STUDY GUIDE

MINING LAW
BACHELOR OF LAWS
PML 3870

Centre for Open, Distance and e-Learning

Materials Development and Instructional Design Department
Copyright
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Centre for Open, Distance and e-Learning

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Acknowledgements
The Centre for Open, Distance and e-Learning Materials Development and Instructional Design Department
wishes to thank the individuals mentioned below for their contribution to this study guide:

Dr Tapiwa V Warikandwa Author(s)

Professor SK Amoo Content Editor(s)

G Murangi Instructional Designer

Language Editor

G Uunona Quality Controller

 MINING LAW

Contents
About this study guide 1
How this study guide is structured .................................................................................... 1

Course overview 3
Welcome to Mining Law [PML 3870] .............................................................................. 3
Mining Law [PML 3870]—is this course for you? ........................................................... 3
Exit Learning Outcomes .................................................................................................... 3
Time frame ........................................................................................................................ 4
Study skills ........................................................................................................................ 4
Need help? ......................................................................................................................... 5
Assignments ...................................................................................................................... 5
Assessments ....................................................................................................................... 6

Getting around this study guide 6

Margin icons ...................................................................................................................... 6

Unit 1 4
Introduction and Background ............................................................................................ 7
Background………………. ..................................................................................... 9
Unit summary .................................................................................................................. 15
References ....................................................................................................................... 15

Unit 2 16
Relevant authorities & Legislation .................................................................................. 16
Introduction………………. ................................................................................... 16
Unit summary .................................................................................................................. 28
References ....................................................................................................................... 29

Unit 3 30
Mining Commissioner ..................................................................................................... 30
Introduction ............................................................................................................ 30
Unit summary .................................................................................................................. 33
References ....................................................................................................................... 34

Unit 4 35
Types of Mineral Rights in Namibia ............................................................................... 35
Introduction ............................................................................................................ 35
 Unit summary .................................................................................................................. 43
References ....................................................................................................................... 43

Unit 5 44
Restrictions on the exercise of the rights of mineral licence holders4Error! Bookmark not defined.
Introduction ............................................................................................................ 44
Unit summary .................................................................................................................. 49
References ....................................................................................................................... 50

Unit 6 51
Types of Mineral Licences in Namibia ........................................................................... 51
Introduction ............................................................................................................ 51
Unit summary .................................................................................................................. 60
References ....................................................................................................................... 61

Unit 7 62
Mine Rehabilitation in Namibia ...................................................................................... 62
Introduction ............................................................................................................ 62
Unit summary .................................................................................................................. 74
References ....................................................................................................................... 75

Unit 8 76
Indigenisation, social corporate responsibility and mining in Namibia .......................... 76
Introduction ............................................................................................................ 76
Unit summary ................................................................................................................ 104
References ..................................................................................................................... 107

Unit 9 109
Mining and the environment in Namibia ....................................................................... 109
Introduction .......................................................................................................... 109
Unit summary ................................................................................................................ 123
References ................................................................................................................... 1261

Unit 10 125
Small scale and artisanal mining in Namibia ................................................................ 125
Introduction .......................................................................................................... 125
Unit summary ................................................................................................................ 136
References ..................................................................................................................... 137

Annexure 138
 MINING LAW

About this study guide

Mining Law LPML 3870 has been produced by the Centre for Open, Distance
and e-Learning. All study guides produced by the Centre for Open, Distance and
e-Learning are structured in the same way, as outlined below.

How this study guide is

structured
The course overview
The course overview gives you a general introduction to the course. Information
contained in the course overview will help you determine:

▪ If the course is suitable for you.

▪ What you will already need to know.

▪ What you can expect from the course.

▪ How much time you will need to invest to complete the course.

The overview also provides guidance on:

▪ Study skills.

▪ Where to get help.

▪ Course assignments and assessments.

▪ Activity icons.

▪ Units.

We strongly recommend that you read the overview carefully before starting
your study.

The course content

The course is broken down into units. Each unit comprises:

▪ An introduction to the unit content.

1
About this study guide General introduction

▪ Unit outcomes.

▪ New terminology.

▪ Core content of the unit with a variety of learning activities.

▪ A unit summary.

▪ Assignments and/or assessments, as applicable.

▪ Answers to Assignment and/or assessment, as applicable

Resources
For those interested in learning more on this subject, we provide you with a list
of additional resources at the end of this study guide; these may be books,
articles or web sites.

Your comments
After completing Mining Law we would appreciate it if you would take a few
moments to give us your feedback on any aspect of this course. Your feedback
might include comments on:

▪ Course content and structure.

▪ Course reading materials and resources.

▪ Course assignments.

▪ Course assessments.

▪ Course duration.

▪ Course support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this course.

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 MINING LAW

Course overview

Welcome to Mining Law PML

3870
The course examines the law and practice relating to the ownership and
development of on-shore and off-shore mineral and petroleum resources
in Namibia, Africa and the rest of the world. It covers the development of
legislation with reference to exploration, extraction and the enforcement
of mining and petroleum interests. Community and social issues will be
discussed, including the relationship between mining and indigenous
people, environmental controls over mining production. The course will
also deal with international and national regulation to address climate
change, including legislation to encourage renewable energy resources.
The pre-colonial mining practices in Africa will also be covered as a way
of comparing them with contemporary mining practices and their impact
on African societies and the environment.

The Course will pay particular attention to amongst other issues:

Providing students with a basic understanding of the key legislation governing

the development of minerals and petroleum resources of Namibia, other African
countries and beyond. They include: The minerals (prospecting and mining) Act,
No 33 of 1992 as amended; The minerals policy of Namibia; The Petroleum
(Exploration and production) Act, 1991, as amended; The petroleum
(Exploration and production Act, Regulations No 190, Windhoek-23 September,
1999; The model petroleum agreement, 1998; The draft Petroleum Taxation Act

Exit Learning Outcomes

The exit learning outcomes for this course are to:

▪ Demonstrate an awareness of mining law (safety, mining leases etc).

▪ Recognise and appraise the factors contributing to safety & risk

management issues in specific mining-related processes.

3
Course overview General introduction

Exit Learning
▪ Recognise and appreciate the holistic nature of the mine management
Outcomes
process
▪ Identify the key stakeholders in a mining project and their respective
needs.
▪ Demonstrate an awareness of management theory and processes.
▪ Recognise the factors that motivate people’s behaviour in the mine
working environment.
▪ Apply the principal performance measures used in mine management.

Time frame
This is a year module. This means it will take you 28 weeks of study to
complete this course.

We expect you to spend at least 2 hours per week studying this course.
How long?

Study skills
As an adult learner your approach to learning will be different to that
from your school days: you will choose what you want to study, you will
have professional and/or personal motivation for doing so and you will
most likely be fitting your study activities around other professional or
domestic responsibilities.

Essentially you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to
time management, goal setting, stress management, etc. Perhaps you will
also need to re-acquaint yourself in areas such as essay planning, coping
with exams and using the web as a learning resource.

Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage
in that learning.

We recommend that you take time now—before starting your self-

study—to familiarize yourself with these issues. There is a number of
excellent resources on the web. A few suggested links are:

4
 MINING LAW

▪ http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills resources.
You will find links to study preparation (a list of nine essentials for a
good study place), taking notes, strategies for reading textbooks, using
reference sources, test anxiety.

▪ http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering” and so on).

▪ http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (“hands-on” learning), memory building,
tips for staying motivated and developing a learning plan.

The links listed above are our suggestions to start you on your way. At
the time of writing these web links were active. If you want to look for
more go to www.google.com and type “self-study basics”, “self-study
tips”, “self-study skills” or similar search words.

Need help?
For routine enquiries please contact the Student Support Department at
+264 61 206 3416.

For further assistance you can go to your nearest Regional UNAM

Help Centre.

Assignments

Please see tutorial letter for instructions on the submission of

assignments.

Assignments

5
Getting around this study guide General introduction

Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments

Getting around this study guide

Margin icons
While working through this study guide you will notice the frequent use of
margin icons. These icons serve to “signpost” a particular piece of text, a new
task or change in activity; they have been included to help you to find your way
around this study guide.

A complete icon set is shown below. We suggest that you familiarize yourself
with the icons and their meaning before starting your study.

Activity Additional Answers to Assessment

reading Assessments

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

Outcomes

Prescribed Recommended
Note Outcomes Reading website
it!/Warning

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 MINING LAW

References Reflection Study skills Summary

Terminology Tip Video

Unit 1

General introduction
Introduction
The purpose of this unit is to provide an overview of the module by
providing students with an overview of Mining Law. It is crucial for
students to understand how Mining Law fits into the law and practice in
Namibia, the Southern Africa Development Community, Africa and the
rest of the world, and how mining drives development in countries in the
world.
Mining Law examines the law and practice relating to the ownership and
development of on-shore and off-shore mineral and petroleum resources
in Namibia, Africa and the rest of the world. It covers the development of
legislation with reference to exploration, extraction and the enforcement
of mining and petroleum interests. Community and social issues will be
discussed, including the relationship between mining and indigenous
people, environmental controls over mining production. The course will
also deal with international and national regulation to address climate
change, including legislation to encourage renewable energy resources.
The pre-colonial mining practices in Africa will also be covered as a way
of comparing them with contemporary mining practices and their impact
on African societies and the environment.

Upon completion of this unit you should be able to:

7
Unit 1 General introduction

▪ Explain the role and significance of mineral resources to Namibia,

the Southern Africa Development Community (SADC), Africa and
the rest of the world;

Outcomes ▪ Identify the potential socio-economic benefits of the mining industry;

▪ Explain the role of foreign investment to mining in developing and

developed countries;

▪ Discuss the drawbacks of mining in Namibia and the rest of the world.

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta) 2015

A Stritter, “Mining Law 2018 – Law and regulations – Namibia,”

Prescribed reading International Comparative Legal Guides available at
https://iclg.com/practice-areas/mining-laws-and-regulations/namibia

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law, Environment,

Society and Politics in Historical and Multidisciplinary Perspectives (2017)

Chamber of Mines, “Namibian Mining: The Economic Stronghold,” 2006

available at
http://www.chamberofmines.org.na/files/2914/7092/7973/Namibian_Mining-
The_Economic_Stronghold1.pdf

M Forrest, M Jones and S Walker, “Namibia: Abundant exploration

opportunities,” 1997 Mining Journal 329, p. 16.

C Abankwah, “Companies explore copper opportunities in Namibia,”

Windhoek Observer, 20 September 2013, and H Vella, “Offshore Namibia:
braced for big finds?” Offshore Technology, 11 January 2018.

T Chidede and TV Warikandwa “Foreign Direct Investment and Zimbabwe’s

Indigenisation and Economic Empowerment Act: Friends or Foes?” 2017
Midlands State University Law Review 3, pp. 25-45

Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

Diamond Act 13 of 1999.
Mineral and Petroleum Resources Development Act 28 of 2002
Petroleum (Exploration and Production) Act 2 of 1991.
Additional reading
Minerals Development Fund of Namibia Act 19 of 1996.
National Equitable Economic Empowerment Bill of 2015 available at
http://www.lac.org.na/laws/NEEEF%20Bill%20V1%20110216.pdf

The Namibian Constitution of 1990

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 MINING LAW

1. Background
The Republic of Namibia is a mineral - rich country - It is especially well
endowed in hard minerals such as the following:
Diamonds, both on-shore and off-shore (submarine diamond mining)
especially along the Orange River in the southern border of Namibia with
South Africa;
Uranium: This strategic mineral resource has been regarded as a key
mineral in Namibia since the establishment of the Rossing mine in what
is now the Erongo region of the country by the Multinational
Corporation, Rio Tinto in 1966, in defiance of the UN Decree against the
exploitation of mineral resources in Namibia;
• Base minerals such as copper: at the Tsumeb mine which has
for many years produced copper to supply the Tsumeb copper
smelter; Other minerals such as gold, and coal are also found in
Namibia;
• Namibia also has proven offshore gas reserves: the kudu gas
field whose full development will result in a substantial energy
independence for the country;
• Petroleum: In recent years, the prospects of the country
discovering petroleum in commercially viable quantities have
brightened as many foreign oil companies have intensified their
exploration activities in the Exclusive Economic Zone (EEZ) of
Namibia.

1.1. The Potential of socio-economic benefits of

the mining industry
Source of national revenue through the provision of various forms of
taxation such as company tax, income tax and royalties;
Source of employment for the citizens of Namibia - However a
caution must be entered here as mining operations tend to be capital
intensive. This is especially the case in the oil and gas sub-sectors;
• Attraction of foreign investment into the Namibian economy;
The transfer of technology into the country through the training
of nationals;
• Development of local participation in the mining sector through
Black Economic Empowerment schemes (though in Namibia,
there is as yet no legislation to back up or regulate this practice
on the ground – the New Equitable Economic Empowerment Bill
is yet to be passed into law);

9
Unit 1 General introduction

• The mining industry is a major source of foreign exchange for the

country.

Activity 1

1. What is the role and significance of mineral resources to

Namibia, SADC, Africa and the rest of the world ?

2. Should there be a pro-indigenous regulation of the mining sector in

Namibia?

Write down your answers. You may share them with

your colleagues.

Feedback

1.2. Potential Drawbacks of the Mining

Industry
The mining industry potentially has a number of drawbacks which
mineral – rich countries must be alerted to. Some of these are the
following:

a) The Occurrence of the “Dutch Disease” or the “Resource Curse”

The resource curse refers to the situation where the discovery of

minerals or petroleum resources by a country usually a developing
country results in a marked or substantial economic dependency on
only or mainly the proceeds of that particular resource to the total
neglect of all other industries.

• Some examples of this phenomenon in Africa are: The Federal

Republic of Nigeria where the discovery and development of the
Petroleum industry in the 1960s - 1970s has resulted in the
dramatic shift away from other economically productive
activities such as agriculture.

