The Rechsstaat Principle and Namibia: The German Approach

You often see adverts for immovable property for sale or lease, whether in urban or rural areas.

The question is who has the right to alienate land to someone else, especially for commercial purposes?

Namibia was established as a sovereign, secular, democratic and unitary state founded on the principles of democracy, the rule of law and justice for all.

As such, Namibia can be said to embrace the principle and approach of Rechtsstaat.

WHAT DOES IT MEAN?

In terms of the German approach, the Rechsstaat principle implies that the law precedes the state.

It means the law existed before the state was created and that the state was created by the law to maintain justice and order.

It means the state exercises its authority in accordance with legal rules: That the state was created by people and therefore the rights of people should be recognised by the state.

The Rechsstaat principle is key in Germany and serves as a yardstick to ensure that the rule of law prevails in every aspect of life.
Why is this model of Rechsstaat recommended?

It is because everything is done according to the rule of law without diversion.

The administration of land in communal and urban areas begs the question of whether the rule of law prevails in Namibia as everyone has a right to alienate land with or without a title to it.   

Many people become victims of land deals by unscrupulous people and, in some cases, by traditional authority leaders who play by double standards.

In most such cases, the victims are not protected by the authorities.   

CAUTION URGED

Recently, the ministry of agriculture, water and land reform cautioned members of the public about incidents involving the illegal occupation and allocation of land in rural areas by private individuals.

They have no right to allocate land because they are not chiefs or traditional authorities of such areas.

In terms of Namibia’s Constitution, land that is not lawfully owned belongs to the state.

Under the Communal Land Reform Act (2002), the power to allocate land is vested in the traditional authority which may lease such land to an individual for residential or farming purposes for 99 years.   

In terms of the Local Authorities Act (1992), land is administered by municipalities and/or the village councils in such areas.

Anyone willing to buy land needs to comply with the formalities set in terms of that local authority area and register it as a real right.   

SNEAKY SPOUSES

In addition, the Married Persons Equality Act (1996) provides for selling immovable property belonging to a joint estate if the marriage is in community of property.

However, the other spouse needs to give consent in writing before the property is sold.

Sadly, many spouses sell immovable property belonging to the joint estate without the other spouse’s knowledge.

In one civil court case, the High Court declared that the sale and registration of immovable property sold by one spouse without the knowledge and consent of the other should be set aside.

The court also said it is a buyer’s duty to make reasonable enquiries about the marital status of a seller of immovable property belonging to a joint estate to establish if the other spouse gave written consent for the sale.  

DESPERATE AND DUPED

There are many unresolved disputes involving unsuspecting and desperate individuals becoming victims of illegal land sales.

They get duped into believing the seller has the right to alienate land when in truth they don’t. As a result, they lose their hard-earned money.

When they institute civil litigation they often lose such cases on technicalities.

The courts are reluctant to adjudicate on unlawful land sale transactions that do not comply with formalities involving the sale of land.

Any would-be land buyer should first establish the authenticity of the sale and should know the Latin maxim “nemo plus iuris in alium trasferre potest quam ipse haberet” – no one may transfer more rights to another person than they themselves have.

Such illegal land sales are rife in many parts of the country, especially in rural and semi-urban areas where many people do not know about these formalities.

Unfortunately, Rechsstaat in Namibia is non-existent and criminals cash in on illegal land deals without punishment.

• *Lucas Tshuuya is a legal practitioner from Onaanda in the Uukwambi district; tshuuya@iway.na