (1991)
384‐96.
40 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 and common law does not conflict with this Constitution or any other
statutory law.
 Chapter 11: Land reform in Namibia 233

4.2 The Communal Land Reform Act

Article 10041 of the Constitution and section 17 of the Communal Land

Reform Act have maintained the position that the communal lands are vested
in the state in trust for the benefit of the traditional communities residing in
those communal areas and for the purpose of promoting the economic and
social development of the people, in particular the landless and those with
insufficient access to land who are not in formal employment or engaged in
non‐agricultural activities. This position goes further than the position of the
communal lands at the time of independence, as will be explained later.

The claims arising from Article 100 and Schedule 5 of the Constitution
have an international law foundation supported in a series of resolutions of
the United Nations. In the 1970s, developing countries attempted to
establish what they termed the ‘New International Economic Order’ (NIEO)
through a series of UN resolutions, including the 1973 Resolution on
Permanent Sovereignty over Natural Resources,42 the Charter of Economic
Rights and Duties of States,43 and the Declaration on the Establishment of a
New International Economic Order.44 In contrast with Resolution 1803, the
1973 Resolution on Permanent Sovereignty over Natural Resources
‘affirmed’ that:

the application of the principle of nationalization as carried out by States, as an

expression of their sovereignty in order to safeguard their natural resources,
implies that each State is entitled to determine the amount of possible
compensation and the mode of payment, and that any disputes which might
arise should be settled in accordance with the national legislation of each State
carrying out such measures.

The extent of these sweeping claims of state ownership at community level

is, however, truly staggering. These international resolutions are meant to
cover mainly rights regarding compensation when the state nationalises
private property.45 In many countries, the nation‐state claims ownership to
well over half of the land base. In this regard the word ‘vested’ in section
17(1) of the Communal Land Reform Act is of particular relevance because of
the confusion it creates regarding the ownership of communal land and
resources like trees found on that land. Section 17 therefore requires closer
analyses.

41 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’.
42 GA Res 3171 XXVIII 1973.
43 GA Res 3281 XXIX 1974.
44 GA Res 3201 XXIX 1974.
45 PB Gann (1985) 23 Col. JTL. 615.
234 Property law in Namibia

Since independence the ruling Government has, under the

empowerment of the constitution and international law, embarked upon a
land reform agenda which also included reform of communal land. The
Government’s proposals on communal land reform in the White paper on
Land Policy have been addressed in the Communal Land Reform Act.46 As
stated in Chapter 10, the primary purpose of this Act is to make the process
of land allocation and land administration fair and transparent, and to
enhance security of tenure in the communal areas by giving statutory
recognition to existing land rights and by creating new rights. The Act also
seeks to introduce a certain degree of uniformity in land policy throughout
the country by laying down new procedures regarding land allocation,
utilisation and transfer or inheritance. It addresses, inter alia, issues relevant
to administration of communal land, titles to communal land, security of
tenure and as stated earlier, it reiterates the position in the White Paper that
ownership of rural land is vested in the state.

With regard to rights over communal land, whilst recognising the

underlining principle that the ownership of communal lands is vested in the
state, the Act creates two rights that may be allocated in respect of
communal land: customary land rights and rights of leasehold.47 The Act thus
reaffirms customary rights of usufruct48 granted to occupiers of communal
land and seeks to confer statutory recognition on this tenure system. The Act
does not go beyond the right of usufruct. It does, however, specify the
duration of customary land rights49 and makes provision for their
registration50 and upgrading to the status of leaseholds in order to encourage
and promote the development of the communal lands. Registration only
constitutes publicity or proof of title. It does not confer on the holder any
additional power for example, the power to use the title as collateral.

