Land Administration Åse Christensen Namibia University of Science and Technology Bachelor of Land Administration Bachelor of Property Studies Honours Semester 5 / 7, April 2016 Lection 22 & 23 1

Agenda The legal framework Tenure distribution 2

The legal framework Aspects of the law as they affect land administration. ⁻Focuses on the ownership of rights in land ⁻The registration of deeds and title ⁻The definition and survey of real property boundaries ⁻Intellectual property rights in the information that is registered 3

The legal framework Every system of social order is based on a framework of laws that reflect the constitution of the country, govern the administrative process and express the rights and obligations of the citizen The law is a complex set of rules that have evolved within each society to ensure its orderly running and the peaceful behaviour of its members 4

The legal framework Different forms: ⁻Civil law ⁻Common law ⁻Customary law 5

The legal framework There are four main areas of the law that particularly affect the land administrator: a) The law of ‘real’ property that affects dealings in land b) The laws on land reform such as the privatization of State-owned land, the restitution of former private land, and land consolidation c) The laws that govern the conduct of land administration such as the regulations that control the operation of the cadastre d) The laws that affect such matters as the ownership of information and ideas, the protection of data and personal privacy 6

The legal framework e) Other laws ⁻Those relating to bankruptcy ⁻Inheritance ⁻Matrimony (marriage), also affect real property The law of property deals with relations between people (‘in personam’) and of persons to things (‘in rem’) It recognizes different types of interest Makes a distinction between the physical object and the abstract rights associated with its use The law of real property is concerned with land and what may be done with it. 7

Land Tenure - Namibia 8

Distribution - Namibia Freehold land: ~44% Communal land: ~41% State land: ~15% 9

Legal Framework - Namibia 1)The National Land Policy 1998: Provides for a unitary land system for Namibia, in which all citizens have equal rights, opportunities and security across a range of tenure and management systems Provides for multiple forms of land rights, including customary grants, leaseholds, freeholds, licences, certificates 10

Legal Framework - Namibia Communal land 2)Communal Land Reform Act, 2002 (Act No. 5 of 2002): Provide for The allocation of rights in respect of communal land To establish Communal Land Boards To provide for the powers of Chiefs and Traditional Authorities and boards in relation to communal land To make provision for incidental matters 11

Legal Framework - Namibia 2)Communal Land Reform Act, 2002 (Act No. 5 of 2002): i.Customary land rights (a) a right to a farming unit (b) a right to a residential unit (c) a right to any other form of customary tenure that may be recognized and described by the Minister by notice in the Gazette for the purposes of this Act 12

Legal Framework - Namibia 2)Communal Land Reform Act, 2002 (Act No. 5 of 2002): ii.grazing right Subject to the provisions of section 29(1), the commonage in the communal area of a traditional community is available for use by the lawful residents of such area for the grazing of their stock iii.Right of leasehold 13

Legal Framework - Namibia Commercial (Freehold) and State land 3.The Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995): To provide for the acquisition of agricultural land by the State For purposes of land reform and for allocation of land to Namibian citizens who do not own or otherwise have the use of any or of adequate agricultural land Foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices; jurisdiction; and to provide for matters connected therewith 14

Legal Framework - Namibia 3.The Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995): To vest in the State a preferent right to purchase agricultural land for the purposes of the Act To provide for the compulsory acquisition of certain agricultural land by the State for the purposes of the Act To regulate the acquisition of agricultural land by foreign nationals To establish a Lands Tribunal and determine its jurisdiction; and to provide for matters connected therewith 15

Legal Framework - Namibia Commercial (Freehold) Urban Flexible Land Tenure Act, 2012 (Act No. 4 of 2012). Objectives: Create alternative forms of land title that are simpler and cheaper to administer than existing forms of land title; Provide security of title for persons who live in informal settlements or who are provided with low income housing; Empower the persons concerned economically by means of these rights. 16

Legal Framework - Namibia Commercial (Freehold) Urban Provides for two new types of tenure: Starter title right: a form of tenure registered in respect of a block of land. It provides the holder with the right to: o Erect and occupy a dwelling on the blockerf; o Bequeath the dwelling to his or her heirs and to lease to another person; o Transfer rights to any other person; o Be a member of the association of the scheme; o Only held by one person except when married in community of property; o Not hold more than 1 starter title right and not own any immovable property /land hold title right in Namibia. 17

Legal Framework - Namibia Land hold title right: It provides the holder with the right to: o Subject to the provisions of this Act, all the rights in the plot concerned that an owner has in respect of his or her erf under the common law; o Create or cancel a mortgage on the plot concerned; o Create or cancel right of way for owners within the same scheme; o Create or cancel servitudes on provision of water, electricity, telecommunication. 18

Land Tenure - Botswana 19 Botswana has a total land area of km2. Divided into 3categories viz; Customary (71%), State land (25%) and Freehold (4%).

Legal Framework - Botswana Customary land 1. The Tribal Land Act of 1968 amended 1993: Vested all the rights and title to land in each tribal area in the Land Board Transferred to the Land Board all the powers that had hitherto vested in the Chief under customary law in relation to land Defined its powers and duties ⁻The enactment of the Act resulted in institutional and tenure reforms ⁻The Act also introduced leasehold in customary land 20

Legal Framework - Botswana Freehold land 2. Land Control Act 1975: Provides for the control of transactions in agricultural land 3. Town and Country Planning Act 1977: Control the development of land in urban areas and settlements declared planning areas State land At independence, the State Land Act, 1966, turned crown land into state land and, among other things, conferred on the President the power to provide for its disposal 21

Land Tenure - Zambia State Land: 6% Customary land: 94% 22

Land Tenure - Zambia There are a few special categories of land, due to political and economic developments in the past and present, including: - Land controlled by local council (statutory housing and improvement areas) - Scheduled and non-scheduled agricultural land - Forestry land - Surface mining areas, national parks and game management areas - Informal rights in illegal informal settlements 23