Elsevier

Land Use Policy

Volume 26, Issue 4, October 2009, Pages 1116-1127
Land Use Policy

Are urban land tenure regulations in Namibia the solution or the problem?

https://doi.org/10.1016/j.landusepol.2009.02.002Get rights and content

Abstract

Land tenure in Namibia is regulated by a variety of Acts, some of which date back to as far as 1937, and some of which are yet to be approved by Cabinet. This variety of Acts makes it difficult to evaluate the performance of land administration as a whole, and the appropriateness of coercive instruments with regards to urban land tenure in particular. In this article we evaluate how urban land tenure regularization practices are conducted in Namibia, and to compare new formal procedures, designed to address problems of efficiency and efficacy, to older existing procedures, supposedly not efficient or effective. This evaluation uses a theoretical framework of Pritchett and Woolcock [Pritchett, L., Woolcock, M., 2004. Solutions when the solution is the problem: arraying the disarray in development. World Development 32 (2), 191–212], which deals with public service delivery and transaction-intensive services. Applying this framework for a comparative analysis of 5 different land subdivision practices – each relying on a different land-related act – we conclude that the degree of regulation and regularization is perhaps not so much a solution for urban land tenure problems but more of a problem in itself.

Introduction

Land tenure in Namibia has been regulated by a number of Acts and regulations. The oldest Act which is still in function is the Deeds Registries Act of 1937. This Act stipulates that all land in Namibia must be surveyed before it can be registered. Any transactions resulting in change of ownership of land, including long leases and servitudes, requires a survey by a professional land surveyor, an approval by the Surveyor General (SG), and registration in the Deeds Office. Of more recent date is the Land Survey Act of 1993. Cadastral surveying of land follows the terms of this Land Survey Act. This Act is, however, an almost identical copy of the old Land Survey Act of 1927 of South Africa. Before land can be surveyed, an elaborate process of approval is often required, involving the use of professional consultants (generally town planners) and a series of intermediate approvals by various individuals and committees. Most planning procedures are based on the Townships and Division of Land Ordinance, Ordinance No. 11 of 1963, and to a certain extent the Town Planning Ordinance No. 60 of 1954.

While the currently available Namibian surveyors, lawyers, government officials and even politicians have historically been thoroughly trained in these formal land registration systems (systems defined in the broad sense, including planning, surveying and registration), Christensen and Høygaard (1997) and Fourie (2000) argue that these have been highly effective in terms of accuracy and security, but totally ineffective in terms of cost, fitness for purpose, and equitability. Odendaal (2006) and Werner (2001) argue that the system is undeniably slow and expensive, and, most importantly, only serves a small percentage of the population. In Windhoek alone, less than half of the residents benefit from the formal land tenure system. Approximately 18 000 families (at least 25% of the city population) live in informal settlements without any permanent tenure.1 Furthermore, the majority of the low income residents in the northern suburbs of the city who do have freehold ownership do not have access to the economic benefits of freehold, being mortgage finance and other land development transactions like subdivision, consolidation and rezoning. The situation in the rest of the country is similar (if not worse) than in Windhoek, with more than 70 000 families living in informal settlements,2 and the majority of freehold land owners not having access to cadastral information and services.

To address this situation of inequality and inefficiency, a number of new Acts have been developed. These include the Flexible Land Tenure Bill and the Communal Land Reform Act of 2003. The implementation and effectiveness of these Acts have however been debated. For the FLTS (Christensen, 2005) notes that:

The Cabinet approved the principles of the new system in 1997 and the Ministry of Lands, Resettlement and Rehabilitation established a Project to commence implementation. The Flexible Urban Land Tenure Bill was in final version in July 2004 but has not yet been scrutinised by the legislative bodies. Further, detailed regulations were drafted in 2004 but have not yet been examined by a Regulation Committee, to be established with promulgation of the Act. The Ministry of Lands, Resettlement and Rehabilitation made advanced preparations for initial application of the system. The training of paraprofessionals (land measurers and land registration officers) has been secured through a certification course at the Polytechnic of Namibia, upgraded as from 2005 to a diploma course. The Flexible Land Tenure System has become established within the Namibian Government. However, there has been a dramatic decrease in budget allocation to the Project since 1998, constituting a major threat to its successful implementation.

While for the Communal land reform Act, a rather critical report of LEAD (2006) concludes3:

The Communal Land Reform Act of 2003 failed to secure occupational rights for the San in rural or communal areas. The stance of government that all communal land belongs to the state, and people need to turn to land boards and recognised traditional authorities for the right to occupy areas, complicates the land rights in Namibia, especially for the San.