• Before the discovery of petroleum, the country was well known

as a world exporter of groundnuts from Northern Nigeria (“the
Kano pyramids”), cocoa from Western Nigeria and palm oil from
Eastern Nigeria.

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 MINING LAW

• For over three decades, all these agricultural industries have

become inactive as the focus has shifted to petroleum.

• An important aspect of the resource curse is that the proceeds of

the natural resources are not utilised to develop other alternative
sources of national income to safeguard the country against the
future when these resources cease to exist; and

• In Africa other potential victims of the resource curse are Angola,

Gabon and Equatorial Guinea.

b) The phenomenon of corruption:

• Examples: The Federal Republic of Nigeria, Angola Cameroon

where there is no transparency or accountability of the national
income receipts from the oil resources of the country and also the
expenditure patterns of such proceeds.

c) The threat of environmental degradation:

• A Globally well-known case is the Niger Delta region of the

federal Republic of Nigeria where the discovery and
development of petroleum and gas has resulted in the pollution
and destruction of the environment of the oil producing
communities;

• Their previously fertile and productive lands have become

unproductive due to oil spills arising from oil producing activities
and oil pipe bursts;

• The fishing industry has ground to a halt due to the pollution of

the rivers and creeks of the area and also the sea;

• The environment has been polluted by the unregulated flaring of

associated gas.

d) Unemployment especially among the youth and social unrest:

• Again, the Niger Delta region of Nigeria is a perfect example of

this phenomenon. The economic neglect of this part of the
country, the environmental degradation have all combined to
spawn social unrest over the years leading to violent attacks on
the multinational oil companies and their workers resulting
sometimes in the taking of hostages and the disruption of oil
production and its export.

11
Unit 1 General introduction

1.3. The Principle of the Permanent Sovereignty over

Wealth and Natural Resources

The principle of Permanent Sovereignty over Wealth and Natural

Resources has now evolved into an important international legal
principle governing the ownership, control and development and
exploitation of the wealth and natural resources of states especially
of developing countries;

The Principle of Permanent Sovereignty over Wealth and Natural

Resources of states is the foundational principle of the economic
self- determination of the newly emerging independent states in
Africa, Asia and the Pacific.

The principle emerged as a counterpoint to the exploitation of the

wealth and natural resources of these states by companies based in
the metropolitan colonial powers which exercised hegemony over
these territories.

It was a direct challenge or response to the economic/ business

privileges monopolized by the colonial companies in the various
colonized territories under the regime of traditional concessions
which were granted to them with extremely favourable terms such
as the actual ownership of the natural resources of the territories in
which they operated;

These concessions were usually for long periods sometimes

extending to periods of over 60 years.

The principle evolved from the early 1950s in the United Nations
organs especially the General Assembly. The first United Nations
General Assembly (UNGA) resolution in which the principle was
enunciated was in 1952. This resolution emphasized the right of the
newly independent states to own, control and be able to dispose of
their wealth and natural resources;

An important milestone in the evolution of this principle is the

establishment of a United Nations General Assembly Committee to
conduct a comprehensive study of the principle. The work of this
Committee led to the adoption of UNGA Resolution 1803 (1960) on
permanent sovereignty over wealth and natural resources of states.

This resolution substantially elaborated on the principle to include

the following matters:

• The right of host states to admit multinational corporations

into their economies and grant them permits to develop their
natural resources subject to the legislative/regulatory
framework of the host state;

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 MINING LAW

• The right of host states to revise inequitable concession

agreements which were granted to multinational
corporations during the colonial period usually by the
metropolitan/colonial power. Many of these concession
agreements with respect to the natural resources of
colonized territories were of long periods ranging from 30 to
60 years. Under such agreements, the companies owned
their minerals/petroleum which they mined and were free to
dispose of them the way they deemed fit. These colonial
concessions also covered vast tracts of territory over which
they exercised unrestricted jurisdiction; the concessionaires
paid minimal tax to the colonial government which could
have used such tax revenue for the infrastructural
development of the colony.

• UNGA Resolution 1803 also stated the right of host states to

expropriate/nationalize their mineral resources which were
under foreign control subject to the payment of appropriate
compensation which for the first time stated a standard of
compensation different from the traditional standard
formulated by the US Secretary of State, Mr. Cordell Hull in
1938 i.e. that the compensation payable should be prompt,
adequate and effective.

This principle was further elaborated upon and incorporated into the UN
General Assembly document entitled the Charter of Economic Rights and
Duties of States in 1974. The Charter was adopted by a large majority of
the member states of the United Nations.

Other important international instruments into which the principle has

been incorporated are the following:

• Article I (2) of the International Covenant on Economic, Social

and Cultural Rights which provides that:

All peoples may, for their own ends, dispose of their natural
wealth and resources without prejudice to any obligations
arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In
no case may a people be deprived of its own means of
subsistence.

These provisions are stated verbatim in Article 1(2) of the sister

instrument of the International Covenant on Civil and Political Rights.

Regionally, the principle has also been incorporated into the African
Charter on Human and Peoples Rights, which is the foremost African
human rights instrument (Article 21). This article provides as follows:

13
Unit 1 General introduction

1. All peoples shall freely dispose of their wealth and

natural resources. This right shall be exercised in the
exclusive interest of the people. In no case shall a people
be deprived of it.

2. In case of spoliation (the action of ruining or destroying

something) the dispossessed people shall have the right
to the lawful recovery of its property as well as to an
adequate compensation.

3. The free-disposal of wealth and natural resources shall be

exercised without prejudice to the obligation of
promoting international economic cooperation based on
mutual respect, equitable exchange and the principles of
international law.

4. States parties to the present Charter shall individually

and collectively exercise the right to free disposal of their
wealth and natural resources with a view to strengthening
African unity and solidarity.

5. States parties to the present Charter shall undertake to

eliminate all forms of foreign exploitation particularly
that practised by international monopolies to enable their
peoples to fully benefit from the advantages derived from
their natural resources.

6. The principle of permanent sovereignty over wealth and

natural resources has over the decades influenced the
policies of many states, especially those in the
developing world. This is manifested in either states
expressly providing in their constitutions to the effect
that all natural resources including minerals and
petroleum are vested in the state and held in trust for the
people. Similar provisions are also stated in national
legislation.

7. The principle of permanent Sovereignty over wealth and

natural resources in the Republic of Namibia is best
reflected in Article 100 of the Constitution which
provides as follows:

Land, water and natural resources below and above the

surface of the land and in the continental shelf and within
the territorial waters and the exclusive economic zone of
Namibia shall belong to the state if they are not
otherwise lawfully owned.

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 MINING LAW

Unit summary
In this unit you learned about the introductory aspects of mining law in
Namibia with brief references to selected African examples. You also
learnt of the significance of mining to any country and its developmental
agenda. The unit also presented lessons on the drawbacks of mining in
Summary Namibia.

Further reference in this unit was made to the principle of Permanent

Sovereignty over natural resources and its localisation in Namibia
through Article 100 of the Namibia Constitution. What has been clearly
outlined in the Unit is that mining is fundamental to the growth and
development of any country; hence there should be concise steps taken to
harness the natural resources.

References
UNGA Resolution 1803 (1960)

Namibia Constitution of 1990

References
A Nhemachena and TV Warikandwa (eds) Mining Africa: Law,
Environment, Society and Politics in Historical and Multidisciplinary
Perspectives (2017)

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta)

2015
Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).
Diamond Act 13 of 1999.
Mineral and Petroleum Resources Development Act 28 of 2002
Petroleum (Exploration and Production) Act 2 of 1991.
Minerals Development Fund of Namibia Act 19 of 1996.
National Equitable Economic Empowerment Bill of 2015 available at
http://www.lac.org.na/laws/NEEEF%20Bill%20V1%20110216.pdf
Minerals Policy of 2002

15
Unit 2 Relevant authorities and Legislation

Unit 2

Relevant authorities and

Legislation
Introduction
In this unit, you are going to learn about the legislation of mining in Namibia.
You will also learn of the relevant authorities that play a central role in
overseeing the governance of the minerals sector and the exploitation of natural
resources in Namibia.

Upon completion of this unit you should be able to:

▪ Explain the regulation of mining in Namibia.

▪ Describe any other sources of law affecting the mining industry;

Outcomes ▪ Discuss the mechanics of acquisition of rights in Namibia

▪ Differentiate processing and beneficiation;

▪ List which Government body/ies administer the mining industry?

▪ Discuss foreign ownership and indigenous ownership requirements

and restrictions

Minerals (Prospecting and Mining) Act 33 of 1992

Environmental Management Act 7 of 2007

Prescribed reading Soil Conservation Act 76 of 1969

Hazardous Substance Ordinance 14 of 1974

Atmospheric Pollution Prevention Ordinance 11 of 1976

Prevention and Combating of Pollution of the Sea by Oil Act 6 of 1981

Forest Act 12 of 2001

Atomic Energy and Radiation Protection Act 5 of 2005.

Mines, Works and Minerals Ordinance 20 of 1968

Companies Act 28 of 2004

Diamonds Act 13 of 1999

16
 MINING LAW

2.1. Relevant Authorities and Legislation

Mining law in Namibia is mainly regulated by the Minerals (Prospecting and

Mining) Act 33 of 1992 (Minerals Act). 1 This Act deals with the granting of
access to mineral resources through various instruments, which are discussed
below.

2.1.1. Government body/ies administering the mining industry

in Namibia
The minerals industry in Namibia is administered by the Minister of
Mines and Energy, assisted by the Mining Commissioner and the
Minerals Board of Namibia.

2.1.2. Other sources of law affecting the mining industry

Aside from the Minerals Act, the exploitation of minerals is also

affected largely by the Environmental Management Act 7 of
2007 (EMA) and the Environmental Impact Assessment
Regulations passed in terms of this Act. In terms of the EMA, no
person may undertake a listed activity without an environmental
clearance certificate. Listed activities include mining and
quarrying activities. The minister of mines and energy may not
issue a mineral licence before the applicant has obtained an
environmental clearance certificate.

Various other laws might be applicable to the mining industry.

These include the Soil Conservation Act 76 of 1969, the
Hazardous Substance Ordinance 14 of 1974, the Atmospheric
Pollution Prevention Ordinance 11 of 1976, the Prevention and
Combating of Pollution of the Sea by Oil Act 6 of 1981, the
Forest Act 12 of 2001, and the Atomic Energy and Radiation
Protection Act 5 of 2005.

Finally, the mine health and safety regulations passed in terms of

the previous Mines, Works and Minerals Ordinance 20 of 1968 is
still applicable to the minerals industry.

1
Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

17
Unit 2 Relevant authorities and Legislation

1. Which laws regulate mining practices and/or activities in

Namibia?

Activity 2. Which Government body/ies administer the mining industry?

3. Describe any other sources of law affecting the mining industry

1. See section 2.1 above.

Feedback 2. See section 2.1.1 above.

3. See section 2.1.2 above.

2.2. Acquisition of Mining Rights in Namibia

a) Reconnaissance - The Minerals Act provides for the
granting of reconnaissance licences. These licences authorise
the holder thereof to conduct reconnaissance operations,
which are operations carried on in a general search for any
mineral or group of minerals by means of aerial sensing
techniques, including geophysical surveys, photogeological
mapping or imagery carried out from the air. It is valid for a
maximum period of six months and may not be renewed. It
may, however, be extended once for a period of six months.

b) Prospecting/Exploration - Prospecting operations are

conducted in terms of non-exclusive and exclusive
prospecting licences. “Prospecting” means intentionally
searching, whether by way of excavations or otherwise, for
any mineral or group of minerals with a view to delineating
or evaluating deposits or concentrations of any such mineral
or group of minerals. A non-exclusive prospecting licence is
valid for a period of one year and is not renewable. An
exclusive prospecting licence, on the other hand, is valid for
a period of three years and may be renewed twice for a
period of two years per renewal. Further renewals are
possible only if the Minister deems it desirable in the
interests of the development of the mineral resources of
Namibia.

c) Conducting mining - Mining operations may be conducted

in terms of a mining claim or a mining licence. The holder of
a non-exclusive prospecting licence may peg a claim, which

18
 MINING LAW

may not be bigger than three hundred metres by six hundred

metres. This claim is then registered with the Ministry,
which entitles the holder to conduct mining operations on the
mining claim. A claim is valid for three years and may be
renewed for two years at a time. On the other hand, the
holder of an exclusive prospecting licence may apply for a
mining licence over the prospecting area. A mining licence
is valid for a period of twenty-five years and may be renewed
for further periods of fifteen years per renewal.

d) Are different procedures applicable to different minerals

and on different types of land?

No, the same procedure applies in respect of all minerals.

However, a decision taken by Cabinet in April 2011 vested
all rights in respect of strategic minerals in the State-owned
mineral company, Epangelo Mining Limited (Pty) Ltd. The
minerals affected by this decision include uranium, gold,
copper, coal, diamonds and rare earth metals.

In Namibia, no distinction is made between prospecting and

mining operations on state land and prospecting and mining
operations on private land.

e) Are different procedures applicable to natural oil and

gas?

Yes, natural oil and gas (“petroleum”) is dealt with in terms

of the Petroleum (Exploration and Production) Act 2 of 1991.

2.3. Foreign Ownership and Indigenous Ownership

Requirements and Restrictions

a) Are there special rules for foreign applicants?

There are no specific rules for foreign applicants. However,
in terms of the Foreign Investment Act 27 of 1990, it may be
a condition for the granting of a licence or authorisation or an
agreement for the granting of rights over natural resources
that the applicant shall have to accommodate the state, as
joint holder or shareholder. Furthermore, in terms of the
Minerals Act, the Minister may grant a licence, or the
renewal of a licence, subject to such terms and conditions as
he may deem necessary.

