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ASSIGNMENT COVER
2025 ACADEMIC YEAR
Student Name DINELAGO ASINO
Student number 224009915
Email Address [email protected]
Cell/Tel no 0817875926
Campus Windhoek Campus

Course/Module Name Course/Module

Code
Land and Property Law L3613PP

Assignment no
(e.g. 1, 2 or 3, etc.).
1
Introduction

Ownership of immovable property in Namibia, rooted in Roman-Dutch law, grants

the owner the real right to possess, use, enjoy, and dispose of their property. These
rights are susceptible to violations such as unlawful possession, interference, or
damage, necessitating targeted legal mechanisms to protect the owner’s exclusive
control. Given the distinct nature of immovable property, Namibian law provides
specific remedies to safeguard ownership, tailored to its characteristics. This
discussion examines all remedies strictly applicable to ownership of immovable
property—rei vindicatio, actio negatoria, actio legis Aquiliae, unjustified enrichment,
and interdicts.

What Are Remedies?

Remedies are legal mechanisms that enforce rights, redress wrongs, or prevent
harm when an individual’s entitlements are infringed. In property law, remedies
protect the owner’s real right of ownership against violations like dispossession or
damage, aiming to restore control, compensate loss, or halt interference (Amoo,
2014, p. 183).1 For ownership of immovable property, remedies are restorative (e.g.,
recovering land), compensatory (e.g., damages), or preventive (e.g., injunctions),
grounded in Roman-Dutch law and reinforced by Namibian statutes.

Immovable vs. Movable Property

Property in Namibian law is divided into immovable and movable categories, each
impacting ownership and remedies differently. Immovable property includes land and
permanently attached fixtures, such as buildings or rooted trees, which cannot be
relocated without changing their nature (Amoo, 2014, p. 16).2 Ownership is
formalized through registration under the Deeds Registries Act 47 of 1937,3
providing strong real rights enforceable against all. Movable property encompasses
items that can be physically moved, like vehicles or livestock, governed by

1 Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law Press.

2 Ibid. p16
3 Deeds Registries Act 47 of 1937.
possession and personal rights without mandatory registration (Amoo, 2014, p. 17).4
Remedies for immovable property hinge on registered title, distinguishing them from
movable property remedies, which often rely on physical control (Amoo, 2014, p.
18).5

THERE ARE THREE (3) MAIN REMEDIES APPLICABLE :

1. Rei Vindicatio

❖ Definition and Purpose

Rei vindicatio is the primary remedy for ownership, allowing the owner to recover
immovable property from an unlawful possessor, upholding their right to exclusive
control (Amoo, 2014, p. 184).6

❖ Requirements

- Proof of ownership, typically via a registered title deed under the Deeds Registries
Act 47.7

- Identifiable property in the defendant’s possession.

- Unlawful possession, without consent or legal justification.

❖ Application in Namibia

In Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) ,8 the court held that rei
vindicatio requires only ownership and possession proof, a principle applied in
Namibia (Amoo, 2014, p. 185). For example, an owner can evict squatters from
registered land, addressing urban disputes.

❖ Legislation

4Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law
Press.
5
Ibid.
6 ibid.
7 Deeds Registries Act 47 of 1937.
8 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 1 SA 77 (A)
 ❖ The Deeds Registries Act 47 of 19379 governs title registration. Article 16 of
the Namibian Constitution supports property rights.
❖ Limitations

Rei vindicatio is ineffective if the property is validly transferred to a bona fide

purchaser, as in Van Vuren & Others v Registrar of Deeds 1907 TS 289,10 (Amoo,
2014, p. 186).

The relationship between Van Vuren v. Registrar of Deeds,11 and the remedy of rei
vindicatio hinges on safeguarding ownership over immovable property, including
mineral and surface rights subdivided from the farm Nooitgedacht. The court’s ruling
establishes that these rights, construed as quasi-servitudes within the transfer
deeds, are linked to the dominium of the land, ensuring that ownership is clearly
vested in the new co-owners according to the agreed 14/25ths and 11/25ths
proportions. This aligns with rei vindicatio, which permits a rightful owner to reclaim
property from an unlawful possessor by presenting evidence of their title—here, the
registered deeds serve as the necessary documentation.

