Communal Land Reform Act, 2002 (Act 5 of 2002)
Government Gazette no. 2787
This is the latest version of this legislation.

Communal Land Reform Act, 2002
Act 5 of 2002
- Published in Government Gazette no. 2787 on 12 August 2002
- Assented to on 25 July 2002
- Commenced on 1 March 2003 by Government Notice 33 of 2003
- [Up to date as at 6 November 2020]
- [Amended by Communal Land Reform Amendment Act, 2005 (Act 11 of 2005) on 8 December 2005]
- [Amended by Incorporation of defined portion of unalienated state land as part of existing communal land area and amendment to Schedule 1 describing communal land area: Communal Land Reform Act, 2002 (Proclamation 9 of 2013) on 15 March 2013]
- [Amended by Incorporation of defined portion of a unalienated state land as part of communal land area of Damaraland and amendment to Schedule 1 describing communal land area: Communal Land Reform Act, 2002 (Proclamation 27 of 2013) on 15 August 2013]
- [Amended by Communal Land Reform Amendment Act, 2013 (Act 13 of 2013) on 1 December 2016]
Chapter I
PRELIMINARY
1. Definitions
In this Act, unless the context indicates otherwise -“board” means a Communal Land Board established under section 2;“board’s area” means the area described in a notice under section 2(5) in respect of a board;“Chief” means a person who has been recognised under the Traditional Authorities Act, 2000 (Act No. 25 of 2000) as the Chief of his or her traditional community;“commonage” means that portion of the communal area of a traditional community which is traditionally used for the common grazing of stock;“communal area”, in relation to a traditional community, means the area comprising the communal land inhabited by the members of that community;“communal land” means land referred to in section 15;“community based organisation” means an organisation, group, trust, foundation or a body established by or for a community and having its aims and objectives to serve and benefit the community;[The definition of “community based organisation” is inserted by Act 13 of 2013. The word “as” appears to have been omitted: “having as its aims and objectives…”. ]“customary land right” means any of the rights referred to in paragraphs (a), (b) and (c) of section 21;“farming unit” means a portion of land allocated for farming purposes and conforming to the size prescribed under this Act for such purpose;“lawful resident” means a person who holds customary land rights in a particular traditional community as contemplated in section 29;[definition of “lawful resident” inserted by Act 13 of 2013]“leaseholder” means a person to whom a right of leasehold has been granted under this Act;“local authority area” means -(a)an area declared or deemed to have been declared under section 3 of the Local Authorities Act, 1992 (Act No. 23 of 1992), to be a municipality, town or village;(b)an area declared under section 31 of the Regional Councils Act, 1992 (Act No. 22 of 1992), to be a settlement;[The definition of “local authority area” is inserted by Act 11 of 2005.The amending Act directs that this definition be inserted after the definition of “leasehold”, but the Act contains no such definition, only a definition of “leaseholder”.]“Minister” means the Minister responsible for affairs relating to land matters;[definition of “Minister” substituted by Act 11 of 2005]“occupational land right” means a right to occupy a portion of communal land for the provision of public services granted under section 36A;[definition of “occupational land right” inserted by Act 13 of 2013]“Permanent Secretary” means the Permanent Secretary of the Ministry charged with the administration of affairs relating to land matters;[definition of “Permanent Secretary” substituted by Act 11 of 2005]“prescribed” means prescribed by regulation under this Act;“region” means a region as defined in the Regional Councils Act, 1992 (Act No. 22 of 1992);“regional council” means a regional council established under section 2 of the Regional Councils Act, 1992;[The Regional Councils Act is Act 22 of 1992.]“residential unit” means a portion of land allocated for residential purposes and conforming to the size prescribed under this Act for such purpose;“right of leasehold” means a right of leasehold granted under this Act;“spouse” includes the spouse or partner in a customary union, whether or not such customary union has been registered, and “marriage” shall be construed accordingly;“this Act” includes regulations made thereunder;“Traditional Authority” means a Traditional Authority of which the traditional leaders have been recognised under the Traditional Authorities Act, 2000;“traditional community” means a traditional community as defined in the Traditional Authorities Act, 2000.Chapter II
COMMUNAL LAND BOARDS
2. Establishment of Communal Land Boards
3. Functions of boards
Subject to the provisions of this Act, the functions of a board are -(a)to exercise control over the allocation and the cancellation of customary land rights by Chiefs or Traditional Authorities under this Act;(b)to consider and decide on applications for a right of leasehold under this Act;(c)to establish and maintain a register and a system of registration for recording the allocation, transfer and cancellation of customary land rights and rights of leasehold under this Act;(d)to advise the Minister, either of its own motion or at the request of the Minister, in connection with the making of regulations or any other matter pertaining to the objectives of this Act; and(e)to perform such other functions as are assigned to a board by this Act.4. Composition of Boards
5. Disqualifications
A person does not qualify to be appointed to, or to remain a member of, a board if he or she -(a)is a member of the National Assembly or a regional council;(b)is a Chief;(c)is an unrehabilitated insolvent, whether his or her estate was sequestrated in Namibia or elsewhere; or(d)has been sentenced to imprisonment without the option of a fine for any offence, whether in Namibia or elsewhere.6. Term of office