The other right created by the Act is the right of leasehold, or statutory
leasehold.51 This right is intended to replace the existing PTO, which is
granted by the Ministry of Lands for the use of land for any specific purpose,
especially for commercial undertakings. In terms of the Act, the power to
grant leasehold rights is vested in the Communal Land Board,52 and not in the
Ministry of Lands. The right is granted for a maximum statutory period of 99
years. If the right is granted for a period exceeding 10 years, it is invalid unless

46 The Communal Land Reform Act 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 19 of 1997 provide for jurisdiction with regard to certain matters pertaining to
the allocation and administration of communal land to the traditional authorities.
47 See sec 19 of the Act.
48 Under section 21 the customary rights that may be allocated comprise a right to a farming
unit and a right to a residential unit. Section 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.
49 See sec 26.
50 See sec 25(1)(b).
51 See secs 19(b) and 30(1).
52 The Communal Land Boards are created under section 2(1) of the Act.
 Chapter 11: Land reform in Namibia 235

approved by the Minister.53 The grant of leasehold rights is subject to

registration.54 If the land in respect of which the right of leasehold is granted
is surveyed land, in other words land which is shown on a diagram as defined
in section 1 of the Land Survey Act 33 of 1993, and the lease is for a period of
10 years or more, the leasehold must be registered in accordance with the
Deeds Registries Act 47 of 1937.55 These provisions therefore guarantee
security of tenure, and could serve as a catalyst for the development of
commercial activities in the communal areas.

The Act recognises the role of traditional authorities in communal land

administration by vesting in the Chiefs and the traditional authorities the
power to allocate communal land, subject to supervision by the Communal
Land Boards.56 This provision should not be interpreted as a potential threat
to the rights of traditional leaders under Article 102(5) of the Constitution,
which provides for the establishment of a Council of Traditional Leaders by
Act of Parliament ‘to advise the President on the control and utilization of
communal land’. The role of the Communal Land Boards must rather be seen
as administrative and advisory.

5 Conclusion

As stated earlier, access to land and tenure of land were among the most
important concerns of the Namibian people in their struggle for
independence. Consequently, since independence Namibia’s democratically
elected Government has maintained and developed its commitments to
redressing the injustices of the past in a spirit of national reconciliation and
to promoting sustainable economic development. Namibia’s land reform is
premised on correcting the imbalance created by the apartheid‐skewed land
policy. It is driven by the policy of reconciliation and it is geared towards
poverty alleviation and social and economic equity. In this sense it is aimed at
redistribution and restitution which is necessary to ensure the long term
stability of the country. Poverty alleviation in the context of land reform can
be realized through effective and productive utilisation of the distributed
land, which in turn contributes to increased agricultural productivity and
improvement in gross national income.

53 See sec 34.

54 See sec 33(1).
55 See sec 33(2).
56 See secs 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.
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Table of enactments

Abuse of Dependence‐Producing Substances and Rehabilitation Centers Act

Administration of Estates Act 66 of 1965
Africa Constitution Amendment Act 95 of 1977
Agricultural (Commercial) Land Reform Act 6 of 1995
Agricultural Land Act 70 of 1970
Agricultural Pest Act 3 of 1970
Animal Diseases and Parasites Act 13 of 1956
Arms and Ammunition Act 7 of 1996

Bushman Nation Advisory Board Proclamation R208 of 1976

Civil Code of 1900

Communal Land Act 5 of 2002
Communal Land Reform Act 5 of 2002
Companies Act 61 of 1973
Constitution of the Republic of South Africa, 1996
Credit Agreements Act 75
Criminal Procedure Act 51 of 1977
Crown Land Disposal Proclamation 13 of 1920

Deeds Registries Act 47 of 1937

Development Trust and Land Act 18 of 1936

Electricity Act 2 of 2000

Expropriation Act 63 of 1975
Expropriation of Land Ordinance of 1927
Expropriation Ordinance 13 of 1978

Formalities in Respect of Leases of Land Act 18 of 1969

German Criminal Code and Acts

Human Tissue Act 65 of 1983

Imperial Mining Ordinances for Germany South‐West Africa, 8th August 1905
Imperial Ordinance of 1905
Indian Land Acquisition Act, 1894
Insolvency Act
International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Interpretation of Laws Proclamation 38 of 1920
Intestate Succession Ordinance 12 of 1946, as amended by the Intestate Succession Amendment
Act 15 of 1982

Land Act 18 of 1969

Land Survey Act 33 of 1993
Leases of Land Act 18 of 1969
Liquor Act 6 of 1998
Local Authorities Act 23 of 1992

Magistrates Court Act 32 of 1944

Marketing Act 59 of 1968
Married Persons Equality Act 1 of 1996
Meat Industry Act 12 of 1981
Memorandum on Treaties between the Late Government and Various Native Tribes in South‐
West Africa
242 Property law in Namibia