19
Unit 2 Relevant authorities and Legislation

In the light of the above, licences are often granted subject to

the condition that there must be some local ownership (which
can include joint holding with Epangelo).

b) Are there any change of control restrictions applicable?

It is a standard term and condition of a mineral licence that
the holder thereof notifies the Commissioner of a change of
the beneficial owner of more than five (5) per cent of the
shareholding of the holder.

c) Does the State have free carry rights or options to acquire

shareholdings?
This is not regulated by statute. However, this will depend
on the negotiations between the parties. For example, it may
be agreed between the parties that Epangelo receives free
carry rights for the exploration phase.

d) Are there restrictions on the nature of a legal entity

holding rights?
No, licences may be held by natural persons above the age of
eighteen or companies. A “company” means a company as
defined in the Companies Act 28 of 2004 (which includes an
external company) or a juristic person established by, or
under, any law in force in Namibia.

2.4. Processing and Beneficiation

a) Are there special regulatory provisions relating to

processing and further beneficiation of mined minerals?
The Minister may, before a mineral licence is issued and at
the request of the applicant, enter into an agreement with the
applicant which may contain conditions relating to the
processing, whether wholly or partly, within Namibia of any
mineral or group of minerals found, won or mined by the
holder of a mineral licence in the course of any prospecting
operations or mining operations. This is, however, not
compulsory.
Specific rules apply to diamonds. These rules are contained
in the Diamonds Act 13 of 1999 and the Regulations passed
in terms of this Act.

b) Are there restrictions on the export of minerals and levies

payable in respect thereof?
Certain limitations exist on the export of source material. No
person may, except with the written permission of the

20
 MINING LAW

Minister, export any source material from Namibia. The

exportation of diamonds is also strictly regulated in terms of
the Diamonds Act 13 of 1999 and the Regulations passed in
terms of this Act.

2.5. Transfer and Encumbrance

a) Are there restrictions on the transfer of rights to conduct

reconnaissance, exploration and mining?
Reconnaissance licences and non-exclusive prospecting
licences are not transferable. On the other hand, mining
claims, exclusive prospecting licences and mining licences
(collectively referred to as “mineral licences”) may not be
transferred without the consent of the Minister. Furthermore,
no interest in a mineral licence may be granted, ceded or
assigned and no person may be joined as a joint holder of a
mineral licence without the consent of the Minister.

b) Are the rights to conduct reconnaissance, exploration and

mining capable of being mortgaged to raise finance?
Security over a mining interest is possible with the consent of
the Minister. Security can take several forms, depending on
what the subject of the security is.

2.6. Dealing in Rights by Means of Transferring Subdivisions,

Ceding Undivided Shares and Mining of Mixed Minerals

a) Are rights to conduct reconnaissance, exploration and

mining capable of being subdivided?
It is possible, as long as you have the written consent of the
Minister.

b) Are rights to conduct reconnaissance, exploration and

mining capable of being held in undivided shares?
Joint holding in a mineral licence is possible. Persons either
must apply jointly or, if the licence is held by one person, a
joint holder may only be added with the permission of the
Minister.

c) Is the holder of a primary mineral entitled to explore or

mine for secondary minerals?

21
Unit 2 Relevant authorities and Legislation

A holder of a licence is only entitled to explore for, or mine,

such minerals or group of minerals in respect of which the
licence was granted. The Minerals Act divides minerals into
eight groups: base and rare metals; dimension stone;
industrial minerals; non-nuclear fuel minerals; nuclear fuel
minerals; precious metals; precious stones; and semi-precious
stones. An application for a mineral licence may be made in
respect of any one or more groups of minerals and, once
granted and issued, the holder may only explore for and mine
minerals in the group(s) in respect of which the licence was
granted. The holder must notify the Commissioner if he
discovers a mineral other than a mineral in respect of which
the licence was granted.

d) Is the holder of a right to conduct reconnaissance,

exploration and mining entitled to exercise rights also
over residue deposits on the land concerned?
This is not that clear in the Minerals Act. The rights granted
in terms of the respective licences may only be exercised in
respect of substances that fall under the definition of
“mineral”. A “mineral” is defined as any substance, whether
in solid, liquid or gaseous form, occurring naturally in, on, or
under any land and having been formed by, or subjected to, a
geological process. It may therefore be argued that
substances found in residue stockpiles (which in the Minerals
Act fall under the definition of “waste”) are excluded from
the Minerals Act, as these substances no longer occur
naturally.

e) Are there any special rules relating to offshore

exploration and mining?
No. The same framework applies for onshore and offshore
regimes. However, offshore exploration and mining may be
affected by other legislation as well, specifically legislation
dealing with fisheries and marine resources.

2.7. Rights to Use Surface of Land

a) What are the rights of the holder of a right to conduct

reconnaissance, exploration or mining to use the surface
of land?
The holder of a licence may carry out such operations
authorised by the licence on, or under, the land in respect of
which the licence was granted. If the holder is for any reason
prevented by the owner of private land from entering the land
in order to exercise his rights in terms of his licence, he may
apply to the Minerals Ancillary Rights Commission to be
granted those rights.

22
 MINING LAW

b) What obligations does the holder of a reconnaissance

right, exploration right or mining right have vis-à-vis the
landowner or lawful occupier?
The holder of a mineral licence may exercise any rights
granted to him reasonably and in such manner that the rights
and interests of the owner of any land to which such licence
relates are not adversely affected, except to the extent to
which such owner is compensated. Furthermore, before
entering any private land and exercising any rights on private
land, the holder must enter into an agreement with the owner
of the land which must provide for compensation to be paid
by the holder to the owner for the use of the land.

c) What rights of expropriation exist?

Article 16 of the Constitution of the Republic of Namibia
deals with the constitutional right to property and
expropriation. It states that all persons have the right in any
part of Namibia to acquire, own and dispose of all forms of
immovable and movable property individually or in
association with others and to bequeath their property to their
heirs or legatees. Namibian courts have held that “property”
includes incorporeal property as well (and therefore may
include mineral licences). This article is not limited to
Namibian citizens only but guarantees the right to property of
all persons in Namibia.

This fundamental right to property is, however, not

unlimited. Article 16 goes further to state that Parliament
may, by legislation, prohibit or regulate as it deems expedient
the right to acquire property by persons who are not
Namibian citizens. Article 16 further states that the State or a
competent body or organ authorised by law may expropriate
property in the public interest subject to the payment of just
compensation, in accordance with the requirements and
procedures to be determined by an Act of Parliament.

2.8. Environmental

a) What environmental authorisations are required in order

to conduct reconnaissance, exploration and mining
operations?
In terms of the Environmental Management Act 7 of 2007,
the Minister of Mines and Energy may not issue a mineral
licence until the applicant has been furnished with an
environmental clearance certificate. A person wishing to

23
Unit 2 Relevant authorities and Legislation

apply for an environmental clearance certificate must lodge

an application with the Minister of Mines and Energy, who is
designated as the competent authority in terms of the
Environmental Management Act. The applicant must then
hold public consultation, draft a scoping report, and give
interested and affected parties an opportunity to comment.
The results of the public consultation, scoping report, a
management plan and all comments and replies thereto must
then be lodged with the minister of mines and energy, who
must then forward this to the environmental commissioner.
The environmental commissioner can then either issue the
environmental clearance certificate or request the applicant to
conduct an environmental impact assessment before the
clearance certificate is issued.
In terms of the Minerals Act, an environmental impact
assessment study must be furnished to the Ministry of
Environment before a mining project can proceed. In terms
of the regulations to the Environmental Management Act,
where an assessment is required in terms of any other law,
and that other law or policy requires that information must be
submitted or processes must be carried out that are
substantially similar to information or processes required in
terms of these regulations of the Environmental Management
Act, the Minister of Environment and Tourism must take
steps to enter into a written agreement with the authority
responsible for administering the law or policy (such as the
Minister of Mines and Energy) in respect of the coordination
of the requirements of the law, policy and regulations passed
in terms of the Environmental Management Act to avoid
duplication in the submission of such information or the
carrying out of such processes.
The whole process will take about two to three months.

b) What provisions need to be made for the closure of

mines?
The Minerals Act provides that the holder of a mineral
licence must take all steps to the satisfaction of the minister
to remedy any damage caused by any mining activities. It is,
however, not unusual in the case of larger mining operations
for the minister to demand guarantees that could be used by
the Ministry to remedy damage caused by mining activities.

2.9. Health and Safety

a) What legislation governs health and safety in mining?

The health and safety regulations passed in terms of the
Labour Act 6 of 1992 (which are still applicable under the
Labour Act 11 of 2007) apply in general. Furthermore, mine

24
 MINING LAW

health and safety regulations were passed in terms of the

previous Mines, Works and Minerals Ordinance 20 of 1968.
These regulations are still in force in terms of the Minerals
Act and will remain in force until they are repealed. New
regulations have been drafted but are not yet in force.

b) Are there obligations imposed upon owners, employers,

managers and employees in relation to health and safety?
Employers are under the obligation to provide safe working
conditions. There may also be liability for owners and
employers in terms of common law.

2.10. Administrative Aspects

a) Is there a central titles registration office?

Namibia has a central Deeds Registries Office, but mineral
titles are not registered there. The Ministry of Mines and
Energy keeps a record of the mineral titles.

b) Is there a system of appeals against administrative

decisions in terms of the relevant mining legislation?
Any person who feels aggrieved with any action or decision
taken or made by the Commissioner in terms of any
provision of the Minerals Act, may, within 30 days from the
date on which such action or decision was made known to
such person, lodge an appeal against any such action or
decision, and thereupon the Minister may confirm, set aside,
or amend any such action or decision. Furthermore, the
Commissioner and the Minister are administrative bodies and
any decision taken by them may be taken on review to the
High Court of Namibia. The right to fair and reasonable
administrative justice is guaranteed in terms of Article 18 of
the Constitution of the Republic of Namibia, 1990.

2.11. Constitutional Law

a) Does the constitution of Namibia have an impact upon
rights to conduct reconnaissance, exploration and
mining?
The Constitution of the Republic of Namibia of 1990 is the
supreme law of Namibia. In terms of Article 100 of the
Constitution, all natural resources in, on or under the land
vest in the State.

25
Unit 2 Relevant authorities and Legislation

b) Are there any State investment treaties which are

applicable?
Namibia has signed Bilateral Investment Treaties with
Austria, France, Germany, the Netherlands, Spain and
Switzerland.

2.12. Taxes and Royalties

a) Are there any special rules applicable to taxation of

exploration and mining entities?
Mining companies (other than diamond mining companies)
must pay income tax at a rate of 37.5 per cent on its taxable
income. The rate for diamond mining companies is 50 per
cent. Other companies must pay income tax at a rate of 33
per cent.
A recent amendment to the Income Tax Act 24 of 1981 (the
Income Tax Third Amendment Act 15 of 2011) introduces a
tax on income from the alienation of a right or licence to
explore, mine, or retrieve natural resources in Namibia,
irrespective of where the transaction is concluded or where
the payment is made. This includes income on the sale of
shares in companies that hold such a right.

b) Are there royalties payable to the State over and above

any taxes?
The State is granted wide discretion with regard to the rate at
which royalties are to be imposed. The Minerals
(Prospecting and Mining) Amendment Act (the Amendment
Act) amends the existing legislation by deleting the
maximum percentage of royalties that the Minister can
charge on all minerals excluding precious stones and
dimension stones and introduces the possibility of a windfall
royalty. The Amendment Act, therefore, confers discretion
on the Minister to levy a windfall royalty on the holder of a
mining claim, a non-exclusive prospecting licence or a
mineral licence, if there is an increase in the market price or,
alternatively, mining operations are made more profitable by
new technology or any other circumstances. These
amendments concerning windfall taxes are applicable to all
minerals. The Amendment Act also introduces a new type of
royalty in respect of all minerals other than precious stones
and dimension stones. It is not certain what the nature of this
royalty is, but it could possibly be a penalty royalty.

26
 MINING LAW

According to section 114 of the Minerals Act, a holder of a

mining claim, a non-exclusive prospecting licence or a
mineral licence is required to pay royalties to the
Commissioner for the benefit of the State Revenue Fund. A
holder in respect of any rough or uncut mineral of the
precious stones group shall pay a royalty at a rate of 10 per
cent of the market value. A holder in respect of any rough or
unprocessed mineral of the dimension stone group shall pay a
royalty at a rate of 5 per cent of the market value. A holder
in respect of any other mineral shall pay a royalty at such rate
as may be determined by the Minister from time to time by
notice in the Government Gazette.
The Amendment Act introduces a windfall royalty, payable
at the discretion of the Minister. The Minister may levy such
a royalty upon the holder of a mining claim, a non-exclusive
prospecting licence or a mineral licence in respect of any
mineral if, in the opinion of the Minister: (1) the market
prices that can be obtained for such mineral have increased to
such an extent that the operations have become considerably
more profitable than similar operations under normal
circumstances; or (2) the deployment of new technology or
any other circumstances have made the operations in
question considerably more profitable than they are under
normal circumstances. This section does, however, contain
certain safeguards to curtail the discretion of the Minister.
The Minister may only impose the royalty if: (1) he or she
has informed the holder in writing of his/her intention to
impose a windfall royalty; and (2) he or she has afforded the
holder the opportunity within such reasonable period as may
be specified in such notice to make representations and
proposals in relation to any matter relating to such intention
to impose windfall royalties; and (3) he or she has taken into
account such representations and proposals. If the Minister
has levied a windfall royalty upon a holder, such holder may
at any time make representations to the Minister as regards
such royalty if the circumstances have changed or new
information has come to the knowledge of such person.
A royalty, in addition to the compulsory royalty, is created by
the Amendment Act. Despite the sloppy drafting, it seems as
if this section only applies to any mineral excluding precious
stones and dimension stone. What the exact nature of this
new type of royalty is, is unclear. It might be a type of
penalty royalty. The rate at which this type of royalty will be
imposed lies within the discretion of the Minister. The

27
Unit 2 Relevant authorities and Legislation

Minister may determine different rates in respect of different

classes of minerals, but also in respect of different holders of
the same class of minerals.
Royalties are calculated based on the market value, and the
determination of market value is prescribed by the Minerals
Act.