Considering the limited success of new land tenure legislation, and the fact that most existing legislation date back as far as 1927 (with land surveying based on the 1927 legislation, the deeds registration system based on Act 37 of 1937, and planning legislation dating back to as far as 1954), one can conclude that not much has changed in terms of land delivery during the past 40–80 years. Most systems and procedures in the Deeds Office and SG's Office have not changed significantly during the past 60 years. A major improvement is the current digitising of ownership data in the Deeds Office, and the implementation of a Cadastral Information System in the Office of the SG. However, these projects comprise mainly of digitisation of data, and no amendments of procedures are envisaged. Furthermore, most systems, procedures and institutional structures relating to land delivery in Namibia, have also not changed significantly during the last 60 years. Technological advances, global practices and the pressing need for land delivery and reform, have not been considered, which left Namibia with a costly and ineffective system of land administration, which often becomes an obstacle instead of an instrument for socio-economic development.

This paper takes a critical look at the processes involved in land delivery in Namibia. The focus is mainly on urban land delivery, with the subdivision of Agriculture land only mentioned in comparison. The administration of communal land is also not discussed. Communal land is administered in terms of the Communal Land Reform Act of 2003, and is administered by local Land Boards in the various regions. This act does not provide for free hold ownership, and only applies to communal land, and is therefore not discussed in this paper.

The paper starts with an explanation of the methodology, consisting of the theoretical framework to look at the reality of land tenure legislation (based on the theory of public service delivery), and a choice of sample cases where tenure legislation is implemented. Next, we provide the results of observing the cases with the theoretical concepts, followed by an interpretative analysis. The paper ends by a number of concluding remarks.

Section snippets

Methodology

To understand the differences between current and new legislation we considered it necessary to use a theoretical framework by which we could compare. This theoretical framework provides a number of criteria for comparison. Focusing on the extent of these criteria within processes as defined by legislation allows such a comparison. The theory of public services delivery by Pritchett and Woolcock (2004) provides such a framework. The cases of processes included land subdivision. The methods used

Results: comparison of procedures

Various acts describe the statutory procedures together: the Townships and Division of Land Ordinance of 1963 (for Urban Land), the Subdivision of Agriculture Land Act No. 70 of 1970 (for Rural Land), and the Sectional Titles Act No. 66 of 1971 (for Sectional Title Schemes). The procedures for the main cases of land subdivision are discussed below, and are depicted as UML activity diagrams in Fig. 1, Fig. 2, Fig. 4 respectively.

Resources

Where does the budget of the service provider come from—Revenue from clients, budgetary allocations, some mix? Who retains control of the budget flows at what level—Central allocation for functions, discretion at the point of service?

The article of de Vries et al. (2003) offers a detailed overview of some of the cost issues involved in subdivision processes, and the opportunity costs lost as a result of delays. From the perspective of a beneficiary, there are costs incurred to different parties

Decision making

What is the scope of decision making? Over what items do providers have de jure and/or de facto control?

Currently, most decisions are made by few individuals (civil servants) and/or committees, with limited consideration of the ‘client’ or development needs. Although decisions are mostly based on policies and legislation (e.g. town planning schemes), it is generally control- and not customer oriented. It may happen that even when all formal steps are approved, certain individual preferences of

Delivery mechanism

To whom is the service actually provided?—Individuals, groups? By whom?—Provider in large bureaucratic organizations? Are any third party intermediaries involved?—Small groups, staff of NGOs?

Although the cadastre is open to the public, and the right to own property is an enshrined constitutional right, the current system is not really geared towards the general public, but rather land professionals who act as intermediaries. The system is generally too complicated for the general public, and

Accountability

To whom are service providers accountable? What power do they have?—Hire and fire, reassignment, compensation?

Accountability is limited, and internal. Accountability is generally viewed in the context of accuracy and reliability of cadastral data, compliance with policies and regulations, with limited consideration for level of service provided to customers. Government agents will seldom risk changing or simplifying existing system to make it more cost efficient, flexible, or ‘fit for purpose’

Conclusion

From the above we can derive some general observations:

  • -

    Decision making, delivery processes and accountability are distributed among many parties, and are often different per process. While the flexible land tenure system promotes simpler and faster procedures, this distribution of authorities and accountabilities and the discretionary nature of a number of process steps do not seem to have changed in the current version of the Act.

  • -

    The information related to the subdivision process is managed

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