Native Administration Proclamation, 1928
Proclamation 15 of 1928
- Published in Official Gazette no. 284 on 16 July 1928
- Assented to on 4 July 1928
- Commenced on 1 January 1930 by Government Notice 165 of 1929
- [Up to date as at 23 April 2021]
- [Amended by Native Administration Amendment Proclamation, 1937 (Proclamation 25 of 1937) on 15 July 1937]
- [Amended by Native Administration Amendment Proclamation, 1973 (Proclamation 41 of 1973) on 16 February 1973]
- [Amended by Native Administration Proclamation Amendment Act, 1985 (Act 27 of 1985) on 18 December 1985]
- [Amended by First Law Amendment (Abolition of Discriminatory or Restrictive Laws for purposes of Free and Fair Election) Proclamation, 1989 (Proclamation AG14 of 1989) on 8 June 1989]
- [Amended by Local Authorities Act, 1992 (Act 23 of 1992) on 31 August 1992]
- [Amended by Traditional Authorities Act, 1995 (Act 17 of 1995) on 26 September 1995]
- [Amended by Estates and Succession Amendment Act, 2005 (Act 15 of 2005) on 29 December 2005]
- [Amended by Repeal of Obsolete Laws Act, 2018 (Act 21 of 2018) on 1 March 2019]
Selected portions of Chapter IV – section 17(6) and sections 18(3) and (9) – were subsequently brought into force with retroactive effect from 1 August 1950 by GN 67/1954 (OG 1818) “in that portion of the territory north of the Police Zone, as defined in the First Schedule to the Prohibited Areas Proclamation, 1928 (Proclamation 26 of 1928), as amended from time to time”.
The First Schedule of the Prohibited Areas Proclamation 26 of 1928 (OG 296) was substituted by GN 222/1961 (OG 2334) and amended by GN 165/1962 (OG 2425). Because of the importance of determining the extent of the Police Zone in order to clarify the applicable area of this Proclamation, the First Schedule to Proclamation 26 of 1928 is appended to this Proclamation, with the amendments to the Schedule incorporated.
The whole of section 18 was made applicable to the whole of South West Africa with the exception of “the areas referred to in paragraphs (d), (e) and (f) of section 2(1) of the Development of Self-government for Native Nations in South-West Africa Act, 1968 (Act 54 of 1968)” by RSA Proclamation R.192/1974 (RSA GG 4164), effective from the date of publication: 15 February 1974. The paragraphs referred to in the Development of Self-government for Native Nations in South-West Africa Act 54 of 1968, as substituted by Act 20 of 1973 prior to the issue of the relevant Proclamation, stood as follows:
“(d) Kavango, consisting of Area 1 defined in Schedule D to Government Notice No. 2428 of 1972;
(e) Eastern Caprivi, consisting of the area defined in the Schedule to Government Notice No. 2429 of 1972;
(f) Owambo, consisting of the area defined in Schedule C to Government Notice No. 2428 of 1972”.
The overall result is as follows:
* section 17(6) applies north of the Police Zone with effect from 1 August 1950, but section 17 is not otherwise applicable anywhere in Namibia;
* section 18(3) and (9) apply north of the Police Zone with effect from 1 August 1950, and the whole of section 18 applies everywhere in Namibia other than Kavango, Eastern Kavango and Caprivi with effect from 15 February 1974;
* sections 23-27 apply everywhere in Namibia with effect from 1 January 1930.
The Native Administration Proclamation Amendment Act 27 of 1985 (OG 5147) repealed sections 7-16 and sections 19-22 of this Proclamation.
The Traditional Authorities Act 17 of 1995 (GG 1158) repealed all remaining sections of the Proclamation with the exception of sections 17, 18, 23, 24, 25, 26 and 27.
The Native Administration Proclamation Amendment Act 27 of 1985 (OG 5147) repealed sections 18(3)-(8) and (9)(c).
The Estates and Succession Amendment Act 15 of 2005 (GG 3566) repealed the remaining portions of section 18, but provides in section 1(2) that “the rules of intestate succession that applied by virtue of those provisions before the date of their repeal continue to be of force in relation to persons to whom the relevant rules would have been applicable had the said provisions not been repealed”.]PROCLAMATIONBY HIS HONOUR ALBERTUS JOHANNES WERTH, ADMINISTRATOR OF SOUTH WEST AFRICA[This Proclamation has no long title. The date of signature appears at the bottom of the Proclamation.]WHEREAS it is desirable toprovide for the better control and management of Native Affairs;NOW THEREFORE, under and by virtue of the powers in me vested, I do hereby proclaim, declare and make known as follows:-[Section 10(1) of Act 27 of 1985 provides certain rules of constructio which do not technically amend Proclamation 15 of 1928:
“Subject to the provisions of subsection (2) and unless it would in any particular case obviously be inappropriate, any reference in any law -
(a) to a native commissioner's court, shall be construed reference to a magistrate;
(b) to a native commissioner's court, shall be construed as a reference to a magistrate's court.”]