2.13. Cancellation, Abandonment and Relinquishment

a) Are there any provisions in mining laws entitling the

holder of a right to abandon it either totally or partially?
In terms of the Minerals Act, the holder of a mining claim or
a mineral licence may abandon the claim area or
reconnaissance, prospecting, retention or mining area to
which the claim or licence relates. The Minerals Act does
not make provision for partial abandonment of an area.

b) Are there obligations upon the holder of an exploration

right or a mining right to relinquish a part thereof after a
certain period of time?
There is no such obligation, although the Minister may
require that the holder relinquish a part of the area when the
holder’s licence is renewed.

c) Are there any entitlements in the law for the State to

cancel an exploration or mining right on the basis of
failure to comply with conditions?
The Minister may cancel a mineral licence if the holder fails
to comply with the provisions of the Minerals Act or a
condition of the licence. Before cancelling the licence,
however, the Minister must give notice to the holder of his
intention to cancel the licence. The notice must set out the
grounds for cancellation and must give the holder 30 days to
make representations to the Minister why the licence must
not be cancelled.

Unit summary
In this Unit you learnt of the different pieces of legislation which regulate
mining activities in Namibia. You also learnt of the administrative bodies
which administer mining activities in Namibia.

28
 MINING LAW

Summary What is evident from this Unit is that Namibia has a comprehensive body
of legislation that regulates mining activities in Namibia. It is also evident
that mining activities are regulated by cross cutting pieces of legislation
which include environmental laws, labour laws and company laws
amongst other legislative regimes. In principle, mining law is thus an
interdisciplinary and multidisciplinary subject. For further reading and
engagement with the subject, look into matters pertaining to regional and
local rules and laws.

References
Minerals (Prospecting and Mining) Act 33 of 1992

Environmental Management Act 7 of 2007

References Soil Conservation Act 76 of 1969

Hazardous Substance Ordinance 14 of 1974

Atmospheric Pollution Prevention Ordinance 11 of 1976

Prevention and Combating of Pollution of the Sea by Oil Act 6 of 1981

Forest Act 12 of 2001

Atomic Energy and Radiation Protection Act 5 of 2005.

Mines, Works and Minerals Ordinance 20 of 1968.

29
Unit 3 Relevant authorities and Legislation

Unit 3
The Mining Commissioner

Introduction
This Unit will outline the process of appointment of the mining commissioner,
his/or her general powers. The Unit will also detail matters related to the
preservation of secrecy and limitation of liability in the course of the mining
commissioner’s execution of duty.

Upon completion of this unit you should be able to:

▪ Describe the duties of the mining commissioner in Namibia;

▪ Discuss the process of appointment of the mining commissioner in

Namibia;
Outcomes
▪ Explain limitation of liability with regards to the mining
commissioner;

Minerals (Prospecting and Mining) Act 33 of 1992

National Policy on Prospecting and Mining in Protected Areas 2018 -

2022
Prescribed reading

3.1. Appointment of the Mining Commissioner

The Minister of Mines & energy shall appoint an officer called the mining
Commissioner who will exercise the powers and duties conferred on him by the
provisions of the Act or conferred on him by the Minister himself.2

In the execution of his duties, the mining Commissioner shall be assisted by such
officers who may be designated by the permanent Secretary. These officers will
perform any duties delegated or assigned to them by the Mining Commissioner. 3

2
Section 4(1) of the Minerals Act.

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 MINING LAW

3.2. General Powers of the Mining Commissioner4

In order to perform his/her functions and duties, the Mining Commissioner is
invested with the following broad powers:

In the performance of any of his/her duties under the Act, the Commissioner or
any officer authorized by him may at all reasonable times enter any land where
the following mining operations are taking place: reconnaissance operations;
prospecting operations or mining operations are taking place or are about to take
place (Section 5(1)(a) of the Minerals Act).

He/she may take any samples of any mineral or group of minerals from any land
or works referred to above for the purposes of assessing its mineralogical content
or quality; testing or marketability survey (Section 5(1)(b) of the Minerals Act).

He/she may seize any sample referred to above in paragraph (b), or any book,
record, document which in his opinion may be used as evidence in connection
with the commission of any offence committed under the Act.

He/she may inspect any books or records or documents make extracts therefrom
in relation to any operations or accessory works referred to in paragraph (a)
(Section 5(1)(e) of the Minerals Act).

He/she may conduct any investigations and inquiries which may be necessary to
determine whether or not the provisions of the Act or any term or condition,
order or directive determined under it is being complied with (Section 5(1)(e) of
the Minerals Act).

The Commissioner or any officer designated by him/her must identify

himself/herself to any holder of a non-exclusive prospecting license, mining
claim, mineral licence, the owner or occupier of any land, or any person in-
charge of such land or place or accessory works, or the owner of any mineral
samples, record, books, or documents which are to be taken. The self-
identification must take place before any of the above powers are exercised by
the Commissioner (Section 5(2)(a).

Where any mineral sample, book, record or document has been taken by the
Commissioner or any officer authorized by him, a receipt therefor must be issued
to the person from whom these have been taken (Section 5(2)(b) of the Minerals
Act).

3
Section 4(2) & (3) of the Act.
4
See Section 5(1)-(4) of the Minerals Act.

31
Unit 3 Relevant authorities and Legislation

Where any seized mineral sample has not been used as evidence in connection
with the commission of any offence under the Act within a reasonable time, and
on lodging such a claim by the owner of the sample, it must be returned to him or
compensation based on the market value of the sample must be paid to him
(Section 5(C) and (d) of the Minerals Act).

In performing any of his/her duties, the Commissioner or any officer authorized

by him/her is vested with the discretion to consult or where necessary be
accompanied by any person with expert knowledge of any matter he is dealing
with (Section 5(3) of the Minerals Act).

In performing any of his/her duties, the Act has imposed a broad duty of co-
operation and the availing of any facilities or assistance on the following
persons:

• the holder of a non-exclusive prospecting licence, a mining claim or a

mineral licence, the owner or occupier of any land or place of accessory
works, the owner of any books, record or documents (Section 5(4)(a) of
the Minerals Act).

Any person who contravenes the above preceding section or fails to comply with
the provisions of paragraph (a) commits an offence and on conviction will be
liable to pay a fine not exceeding N$8,000.00 or to a term of imprisonment not
exceeding 12 months or both (Section 5(4)(b) of the Minerals Act.

The preservation of secrecy and confidentiality by the commissioner and staff in

handling mining matters under the Minerals Act is dealt with under Section 6(1)-
(2).

1. Discuss the powers of the mining commissioner in terms of the

relevant provisions of the Minerals Act?

Activity 2. Explain the preservation of secrecy and confidentiality by the

commissioner and his staff as stipulated in the Minerals Act?

1. See section 5(1) and 5(2) of the Minerals Act

2. See section 6 of the Minerals Act

Feedback

3.3. Prohibition of certain officers on holding certain

interest in mineral licences
The Commissioner or any other officer employed in the Ministry of Mines and
Energy, whether or not engaged in carrying out the provisions of this Act and
any other officer engaged in carrying out the provisions of this Act, shall not –

32
 MINING LAW

a) acquire, whether directly or indirectly, any right or interest in any

non-exclusive prospecting licence, mining claim or mineral licence;

b) acquire or hold any share, as defined in section 1 of the Companies

Act, 1973 (Act 61 of 1973), or interest in a company which is the
holder of a non-exclusive prospecting licence, a mining claim or a
mineral licence.

c) (2) For the purposes of paragraph (b) of subsection (1), the

acquisition or holding of a share, as defined in section 1 of the
Companies Act, 1973 (Act 61 of 1973) [The Companies Act 61 of
1973 has been replaced by the Companies Act 28 of 2004], or
interest in a company by the husband or wife of the Commissioner
or an officer referred to in that subsection, shall be deemed to be an
acquisition or holding by the Commissioner or such officer, as the
case may be.

d) (3) Any document or transaction purporting to grant any right or

interest referred to in paragraph (a) of subsection (1) upon, or any
share certificate or other document purporting to vest any shares or
interest referred to in paragraph (b) of that subsection in, the
Commissioner or such officer shall be null and void.

e) (4) Any person who contravenes or fails to comply with the

provisions of subsection (1) shall be guilty of an offence and on
conviction liable to a fine not exceeding R8 000 or to imprisonment
for a period not exceeding 12 months or to both such fine and such
imprisonment.

3.4. Limitation of Liability

No compensation shall be payable by the State or by the Commissioner

or any other officer employed in carrying out the provisions of this Act
in respect of any act done in good faith under this Act.

Unit summary
In this Unit, you learnt about the powers, duties and/or functions of the
Mining Commissioner. The Mining Commissioner is a crucial
administrative official who ensures that mineral resources are exploited in
a legal manner in the best interests of the country. The Mining
Summary Commissioner plays a significant role in balancing the interests of the
society, investors and the government.

33
Unit 3 Relevant authorities and Legislation

References
Minerals (Prospecting and Mining) Act 33 of 1992

References National Policy on Prospecting and Mining in Protected Areas 2018 –

2022

Companies Act 28 of 2004

34
 MINING LAW

Unit 4
Types of Mineral Rights in
Namibia

Introduction
All rights in relation to minerals in Namibia are vested in the state,
notwithstanding the fact that the ownership of the land on, in or under which the
mineral or group of minerals may be found is owned by another person.

The bundle of mineral rights referred to under the Act includes reconnaissance,
prospecting, mining, sale or disposal of and the exercise and control of minerals
or group of minerals.5

There is a general prohibition on the carrying out of various mining operations in

Namibia without the required licence.

Similarly, there shall be no transfer, grant , cession or assignment of any interest

in such licence or the addition of any person as a joint holder of any such mining
licence without the necessary permission issued or obtained in accordance with
the provisions of the Act.

Consequently, no person shall carry on any reconnaissance, prospecting or

mining operations in Namibia except in accordance with the terms of a non-
exclusive prospecting licence, a mining claim or a mineral licence issued under
the Act;

No person may transfer, grant, or cede any of the above interests in minerals or
join another person as an interest holder except in writing and only after the
written approval by the Minister; (Section 3(1) (a) & (b) of the Minerals Act).

Any contravention of the above provisions shall be a criminal offence, liable to a

fine not exceeding N$100,000.00 or a term of imprisonment not exceeding five
years or both (Section 3(2)).

Upon completion of this unit you should be able to:

▪ Discuss the mineral rights regime of Namibia

▪ Discuss the effect of mineral rights on land ownership in Namibia

▪ know who has the right to access mineral rights in Namibia

5
See Part II, Section 2 of the Minerals Act.

35
Unit 4 Relevant authorities and Legislation

Outcomes

Minerals Act 33 of 1992

Prescribed reading

4.1. Key mineral rights in Namibia

The following terms are fundamental to the mineral rights regime of Namibia:

• Non-Exclusive Prospecting Licences (NEPL): any person may Apply

for a non-exclusive Prospecting licence, provided, in the case of a
natural person, such person has reached the age of 18 years. The licence
is valid for 6 months and its non- renewable.

• Mining Claims (MC): Available only to Namibian citizens for the

development of small-scale mining. Mining claims are valid for 3 years
and 2-year extension periods are possible provided that the claim is
being developed or worked. Up to a maximum of ten claims can be held
at any one time.

• Reconnaissance Licence (RL): Designed for regional, mainly remotely

sensing exploration, a reconnaissance licence is valid for six months on
a non-renewable basis. This licence facilitates the identification of
exploration targets.

• Exclusive Prospecting Licences (EPL): This 3-year licence allows

systematic prospecting in areas of up to 1,000 km. It gives exclusive
exploration rights to the land and may be extended twice for two-year
periods if demonstrable progress is shown. Renewals beyond seven
years require special approval from the Minister.

• Mineral Deposit Retention Licence (MDRL): This allows an

exploration company in certain circumstances to retain tenure on a
prospecting licence, mining licence or mining claim without mining
obligations. It is valid for five years, with two-year renewal periods.
The licence holder must, however, meet work and expenditure
obligations and submit regular project reviews.

• Mining Licences (ML): This gives the holder the exclusive mining
right in the licence area for a period of 25 years or the life of the mine,
with renewals valid for 15-year periods. The holder is required to
demonstrate the financial and technical ability to develop and operate a
mine.

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 MINING LAW

• Transfers/Joint ventures (JV): Applicable to all mineral licences

except the NEPL.

• Amendments: involves addition of commodity group and

increase/decrease in area size. Applicable to all mineral licences except
the NEPL.

• Export permits: issued in respect of mineral export outside of

Namibia.

• High Value Mineral permit (HVM): the permit is to sell and buy
minerals.

1. Explain the following concepts:

a) Mining claim
Activity
b) Exclusive prospecting licence

c) Mineral deposit retention

d) Mineral licence

e) Mining licence

f) Reconnaissance licence

g) Reconnaissance operations

h) Prospecting operations

37
Unit 4 Relevant authorities and Legislation

(a) A mining claim refers to an area of land which has been pegged off in
accordance with the provisions of Part VI of the Minerals Act.

(b) An exclusive prospecting licence - refers to such licence issued

Feedback pursuant to the provisions of Section 70 of the Minerals Act; It includes
the renewal of such a licence;

(c) A mineral deposit retention - licence means a licence issued pursuant

to the provisions of Section 81 of the Minerals Act. It includes the
renewal of such a licence.