Minerals (Prospecting and Mining) Act 33 of 1992

National Health Act 61 of 2003

National Policy on Land
National Resettlement Policy (2001)
National Transport Corporation Act 21 of 1987
National Transport Services Holding Company Act 28 of 1998
Native Administration Proclamation 11 of 1922
Native Administration Proclamation 15 of 1928
Native Nations in South‐West Africa Act 54 of 1968
Native Reserve Regulation 68 of 1924
Nature Conservation Ordinance 4 of 1975
Northern Rhodesia Public Lands Acquisition Ordinance of 1929
of 1980

Prescription Act 18 of 1943

Prescription Act 68 of 1969
Price Control Act 25 of 1964
Proclamation 21 of 1919 (S.W.A Gazette, No 25 of 1919)
Public Lands Acquisition Act cap 296 of The Laws of Zambia
Public Lands Ordinance, Gold Coast 1876

Representative Authorities Amendment Proclamation AG 4 of 1981

Representative Authority of the Caprivians Proclamation AG 29 of 1980
Representative Authority of the Kavangos Proclamation AG 26 of 1980
Representative Authority of the Ovambos Proclamation AG 23 of 1980
Representative Authority Powers Transfer Proclamation AG 8 of 1989
Reservation of State Land for Natives Ordinance 35 of 1967
Respect of Land Act 18 of 1969
Restitution of Land Rights Act 22 of 1994
Road Traffic and Transport Act 22 of 1999
Road Traffic Ordinance 30 of 1967
Roman‐Dutch law

Sectional Titles Act 66 of 1971

Sectional Titles Act 66 of 1975
Sectional Titles Act 95 of 1986
Soil Conservation Act 76 of 1969
South‐West Africa Constitution Act 39 of 1968
Stock Brands Act 24 of 1995
Supreme Court Act 59 of 1959

The Constitution of Zimbabwe S 16(A)(2) as amended by the Constitution of Zimbabwe

Amendment Act 16 of 2000
The Constitution of Zimbabwe
The Indian Constitution
The Namibian Constitution
Article 10
Article 100
Article 144
Article 147
Article 16
Article 16(1)
Article 16(2)
Article 18
Article 22
Article 23
Article 44
 Bibliography 243

Article 66
Article 78
Article 9(1)
The Stamp Duties Act 15 of 1993
Town Planning Ordinance 18 of 1954
Transfer Duty Act 14 of 1993
Transvaal Crown Land Disposal Ordinance of 1903
Treaty of Peace and South‐West Africa Mandate Act 49 of 1919

UN Resolution on Permanent Sovereignty over Natural Resources, 1962

Water Resources Management Act 24 of 2004 Section 4(a) and (b)

