INTRODUCTION:
Namibia is often regarded as a relatively small market in global terms, however if one could believe the local newspaper headlines over the last couple of years, it is on the brink of becoming a leader in Africa as far as alternative energy, oil and gas, and mining are concerned.
Namibia has a complex legal framework historically linked to the South African system prior to our independence on 21 March 1990 which has evolved since then to make provision for our own circumstances and conditions.
LEGAL FRAMEWORK GOVERNING PROPERTIES IN NAMIBIA:
All property transactions in Namibia, save for those in the Rehoboth District, are registered in the Deeds Office of Namibia, which is in the capital city of Windhoek. There are three land registers catering for freestanding properties, sectional title schemes and lastly farmland. Different rules and regulations apply to the different registers.
The registration of freestanding properties is mostly governed by the Deeds Registries Act No 47 of 1937 with its regulations. However, many other legislations play a pivotal role in the development of freestanding properties, like the Local Authorities Act 23 of 1992, with the Town Planning Scheme of each town linked to that, and the Urban and Regional Planning Act No 5 of 2018 with its regulations.
The development and registration of Sectional Title Schemes are governed by the Sectional Titles Act No 2 of 2009, with its regulations. We will go into more detail on this type of development, a little later in this article.
The registration of farms is also governed by the Deeds Registries Act 47 of 1937 but is significantly restricted by the Agricultural (Commercial) Land Reform Act No 6 of 1995 (as amended). The last-mentioned Act provides for certain rules in respect to farmland with emphasis on the limited possibilities of foreign nationals to own farmland in Namibia and most importantly the Government of Namibia who enjoys a preferent right to purchase agricultural land whenever a farm owner decides to alienate such land. The subdivision of farmlands is further restricted by the Subdivision of Agricultural Land Act No 70 of 1970 which requires the consent of the relevant Minister.
Save for the property types mentioned above, a vast portion of Namibia consists of Communal Land, which is unalienated land. Communal Land is governed by the Communal Land Reform Act No 5 of 2002, which establishes Communal Land Boards and provides for the rights and powers of traditional leaders, together with Communal Land Boards to allocate communal land to persons for occupation. No freehold tenure is however created by any right to occupy land under this Act.
CONSTRAINTS IN TOWNSHIP DEVELOPMENT IN NAMIBIA:
It only takes one Google search to find that Namibia is the 34th largest country in the world with an area of approximately 825 615 square kilometres (equal to 318 772 square miles), which makes it more than three times the size of the UK. At the same time, it is one of the most sparsely populated nations with a population of about 3, 2 million people. This is an average of approximately 4 persons per square kilometre.
One would think that with so much space available, there would not be an enormous need for spatial planning. However, as a huge portion of the country consists of desert and drought-prone areas, water is one of the, if not the most valued resources in Namibia. It is therefore understandable that it becomes particularly important to plan the space and resources available to accommodate all people and more importantly to provide basic needs like water and electricity to each and every Namibian.
In the years following Independence the newly elected Government of Namibia focused on the commercial agricultural land reform which they believe would return the land to the people and correct the skewed landownership of commercial farmland. The return of the land to its people formed an important pillar for the fight for Independence and one could almost understand that this was a priority for the newly elected Government of Namibia at the time.
Meanwhile, Namibia has experienced a steady increase in its urban population since Independence. Traditionally, many people still live off the land in the rural areas on Communal Land, but most of these people are experiencing abject poverty and increasingly then leave the traditional homestead to seek employment in the urban areas. This of course creates a challenge to both Government and the Local Authorities as “informal settlements” become an everyday sight in all towns. Many people who are forced to construct a small zinc or wood “kaya” (home) structures on the outskirts of towns have limited or no access to water, sanitation or electricity, creating significant health and infrastructure challenges for Government and local authorities. The Government of Namibia recognised in the 1998 Land Policy that the urban land system was inadequate to address the needs of low-income residents seeking improved economic opportunities in urban areas. For that reason, during the Second National Land Conference in October of 2018, ten of the key resolutions which were accepted addressed urban land reform. It was also resolved during that period to focus on the building of low-costs housing units to improve the living conditions of the poor.
For the above reasons, it was not only necessary but of critical importance to inter alia reconsider the legislation governing the creation of townships and other land issues.
The establishment and development of townships are governed by the Urban and Regional Planning Act No 5 of 2018 which came into operation in September 2020. This Act covers urban zoning, subdivision, consolidations as well as the establishment of new townships. The Act also provides for the preparation of a National Spatial Development Framework.
Local Authorities are the first level of authority to evaluate town planning and related land use proposals and is governed by the Local Authorities Act 23 of 1992. To facilitate the process, Local Authorities can apply to the Minister to become “authorised planning authorities” which give them wider powers to consider its own spatial planning of the area in which they operate.
To become an “authorised planning authority” the local authority must convince the Minister that it has an approved urban structure plan and has the capacity to deal with matters relating to spatial planning. In Namibia only a few municipalities have thus far been granted the status of “authorised planning authorities”, which include the Municipal Councils of Swakopmund and Walvis Bay. These Municipalities are two of the pivots of the new oil and gas hype and the establishments of new mines in their areas.
All applications for the establishment of new townships in local authority areas must either be approved by the local authority (if it has authorised planning authority) or by the Minister in case of a township in a local authority area which does not have authorised planning authority.