(d) The term mineral licence - refers to the following licences:

reconnaissance licence, exclusive prospecting licence, mining licence or
a mineral deposit retention licence or the renewal of any of these
licences.

(e) A mining licence - refers to a licence issued under the provisions of

Section 93 of the Minerals Act and includes its renewal.

(f) A reconnaissance licence - refers to a licence issued under the

provisions of Section 62 of the Minerals Act and includes its renewal;

(g) Reconnaissance operations - refer to any operations carried on in a

general search for any minerals or group of minerals. Such a search may
be conducted by aerial sensing techniques, aerial photographical
techniques carried out from the air.

(h) Prospecting operations - this term refers to various ground operations

which aimed at accessing, extraction or the winning of any mineral for
the purposes of mineralogical examination, assaying or testing the
mineral composition or the conducting of marketing surveys.

4.2. Grant and Transfer of Mineral Licences

i. The general legal provisions governing the grant, transfer and

assignment of all mineral licences and interests are stated in Part VIII,
sections 46 -57 of the Minerals Act as amended.

ii. No mineral licence shall be approved and granted, transferred, ceded or

assigned to any other person apart from the following :

iii. A company; OR a Namibian citizen who has reached the age of 18

years and who , in the opinion of the Minister is a fit and proper person
- the criteria for making this ministerial determination have not been
clearly spelt out in the Act.

iv. Furthermore, no person who does not qualify above shall be a joint
holder of any mineral licence (Section 46( a) and ( b) of the Minerals
Act).

4.3 Application for Approval of Grant and Transfer of Mineral Licences

An application for the approval for the grant of a mineral licence, its
renewal, amendment, cession or assignment must be made to the Minister on

38
 MINING LAW

a written form prescribed by the Commissioner; it must be accompanied by

the payment of both an application and a licence fee (Section 47(1) (a)-(c) of
the Act.

On receiving such an application, the Minister may grant the application on

such terms and conditions that may be determined by him in writing.
Alternatively, he/she may refuse to grant the application - The Minerals Act
does not require the Minister to advance any reasons for his refusal.

In the case where the holder of a mineral licence applies to transfer it to

another company which is either under its control or controls it, the Minister
may approve the transfer where he/she is satisfied that the holder is not
contravening the terms of the original licence (Section 47( 2) (a) & (b) of the
Act.

4.3. Exercise of Ministerial Powers in Applications

On receiving an application for the grant or transfer, cession “e.t.c” of a

mineral licence, the Minister may by written notice require the applicant to
do the following:

• Furnish him/her within a reasonable period any information which

he may require to enable him/her to determine who is the
controlling shareholder of a company;

• Any other information which he may require to consider the

application.

• To publish the particulars of the application in relation to the full

names of the applicant, the area, the kind of mineral or group of
minerals to which the application relates;

• To give the particulars of the application with respect to the

condition or any existing damage to the environment to which the
application relates; or

• with respect to the effect on the environment which any mineral

prospecting or mining operations may have on the environment;
(Section 48)( 1)( b)- (c) of the Minerals Act).

The minister is also vested with investigative powers in order to seek

out relevant information to assist him/her to consider any application
referred to him/her under Section 47 of the Minerals Act; Pursuant to
these powers, he can cause an investigation to be undertaken or by
written notice instruct the applicant to conduct an environment
assessment study (Section 48) (2)(a) & (b) of the Minerals Act.

The Minister may require by a written notice that the applicant to carry
out or cause to be carried out any environmental impact studies which
he may specify in the notice;

The minister may specify a time period within which the applicant must
furnish to him with any such proposals by way of alterations to the
original application (Section 48(2)(b) (i) and (ii) of the Minerals Act;

In considering or assessing any application for the grant of a mineral

39
Unit 4 Relevant authorities and Legislation

right under Section of the Minerals 47, the Minister is enjoined to

consider the following:

• The need to conserve the natural resources in, on or under the

land to which the application directly relates to and also those
in any neighbouring lands; Presumably, these would include
any minerals which are not the subject of the mineral license
already granted, water resources and natural vegetation
(Section 48(3) of the Minerals Act.

After considering/ assessing the application in terms of section 47 of the

Minerals Act, if the minister is prepared to grant it subject to certain
terms and conditions, he must ensure that a written notice containing
these terms and conditions be served on the applicant; These terms and
conditions set by the Minister are in addition to those statutorily stated
in Section 50 of the Minerals Act; These statutory conditions are as
follows:

(A) The holder of the mineral license must exercise his rights
reasonably and in such a way that the rights and interests of the owner
of any adjoining land are not adversely affected except to the extent to
which such owner has been compensated;

(B)In employment practices, the holder of the mineral licence must

give preference to Namibian citizens who possess appropriate
qualifications, expertise and experience for carrying out the purposes of
the mineral licences; However, it can be observed that this duty is too
generally phrased and can easily be abused by the holders of mineral
licences who may simply decided to employ Namibian citizens only in
the lower grades of the mining venture or operation;

(C) The mineral rights holder must carry out training programmes in
order to promote the development of Namibian citizens;

(D) The holder of the mineral licence must make use of products or
equipment manufactured or produced in the republic of Namibia. This
duty is however subject to the need to ensure technical and economic
efficiency in the operations of the mining venture;

(E) The license holder must co-operate with other operators or

stakeholders in the mining industry to ensure that Namibian citizens
acquire such skills and technology to effectively render services in the
mining industry;

(F) The mineral licence holder must prepare in such form as may be
determined by the mining Commissioner, and for his approval, the
following:

• An environmental impact assessment in which is indicated any

pollution which is likely to occur before any prospecting and
mining operations have been carried out and also an estimate
of any pollution likely to result after such prospecting and
mining operations have been carried out;

Where any pollution is likely to result from these operations, the

mineral license holder must prepare an environmental management plan
in which he indicates the various steps he intends to take to the
satisfaction of the mining Commissioner, the minimization or

40
 MINING LAW

elimination of any pollution of the environment which may result from

carrying out the prospecting or mining operations by virtue of the grant
of the minerals licence (see Section 50 (f) (i) and (ii) of the Act.

(G)Where circumstances change necessitating the revision of an

environmental management plan, the minerals license holder must
either on his own volition or if required by the mining Commissioner,
effect such revisions to the plan;

(H) In the case of a company which holds a minerals licence, it must

furnish to the mining Commissioner any changes in the following
matters:

The name of the company; the registered address of the company; the
directors of the company; the share capital of the company; the
beneficial owner of more than 5% of the shares issued by the company;

In the case of a natural person, he/she must notify the mining

Commissioner any change in his/ her address (See Section 50(h)(i) – (v)
of the Act.

4.4. Register of Minerals Licences

In terms of the provisions of Section 51 of the Act, the mining

Commissioner must maintain a register of all mineral licences in respect of
every mineral licence which has been issued in a form determined by him
the following principal particulars must be recorded in the register:

i. the full names of the holder of the licence or joint holder or any
person/ persons to whom the lice has been transferred, ceded or
assigned;

ii. The date of the grant of the mineral licence, transfer, cession or
assignment;

iii. Where applicable, the date of renewal and the date it will lapse in
terms of the provisions of the Act;

iv. the nature of the licence; the particulars of the area of land to which
the licence relates; the type of mineral or group of minerals to
which the licence applies or relates; particulars of any permissions
granted under the act e.g. permission to use water etc; the date that
the licence has been cancelled in terms of the provisions of section
55 of the Act; the particulars of any agreement or ancillary right
granted under section 52 ( 1 ) ( a) of the Act; any other particulars
which may be required by the mining Commissioner in order to
assist him to effect an efficient system of the registration of mineral
licences and any interests in such licences (Section 51( 1)( a) – ( j)
of the Minerals Act);

In terms of the provisions of Section 51(2), any mineral licence which has
been issued under the Act and the contents of the contents of the mineral
licence register shall be open for inspection by the members of the public at
no cost; Also, members of the public, on payment of a fee, may make
extracts from any mineral licence;

It is a criminal offence punishable by a fine not exceeding N$ 8,000.00 or 12

41
Unit 4 Relevant authorities and Legislation

months imprisonment or both for any person to make a false or fraudulent

declaration on the mineral register (See section 51(3)( a)&( b) of the
Minerals Act.

4.5. Conclusion of Mineral Agreements between Minister and

applicants
In terms of Section 49 of the Minerals Act, the Minister of Mining
may conclude additional mineral agreements with the applicants for
mineral licences before such licences are issued.
The terms and conditions of such mineral agreements shall be over
and above the floor or statutory rights and duties imposed on the
holders of mineral licences which are contained in Section 50 of the
Act;
In terms of Section 49(2) (a) of the Act, every mineral agreement
must contain the following particulars:
the full names and address of the applicant; If the applicant is a
company, the particulars of incorporation and registration, its
registered address and the place of business in Namibia; the full
names and nationality of the directors of the company; and the
full names and nationality of any person who is the beneficial
owner of more than 5 % of the shares issued by the company
(Section 49(2)(a) of the Minerals Act.
The optional or additional terms and conditions of a mineral
agreement: The parties may include the following additional
terms and conditions in the mineral agreement:
The minimum reconnaissance, prospecting and mining operations
to be carried out under the agreement; the manner in which they
are to be carried out under the mineral agreement; the minimum
expenditure in respect of these operations; the formation of joint
ventures, production sharing agreements or other joint
arrangements (these various types of mineral agreements to be
explained and discussed in class); the participation of the state or
any other person in the operations under the mineral agreement;
the processing , whether wholly of partly , of minerals which
have been won or mined in Namibia (NB: This is a very
important term which can be used to promote the policy of
mineral beneficiation in the Republic of Namibia. Under the
newly renegotiated agreement between the Government of the
Republic of Namibia and de Beers, a substantial proportion of
rough diamonds mined in Namibia are now exported to the
republic of Botswana for processing.

Another term which may be included is the basis for the

determination of the market value of any mineral or group of
minerals which may be granted under the mining licence; the
utilization of any profits earned by the holder of a mineral licence
from any reconnaissance, prospecting or mining operations; the
provision of guarantees to ensure the due and proper performance

42
 MINING LAW

of the liabilities and obligations under any mineral licence;

financial and insurance arrangements; the application or
compliance with any of the fiscal laws of the republic of
Namibia; the provision for arbitration as a means of the
settlement of any disputes which may arise under the agreement.
The arbitration may be in terms of the provisions of the
Arbitration Act, No. 42 of 1965 or by way of any international
arbitration tribunal which may be specified in the agreement.
Such arbitration tribunals could be under the auspices of
International Centre for Settlement of Investment Disputes
(ICSID) or United Nations commission on International Trade
Law (UNCITRAL) or simply ad-hoc.

Unit summary
In this Unit you have learnt that all rights in relation to minerals in Namibia are
vested in the state, notwithstanding the fact that the ownership of the land on, in
or under which the mineral or group of minerals may be found is owned by
another person. The bundle of mineral rights referred to under the Minerals
Act includes reconnaissance, prospecting, mining, sale or disposal of and
Summary the exercise and control of minerals or group of minerals.

References
Minerals Act 33 of 1992

References
Arbitration Act, No. 42 of 1965

Diamond Act 13 of 1999

Mineral and Petroleum Resources Development Act 28 of 2002

Petroleum (Exploration and Production) Act 2 of 1991

Minerals Development Fund of Namibia Act 19 of 1996

43
Unit 5 Restrictions on the exercise of the rights of mineral licence
holders

Unit 5

Restrictions on the exercise of

the rights of mineral licence
holders
Introduction
In this Unit you will learn that the holder of a mineral licence shall not exercise
any rights conferred upon such holder by the Mineral Act or under any terms and
conditions of such mineral licence in, on or under any private land until such
time as such holder-

(i) has entered into an agreement in writing with the owner of such land
containing terms and conditions relating to the payment of
compensation, or the owner of such land has in writing waved any right
to such compensation and has submitted a copy of such agreement or
waiver to the Commissioner; or

(ii) has been granted an ancillary right as provided in section 110(4) to

exercise such rights on such land;

(b) in, on or under any -

(i) town or village;

(ii) land comprising a proclaimed road, including such parts adjoining such
road as may in terms of any law governing such road be regarded as the
road reserve, aerodrome, harbour, railway or cemetery; or

(iii) land used or reserved for any governmental or public purpose, and
otherwise in conflict with any law, if any, in terms of which such town,
village, road, aerodrome, harbour, railway, cemetery or land has been
established, erected, constructed or is otherwise regulated, without the
prior permission of the Minister granted, upon an application to the
Minister in such form as may be determined in writing by the
Commissioner, by notice in writing and subject to such conditions as
may be specified in such notice;

(c) in, on or under any land in respect of which no person other than the holder
of a reconnaissance licence is, by virtue of a notice issued in terms of section
122 of the Minerals Act, entitled to carry on any prospecting operations or
mining operations

44
 MINING LAW

Upon completion of this unit you should be able to:

Discuss the limitations to the rights of a mineral licence holder;

Explain how ancillary rights holders impact on the rights of mineral

licence holders;
Outcomes
Discuss the functions of the Ancillary Rights Commission; and

Discuss the relevant provisions of the Minerals Act which provide

for restrictions on mineral rights.

Students must read:

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta) 2015

Prescribed reading A Nhemachena & TV Warikandwa (eds) Mining Africa: Law, Environment,
Society and Politics in Historical and Multidisciplinary Perspectives (2017)

Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

Diamond Act 13 of 1999.

Mineral and Petroleum Resources Development Act 28 of 2002

Petroleum (Exploration and Production) Act 2 of 1991.

Minerals Development Fund of Namibia Act 19 of 1996.

