Namibian Law


1 September 2016

Namibia Investment Promotion Act Published

The Namibia Investment Promotion Act has been published.  The act will radically alter the manner in which foreigners conduct business in Namibia.


The objects of the act are:

(a)        to provide a clear and transparent framework for investment in Namibia;

(b)        to provide for an efficient dispute resolution mechanism involving investment;

(c)        to provide for a mechanism for inter-ministerial coordination on regulatory provisions and incentives and support mechanisms for investments;

(d)        to promote sustainable economic development and growth through the mobilization and attraction of domestic and foreign investments that -

(i)         enhance the economic development objectives of Namibia to build a prosperous, industrialised society with adequate direct investment to, among other things, encourage the creation of employment, wealth, technology transfer, capacity building, value addition to natural resources and foreign currency generation;

(ii)         reduce unemployment, poverty and economic inequality in Namibia;

(iii)        accelerate the growth and diversification of the Namibian economy;

(iv)        facilitate domestic investments, particularly in priority economic sectors; and

(v)        provide for other matters on investment promotion, admission, treatment and management.

 

HOWEVER, the Act empowers the Minister to reserve certain categories of economic sectors and business activities for certain categories of investors.  These reserved economic sectors or business activities are those -

(a)        reserved for the State;

(b)        reserved for Namibians and entities whose majority shareholdings are owned by Namibians;

(c)        reserved for joint venture partnership between Namibian investors and foreign investors; and

(d)        reserved for investors that meet the requirements of section 4 and the prescribed specific conditions.

 

The act further states that a foreign investor must meet the applicable requirements for categories of investors in order to invest in the reserved economic sectors or business activities.  The limitations also apply where there is a proposed change of ownership or control of an investment to a foreign investor.

The Act clearly states that a foreign investor may not invest in Namibia; or acquire any licence, permit, authorisation or concession in Namibia, through any form of merger, acquisition, direct or indirect sale or transfer without the approval of the Minister, the ambit of which is much wider than merely reserved business or economic sectors.

 

The criteria for the approval of investments are:

(a)       the contribution of the investment to the national development, economic growth, public policy and national security objectives of Namibia;

(b)        the contribution of the investment to the advancement of persons who have been socially, economically or educationally disadvantaged by past discriminatory laws and practices;

(c)        the contribution of the investment to the implementation of programmes and policies aimed at redressing social and economic imbalances in Namibia, including gender-based imbalances;

(d)        the contribution of the investment towards increasing employment creation in Namibia;

(e)        the contribution of the investment to the advancement of the development of a geographical area of a low social and economic development;

(f)         the contribution of the investment to the transfer of technological and managerial skills, knowledge and innovation;

(g)        the contribution of the investment to value addition to the natural resources and manufacturing sector of Namibia;

(h)        the extent to which the investment will procure goods and services from the SME sector and Namibian suppliers in general; and

(i)         the impact on the environment and contribution to environmental benefits and any other factors the Minister may prescribe.

 

Furthermore, a substantial number of the following requirements, as each case may require, must be fulfilled or likely to be fulfilled in a specified period -

(i)         the joint venture with Namibians;

(ii)        the employment creation for Namibians;

(iii)        the contribution of the investment to the advancement of persons who have been socially, economically or educationally disadvantaged by past discriminatory laws and practices;

(iv)       the contribution of the investment to the implementation of programmes and policies aimed at  redressing social and economic imbalances in Namibia, including gender-based imbalances;

(v)        the transfer of technology and technological skills;

(vi)       the development of managerial skills;

(vii)       the promotion of research, development and innovation;

(viii)      the value addition to the natural resources and manufacturing sector and procurement of goods and services;

(ix)       the environmental impact and contribution to environmental benefits; and

(x)        other matters relating to the improvement of the economy and development benefits in the public interest as the Minister may prescribe.

 

The Minister may, on behalf of the State, enter into a legally binding performance agreement with any foreign investor seeking approval under this Act to agree on matters related to the contributions of the investment to the development objectives of Namibia.

Furthermore, an investor or investment existing at the commencement of this Act and which qualifies for registration as investor or investment under this Act has 12 months from the date of the commencement to register.

The act also grants wide powers of expropriation to the State, where it

(a)        is taken in the public interest;

(b)        is taken in accordance with applicable requirements and procedures; and

(c)        is accompanied by the payment of just compensation.

 

The transfer of funds from Namibia may also be limited by the State:

(a)        to protect the rights of the creditors in the event of actual or anticipated bankruptcy;

(b)        to ensure the compliance with judgments concerning criminal offences;

(c)        to ensure the compliance with tax obligations;

(d)        to comply with lawful administrative decisions and facilitate execution of judicial judgments;

(e)        in response to serious or exceptional balance of payments or external financial difficulties, or the anticipated financial risk; or

(f)         in exceptional circumstances, to prevent movements of capital that causes or threaten to cause serious difficulties for macroeconomic management, including monetary or exchange rate policies.

