NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
1. Legal System 1.1 Legal System and Judicial Order
The FIA is slated for repeal upon the coming into operation of the Namibia Investment Promotion Act 16 of 2016. In terms of the FIA, a foreign national (being (i) an individual who is not a Namibian citizen, (ii) a company incorporated under the laws outside of Namibia, or (iii) a Namibian-incorporated company in which the majority of the issued share capital is beneficially owned by non-citizens) may, subject to any require - ments imposed by other applicable laws: • engage in and invest in any business activity in Namibia that is open to Namibian citizens; • be treated on an equal footing with Namibian persons, except where the Act provides otherwise; and • operate without any obligation to include the gov - ernment or any Namibian party as a shareholder or partner; however, in respect of licences, authorisa - tions, or agreements involving the exploitation of natural resources, it may be stipulated as a condi - tion that the government is entitled to acquire or participate in an ownership interest in the relevant enterprise. The FIA empowers the minister (appointed to admin - ister the FIA) to specify any business or category of business primarily engaged in the provision of servic - es or the production of goods which can be provided or produced adequately by Namibians in respect of which a foreign national shall not become engaged in nor invest in by way of foreign assets. At present, the only services reserved under this power are (i) pub - lic transport services (taxi and shuttle services within Namibia and between towns) and (ii) hair salon, hair - dressing and beauty treatment services. Certain sector-specific legislation limits or prevents investment by foreign nationals. Examples of such legislation are: • (i) the Minerals (Prospecting and Mining) Act of 1992, which reserves the right to hold mining claims (which relate to small-scale mining) exclu - sively for Namibian citizens or an incorporated entity beneficially owned by Namibian citizens;
The Constitution of the Republic of Namibia, which came into force upon independence her on 21 March 1990, is the supreme law of the country. In terms of Article 1 (6) of the Constitution, any law or conduct inconsistent with the Constitution is invalid to the extent of such inconsistency. The judiciary is estab - lished as an independent judicial authority under Article 78 of the Constitution and is responsible for the interpretation, protection, and enforcement of the Constitution and the laws of Namibia. Namibia operates under a mixed legal system reflects its historical development. Prior to independence, the territory, then known as South West Africa, was administered by South Africa, resulting in the applica - tion of South African law in Namibia. Consequently, Namibia inherited Roman-Dutch common law princi - ples, together with procedural and evidentiary rules influenced by English common law. Following inde - pendence, Article 66 of the Constitution preserved the common law and customary law that existed immedi - ately before independence, subject to their consisten - cy with the Constitution and any applicable legislation. The Namibian judiciary follows a hierarchical struc - ture. The Supreme Court of Namibia is the highest appellate court, and its decisions are binding on all lower courts. The High Court of Namibia exercises inherent jurisdiction in civil and criminal matters, as well as appellate jurisdiction over lower courts. Lower courts, including Magistrates’ Courts, determine the majority of civil and criminal matters at first instance. In addition to the formal judicial structure, community courts, established under the Community Courts Act, 2003 (Act No 10 of 2003), exercise jurisdiction over customary law disputes within their statutory man - date, subject to the Constitution and applicable laws. 2. Restrictions on Foreign Investments 2.1 Approval of Foreign Investments The primary and generally applicable legislation gov - erning foreign investment in Namibia is the Foreign Investment Act 27 of 1990 (FIA).
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