The Namibian Constitution of 1990

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others
(SA-2011/9) [2014] NASC 4 (26 March 2014)

Namibia Grape Growers and Exporters Association and Others v Ministry of

Mines and Energy and Others (SA-2002/14) [2004] NASC 6 (25 November
2004)

45
Unit 5 Restrictions on the exercise of the rights of mineral licence
holders

5.1. Restrictions
On grant of mineral rights to a mineral rights holder, such rights are not absolute
as their exercise is always subject to certain legal restrictions i.e. common law
(neighbour law) and statutory as spelt out in the provisions of the Minerals
(Prospecting and Mining) Act, No. 33 of 1992. These statutory restrictions are
contained in the following provisions of the Minerals Act: Sections 52 (1)-(6);
Part xv, Sections107-113 ( dealing with ancillary rights); and Section 57(1)( a)-
(h) - (2) (specification of the power of the Minister to give written directives to
all holders of mineral licences regarding their operations, taking into account
good practices in relation to matters such as the erection or the construction of
any accessory works, the protection of the environment, the conservation of any
natural resources, the removal of accessory works, the discovery of any minerals
or groups of minerals, the preservation and forwarding to the Mining
Commissioner of any cores, cuttings or samples of any minerals or group of
minerals which may have been obtained in the course of reconnaissance or
prospecting).

Section 52(1)-(7) contains very detailed restrictions on the holder of a mineral

licence vis a vis the rights of other landowners. No holder of a mineral licence
shall exercise any of his rights with respect to the owner of a private land until he
has concluded a written agreement with such owner containing terms and
conditions on the payment of compensation except where the owner of the
private land has waived his right to compensation; In either case, a copy of either
the agreement or the waiver must be submitted to the mining Commissioner;
Alternatively, the holder of a mineral licence may exercise his rights with
respect to private land if he has been granted ancillary rights in accordance with
the provisions of Section110(4) of the Minerals Act. (See also Section 52(1)
(a)(i)- (ii) of the Minerals Act).

5.2. Restrictions – Ancillary Rights

Section 107 of the Minerals Act authorizes the holder of a mineral licence to be
able to enter a private land and exercise any of his rights subject to the payment
of compensation; The provision is in pursuance of the provisions of Article 16
(1) and (2) of the Namibian Constitution.

Section 108 of the Minerals Act provides for the establishment of a Minerals
Ancillary rights Commission which shall consist of three members appointed by
the President of the Republic.

5.3. Functions of the Minerals Ancillary Rights

Commission
The functions of the Minerals Ancillary Rights Commission are spelt out in
Section 109 of the Minerals Act as follows: It is to consider applications
submitted by mineral licence holders in the following circumstances:

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 MINING LAW

i. Where they wish to gain entrance into private land in order to exercise
their rights authorized under their licences such as to carry out
operations, to erect or construct accessory works on the land, to obtain a
supply of water or any material required for the operations, or to
dispose of water obtained from the operations and they have been
prevented from doing so on account of the refusal of the owner of the
private land to grant them permission, which refusal is unreasonable or
raises a dispute in relation to the interpretation or application of an
order by the commission in terms of section 110(4) of the Minerals Act,
they may submit a written application to the commission for the grant of
the right;

ii. Alternatively, where due to the number of owners or persons competent

to grant the right or the existence of a conflict of interest among them,
they are unable to grant such right, the holders may also apply to the
Commission to be granted the right;

iii. Similarly, where the owner or person is absent from Namibia, or his
whereabouts are unknown, or he is a minor or of unsound mind or any
disability to grant such right, the holder may apply to the Commission
to be granted such right. (See Section 109(1) (a)-(e)(i), (ii) and (iii) of
the Minerals Act).

5.4. Procedures to be followed by the Minerals

Ancillary Rights Commission with regards to
applications
The procedures to be followed by the Minerals Ancillary Rights
Commission in considering applications are spelt out in the provisions of
Sections 109(2)- (3),110-111 of the Minerals Act.

The question of compensation payable to the owner of private land is

dealt with in sections 112 and 113 (which provides for an appeal to the
High Court of Namibia where the private land owner is dissatisfied with
the amount of compensation determined by the Commission in terms of
Section 112( 1) & (2) of the Minerals Act. For the purposes of the appeal
to the High Court, the decision of the Commission shall be deemed to be
a judgment of a magistrate’s court.

This latter section states that where the parties fail to agree on the
amount of compensation payable, it is the duty of the Commission to
determine an amount which in the opinion of the Commission “
represents Just Compensation for the right so granted which shall be paid
by the holder concerned in respect of such right.”

According to Section 112(2), the holder of a mineral right shall not be

entitled to exercise any rights in respect of the land until the amount of
compensation determined by the Commission has been paid to the private
land owner by the holder (See for example the case of Namibia Grape
Growers and Exporters Association and Others v Ministry of Mines and
Energy and Others, (SA 14/02), [2004] NASC 6 ( 25 November 2004).

47
Unit 5 Restrictions on the exercise of the rights of mineral licence
holders

1. Are mineral rights absolute?

2. What restrictions, if any, may be imposed on the holder of

Activity Mineral rights?

3. What are the functions of the Mineral Ancillary Rights

Commission?

4. What is the key issue raised in the Namibia Grape Growers and
Exporters Association and Others v Ministry of Mines and
Energy and Others, (SA 14/02), [2004] NASC 6 (25 November
2004)?

1. See Sections 52(1)-(6), Part XV, Sections 107-113, and Section

57(1)(a)-(h)-(2) of the Minerals Act.
2. See Sections 52 (1)-(6), Part XV, Sections107-113, and Section
Feedback 57(1)(a)-(h)-(2) of the Minerals Act.

3. See Section 109 of the Minerals Act.

4. The holder of a mineral right shall not be entitled to exercise any

rights in respect of the land until the amount of compensation
determined by the Commission has been paid to the private land
owner by the holder.

5.5. Other restrictions

Other restrictions with regards to towns, villages, lands reserved for government
or public purposes, private or state lands used as a garden orchard, vineyard,
nursery, plantation e.t.c have been set forth in Section 52(1)( b) - (7) and Section
53 of the Minerals Act (dealing with the drilling of boreholes on the surface of
the land-This can only be done where the holder of the mineral licence has
obtained permission from the Mining Commissioner to do so.

5.6. Terminating Mineral Licences

The various ways of terminating mineral licences are regulated by the provisions
of Sections 54( 1)- ( 4 )( dealing with abandonment of the mineral licence), ( 55)(
1)-( 4) ( dealing with the cancellation of the mineral licence by the Minister in a
written notice addressed to the holder of the mineral licence), 56 (1)-( 5) (dealing
with Vis major or act of God), 57(1)-(2) (Dealing with the powers of the Minister
to issue written notices to the holders of mineral licences directives with due
regard to good reconnaissance, prospecting and mining practices). These written
notices may deal with the erection or construction of any accessory works, the
protection of the environment, the conservation of any natural resources

48
 MINING LAW

including mineral resources and the prevention of their waste, the removal of any
accessory works or goods erected or constructed on the land in connection with
reconnaissance, prospecting or mining operations; the discovery of any minerals
or group of minerals; the taking, preservation and furnishing to the
Commissioner of cores, cuttings or samples of any mineral or group of minerals
obtained or which may be obtained in the course of reconnaissance, prospecting,
or mining; and the submission to the Mining Commissioner of reports, returns or
any information.

Unit summary
In this unit you learnt that on grant of mineral rights to a mineral rights
holder, such rights are not absolute as their exercise is always subject to
certain legal restrictions i.e. common law (neighbour law) and statutory
as spelt out in the provisions of the Minerals Act. These statutory
Summary restrictions are contained in the following provisions of the Minerals Act:
Sections 52(1)-(6); Part XV, Sections107-113 (dealing with ancillary
rights) and Section 57(1)(a)-(h)-(2).

49
Unit 5 Restrictions on the exercise of the rights of mineral licence
holders

References
H Mostert, Mineral Law: Principles and Policies in Perspective (Juta) 2015

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law, Environment,

References Society and Politics in Historical and Multidisciplinary Perspectives (2017)

Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

Diamond Act 13 of 1999.

Mineral and Petroleum Resources Development Act 28 of 2002

Petroleum (Exploration and Production) Act 2 of 1991.

Minerals Development Fund of Namibia Act 19 of 1996.

The Namibian Constitution of 1990

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others
(SA-2011/9) [2014] NASC 4 (26 March 2014)

Namibia Grape Growers and Exporters Association and Others v Ministry of

Mines and Energy and Others (SA-2002/14) [2004] NASC 6 (25 November
2004)

50
 MINING LAW

Unit 6

Types of Mineral Licences in

Namibia
Introduction
In terms of Article 100 of the Constitution of the Republic of Namibia,
1990, all natural resources (including minerals) below or above the
surface of the land and in the continental shelf and within the territorial
waters and the exclusive economic zone of Namibia belong to the state,
unless otherwise lawfully owned. As already stated, Mining in Namibia is
regulated by the Minerals Act of 1992. Section 2 of the Minerals Act
vests all rights in respect of minerals to the state. The Minerals Act
further provides for the administration of the minerals industry and access
to mineral resources through various types of authorisations. This Unit
thus looks at the different types of mineral licences in Namibia and how
they can be obtained.

Upon completion of this unit you should be able to:

Discuss the different mineral licences regime available in Namibia;

Explain how the different categories of mineral licences can be obtained

in Namibia settlement;
Outcomes
Outline what qualifies a person to obtain a mineral licence in Namibia.

51
Unit 6 Types of Mineral Licences in Namibia

Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

Diamond Act 13 of 1999.

Prescribed reading Mineral and Petroleum Resources Development Act 28 of 2002

Petroleum (Exploration and Production) Act 2 of 1991.

Minerals Development Fund of Namibia Act 19 of 1996.

The Namibian Constitution of 1990

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others
(SA-2011/9) [2014] NASC 4 (26 March 2014)

Namibia Grape Growers and Exporters Association and Others v Ministry of

Mines and Energy and Others (SA-2002/14) [2004] NASC 6 (25 November
2004)

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta)

2015

Koep & Partners (2019) “Guide to Mining in Namibia” available at

Additional reading https://www.lexafrica.com/wp-content/uploads/2019/06/Guide-to-
Mining-in-Namibia.pdf

6.1. Types of mineral licences in Namibia

The legislative regime of the Republic of Namibia provides for the
following mineral licences to be applied for and issued. In this Unit, an
outline of four (4) of the main mineral licences issued out in Namibia will
be undertaken. The 4 common types of mineral licences are:
i. Reconnaissance licences (See Part IX Sections 58-66 of the
Minerals Act);
ii. Exclusive Prospecting Licences (See Part X, Sections 67-76 of
the Act);
iii. Mineral Deposit Retention Licences (See Part XI, Section 77-89
of the Minerals Act); and
iv. Mining Licences (Part XII, Sections 90-101 of the Minerals Act).

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 MINING LAW

6.1.1. Reconnaissance licence

There are two types of reconnaissance licences which may be applied for
in terms of sections 58 and 59 of the Minerals Act. An applicant may
apply for what may be termed a normal reconnaissance licence whose
rights, terms and conditions are not exclusive to him as provided for in
Section 59(1)(a). On the other hand, an applicant may apply for a normal
reconnaissance licence with an endorsement on it conferring on the
holder the exclusive right to carry on reconnaissance operations/activities
on the area to which the licence relates in terms of Section 59(1) (b) of
the Act.

However, an exclusive right shall not be granted in respect of a mining

claim or any area of land in respect of which an exclusive reconnaissance,
prospecting or mining licence has already been granted (See Section
59(2) (a) and ( b) of the Act).

An application for a reconnaissance licence shall contain the following

particulars:

a) In the case of a natural person, his full names, nationality,

date of birth, postal and residential address;

b) In the case of a company, the name of the company,

particulars of incorporation and registration, the registered
address and the principal place of business in Namibia, the
full names and nationality of the directors, the share capital
of the company, the full names and nationality of the
beneficial owners of shares in the company; The application
shall be accompanied by a detailed plan of the area to be
covered by the reconnaissance operations. The technical
details of the plan are specified in section 60(b) of the
Minerals Act;

c) Furthermore, the application shall contain a concise

geological description of the area of land covered by the
licence and where the application is for an exclusive licence,
the mineral or group of minerals to which the application
relates;

d) The application shall also contain the details of any

reconnaissance issue to the applicant under the Act or under
any other law and any prospecting and mining operations
being carried out by the applicant alone or jointly outside
Namibia;

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Unit 6 Types of Mineral Licences in Namibia

e) The application shall also contain documentary proof of the

technical and financial resources available to the applicant to
carry out the reconnaissance operations;

f) It shall also contain the programme of the reconnaissance

operations, the period of such operations and the expenditure
involved;

g) The application shall be accompanied by such documents as

the minister may require;

h) It may also contain any matter which the applicant may think
is relevant to the application (See Section 60(a)-(h) of the
Act).

The minister is statutorily barred from granting a reconnaissance licence to the

following persons:

a) A person who is not qualified in terms of S. 46 of the act;

b) Where at the time of the application, the applicant has contravened

any provisions of the Act;

He/she shall not grant a licence unless he/she is on reasonable ground satisfied
with the programme of reconnaissance operations to be carried out and the
expenditure involved, that the applicant has the technical and financial resources
to carry out the operations and that the area to which the application relates is not
covered by an exclusive mineral licence granted to another person (see Section
61 (a)-(d) of the Minerals Act).

Subject to the provisions of Section 48(4) and (5) of the Minerals Act, where the
minister has decided to grant a reconnaissance licence to the applicant, he shall
direct the mining Commissioner to issue one to the applicant with such terms and
conditions as stated in Section 48(4) and (5) of the Minerals Act.