 

This Act proposes a very real threat to the current economic order in Namibia.


1 September 2016

The Namibian Companies Act regulations are amended

The Regulations under the Namibian Companies Act have been amended to require annual disclosure to the Registrar of the following information pertaining to a company:
1.    Issue share capital;
2.    Share Premuim Account;
3.    Full particulars and contact details of each director;
4.   
Full particulars and contact details of certain officers;
5.    Full particulars of each shareholder and of each nominee shareholder.

Previously this information could only be obtained form the office share the company register was held. The amendment will allow for more transparency in relation to the shareholding of companies.


1 September 2016

Namibia Publishes regulations under the Biosafety Act.

Namibia has published regulations relating to the development, production, marketing, transport and application of genetically modified organisms and specified products derived from genetically
modified organisms.


1 September 2016

Regulations on criteria to be used for expropriation of agricultural land are published 

The Minister for Land reform has published regulations under the Agricultural (Commercial) Land Reform Act, 1995 (Act No. 6 of 1995), on the criteria to be used for expropriation of agricultural land in Namibia.  A copy of the criteria can be downloaded at the following link.


10 April 2016

Namibian Competition Commission issues a directive against Namcars  

To download a copy of the Notice by the Competition Commission, click on the following link


20 February 2016

Regulation published under the Electricity Act

In terms of the provisions of the Namibian Electricity Act, the Electricity Control Board has published Economic Rules and Technical Rules.  The rules will be of great value to potential renewable electricity suppliers as it provides certainty relating to the regulatory framework relating to the private generation of electricity.

Copies of the Economic Rules and Technical Rules are available from the links.



12 January 2016

New thresholds for notice to the Namibian Competition Commission

The Namibian Competition Commission has increased the thresholds for mergers that are to be reported to the Commission.  A copy of the new thresholds can be downloaded from the following link: MERGER NOTICE THRESHOLDS IN NAMIBIA


12 January 2016

Namibia Reduces Corporate Tax Rate

Namibia has reduced its corporate tax rate to 32%.


11 January 2016

New Namibian Deeds Registries Act

The new Namibian Deeds Registries Act has been published.  

In order to download a copy of the Namibian Deeds Registries Act, Click on the following link: NAMIBIAN DEEDS REGISTRIES ACT


15 September 2015

Employment Services Act

The Employment Services Act has now become fully operational.  It appears as if the act is a further attempt by the Namibian Ministry of Labour and Social Welfare to convince the private sector not to employ new employees.  The Act creates an employment services bureau which is intended to function as a national recruitment agency.  The Act broadly regulates two groups: designated employers and private employment agencies.

 

With regards to Designated Employers the following is relevant to note:

  • A designated employer is an employer that employs more than 25 employees.
  • As from 25 September 2015 a designated employer in Namibia is required to:

a.       Notify the bureau that it is a designated employer.  This must be done as soon as possible after 25 September 2015 or when the enterprise employs its 25th employee.  The notice is done on a prescribed form and must be submitted at least 30 days before the employment of persons

b.      Report all vacancies and new positions that are created to the bureau.  This notice must include details of; the date when the position intends to be filled, the minimum qualifications required the number of persons to be appointed.  The notice must be given at least 14 days before the intended vacancy is advertised. 

c.       In terms of the regulations the bureau must refer employees to the designated employer within 14 days of receipt of the vacancy notice.  The employer must report to the bureau within 30 days of receipt of the refers from the bureau with regards to the employment decision that has been taken.

  • Application for exemption from the provisions of the Employment Services Act may be made.

With regards to Private Employment Agencies the following is important to note:

    •  All private employment agencies in Namibia are required to be registered.
    •  A private employment agency is prohibited from charging fees to a job-seeker.
    • Is prohibited from referring employees to a prospective employer if such employer has: outstanding compliance orders from the Labour Inspector, is not in good standing with the receiver of revenue or is not in compliance with the Affirmative Action Act. 


15 December 2014

New Sectional Titles Act Comes Into Operation


The Namibian Sectional Titles Act (2 of 2009) has come into operation.  The Sectional Titles Act allows for the division of buildings into sections and common property and the acquisition of separate ownership in sections coupled with joint ownership in common property. 

You are invited to contact our offices should you require further information regarding the establishment of a Namibian Sectional Title Development.

To download a copy of the Namibian Sectional Titles Act, The Rules of the Namibian Sectional Tiles Act or the Rules under which Namibian Sectional Titles are managed, click on the following links:

Namibian Sectional Titles Act

Namibian Sectional Titles Regulations

Rules For Sectional Titles in Namibia



16 December 2014

Domestic Worker Regulations


The Minister of Labour and Social Welfare has published regulations relating to the employment of domestic workers in Namibia.  The regulations set out the minimum wage, certain basic conditions of employment and a template employment agreement.  All domestic workers in Namibia are now required to have a written employment agreement.