Weeds Ordinance 19 of 1957
244 Property law in Namibia

Table of Cases

Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd 1972
1 ALL ER 280 (QB)
Air‐Kel (Edms) Bpk h/a Merkel Motors v Bodenstein & ‘n Ander 1980 3 SA 917 (A)
Aonin Fishing (Pty) Ltd & Another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC)
Arend & Another v Astra Furnitures (Pty) Ltd 1974 1 SA CPD 298
Barclays Nasionale Bank Bpk v Registrateur Van Aktes, Transvaal, en ‘n Ander 1975 4 SA 936
Barker NO v Chadwick 1974 1 All SA 461
Becker v Van Vyk 1956 3 SA 13(T)
Bezuidenhout v Nel 1987 4 SA 422 (N)
Binga v Administrator‐General South‐West Africa & Others 1984 3 SA 949
Bock v Duburoro Investments (Pty) Ltd 2004 2 SA 242 (SCA)
Bokomo v Standard Bank van SA Bpk 1966 4 SA 450 (C)
Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 1 SA 508 (A)
British South Africa Company v Bulawayo Municipality 1919 AD 84
Brunsdon’s Estate v Brunsdon’s Estate 1920 CPD 159 at 174 175
Cape Explosive Works Limited v Denel (Pty) Ltd 2001 3 SA 569 (SCA)
Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 3 SA 569
Cassim & Others v Meman Mosque Trustees 1917 AD 154
Chetty v Naidoo 1974 3 SA 13 (A)
Clifford v Farinha 1988 4 SA 315(W)
Coetzee v Malan 1979 1 SA 377 (O)
Commissioner of Customs and Excise v Randles Brothers and Hudson Ltd 1941 AD 369
Conress and Another v Gallic Construction (Pty) Ltd 1981 3 SA 73
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D)
Cowley v Hahn 1987 1 SA 440
Crause & Andere v Ocean Bentonite Edms (Bpk) 1979 1 1076 (O)
Crots v Pretorius 2010 6 SA 512 (SCA)
Cultura 2000 & Another v Government of the Republic of Namibia & Others 1992 NR 110 (HC)
Daly v Chisholm & Co Ltd 1916 CPD 562
Davies v Minister of Lands, Agriculture and Water Development 1996 9 BCLR 1209 (ZS)
De Jager v Sisana 1930 AD 71
De Meillon v Montclair Society of the Methodist Church of Southern Africa 1979 3 SA 1365 (D)
Demont v Akals’ Investments (Pty) Ltd & Another 1955 2 SA 312 (N)
Denel (Pty) Ltd v Cape Explosive Works Ltd 1992 2 SA 419
Diepsloot Residents' and Landowners' Association & Another v Administrator, Transvaal 1994 3
SA 336 (A)
Dorland & Another v Smits 2002 5 SA 374 (C)
Dreyer v Letterstedt’s Executors 1865 5 Searle 88
Du Plessis v Phillipstown Municipality 1937 CPD 335
Dunn v Bowyer 1926 NPD 516
East London Municipality v South African Railways and Harbours 1951 4 SA 466 (E)
Ebrahim v Deputy Sheriff, Durban & Another 1961 4 SA 265 (D)
Edelor (Pty) Ltd v Champagne Castle Hotel (Pty) Ltd & Another 1972 3 SA 684 (N)
Electrolux (Pty) Ltd v Khota & Another 1961 4 SA 244 (W)
Erasmus v Afrikander Proprietary Mines 1976 1 SA 950 (W)
Erlax Properties (Pty) Ltd v Registrar of Deeds 1992 1 SA 879 (A)
Ex parte Eloff 1953 1 SA 617 (T)
Ex parte Geldenhuys 1926 OPD 155
Executor of Hite v Jones (1902) 19 SC 235
Eysselinck v Standard Bank Namibia Limited Stannic Division & Another (SA 25/03) [2004] NAHC 2
Foentjies v Beukes 1977 4 SA 964
Frans v Pasche & Others 2007 2 NR 520 (HC)
Frye’s (Pty) Ltd v Ries 1957 3 SA 575 (A)
Geldenhuy 1926 QPD 155
German interests in Polish Upper Silesia (1926) PCIJ series A, no7, (May 25)22
Gibbons v South African Railways and Harbours 1933 CPD 521
 Bibliography 245

Gien v Gien 1979 2 SA 1113 (T)