The detailed particulars which the approved licence must contain such as the full
names, address the date of issue and the period of issue “e.t.c”. are specified in
Section 62(2) of the Minerals Act;

Subject to the provisions of the Act, a reconnaissance licence shall be for a

period stated in writing by the minister but not exceeding 6 months. Section
63(2) states that subject to the provisions of Section 63(3), a reconnaissance
licence cannot be renewed. However, on a written application addressed to the
minister by the holder of a reconnaissance licence, the minister may extend it
only on one occasion for a period not exceeding 6 months if the minister is of the
view that through no fault of his, the licence holder has been prevented from
carrying out the reconnaissance operations (See Section 63 (3) and (4) of the
Minerals Act).

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The Rights of the holder of a reconnaissance licence:

To carry on reconnaissance operations in the area of land for the mineral or

group of minerals to which the licence relates. Curiously, Section 58(1)( a) states
that he/she is entitled to do this “whether or not a mineral licence has in terms of
the provisions of this Act has been issued to any other person or a mining claim
has been registered in the name of any other person in respect of the land to
which the reconnaissance lice relates”.

He/she may carry out such operations including the erection or construction of
accessory works in the area covered by the licence but these works can only be
erected after obtaining prior written permission from the mining Commissioner.

The mining Commissioner shall only grant such written permission in respect of
private land where there is proof that the holder of the reconnaissance licence has
paid compensation to the owner of the private land in terms of Section 52(1) (a)
of the Minerals Act.

1. Discuss how one acquires a reconnaissance licence in Namibia?

2. What are the rights of the holder of a reconnaissance licence?

Activity
3. Outline the application process of a reconnaissance licence.

1. See sections 58 and 59 of the Minerals Act.

2. See section 58(1) of the Minerals Act.

Feedback
3. See section 60 of the Minerals Act.

6.1.2. Exclusive Prospecting Licence

The procedure for applying for an exclusive prospecting licence is spelt
out in section 68 of the Minerals Act. An applicant for this mineral
licence, if a natural person must state in the application the normal
particulars such as full name, nationality, date of birth “e.t.c”;
If a juristic person such as a company, the application must state the
name of the company, particulars of incorporation, registered address and
principal place of business in Namibia, the full names and nationality of
the directors, the share capital of the company, the full names and
nationality of any person who is the beneficial owner of more than 5% of
the shares issued by the company.
Where the applicant is represented by an accredited agent, the full names

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Unit 6 Types of Mineral Licences in Namibia

and address of such a person must be furnished.

Furthermore, the application must state the period for which the licence is
required and the type of mineral or group of minerals the application
pertains to.
The application must be accompanied by a detailed plan of the area to
which it relates, indicating the magisterial location in which the area is
situated, the name and number of any farm situated there, the extent of
the area as defined by reference to identifiable physical features of co-
ordinates.

The application must contain a geological description of the area of the

land and if the applicant already holds a reconnaissance licence over the
area, he must also attach an accompanying report on the results of the
reconnaissance operations as required by section 66(1)(d) of the Minerals
Act.

The application must contain the particulars of any other mineral licence
being currently held by the applicant either solely or jointly with any
other person. Where prospecting or mining operations are already being
carried out by the applicant either solely or jointly with any other person
outside Namibia, at the time of the application or a period of time within
10 years preceding the application, this fact must also be stated in the
application.

The application must describe the existing condition of the environment

to which the application relates and any existing damage to it; and also,
an estimate of the effect of the planned operations on the environment
and the planned steps to prevent or minimize such adverse effects on the
environment.

The application must contain particulars, supported by documentary

proof as may be required by the Mining Commissioner of the technical
and financial resources which are available to the applicant to enable him
carry out the operations. Such proof may be in the form of evidence of
qualified persons employed by the company, evidence of technical
equipment already secured by the person and bank financial statements
“e.t.c”.

The application must also contain a programme of the actual prospecting

operations, the estimated expenditure on the programme and the period
within which it will be carried out.
Furthermore, the application must be supported by any documentation
which may be required by the Minister and any other information which
may be considered relevant by the applicant (See Section 68(a)-(j) of the
Minerals Act).

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 MINING LAW

The exercise of ministerial powers to grant or refuse to grant an

application for an exclusive prospecting licence (Section 69(1)-(2) of
the Minerals Act

Where an exclusive reconnaissance right has already been granted to a

person under Section 59 of the Minerals Act, and the same person is also
an applicant for a prospecting licence, the Minister grant his application if
it relates to the same area of land or the same mineral or group of
minerals. This is however subject to the provisions of Section 48(4) and
(5) and S.49 of the Minerals Act (Section 69(1) (a) of the Minerals Act.

In the case of any other applicant for an exclusive prospecting licence, the
Minister may decide to grant the application subject to the provisions of
sections 48(4) and (5) and 49 of the Minerals Act; On the other hand, the
Minister may refuse to grant the application. It should be noted that the
Act does not enjoin the minister to give any reasons for his decision; This
provision should be contrasted with the provisions of Section 18 of the
Constitution provides for administrative justice, and provides for persons
aggrieved by the decisions of administrative bodies and officials “to seek
redress before a competent court or tribunal” (Section 18 of the
Constitution of the Republic of Namibia).
In any event, the minister cannot grant an exclusive prospective licence to
any person not referred to in section 46 of the Act- (This section requires
that the grantee must be either a company or a Namibian citizen who has
reached the age of 18 years and who the minister considers to be a fit and
proper person).
The minister is also prohibited from granting an exclusive prospecting
licence to a person who is contravening the provisions of the Act or any
condition, direction or order given under any of its provisions.
The Minister may also not grant a licence unless he is satisfied with the
proposed programme of prospecting operations and the proposed
expenditure on them which has been presented to him by the applicant
and that the applicant has the technical and financial resources to carry
out such operations.
The rest of the other restrictions on the minister’s granting powers are
stated in Section 69(2) (d)-(g) of the Minerals Act.

Where the Minister has granted an exclusive prospecting licence to an

applicant, he will direct the mining Commissioner to issue to such a
person a licence on such terms and conditions as may be agreed on in
terms of Section 48(4) and (5) of the Minerals Act;
An exclusive prospecting licence shall have a duration not exceeding
three years as may be determined by the Minister at the time of the
granting of the licence. It may however be extended for such periods not
exceeding two years at a time; However, an exclusive prospecting licence
may not be renewed on more than two occasions, unless the Minister is

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Unit 6 Types of Mineral Licences in Namibia

satisfied that such a renewal is in the interest of the development of

mineral resources in the country.
The provisions of Section 72(1)-(3) regulate the procedure for an
application for the renewal of an exclusive prospecting licence. All the
particulars required to be submitted in support of the original application
for an exclusive prospecting licence apply to an application for a renewal.
The Minister shall not refuse to renew an exclusive prospecting licence in
the following circumstances:
a) If the holder of the licence has complied with all the terms
and conditions of the licence; he has complied with the
proposed programme of prospecting operations and has
expended the requisite expenditure in accordance with the
terms of the minerals agreement.

6.1.3. Mineral deposit retention licence

Another important mineral right is the mineral deposit retention licence
(See Part XI, Sections 77-89). This right proceeds from the exclusive
prospecting licence in terms of which the prospector has discovered the
mineral or group of minerals covered by the prospecting licence. The
prospecting licence holder would now wish to retain the area covered by
the prospecting licence and which contains mineral deposits.

The application procedures are as follows:

Despite the provisions of Section 46 of the Minerals Act, no person may

apply for a mineral deposit retention licence, unless he is the holder of an
exclusive prospecting licence or a mining claim in relation to the area
(Section78 of the Minerals Act);

Section 79 contains the provisions dealing with the requirements for the
application for a mineral deposit retention licence. These are in most
respects the same for an application for an exclusive prospecting licence;

However, as stated in Section 79(h) of the Minerals Act, the application

must be supported by a statement in which the applicant states the
reasons why the mineral or group of minerals cannot be won or mined on
a profitable basis at the time of the application; this statement should also
state the circumstances and the time that such a mineral or group of
minerals can be won or mined on a profitable basis; The statement should
also give reasons why no prospecting can be carried out in the area to
which the application relates;

The application should be accompanied by such documents as the

Minister of mines and energy may require and also any other matter
which the applicant deems to be important to the consideration of the

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 MINING LAW

application by the Minister (See Section 79(h)(i)-(iii), 79(i) and section

79(j) of the Minerals Act).

The exercise of the ministerial discretion to grant or refuse the

application for a mineral retention licence:6

The Minister is prohibited from granting a licence to an applicant in the

following circumstances:

Where the area requested is larger than the area which the Minister thinks
is required; Where at the time of the application, the applicant is violating
the provisions of the Act; he may not grant an application in relation to
any mineral or group of minerals unless he is of the opinion that at the
time of the application, the mineral or group of minerals cannot be won
or mined on a profitable basis at the time of the application, or that no
further prospecting operations can usefully be carried out in that area; or
that it is desirable to grant such a licence, having regard to the future
utilization of the mineral resources of the republic of Namibia;

Some of the further grounds on which the Minister cannot grant the
application are stated in Section 80(1)(d)(aa)-(cc) of the Minerals Act.

Unlike applications for a reconnaissance licence or an Exclusive

prospecting licence, the Minister cannot refuse to grant a mineral deposit
retention licence once he has served a written notice to the applicant
inform him of his intention to do so. In the written notice, the Minister
must state the grounds on which his intention to refuse are based and he
has requested the applicant to make representations regarding such
grounds;

The Minister must consider the representations which the applicant has
made before he/she refuses the application (See section 80(2) of the
Minerals Act.

Where the Minister has decided to approve the grant of the licence, he
will instruct or direct the mining Commissioner to issue the licence
subject to any terms and conditions which may be imposed (Section 81 of
the Minerals Act); a mineral deposit retention licence may be issued for a
term not exceeding 5 years which may be extended for 2 years at a time
(Section 82 of the Minerals Act).

6
See Section 80(1)-(2) of the Minerals Act.

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Unit 6 Types of Mineral Licences in Namibia

The rights of the licence holder (Section 77(1)-(6) of the Minerals Act:
These rights include the following: the right to retain the area for future
mining operations; to carry on prospecting operations in the area in order
to determine whether or not mining can be carried out on a profitable
basis; to remove any mineral or group of minerals except a controlled
mineral for purposes other than for sale; with the written permission of
the mining Commissioner to remove any mineral or group of minerals to
any place outside Namibia; with the written permission of the Mining
Commissioner to remove any controlled mineral for any purpose other
than for sale to any place whether within or outside of Namibia.

The obligations of the licence holder:7

The holder of such a licence shall be subject to the provisions of Section

41 of the Minerals Act in respect of, for example, registration and the
exercise of his rights in a reasonable manner as far as the rights of a
private landowner are concerned;

The holder of such a licence shall furnish to the mining Commissioner

any information relating to the carrying out of any programme of works
and operations and the amount of funds expended on such a programme;
the holder must comply with the directives of the minister to apply for a
mining licence if the Minister is of the view that any mineral or group of
minerals may be won on a profitable basis; the minister may also direct
that prospecting or further prospecting should be carried out in the area to
which the licence relates; the minister may also direct that the holder of
the licence should abandon his rights (Section 88( 1)(a)-(b) of the Act;

The minister shall not issue a written notice giving directives to the
holder of a mineral retention licence unless he/she has served him with a
written prior notice of his/her intention to do so, the reasons for his
intention, and a request to the holder to make representations regarding
his reasons which the minister must take into consideration (Section
88(2)(a) and (b) of the Minerals Act.

7
See Sections 86- 89 of the Minerals Act.

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Unit summary
In this Unit you learnt that the legislative regime of the Republic of
Namibia provides for the following four (4) main mineral licences to be
applied for and issued:

Summary i. Reconnaissance licences (in terms of Part IX Sections 58- 66 of

the Minerals Act);

ii. Exclusive Prospecting Licences (Part X, Sections 67-76 of the

Act);

iii. Mineral Deposit retention Licences (Part XI, S.77-89 of the Act);
and

iv. Mining Licences (Part XII, Sections 90-101 of the Act).

References
H Mostert, Mineral Law: Principles and Policies in Perspective (Juta) 2015

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law, Environment,

References Society and Politics in Historical and Multidisciplinary Perspectives (2017)

Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).

Diamond Act 13 of 1999.

Mineral and Petroleum Resources Development Act 28 of 2002

Petroleum (Exploration and Production) Act 2 of 1991.

Minerals Development Fund of Namibia Act 19 of 1996.

The Namibian Constitution of 1990

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others
(SA-2011/9) [2014] NASC 4 (26 March 2014)

Namibia Grape Growers and Exporters Association and Others v Ministry of

Mines and Energy and Others (SA-2002/14) [2004] NASC 6 (25 November
2004)

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Unit 7 Mine Rehabilitation in Namibia

Unit 7

Mine Rehabilitation in
Namibia
Introduction
In this Unit you will learn that Namibia’s entire environmental legal framework
is currently undergoing comprehensive revision and further development, but the
rehabilitation of uranium mines remains unresolved. According to a report
published by Environmental Justice Organisations, Liabilities and Trade
(EJOLT)8 evaluated nuclear legislation in Namibia; the country faces challenges
of finding solutions in terms of how nature conservation and the protection of the
biodiversity as well as mining and exploration can coexist. The Namibian
government recognizes that the issue of mine rehabilitation is most important
and seeks to regulate it in the near future. Currently only a general duty to
rehabilitate the area is laid out in the current legal framework. However, the
general duty is not regulated, nor does it set out exactly what rehabilitation
means.

In the absence of a comprehensive legal framework for regulating the issue of

rehabilitation, Namibia relies on self-regulation of the mining industry for the
time being. The Government counts on the sense of responsibility and
knowledge of the mining industry as to how to manage rehabilitation best.

At least, as far as well-known international mining companies are concerned that

trade their product on the international market, they must be concerned about
their standing in the globalised world in which they do business. This ensures an
implicit commitment to using all technology and knowledge at one’s disposal
along with some monitoring. For such companies, the system of substituting
national laws with self-regulation might work to a certain extent during a
transition period.