Download a copy of the regulations containing the template employment agreement at the following link.



14 November 2014

Regulations were issued under the Agricultural (Commercial) Land Reform Act

The Namibian Minister for Land and Resettlement issued regulations under the Agricultural (Commercial) Land Reform Act in order to attempt to rectify the problems that were created by the amendment to the Act that became effective in March 2014.  The regulation provides that:

Section 17(1) and (2) of the Act [being the requirement that a waiver is to be obtained prior to the transfer of Agricultural Land in Namibia] does not apply where agricultural land is alienated in accordance with the administration of a deceased estate to an heir or legatee of such estate, except where that heir or legatee is a company or close corporation.

We are of the opinion that the Regulation is a half baked attempt to rectify a badly worded and ill conceived amendment to the Agricultural (Commercial) Land Reform Act



8 October 2014

Namibian Pension Funds Act Amended


The Namibian Pension Funds Act was amended to allow for pension funds to grant loans to its members.  The amendment allows a Namibian pension fund, to under certain circumstances grant loans to its members.   



8 October 2014

New Namibian Electoral Act Promulgated 

The new Namibian Electoral Act has been promulgated.  To download a copy of the Act, follow the link.



29 August 2014

Standards for Basic Bank Account Announced 

The Bank of Namibia has announced standards for a basic Namibian bank account.  The relevant regulations further regulate cash deposit fees for the basic bank account.  To download a copy of the regulations, follow the  link.




31 July 2014

Credit Bureau's in Namibia are now regulated. 

The Bank of Namibia have set out regulations supervising the operation of Credit Bureau's in Namibia.  The regulations were published under the authority of the Bank of Namibia Act.

Previously Credit Bureau's in Namibia were unregulated.  The objective of the regulations appear to be a desire to create a clear framework whereunder Credit Bureau's in Namibia operate. Follow the link to download a copy of these regulations:  Namibian Credit Bureau Regulations


16 April 2014

New Rules for High Court of Namibia become effective 

New Rules for the High Court of Namibia came into force on 16 April 2014.  The new rules will drastically change the nature of litigation proceedings in Namibia.  All defended matters are now immediately assigned to a managing judge.  The managing judge is the dominus litis and will manage the process whereunder pleadings and documents are to be filed.

The new Rules of the High Court of Namibia further allow for the electronic filing of court documents.

 

27 March 2014 
Tobacco Products Control Act of 2010 comes into operation on 1 April 2014 

The Tobacco Products Control act regulates smoking in public areas and further places certain specific requirements on the packaging and marketing of Tobacco products in Namibia. 

The act comes into operation on 1 April 2014, various parts of the act will however only become effective at a later point in time. It is important to note that every public place must display specific notices in terms of the 
Tobacco Products Control Act. The failure to display such a notice is a contravention of the Tobacco Products Control Act and carries penalties.  


Herewith a copy of the relevant notices: 

1.    Notice regulation 8

2.    Notice regulation 9


For further information on the act view an executive summary of the 
Tobacco Products Control Act



17 March 2014 
Amendment to the Agricultural (Commercial) Land Reform Act promulgated 


The Namibian Agricultural (Commercial) Land Reform Act allows for the state to have a preferential right to acquire agricultural land in Namibia. The act further limits the circumstances under which a foreign national are allowed to acquire agricultural land. 

The amended act seeks to ensure that various means by which the application of the act was circumvented is no longer possible. 

The amendment act has: 

- Broadened the definition of alienate to include any transaction in terms whereof shares (or members interest) in an entity that hold Namibian Agricultural Land is disposed of. A waiver for the minister is now required to transfer any interest in an entity that owns Namibian Agricultural Land. 

- Included a probation that requires the consent of the Minister prior to the registration of a usufruct over any Namibian Agricultural Land. The registration of usufructs was previously used to circumvent the provisions of the Act. 

- Included therein a provision that a waiver must be issued to sell the land to a specific buyer who must in most cases be a previously disadvantaged person. [We are of the opinion that this provision will lead to interesting litigation as it may be seen to infringe on various constitutional rights.] 

- Removed the authority of an executor of a deceased estate to sell Namibian Agricultural Land to a third party without a waiver. 


- Removed the authority of a liquidator to sell Namibian Agricultural Land to a third party without a waiver. And has further removed the authority of a creditor, to after having obtained judgment, sell Namibian Agricultural Land on auction. [We are of the opinion that this provision may be seen to unreasonably infringe on the rights of creditors, and we are of the opinion that this provision is open for attach on constitutional grounds.