However, there are limitations to this connection. The judgment acknowledges that
while the initial constitution of these quasi-servitudes in transfer deeds is valid, any
future cession of mineral rights would necessitate a notarial deed for registration,
potentially complicating subsequent transfers and potentially weakening a rei
vindicatio claim if title documentation becomes inconsistent. Furthermore, the case
does not address disputes over possession or enforcement, leaving uncertainty
regarding how rei vindicatio would apply if a co-owner unlawfully exploits mineral
rights beyond their allotted share. The court’s emphasis on registration also assumes
the accuracy of the partition agreement, but errors or challenges to its validity could
undermine the evidential basis for such a remedy. These gaps suggest that while the
legal framework supports ownership claims, practical application may encounter
obstacles not fully explored in the ruling.

2. Actio Negatoria

9 ibid.
10 Van Vuren & Others v Registrar of Deeds* 1907 TS 289.
11 Ibid.
 ❖ Definition and Purpose

Actio negatoria enables the owner to deny a third party’s unfounded claim to a
limited real right, such as a servitude, restoring undisturbed enjoyment (Amoo, 2014,
p. 190).12

❖ Requirements

- Proof of ownership.

- Unlawful interference, e.g., unauthorized use resembling a servitude.

- No legal basis for the interference.

❖ Application in Namibia

In Van der Merwe v Wiese 1948 ,13 actio negatoria halted unauthorized use, a
precedent for Namibia (Amoo, 2014, p. 190). For instance, an owner can block a
neighbor’s unregistered pathway claim, vital for rural boundaries.

❖ Legislation

The Deeds Registries Act 47 of 1937,14 requires servitude registration. Article 16(1)15
of the Namibian Constitution protects enjoyment.

❖ Case Example

The remedy of actio negatoria allows an owner to deny a servitude or real right and
prevent unlawful interference with their property. In De Kock v Hanel,16 while a right
of way was upheld despite claims of excessive burden or lost utility, De Kock could
have challenged its validity using actio negatoria if he had demonstrated significant
overuse or permanent disuse. However, the court’s subjective utility test and lack of
evidence limited this approach. In Schwedhelm v Hauman 1947 ,17 Hauman could
have denied the enforceability of a positive obligation to maintain water infrastructure
by proving non-consent. However, the 1973 Deeds Registries Act amendment and
unregistered servitude rules (Grant v Stonestreet, Wahloo Sand BK)18 may bind
successors with knowledge, potentially restricting the application of actio negatoria.

12 Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law Press.
13 Van der Merwe v Wiese 1948 4 SA 8 (C),
14 Deeds Registries Act 47 of 1937
15 The Namibian Constitution
16 De Kock v Hanel (1999 (1) SA 994 (C)),
17 Schwedhelm v Hauman (1947 (1) SA 127 (E)),
18 (Grant v Stonestreet, Wahloo Sand BK)
Similarly, in Van der Merwe v Wiese (1948 (4) SA 8 (C)),19 where a positive
obligation to deliver water was upheld as part of a servitude, Wiese could have
challenged the obligation’s validity by demonstrating that it exceeded servitude law.
However, Fagan J’s ruling that passivity is a guide (not a strict rule) and the 1973
amendment complicate this, especially if Wiese had knowledge of the obligation.
These limitations include high evidentiary thresholds, statutory changes, and
ongoing debates about unregistered servitudes, which make practical application of
actio negatoria challenging.

3. Actio Legis Aquiliae

❖ Definition and Purpose

Actio legis Aquiliae compensates owners for intentional or negligent damage to

immovable property, addressing patrimonial loss from acts like vandalism or
degradation (Amoo, 2014, p. 193).

❖ Requirements

- Ownership.

- Physical damage by the defendant.

- Wrongful, culpable conduct (intent or negligence).

