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.
such conditions as the decision-maker may determine or deem fit. In practice, foreign investors are commonly expected to commit to measures promoting Namibia’s socio- economic development objectives. The following con - ditions (in addition to those that are directly related to the type of licence/authorisation/approval) are com - mon across many sectors: (i) participation by Namib - ian citizens in the ownership structure of the applicant; (ii) local content participation in management struc - tures of the applicant; (iii) preferential procurement by the applicant from Namibian suppliers of goods and services; (iv) skills transfer and training obligations; and (v) the preferential employment of previously dis - The Namibian Constitution requires the government (and all its administrative agents) to act administrative - ly fair and reasonably in respect of its administration of legislation and the powers arising therefrom. There - fore, any person who is dissatisfied with the outcome of any application may seek legal redress if the action or omission by the decision maker is perceived to be unjust and/or unreasonable. The ordinary grounds for the review of an administra - tive decision are: • procedural unfairness, due to the failure of giving the applicant a fair hearing or following the correct procedure; • irrationality, due to the decision not being support - ed by the evidence or facts presented; • illegality, where the administrative functionary acted outside of its powers granted by the relevant legislation or common law; and • unreasonableness, if the decision was so grossly unreasonable that no fair-minded person could have made the decision. advantaged Namibians. 2.4 Right to Appeal It is also common for legislation to establish an inter - nal appeal procedure. In the event of the existence of such a procedure, a dissatisfied applicant must first exhaust that procedure before approaching the High Court of Namibia for legal redress through the process of a judicial review of the decision.
It is a common feature for legislation (or the regula - tions published in terms thereof) to set forth the inter - nal appeal process and timelines to be adhered to. A judicial review application to the High Court gen - erally needs to be submitted without unreasonable delay from the date on which the decision was com - municated to the applicant. What would constitute an unreasonable delay must be determined on the facts of each case. However, the High Court has indicated in a number of judgments that a delay of more than four to six months is regarded as unreasonable. A longer delay may nevertheless be condoned where good cause is shown. The High Court rules stipulate certain timelines for the prosecution and finalisation of a review application once submitted. Although there are no fixed timelines within which a court must decide on a review applica - tion, an opposed review application can take 8 to 12 months from the submission thereof. 3. Corporate Vehicles 3.1 Most Common Forms of Legal Entity Namibia’s principal corporate vehicles are governed by the Companies Act 28 of 2004 and the Close Cor - porations Act 26 of 1988, and include the following. Private Company (Pty) Ltd This is the most commonly used corporate vehicle in Namibia. There may be from one to fifty sharehold - ers in a private company. There is no statutory mini - mum share capital requirement. Shareholders’ liabil - ity is limited to any unpaid amount on their shares. It is managed by directors and shares are not allowed to be offered to the public. It is commonly used for greenfield projects, holding structures, joint ventures, and general trading. In practice, private companies (Pty) Ltd are by far the preferred investment vehicle for foreign investors due to their flexibility, limited liability structure and suit - ability for joint ventures, holding structures and opera - tional subsidiaries.
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