Gijzen v Verrinder 1965 1 SA 806 (D)
Glaston House (Pty) Ltd v Cape Town Municipality 1973 4 All SA 276 (C)
Gleneagles Farm Dairy v Schoombee 1949 1 830 (A)
Goldinger’s Trustee v Whitelaw & Son 1917 AD 66
Gordon’s Bay Estates v Smuts 1923 AD 160
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 1 SA 77 (A)
Government of The Republic of Namibia & Others vMwilima & Others (SA 29/01) [2002] NASC 8
(7 June 2002)
Grant & Another v Stonestreet & Others 1968 4 SA 1 (A)
Groenewald v Van der Merwe 1917 AD 234
Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 3 SA 420 (A)
Gunther Kessl & Others v Ministry of Lands and Resettlement 2008 1 NR 167 (HC)
Hollins v Registrar of Deeds 1904 TS 603
Hollman v Estate Latre 1970 3 SA 638 (A)
Holmes v Payne 1930 2 KB 301
Hotel De Aar v Jonordon Investment (Edms) Bpk & Others 1972 2 SA 400 (A)
Humphries v Brogden (1850) 12 QB 739
Illing v Woodhouse 1923 NPD 166
Immigration Selection Board v Frank & Another 2001 NR 107 (SC)
Info Plus v Scheelke and Another 1998 3 SA 184 (SCA)
Iscor Housing Utility Co v Chief Registrar of Deeds 1971 1 SA 613(T)
Island of Palmas Arbitration
Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 1 SA 394 (A)
Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163
John Bell & Co Ltd v Esselen 1954 1 SA 147 (A)
John Newmark & Co (Pty) Ltd v Durban City Council 1959 1 SA 169 (D)
K&D Motors v Wessels 1949 1 SA 1 (A)
Khan v Minister of Law and Order 1991 3 SA 439
Khuzwayov Dludla (LCC33R/00) 2000 ZALCC 26
King v Dykes 1971 3 SA 540 (RA)
Klerck NO v Van Zyl & Maritz NNO 1989 4 SA 263 (SE)
Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) (Bpk) 1996 3 SA 273 (A)
Kotze v Civil Commissioner of Namaqualand (17 CSC 37)
Kruger v Navratil 1952 4 SA 405 (SWA)
Laskey & Another v Showzone CC & Others 2007 2 SA 48 (C)
Leal & Co v Williams 1906 TS 554
Legator McKenna Inc & Another v Shea & Others 2010 1 SA 35 (SCA)
Lentz v Mullin 1921 EDC 268
Liquidators of Cape of Good Hope Permanent Land, Building & Investment Society v Standard
Bank (1899) 16 SC 325
Lorentz v Melle 1978 3 SA 1044 (T)
Lourens v Du Toit (1878) 8 Buch 182
Macdonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd 1915 AD 454
Malan v Nabygelegen Estates 1946 AD 562
Malherbe v Ceres Municipality 1951 1 SA 510 (A)
Mambo & Others v Queensland (No2) 1992 175 ALR 1
Manganese Corporation Ltd v South African Manganese Ltd 1963 3 SA 558 (T)
Manganese Corporation Ltd v South African Manganese 1964 2 SA 185 (W)
Mans v Loxton Municipality & Another 1948 1 SA 966 (C)
Maqoma v Sebe NO & Another 1987 1 SA 483 (CK)
Margate Estates Ltd v Urtel (Pty) Ltd 1965 1 SA 279 (N)
McAdams v Flander’s Trustee and Bell NO 1919 AD 207
Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund 1980 2 214
Meyer v Hessling (SA 7/91) 1991 NASC 7
Meyer v Keiser 1980 3 SA 504
Million v Methodist Church 1979 3 SA 1365
Minister of Defence v Mwandinghi 1993 NR 63 SC
246 Property law in Namibia