- Quantifiable financial loss.

❖ Application in Namibia

In Minister van Verdediging v Van Wyk & Andere 1976 1 SA 397 (T),20 damages
were awarded for negligent damage, a principle upheld in Namibia. For example, an
owner can claim repair costs for a negligently destroyed fence, relevant for farms.

❖ Legislation

Roman-Dutch law, via Proclamation 21 of 1919,21 and Article 140,22of the Namibian
Constitution, applies. The *Agricultural (Commercial) Land Reform Act 6 of 1995*
may govern farmland disputes.

19 Van der Merwe v Wiese (1948 (4) SA 8 (C)),

20 Minister van Verdediging v Van Wyk & Andere 1976 1 SA 397 (T),
21 Proclamation 21 of 1919 (S.W.A. Gazette, No. 25 of 1919).
22 The Constitution of the Republic of Namibia
ADDITIONAL REMEDIES WHICH ARE LESS APPLICABLE :

4. Unjustified Enrichment

❖ Definition and Purpose

Unjustified enrichment remedies address a third party’s unauthorized benefit at the

owner’s expense, such as unconsented improvements, allowing compensation or
removal (Amoo, 2014, p. 193).23

❖ Requirements

- Defendant’s enrichment.

- Owner’s corresponding loss.

- No legal basis for enrichment.

- Reasonable, quantifiable claim.

❖ Application in Namibia

In Nortje v Pool 1966 3 SA 96 (A),24 compensation was granted for unauthorized

improvements, applicable in Namibia (Amoo, 2014, p. 194).25 For example, an owner
can claim value from a trespasser’s building or demand removal, key in communal
disputes.

❖ Legislation

Roman-Dutch law, per Article 140 of the Namibian Constitution,26 applies. The
Communal Land Reform Act 5 of 2002,27 may regulate communal improvements.

❖ Relation

The remedy for unjustified enrichment, as exemplified in Gouws v Jester Pools (Pty)
Ltd,28 seeks to prevent individuals from unfairly profiting at the expense of others
without a valid legal basis. This principle can be applied to various scenarios,

23 Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law Press.
24 Nortje v Pool 1966 3 SA 96 (A),
25 ibid.
26 The Constitution of the Republic of Namibia
27 Communal Land Reform Act 5 of 2002,
28 Gouws v Jester Pools (Pty) Ltd (1968 (3) SA 563 (T)),
including ownership of immovable property such as land. In this particular case,
Jester Pools constructed a swimming pool on Gouws’ land based on a contract with
M Wolf, who falsely asserted ownership. When Wolf vanished without making any
payment, Jester Pools initiated legal proceedings against Gouws, seeking R1,000 in
damages. However, the court ruled in favour of Gouws, stating that he had been
enriched by Wolf’s actions rather than Jester Pools. This outcome was because
there was no agreement between Gouws and Wolf regarding the construction of the
pool.

While this remedy may be applicable in certain situations, it is not particularly

suitable for resolving ownership disputes in land law. It is most effective when there
is a clear and direct link between the owner’s gain and the claimant’s loss. In this
case, the involvement of Wolf created a gap in this connection, rendering the remedy
less effective. Alternative remedies such as rei vindicatio (reclaiming ownership) or
actio negatoria (denying encumbrances) are more appropriate for addressing
ownership issues. Unjustified enrichment serves as a secondary option and
becomes less effective when there is insufficient evidence of the owner’s direct
involvement.

Furthermore, there are certain limitations to the application of unjustified enrichment.

Firstly, it requires a legal connection between the owner and the claimant. For
instance, in the case of Buzzard Electrical v 158 Jan Smuts Avenue Investments
1996,29 an owner’s contract played a crucial role in supporting the claim. Secondly,
the complexity of property law rules can hinder the effectiveness of unjustified
enrichment in resolving core ownership disputes.