MARRIAGE AND SUCCESSION
17. Marriages of natives: Property rights
The Estates and Succession Amendment Act 15 of 2005 repeals subsections (1), (2), (9) and (10) of section 18, but provides in section 1 that the rules of intestate succession that applied in terms of section 18 prior to its repeal “continue to be of force” in respect of the persons to whom they applied prior to the repeal:
1. “Repeal of section 18 of the Native Administration Proclamation, 1928 (Proclamation No. 15 of 1928)
(1) Section 18 of the Native Administration Proclamation, 1928 is amended by the repeal of subsections (1), (2), (9) and (10).
(2) Despite the repeal of the provisions referred to in subsection (1), the rules of intestate succession that applied by virtue of those provisions before the date of their repeal continue to be of force in relation to persons to whom the relevant rules would have been applicable had the said provisions not been repealed.”
Thus, the current status of these provisions is unclear. They are struck out here, rather than being deleted, to reflect this situation.
Section 3 of the Estates and Succession Amendment Act 15 of 2005 (GG 3566) also provides the following transitional provision:
3. “Application of Administration of Estates Act, 1965 and transitional provisions
(1) Subject to subsection (2), the administration of the liquidation and distribution of all deceased estates, whether testate or intestate, of persons who died on or after the date of commencement of this Act, are governed by the Administration of Estates Act, 1965 (Act No. 66 of 1965).
(2) The estate of a person who died before the date of commencement of this Act which was administered, immediately before that date, in terms of the Native Administration Proclamation, 1928 or the Administration of Estates (Rehoboth Gebiet) Proclamation, 1941, must be liquidated and distributed and any matter relating to the liquidation and distribution of such estate must be dealt with as if this Act had not been passed.
(3) Despite subsection (2), if, in the case of an estate referred to in that subsection the liquidation and distribution of which immediately before the commencement of this Act was being administered in terms of the Native Administration Proclamation, 1928 or the Administration of Estates (Rehoboth Gebiet) Proclamation, 1941 and which has not been completed by the date of such commencement, any person having an interest in the estate in writing requests the Master of the High Court to administer the estate in question in terms of the Administration of Estates Act, 1965, the Master must –
(a) in writing request the magistrate in charge of the supervision of the estate in question to transfer such estate to the Master’s supervision and control; and
(b) upon receipt of the relevant documents and information pertaining to the estate in question exercise jurisdiction in respect of the estate in terms of the Administration of Estates Act, 1965.
(4) Upon receipt of a request of the Master in terms of subsection (3)(a), the magistrate concerned must forthwith provide the Master with all documents pertaining to the estate in question which have been lodged with the magistrate or which are under his or her control as well as a written report in relation to any matter concerning the estate of which the magistrate has knowledge and which is reasonably required for assisting the Master in the performance of any function under the Administration of Estates Act, 1965 in relation to the estate.”]
23. Penalties for breach of notice, rule or regulation
24. Exemption from stamp dutyNotwithstanding anything in any other law contained, no stamp duty or fee shall be payable in respect of any declaration made under the provisions of this Proclamation.
25. Interpretation of termsIn this Proclamation, and any notice, rule or regulation made thereunder, unless inconsistent with the context -“customary union” means a marriage according to native law and custom;“house” means the family and property, rights and status, which commence with, attach to, and arise out of, the customary union of each native woman;“location’’ means and includes -(a)any area set apart or reserved for communal occupation by Natives;(b)any area (other than a municipal location) set apart or reserved and made available for native occupation under separate title together with any commonage included therein;(c)land acquired by Natives for tribal occupation;(d)any area set apart by the Administrator as a location for the purposes of this Proclamation;“Native” shall include any person who is a member of any aboriginal race or tribe of Africa:Provided that any person residing in an area defined under paragraph (c) of section one of this Proclamation or set aside as a native reserve under section sixteen of the Native Administration Proclamation 1922 (Proclamation No. 11 of 1922), or in any native location, under the same conditions as a Native shall be regarded as a Native for the purposes of this Proclamation;[definition of “native commissioner” amended by Proc. 25 of 1937 and deleted by Act 27 of 1985]“partner” means any spouse of a customary union.“chief” includes a paramount chief.[The definition of “chief” is inserted by RSA Proc. 41 of 1973. The insertion is made as directed, but the alphabetical order is incorrect. The definition should appear above the definition of “customary union” and in that position should end with a semicolon rather than a full stop.]
26. Repeals and amendmentsThe several provisions of the laws specified in the first column of the Schedule to this Proclamation are hereby repealed or amended to the extent indicated in the second column of that Schedule.[The portions of section 26 relating to section 17(1)(k) of Proclamation No. 3 of 1917 are deleted by AG 14 of 1989. The portions of section 26 relating to Proclamation 11 of 1922 and Proclamation 11 of 1927 in the Schedule are deleted by Act 23 of 1992, making the associated portions of the Schedule irrelevant.
The provisions in the Schedule referred to in section 26 are repealed in so far as those provisions amend Proclamation 9 of 1924 by Act 21 of 2018.]