Any new township planned outside of any existing local authority area, must in all cases be approved by the Minister for Urban and Rural Development.
The application process for the establishment of a new township can be lengthy and administratively demanding, and the applicant must submit a wide range of information to the planning authority, either the Municipal Council or the Minister.
To allow affected parties an opportunity to lodge objections, the application for the establishment of a new township must be published in two newspapers for two consecutive weeks in the official language. Additionally, the owner must cause the notice to be put up in a visible place on the land which is the subject of the application for 14 days.
After the period for objections, the planning authority will consider the objections made (if any), together with inter alia:
- the potential impact of the new township on the environment;
- the socio-economic conditions and cultural heritage of the persons to be affected;
- the provision of engineering services;
- the impact on the existing municipal services like sewage, water and electricity;
- whether the land involved is suitable, with due consideration of the zoning scheme and the urban structure plan;
- the existence of servitudes or encumbrances; and
- the endowment, if any, which must be paid to the local authority.
Should there be any objections to the application, the planning authority must schedule a hearing of the application for the establishment of the township to be heard, during which each party can state its case, witnesses may be called and cross-examined. After considering all facts, the planning authority may then either approve or reject the application, which decision must be made within 30 days of the hearing.
Any aggrieved person then has a right of appeal to the Minister.
Should the planning authority approve the newly proposed township, it may impose conditions such as, the manner and purpose for which the land may be used, the provision of public spaces and transfer thereof to the Local Authority, the minimum building value of the buildings to be erected, the storm water flow or deviation, and any other conditions which may be desirable in the interest of safety, health and well-being of the residents of the new township or the public in general.
The next step after approval by the planning authority, would be for a registered and qualified Land Surveyor to draft proper township plans for approval by the Surveyor General. This is another cumbersome process which can take several months.
Once approved, the township plans will be lodged simultaneously with the application for the opening of the township in the Deeds Office of Namibia. The Deeds Office will once again consider the application and ensure that all conditions imposed by the planning authority have been complied with, amongst other things whether the endowment (if any) has been paid to the Local Authority, before registering the newly established township in its registers. Only upon the opening of the new township in the Deeds Office, will any individual erven in the township be capable of transfer to individual purchasers.
As can be seen from the above, Namibia continues to face a significant demand for new townships, especially to address housing shortages affecting lower-income and marginalised communities. At the same time, there are many considerations (of which the availability of water is critical) and lengthy processes which must be followed, which can hamper the potential developments of new townships in Namibia, to the detriment of many who are desperate to have an adequate roof over their heads.
THE ROLE OF SECTIONAL TITLE SCHEMES IN PROVIDING ADEQUATE HOUSING IN
NAMIBIA:
To cater for the housing needs of the middle-income population in Namibia, the development of Sectional Title Schemes in Namibia plays a pivotal role. These developments can only take place within a local authority area and provide for multiple accommodation- and/or business units on a single erf, depending on the zoning of the property involved.
Save to note that commonly with the correct zoning like for e.g. “general business,” a single erf can be used for both residential as well as business sectional title units, for purposes of this article, I will only concentrate on the Sectional Title Schemes for residential accommodation.
To plan a Sectional Title Scheme on a residential erf, it must be zoned “General Residential” and it would be linked to a density which will prescribe how many units may be built on the erf. For example, if the density is 1:100, it will in essence mean that the owner may construct a single sectional title unit for every 100 square metres of the total erf size. This is, however, not an absolute rule, since the building plans still need to be approved by the Local Authority and they will amongst many other considerations, also ensure that the plans make provision for adequate parking and any other required facilities on the property.
In addition to building plans, a registered Land Surveyor or Architect must also prepare Sectional Title Plans for approval by the Surveyor General. These plans will indicate the lay-out, size of each unit, any exclusive-use areas linked to each unit and the common area of the scheme. Only the approved Sectional Title Plans will be registered in the Deeds Office as supporting documents for the application by the registered owner, for the opening of the scheme in the Sectional Title Register.
Once the Sectional Title Register has been opened at the Deeds Office, each unit will get a separate title deed which will allow the owner to sell the separate units to individual purchasers.
Sectional Title Schemes are managed by Body Corporates which consist of all the owners of the Sectional Title Units. To manage the services which impact all owners, the Body Corporate is by law compelled to consider and impose a certain levy on each owner to make provision for matters like security, maintenance, fire insurance and the like.
Although high-end and expensive Sectional Title Schemes are developed in certain areas, most sectional title schemes for accommodation purposes, focus on the middle-income persons in Namibia, who not only can afford housing, but could also pay the Body Corporate levies. This housing type is therefore not aimed at extremely poor communities.
CONCLUSION:
Sectional Title Schemes and Township Developments share similarities, such as the requirements for approval of the plans by the Surveyor General, nevertheless, they differ in their objectives. Township Developments primarily involves the horizontal division of land into erven, while sectional title schemes involve the vertical division of land and buildings into units. Both processes are however subject to restrictive conditions and zoning laws and are governed by a combination of legislative provisions.
These frameworks ensure orderly development while imposing specific requirements and limitations on land use and ownership. They also reflect the balancing exercise between development, infrastructure capacity, environmental considerations and the increasing demand for urban housing in Namibia. Understanding these constraints is essential for navigating the complexities of property development in Namibia.