Minister of Land v Sonnendecker 1979 3 SA 944

Minister van Verdediging v Van Wyk & Andere 1976 1 SA397 (T)
Minister van Wet en Orde v Matshoba 1990 1 SA 280 (A)
Mlombo v Fourie 1964 3 SA 350 (T)
Mocke v Beaufort West Municipality 1939 CPD 135
Mofuka v Mofuka (SA2/02) [2003] NASC 18 (20 November 2003)
Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & Another 1972 2 SA 464 (W)
Mpunga v Malaba 1959 1 SA 853
Namib Building Society v Du Plessis 1990 NR 161 (HC)
Namibia Grape Growers and Exporters Association and Others v The Ministry of Mines and
Energy 2002 NR 328 (HC)
Nekwaya & Another v Nekwaya & Another (A262/2008) 2010 NAHC 8 28, 90
Nel NO v Commissioner for Inland Revenue 1960 1 SA 227 (A)
New Heriot Gold Mining Co Ltd v Union Government (Minister of Railways and Harbours) 1916
AD 415
Newcastle Collieries Co v Borough of Newcastle 1916 AD 561
Nienaber v Stuckey 1946 AD 1049
Nino Bonino v De Lange 1906 TS 120
Nolan v Banard 1908 TS 142
O’linn v Minister of Agriculture, Water and Forestry 2008 2 NR 792 (HC)
Oakland Nominees (Pty) Ltd v Gelria Mining and Investment Co (Pty) Ltd 1976 1 SA 441
Olivier & Others v Haardhof & Co 1906 TS 497
Oosthuysen v Muller (1877) 7 Buch
Oshakati Tower (Pty) Ltd v Executive Properties CC & 3 Others CASE NO: [P] A 20/2006
Pascheka v Bernstein (P16/05) 2005 NAHC 7
Passano v Leissler 2004 NR 10 (HC)
Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614
Pettersen and Others v Sorvaag 1955 (3) SA 624
Pettersen v Sorvaag 1955 3 SA 624 (A)
Pieterse v Du Plessis 1972 2 SA 597(A)
Pretorius v Nefdt and Glas 1908 TS 854
Prinsolo v Shaw 1938 AD 570
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 3 SA 188 (A)
R v Mafohla & Another 1958 2 SA 373
Regal v African Superslate (pty) Ltd 1963 1 SA 102 (A)
Richtersveld Community & Others v Alexkor Ltd & Another 2003 6 BCLR 583
Robertson & Another v City of Cape Town & Another 2004 5 SA 412 (C)
Roodepoort United Main Reef G M Co Ltd (In Liquidation) & Another v Du Toit 1928 AD 66
S v Frost, S v Noah 1975 3 SA 66
S v Hengua 2007 2 NR 562 (HC)
S v Van Coller 1970 1 SA 417 (A)
SA Breweries v Levin 1935 AD 77
Sauerman v Schultz 1950 4 SA 455
Schwedhelm v Hauman 1947 1 SA 127 (E)
Secretary for Lands v Jerome 1922 AD 103
Setlogelo v Setlogelo 1921 OPD 161
Shahmahomed v Hendriks & Others 1920 AD 151
Shimaudi v Shirungu 1990 3 SA 344 (SWA)
Shingenge v Hamunyela 2004 NR 1 (HC)
Sillo v Naude 1929 AD 21
Smith v Basson 1979 1 SA 559 (W)
Sporrong v Sweden (1983) 5 EHRR 35
Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 1 SA 730 (AD)
Standard Vacuum Refining Co v Suburban City Council 1961 2 SA 669
Stellenbosch Municipality v Director of Valuations & Others 1993 1 SA 1 (C)
Telkom SA Ltd v Xsinet (Pty) Ltd 2003 5 SA 309 (SCA)
Texaco v Libya 1977 53 ILR 389
Theatre investments (Pty) Ltd & Another v Butcher Brothers Ltd 1978 3 SA 682 (A)
247 Property law in Namibia

Thienhaus NO v Metje & Ziegler Ltd & Another 19653 SA 25(A)

Traktorer AB v Sweden (1989) ECHR series A, vol 5, 1959
Trust Bank van Afrika Bpk v Western Bank Bpk & Andere NNO 1978 4 SA 281 (A)
Trustees Brian Trust v Annandale 2004 3 SA 281
Tucker v Farm and General Investment Trust 1966 2 All ER 508 (CA)
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 2 SA 986 (T)
Van den Berg & ’n Ander v Van Tonder 1963 3 SA 558
Van der Merwe v Wiese 1948 4 SA 8 (C)
Van der Vlugt v Salvation Army Property Co 1932 CPD 56
Van Eck & Van Rensburg v Etna Stores 1947 2 SA 984 (A) 1000
Van Ellinckhuijzen v Botha (SA 11/01) [2002] NASC 11
Van Rensberg v Coetzee 1979 4 SA 655
Van Vuren & Others v Registrar of Deeds 1907 TS 289
Vasco Dry Cleaners v Twycross 1979 1 SA 603 (A)
Visagie v Muntz & Co 1921 CPD 582
Volkskas Bpk v Esmail 1950 2 SA 74 (T)
Volkskas Bpk v The Master 1975 1 SA 69 (T)
Vumane and Another v Mkize 1990 1 SA 465 (W)
Webb v Beaver Investments (Pty) Ltd & Another 1954 1 SA (T)
Welcorp SA v Joint Municipal Penyson Funds 1980 2 SA 214
Westair Aviation (Pty) Ltd & Others v Namibia Airports Company Ltd & Another 2001 NR 256 (HC)
Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918 AD1
Xapa v Ntsoko 1919 EDL 177
Zandberg v Van Zyl 1910 AD 302
Zulu v Minister of Works, Kwazulu & Others 1992 1 SA 181 (D)