7. Meetings of boards
8. Committees
9. Disclosure of interest
10. Remuneration
11. Financing of boards
All expenditure in connection with the performance of the functions of a board must be defrayed from moneys appropriated by Parliament for the purpose.12. Performance of administrative work
13. Annual report
14. Limitation of liability
A Chief or a Traditional Authority or a member of a board or a person referred to in section 12 is not personally liable for anything done in good faith in the performance of any function under this Act.Chapter III
COMMUNAL LAND AREAS
15. Extent of communal land
16. Establishment of new communal land areas and additions to or subtractions from communal land areas
17. Vesting of communal land
17B. Restriction on right of access of foreign national to customary land right or right to leasehold
18. Prohibition against fences
Subject to such exemptions as may be prescribed, no fence of any nature -(a)shall, after the commencement of this Act, be erected or caused to be erected by any person on any portion of land situated within a communal land area; or(b)which, upon the commencement of this Act, exists on any portion of such land, by whomsoever erected, shall after such date as may be notified by the Minister by notice in the Gazette, be retained on such land,unless authorisation for such erection or retention has been granted in accordance with the provisions of this Act.Chapter IV
ALLOCATION OF RIGHTS IN RESPECT OF COMMUNAL LAND
19. Rights that may be allocated
The rights that may be allocated in respect of communal land under this Act are divided into -(a)customary land rights; and(b)rights of leasehold.Part 1 – Customary land rights and grazing right
[This heading is reproduced as it appears in the Government Gazette. It was probably intended to refer to “grazing rights” in the plural; compare the heading of section 29.]20. Power to allocate and cancel customary land rights
Subject to the provisions of this Act, the primary power to allocate or cancel any customary land right in respect of any portion of land in the communal area of a traditional community vests -(a)in the Chief of that traditional community; or(b)where the Chief so determines, in the Traditional Authority of that traditional community.21. Customary land rights that may be allocated
The following customary land rights may be allocated in respect of communal land -(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 recognised and described by the Minister by notice in the Gazette for the purposes of this Act.22. Application for customary land right
23. Limitation on size of land that may be allocated by traditional authority under customary land rights
[heading of section 23 amended by Act 13 of 2013]24. Ratification of allocation of customary land right
25. Registration of customary land right
26. Duration of customary land right
27. Cancellation of customary land right
28. Recognition of existing customary land rights
29. Grazing rights
Part 2 – Right of leasehold
30. Power to grant right of leasehold
31. Application for right of leasehold
(l)An application for a right of leasehold in respect of communal land must be made in the prescribed manner to the board in whose area the land in question is situated.32. Conditions applicable to right of leasehold
33. Registration of right of leasehold
34. Duration of right of leasehold
35. Existing rights to occupy communal land
36. Cancellation of right of leasehold
In addition to the grounds for cancellation set out in a deed of leasehold, a right of leasehold may be cancelled by a board if the leaseholder fails to comply with the requirements or to adhere to any restrictions imposed by or under any other law pertaining to the utilisation of the land to which the right relates.Part 3 – OCCUPATIONAL LAND RIGHTS
[Part 3, comprising sections 36A-36G, is inserted by Act 13 of 2013. The style of the heading of Part 3 is inconsistent with the other headings in this Chapter.]36A. Power to grant occupational land rights
“(8) The Minister must appoint as arbitrator under subsection (7) a person approved by the board and by the Traditional Authority concerned and, if either the board or the Traditional Authority or both -
(a) fail to communicate its or their decision to the Minister with respect to a person proposed for appointment within 30 days of being notified by the Minister of the name, address and qualifications of the person; or
(b) on a third occasion communicate disapproval of a person proposed for the particular appointment, the Minister may disregard the requirement of approval stipulated by this subsection in so far as it concerns the board or the Traditional Authority or both.”]
36B. Application for occupational land rights
36C. Conditions applicable to occupational land rights
36D. Registration of occupational land rights for public services
36E. Duration of occupational land rights
36F. Recognition of existing rights to occupy communal land as occupational land rights
“(9) If the applicant has, in terms of subsection (2)(b), applied for authorisation to retain any fence or fences which exist on the land in question and the board is satisfied that -
(a) the fence or fences were erected in accordance with the provisions of any law or with the consent of a competent authority;
(b) the fence will not unreasonably interfere with or curtail the use and enjoyment of the commonage by members of the traditional community; and
(c) in the circumstances of the particular case reasonable grounds exist for allowing the applicant to retain the fence or fences concerned,
the board must grant to the applicant authorisation for the retention thereof, subject to such conditions as it may consider necessary or expedient to impose.”]