Regulations on Criteria to be used for Expropriation of Agricultural Land (G.N. 209 of 2016)

REGULATIONS MADE IN TERMS OF Agricultural (Commercial) Land Reform Act 6 of 1995 section 77 read with section 20(1A) Regulations on Criteria to be used for Expropriation of Agricultural Land Government Notice 209 of 2016 (GG 6115) came into force on date of publication: 1 September 2016 ARRANGEMENT OF REGULATIONS 1. Definitions 2. Criteria to be used in expropriating agricultural land 3. Identification criteria for agricultural land 4. Scoring criteria for agricultural land ANNEXURE Expropriation criteria Definitions 1. In these regulations a word or an expression to which a meaning has been assigned in the Act has that meaning, and unless the context otherwise indicates “assessment report” means an assessment report prepared by a person authorised in writing by the Commission under section 15(1) of the Act; “Ministry” means the Ministry administering land affairs; Republic of Namibia 2 Annotated Statutes REGULATIONS Agricultural (Commercial) Land Reform Act 6 of 1995 Regulations on Criteria to be used for Expropriation of Agricultural Land “the Act” means the Agricultural (Commercial) Land Reform Act, 1995 (Act No. 6 of 1995); and “valuer” means a valuer as defined under the Land Valuation and Taxation Regulations published under Government Notice No. 120 of 3 July 2007. [The Land Valuation and Taxation Regulations referred to are contained in GN 120/2007 (GG 3870), as amended.] Criteria to be used in expropriating agricultural land 2. (1) Where the Minister, after consultation with the Commission, decides to expropriate any agricultural land under section 20 of the Act for the purposes of section 14(1) of that Act, the Minister must (a) use the identification criteria set out in regulation 3 in identifying the agricultural land eligible for expropriation; and (b) conduct a suitability assessment as contemplated in regulation 4 in order to determine the suitability of agricultural land for the purposes of section 14(1) of the Act. (2) The Minister, after having (a) identified agricultural land for expropriation under subregulation (1)(a); and (b) conducted a suitability assessment of the agricultural land as contemplated in regulation 4, must for the purposes of section 14(1) of the Act score the agricultural land in accordance with the scoring criteria set out in the Annexure. (3) The Minister, after consultation with the Commission and having scored the identified agricultural land in accordance with subregulation (2), may decide to expropriate the identified agricultural land. Identification criteria for agricultural land 3. (1) The Minister must identify and scrutinise the agricultural land intended to be expropriated for purposes of section 14(1). (2) For the purposes of subregulation (1), the Minister must ascertain (a) the ownership of the identified agricultural land with the deeds registry and any condition endorsed on the title deed of the agricultural land; (b) whether agricultural land is owned by a Namibian citizen or foreign national; (c) whether agricultural land is owned by a natural or juristic person; Republic of Namibia 3 Annotated Statutes REGULATIONS Agricultural (Commercial) Land Reform Act 6 of 1995 Regulations on Criteria to be used for Expropriation of Agricultural Land (d) any other relevant information pertaining to the identified agricultural land which includes (i) whether the identified agricultural land is managed by a person other than a foreign owner who resides in a foreign country; (ii) whether the agricultural land is leased to another person by a foreign owner who resides in a foreign country; (iii) whether the owner has abandoned the agricultural land; (iv) whether the agricultural land is or has been neglected by an owner without fully or efficiently utilising the identified agricultural land for agricultural purposes; (v) whether a foreign owner of the identified agricultural land owns other agricultural land other than the agricultural land identified for expropriation; and (vi) whether the identified agricultural land will contribute to the utilisation of the adjacent State land. Suitability assessment for agricultural land 4. (1) The Minister using the assessment report must verify the following information in order to determine whether the identified agricultural land is suitable for the purposes of section 14(1) (a) the size of the agricultural land, including (i) the carrying capacity of the agricultural land; (ii) hydrological area (ground water potential); and (iii) number and condition of boreholes and water quality and quantity; (b) the location of the agricultural land, including (i) the region and registration division; and (ii) the agro-ecological zone; (c) the infrastructures on the agricultural land such as (i) boreholes, troughs, reservoirs, water distribution, water quality and quantity; and (ii) internal camps; (d) climate, relief and soil, including (i) topography (contour and spot heights - topographic map); and Republic of Namibia 4 Annotated Statutes REGULATIONS Agricultural (Commercial) Land Reform Act 6 of 1995 Regulations on Criteria to be used for Expropriation of Agricultural Land (ii) rainfall pattern. (2) Where the Minister intends to expropriate agricultural land owned, possessed or occupied by a foreign national for the purposes of section 58 of the Act, the Minister must, in addition to the criteria set out in the Annexure, assess the Certificate of Status Investment issued to the foreign national under section 4 of the Foreign Investments Act, 1990 (Act No. 27 of 1990). [Note that the Foreign Investments Act 27 of 1990 will be repealed and replaced by the Namibia Investment Promotion Act 9 of 2016 when the latter Act is brought into force.] Scoring criteria for agricultural land 5. (1) The method of calculating whether an agricultural land is highly suitable, suitable, moderate suitable or not suitable for expropriation for purposes of these regulations is by using the following formula: Scores of identification criteria + suitability criteria – citizenship preference criteria = total scores (2) An agricultural land that, in terms of the Annexure, scores (a) at least 80 percent is considered as highly suitable for expropriation; (b) 60 percent to 79 percent is considered as suitable for expropriation; (c) 40 percent to 59 percent is considered as moderately suitable for expropriation; and (d) less than 39 percent is considered not suitable for expropriation. ANNEXURE [The Table below is reproduced as it appears in the Government Gazette, including with respect to capitalisation.] Expropriation criteria Code Identification criteria Identification criteria description Qualification indicators Weight Score 01 Ownership identified under regulation 3(2) (a) to (c) natural or juristic person agricultural land owned by a natural person or juristic person 5 foreign national agricultural land owned by a foreign national 15 02 Other relevant information in terms of regulation 3(2)(d) *absent foreign owner agricultural land managed by another person on behalf of foreign owner who resides in a foreign country 15 agricultural land leased to another person by a foreign owner 15 Republic of Namibia 5 Annotated Statutes REGULATIONS Agricultural (Commercial) Land Reform Act 6 of 1995 Regulations on Criteria to be used for Expropriation of Agricultural Land *abandoned, undeveloped or underutilised agricultural land abandoned agricultural land 4 underdeveloped, underutilised agricultural land 4 multiple ownership foreign owner owns more than one agricultural land 20 Plus Code Suitability criteria Suitability criteria description Qualification indicators Weight Scores 03 suitability criteria in terms of regulation 4 Size carrying capacity area 5 ground water potential 5 *location agricultural land adjacent to State land or resettlement farm 15 Agricultural land not adjacent to resettlement farm or State land 15 infrastructure boreholes, troughs, reservoirs or other infrastructure 4 internal camps 4 climate, relief topography 4 rainfall 4 Subtotal .../100 Minus Code Citizen preference criteria Citizen preference Qualification indicators Weight Scores 04 Citizenship Citizenship preference agricultural land owned by a Namibian natural person 25 agricultural land owned by a Namibian juristic person 15 agricultural land owned by Namibian citizen and adjacent to resettlement farm or State land 25 * Choose whichever is applicable in respect of the qualification indicator in Column 4 and weight in Column 5.