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.
• (ii) the Agricultural (Commercial) Land Reform Act 6 of 1995, which limits the acquisition of a controlling interest (directly or indirectly) in commercial land by a foreign national; and • (iii) the Communications Act 8 of 2009, which pre - vents a foreign national from controlling a licensee to whom a licence has been issued, without the prior consent of the relevant minister. Notwithstanding what has been stated in paragraphs (i) to (iii) above, it is a common phenomenon that licences/authorisations (especially in relation to natu - ral resources) and agreements with public enterprises, may be subject to local content conditions. Examples of such legislation are: • the Marine Resources Act 27 of 2000, which permits the minister to have regard to whether an applicant for rights to harvest marine resources is a Namibian citizen, or where the applicant is a com - pany, the extent to which beneficial control thereof vests in Namibian citizens; and • the Minerals (Prospecting and Mining) Act of 1992, which vests the minister with broad discretionary power to impose conditions, which is often used to limit the extent of foreign ownership; the current policy is that a minimum of 15% of the equity in a licence holder (which must be a Namibian regis - tered company) must be beneficially owned by Namibian citizens. 2.2 Procedure to Obtain Approval and Sanctions for Non-Compliance There are no generally applicable steps and/or require - ments to be adhered to by a foreign national to obtain approval for an investment in Namibia or to overcome any investment limitations/restrictions established by legislation. The common feature is for each relevant piece of legislation (and/or the regulations published in terms thereof) to stipulate the steps and requirements that must be fulfilled. It is also a common feature of most relevant legislation that, notwithstanding the fulfilment of the stipulated steps and/or requirements, the relevant decision-
making authority is still vested with a discretionary power in respect of: • the granting or refusal of the approval; and • the imposition of conditions upon any such approval. Where a foreign national undertakes investment activi - ties that are subject to prior approval without first obtaining the required approval, those activities will generally be regarded as unauthorised and/or void on the grounds of their unlawfulness, unless the relevant legislation expressly provides for a different conse - quence. In addition to the foregoing, unlawful activities are usually criminalised and, upon conviction, can attract financial and/or imprisonment sanctions as stipulated by the relevant legislation. Save for a few exceptions, Namibian legislation does not ordinarily prescribe timelines for the processing of applications for approval. Certain departments within the various ministries do occasionally provide non- binding timeline estimations for the processing of the type of applications they administer. This position is consistent with Section 2 of the FIA, in terms of which a foreign national may generally invest and engage in business activities in Namibia on sub - stantially the same basis as a Namibian, subject to compliance with any other applicable law. Accord - ingly, approvals or licences required for foreign invest - ment activities in Namibia are ordinarily regulated by sector-specific legislation rather than the FIA itself. 2.3 Commitments Required From Foreign Investors It is a common feature of legislation to vest the person authorised to consider applications for authorisations/ licences/approvals with the discretionary power to impose conditions on the granting of the authorisa - tion/licence/approvals. In most instances the relevant legislation will stipulate the nature of the conditions that may be imposed. However, it is also common that legislation affords the decision-maker with a general discretion to impose
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