5. Interdict

❖ Definition and Purpose

An interdict is a court order preventing or compelling action to protect ownership,

halting interference like trespass or unlawful construction (Amoo, 2014, p. 197).30

29 Buzzard Electrical v 158 Jan Smuts Avenue Investments (1996 (4) SA 19 (A

30 Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law Press.
 ❖ Requirements

- Ownership or clear right.

- Actual or threatened infringement.

- No adequate alternative remedy.

- Balance of convenience favoring the claimant.

❖ Application in Namibia

In Minister van Wet en Orde v Matshaba 1990,31 an interdict stopped interference, a

precedent for Namibia (Amoo, 2014, p. 198).32 For example, an owner can prevent
boundary encroachments, vital in urban settlements.

❖ Legislation

Article 16(1)33 of the Namibian Constitution supports interdicts. The Magistrates’

Court Act 32 of 1944,34 and Supreme Court Act 59 of 1959,35 govern issuance.

Case Example

Van Eck & Van Rensburg v Etna Stores 1947 36 emphasized a clear right, reinforcing
interdicts for owners (Amoo, 2014, p. 198).

Conclusion

Namibian law protects ownership of immovable property through rei vindicatio, actio
negatoria, actio legis Aquiliae, unjustified enrichment, and interdicts, addressing
dispossession, interference, damage, and unauthorized benefits. These remedies,
distinct from movable property protections due to immovable property’s registered
nature, are grounded in Roman-Dutch law (Proclamation 21 of 1919, Article 140 of

31 Minister van Wet en Orde v Matshaba 1990 1 SA 280 (A

32 ibid.
33 The Namibian Constitution
34 The Magistrates’ Court Act 32 of 1944,
35 Supreme Court Act 59 of 1959,
36 Van Eck & Van Rensburg v Etna Stores 1947 2 SA 984 (A)36
the Namibian Constitution) and supported by statutes like the Deeds Registries Act
47 of 1937 and Communal Land Reform Act 5 of 2002. Cases like Goudini Chrome
(Pty) Ltd v MCC Contracts and Nortje v Pool illustrate their application, ensuring
owners’ real rights are upheld (Amoo, 2014, p. 224).

Note on Other Remedies: Remedies like condictio furtiva are inapplicable as they
address theft, rarely relevant to immovable property’s fixed nature (Amoo, 2014, p.
191). Mandament van spolie protects possession, not ownership, requiring no title
proof (Amoo, 2014, p. 195). Constitutional remedies under Article 16 target state
deprivation, not private ownership disputes, falling outside this scope (Amoo, 2014,
p. 70).
Bibliography

❖ Books

- Amoo, S.K. (2014). Property Law in Namibia. Pretoria: Pretoria University Law
Press.

❖ Case Law

- (Grant v Stonestreet, Wahloo Sand BK)

- Buzzard Electrical v 158 Jan Smuts Avenue Investments (1996 (4) SA 19 (A)
- De Kock v Hanel (1999 (1) SA 994 (C)),
- Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 1 SA 77 (A).
- Gouws v Jester Pools (Pty) Ltd 1968 3 SA 563 (T).
- Minister van Verdediging v Van Wyk & Andere 1976 1 SA 397 (T).
- Minister van Wet en Orde v Matshaba* 1990 1 SA 280 (A).
- Nortje v Pool1966 3 SA 96 (A).
- Schwedhelm v Hauman (1947 (1) SA 127 (E)),
- Van der Merwe v Wiese 1948 4 SA 8 (C).
- Van Eck & Van Rensburg v Etna Stores 1947 2 SA 984 (A).
- Van Vuren & Others v Registrar of Deed 1907 TS 289.

❖ Legislation

- Agricultural (Commercial) Land Reform Act 6 of 1995.

- Communal Land Reform Act 5 of 2002.

- Magistrates’ Court Act 32 of 1944.

- Proclamation 21 of 1919* (S.W.A. Gazette, No. 25 of 1919)

- Supreme Court Act 59 of 1959*.

- Deeds Registries Act 47 of 1937.

- The Constitution of the Republic of Namibia, 1990 (Articles 16, 140).