Pretoria University Law Press (PULP)

PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria

Property Law in Namibia

Property Law in Namibia
by Samuel K. Amoo
2014
ISBN: 978-1-920538-22-4
Pages: 247
Print version: Available
Electronic version: Free PDF available

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About the publication

Property Law in Namibia provides an autochthonous discussion of property law in Namibia. It does not only capture the constitutional, statutory and common law sources of property law in Namibia, but it also covers currently topical subjects such as property rights of women and land reform in Namibia. The 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.

Property Law in Namibia 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

About the editor:

Samuel K. Amoo is 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)


Table of Contents

PREFACE
ACKNOWLEDGMENTS

  • Chapter 1 The meaning and scope of the law of property
    1 Introduction
    2 Definition of the law of property
    3 The sources of the law of property in Namibia
    3.1 The Constitution
    3.2 Other legislation
    3.3 Roman-Dutch common law
    3.4 Customary law
    3.5 International law
    4 A glossary of terms
    5 Summary
  • Chapter 2 The genesis of the skewed land policies and land tenure in Namibia
    1 The colonial expropriation of indigenous lands
    2 Classification of land in Namibia
    2.1 Creation of crown and state land
    2.2 Reserves and trusts
    2.3 Creation of areas for native nations
    2.4 Creation of communal land
    3 Summary and concluding remarks
  • Chapter 3 The legal concept of a thing
    1 Introduction
    2 Corporeality
    3 Impersonal nature
    4 Independence
    5 Susceptibility to human control
    6 Usefulness and value to human beings
    7 Summary
    8 Classification of things
    8.1 Diagram
    8.2 Introduction
    8.3 Classification of a thing with regard to its relation to a person
    8.4 Classification of a thing with regard to its relation to nature
    9 Summary and concluding remarks
  • Chapter 4 Property rights, real rights and personal rights
    1 Introduction
    2 Categories of real rights
    2.1 Ownership
    2.2 Servitudes
    2.3 Pledge
    2.4 Mortgage
    2.5 Lease
    2.6 Statutory leasehold
    2.7 Mineral rights
    2.8 Sectional title unit real right
    3 Registration of real rights
    3.1 The classical and personalist theories
    3.2 Evaluation of the theories
    3.3 Criteria or requirements developed by the courts to determine the capability of a right to be registered
    4 Summary and observations
  • Chapter 5 Ownership
    1 Introduction
    2 Content of ownership
    3 Nature of co‐ownership
    3.1 Rights of possession
    3.2 Rights of use and enjoyment
    4 Creation and establishment of co-ownership
    4.1 Inheritance
    4.2 Conclusion of a marriage in community of property
    4.3 Mixing (commixtio)
    4.4 Estate holdership
    4.5 Voluntary association without legal personality
    4.6 Contract
    5 Limitations on ownership
    5.1 Introduction
    5.2 Limitations imposed by the Constitution
    5.3 Statutory Limitations
    5.4 Common law limitations
    6 Conclusion and observations
  • Chapter 6 Acquisition of ownership
    1 Introduction
    2 Original acquisition of ownership
    2.1 Occupatio (appropriation)
    2.2 Treasure
    2.3 Accession
    2.4 Mixing (commixtio and confusio)
    2.5 Specificatio (manufacture)
    2.6 Acquisitive prescription
    3 Derivative acquisition of ownership
    3.1 Transfer of ownership under the abstract and causal systems
    3.2. Delivery
    3.3 Transfer by registration
    4 Summary and concluding remarks
  • Chapter 7 Real rights other than ownership
    1 Introduction
    2 Servitudes
    2.1 Definition
    2.2 Classification
    3 Lease
    4 Mortgage
    4.1 Definition and general features
    4.2 The legal consequences of mortgage
    4.3 Termination of mortgage
    5 Pledge
    5.1 Definition and general features
    5.2 Termination of pledge
    6 Liens
    6.1 Definition and general features
    6.2 Categories of liens
    6.3 Termination of liens
    7 Concluding remarks
  • Chapter 8 Possession
    1 Definition and elements of possession
    1.1 Physical control (detentio)
    1.2 Intention (animus possidendi)
    2 Types of possession
    2.1 Civil and natural possession
    2.2 Lawful possession (possessio iusta) and unlawful possession (possessio iniusta)
    2.3 Bona fide and mala fide possession
    3 The legal effect of possession
    4 Possession compared with ownership
    5 Loss of possession
    6 The possessory remedies: protection of possession
    7 Summary and concluding remarks
  • Chapter 9 Remedies
    1 Introduction
    2 What are remedies?
    3 Protection of ownership
    3.1 Rei vindicatio
    3.2 Actio negatoria
    3.3 Delictual remedies
    3.4 Condictio furtiva
    3.5 Actio legis Aquiliae
    4 Unjustified enrichment
    5 Protection of possession; the possessory remedies
    5.1 Mandament van spolie (spoliation)
    5.2 Interdict
    6 Protection of servitudes
    7 Concluding remarks
  • Chapter 10 Property rights of women in Namibia
    1 Introduction
    2 Background to property rights of women and HIV and AIDS in Namibia
    3 Ownership of property and inheritance rights
    4 The links between gender inequality and HIV and AIDS
    5 Property rights in Namibia and the enabling legal regime
    5.1 Land classification and land tenure in independent Namibia
    5.2 Private land/commercial farms
    6 Accessibility of commercial farms to Namibian women
    6.1 Rights of women to commercial farms before marriage
    6.2 Rights of women to commercial farms during marriage
    7 Access to credit
    8 Conclusion
  • Chapter 11 Land reform in Namibia
    1 Introduction
    2 White agriculture in modern day Namibia
    3 Security of tenure in the informal areas
    4 Reform of customary land tenure
    4.1 Nature of customary land tenure
    4.2 The Communal Land Reform Act
    5 Conclusion

BIBLIOGRAPHY


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