Nonetheless, it is a fact that the system of self-regulation invites the industry and
their lobby organisations to substitute a legal framework with their own rules and
recommendations. Since these companies needed to operate profitably, one could
hardly expect that they would impose obligations on themselves that would
deprive them of the advantages for which they came to Africa.

It cannot be denied that some companies strive to operate in Africa because of

low environmental standards. Because local officials are aware of the
unsatisfying current state of self-regulation, Namibia has enacted a number of
different programmes and initiatives. These initiatives include the establishment
of an additional expert committee recently.

8
See the Environmental Justice Organizations, Liabilities and Trade
(EJOLT) Report 22, Titled: Evaluation of Nuclear Legislation: The
issue of rehabilitation of uranium mine sites in Namibia.

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 MINING LAW

Despite the progress made, Namibia should consider a number of improvements,

including Government applying existing laws more accurately. The Ministry of
Mines and Energy still issued too many mineral licences after a process of
compiling environmental impact assessments and applications that did not
strictly comply with Namibian law.

Experience had shown that copying foreign legislation, and hoping the industry
would comply with it voluntarily, was not successful because one could not deny
that some companies strived to operate in Africa because of low environmental
standards. Furthermore, those who drafted foreign legislation had not tailored it
to Namibian problems.

The Government and environmental scientists needed to intensify the

collaboration that started with the establishment of the minimum standards and
take it further to find Namibian solutions to Namibian problems. The established
expert committee was filled with mostly representatives of the mining industry.

However, Government should have aimed instead at a more pluralistic body

representing different points of view, because the public would then find
recommendations by the committee more credible.

Upon completion of this unit you should be able to:

Discuss the significance of Mine Rehabilitation in Namibia;

Discuss the issue of whether Mine Rehabilitation should be considered as

a voluntary and not statutory objective;
Outcomes
Explain the current Mine Rehabilitation mechanisms in Namibia.

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Unit 7 Mine Rehabilitation in Namibia

Students must read:

1. Environmental Management Act 7 of 2007;

Prescribed reading 2. Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals
Act);

3. The Namibian Constitution of 1990;

4. Environmental Justice Organizations, Liabilities and Trade

(EJOLT) Report 22, Titled: Evaluation of Nuclear Legislation:
The issue of rehabilitation of uranium mine sites in Namibia

5. Soil Conservation Act 76 of 1969;

6. Hazardous Substance Ordinance 14 of 1974;

7. Atmospheric Pollution Prevention Ordinance 11 of 1976;

8. Prevention and Combating of Pollution of the Sea by Oil Act 6 of

1981;

9. Forest Act 12 of 2001;

10. Atomic Energy and Radiation Protection Act 5 of 2005.

7.1. Major constraints to successfully planning and

implementing rehabilitation programmes in Namibia
There are a number of constraints to successfully planning and
implementing rehabilitation in Namibia and these are:

a) Insufficient scientific knowledge on land degradation;

b) Lack of cooperation between decision makers and scientists;
c) Legal shortcomings;
d) lack of human capacity;
e) lack of transparency;
f) no solution for abandoned mines and illegal mine sites; and
g) The failure to find a solution to the financing of rehabilitation.

There is still an open debate about how a successful legal framework

regarding rehabilitation should look like in order to overcome the
current practice of self-regulation of the industry.

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 MINING LAW

7.2. Protecting Environmental Values

The Namibian Constitution Act 1 of 1990
The Namibian Constitution is the starting point for the
Environmental Management. Namibia has one of the few
constitutions in the world with specific sections on the
environment. It places a duty on the Government’s to protect the
environment (See Chapter 11 of the Constitution). The Namibian
Constitution has a section on principles of state policy. These
principles cannot be enforced by the courts in the same way as
other sections of the Constitution. But they are intended to guide
the Government in making laws which can be enforced. One of
these guiding principles says that the Government will take steps
to maintain Namibia’s ecosystems, essential ecological
processes, and biological diversity (See Article 95(1)). It
provides that the Government of the Republic of Namibia will try
to make sure that all the nation’s living natural resources are used
on a sustainable basis for the benefit of all Namibians, both
present and future generations. It further provides that the
Government will provide measures to prevent the dumping or
recycling of foreign nuclear waste or toxic waste on Namibian
soil (See also Article 1(6); Article 100; Article 91(c) and Article
144).

7.3. Key Environmental impacts

Namibia’s uranium mines operate in a unique environment: the
Namib Desert. The desert contains many special biodiversity
features that are nested in the functions, structures and
composition of ecosystems. Mining best practice optimises the
ability of mines to operate within this nested framework.
Understanding this not only improves environmental compliance
and reduces project risks, but it can also turn mines into key
conservation partners while fulfilling their social and economic
obligations. This approach addresses the need expressed in the
Uranium Strategic Environmental Assessment (SEA) that the
Namibian uranium industry should significantly contribute to
sustainable development, including the natural environment.

7.4. Best Practice Environmental Management

The Namibian Uranium Institute (NUI) continues to work with
the World Nuclear Association Sustainable Development
Working Standardization Task Group in developing a
standardised list of items in order to “achieve widespread
utilities/miners agreement on a list of indicators for common use

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Unit 7 Mine Rehabilitation in Namibia

in demonstrating uranium miners’ adherence to strong

environmental performance.”
Nuclear utilities are required to evaluate the sustainable
development performance of their suppliers, especially when
they are International Organisation for Standardisation (ISO)
14001 certified.

ISO 14001 is an internationally accepted standard that outlines

how to put an effective environmental management system in
place in mining organizations. It is designed to help businesses
remain commercially successful without overlooking
environmental responsibilities and impacts. It can also help you
to grow sustainably while reducing the environmental impact of
this growth.

ISO 14001 belongs to the ISO 14000 family of environmental

management standards (including ISO 14004), and provides the
framework to allow you to meet increasingly high customer
expectations of corporate responsibility, as well as legal or
regulatory requirements.

ISO 14000 is a family of standards related to environmental

management that exists to help organizations:

a) Minimize how their operations (processes, etc.) negatively

affect the environment (i.e., cause adverse changes to air,
water, or land);
b) Comply with applicable laws, regulations, and other
environmentally oriented requirements; and
c) Continually improve in the above listed areas.

7.5. Sustainable Development Committee

The Namibian Uranium Association (NUA) established a
Sustainable Development (SD) Committee to assist the uranium
sector in safeguarding its reputation as a safe and responsible
industry.

The SD committee is charged with the responsibility of

addressing environmental issues (technical and regulatory) in a
manner that enhances the NUI members’ contributions to
sustainable development and that ensures that risks to the
viability of the mining industry are identified and managed.

This is achieved through the active participation and engagement

of the NUA members in formulating key industry positions.

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In 2013, the SD Committee updated its joint standards and

coordinated contributions to the Strategic Environmental
Management Plan (SEMP) report.

The SD committee assists with the development and review of

legislative and policy frameworks and identifies research needs
in environmental health management, mine closure and
sustainable development for the sector.

The NUA is a member of the World Nuclear Association

(WNA).9

In most respects the environmental aspects of a uranium mine are

the same as those of other metalliferous mining.

Most uranium mines in Namibia have (- or are working towards)

ISO 14001 certification.

Radioactivity associated with the uranium ore requires some

special management in addition to the general environmental
controls of any mine.

The uranium itself – compared with granite – has a very low

level of radioactivity. Virtually all the radioactive material from
the associated minerals in the ore processed ends up in the
tailings dam.

In many respects uranium mining is much the same as any other

mining.

Projects must have environmental approvals prior to

commencing, and must comply with all environmental, safety
and occupational health conditions applicable.

Increasingly, these are governed by international standards, with

external audits.

Once approved, open pits or shafts and drives are dug, and waste
rock and overburden are placed in engineered dumps.

Tailings from the ore processing must be placed in engineered

dams or underground. Finally the whole site must be rehabilitated
at the end of the project.

9
The following is a “Namibianized” version of the WNA document:
http://www.world-nuclear.org/info/Nuclear-Fuel-Cycle/Mining-of-
Uranium/Environmental-Aspects-of-Uranium-Mining/

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Unit 7 Mine Rehabilitation in Namibia

Meanwhile air and water pollution must be avoided. These

processes are common to all metalliferous mining, and are well
recognised and understood. In the case of in situ leach (ISL)
mining, there is much less disturbance - simply multiple
boreholes, and rehabilitation is simpler.

Uranium itself is radioactive, though with the major isotope U-

238 having a half-life equal to the age of the earth; it is certainly
not strongly radioactive.

U-235 has a half-life one sixth of this and emits gamma rays as
well as alpha particles. Hence a lump of pure uranium would give
off some gamma rays, but less than those from a lump of granite.
Its alpha radioactivity in practical terms depends on whether it is
as a lump (or in rock as ore), or as a dry powder. In the latter case
the alpha radioactivity is a potential, though not a major, hazard.

It is also toxic chemically, being comparable with lead. Uranium

metal is commonly handled with gloves as a sufficient
precaution. Uranium concentrate is handled and contained so as
to ensure that people do not inhale or ingest it.

The gamma radiation detected by exploration geologists looking

for uranium actually comes from associated elements such as
radium and bismuth, which over geological time have resulted
from the radioactive decay of uranium.

7.6. Environmental approvals

At an early stage of the feasibility study, environmental studies of
the site begin.
These escalate in detail and progressively focus on issues of
concern in relation to the proposal, in consultation with state
authorities. Depending on the government jurisdiction, an
environmental effects or impact statement is published and made
available for public comment.
After consideration of comments and in the light of judgements
by a wide range of state authorities, approval may then be given
by the state government for the project to proceed.

7.7. International certification

The ISO, based in Geneva, has developed a number of world
standards for quality management (9000 series) and for
environmental management (14000 series).

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The latter relate to minimising harmful effects and achieving

continual improvement through a formal environmental
management system (EMS) which is subject to external audit.

ISO 14001 is the world’s most recognised EMS framework,

enabling organisations to demonstrate sound environmental
management.

Many mining companies have been certified as conforming to its

requirements. In Namibia, major uranium mining companies
either have or are close to having ISO 14001 certification.

This is also the basis of other ISO certification, such as for audits,
reporting and life cycle assessment. Rössing Uranium mine for
instance is audited every year by an accredited external body and
undergoes full re-certification every three years.

The basic EMS under ISO 14001 is under four linked headings:
Plan-Do-Check-Act. It must take into account both routine
hazards and abnormal situations.

7.8. Wastes from mining and milling

In most respects, conventional mining of uranium is the same as
mining any other metalliferous ore, and well-established
environmental constraints apply in order to avoid any off-site
pollution.

From open cut mining, there are substantial volumes of barren

rock and overburden waste. These are placed near the pit and
either used in rehabilitation or shaped and revegetated where they
are.

At Ranger mine, the development of the first orebody involved a

waste to ore ratio of slightly over 2:1.

However, uranium minerals are always associated with more

radioactive elements such as radium and radon in the ore.

Therefore, although uranium itself is not very radioactive, the ore

which is mined, especially if it is very high-grade such as in some
Canadian mines, is handled with some care, for occupational
health and safety reasons.

Mining methods, tailings and run-off management and land

rehabilitation are subject to Government regulation and
inspection.

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Mining operations are undertaken under relevant national health

and radiation protection codes of practice.

These set strict health standards for exposure to gamma radiation

and radon gas. Standards apply to both workers and members of
the public.

7.9. Tailings and radon

Solid waste products from the milling operation are tailings.

They comprise most of the original ore and they contain most of
the radioactivity in it.

In particular they contain all the radium present in the original

ore. At an underground mine they may be first cycloned to
separate the coarse fraction which is used for underground fill.

The balance is pumped as a slurry to a tailings dam. When

radium undergoes natural radioactive decay one of the products is
radon gas.

Because radon and its decay products (daughters) are radioactive

and because the tailings are now on the surface, measures are
taken to minimise the emission of radon gas.

During the operational life of a mine the material in the tailings

dam is usually covered by water to reduce surface radioactivity
and radon emission (though with lower-grade ores neither pose a
hazard at these levels).

On completion of the mining operation, it is normal for the

tailings dam to be covered with some two metres of clay and
topsoil to reduce radiation levels to near those normally
experienced in the region of the orebody, and for a vegetation
cover to be established.

The radon gas emanates from the rock and tailings as the radium
or thorium decays. It then decays itself to (solid) radon daughters,
which are significantly alpha radioactive.

About 95% of the radioactivity in the ore is from the U-238

decay series, totaling about 450 kBq/kg in ore with 0.3% U308
(e.g. from the Ranger uranium mine in Australia).

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The U-238 series has 14 radioactive isotopes in secular

equilibrium, thus each represents about 32 kBq/kg (irrespective
of the mass proportion).

When the ore is processed, the U-238 and the very much smaller
masses of U-234 (and U-235) are removed.

The balance becomes tailings, and at this point has about 85% of
its original intrinsic radioactivity. However, with the removal of
most U-238, the following two short-lived decay products (Th-
234 & Pa-234) soon disappear, leaving the tailings with a little
over 70% of the radio-activity of the original ore after several
months.

The controlling long lived isotope then becomes Th-230 which

decays with a half-life of 77,000 years to radium-226 followed by
radon-222.

Radon occurs in most rocks and traces of it are in the air we all
breathe. However, at high concentrations it is a health hazard.

7.10. Water
Run-off from the mine stockpiles and waste liquors from the
milling operation are collected in secure retention ponds for
isolation and recovery of any heavy metals or other
contaminants.

The liquid portion is disposed of either by natural evaporation or

recirculation to the milling operation. Most Namibian mines
adopt a “zero discharge” policy for any pollutants.

Process water discharged from the mill contains traces of radium

and some other metals which would be undesirable in biological
systems downstream.

This water is evaporated and the contained metals are retained in

secure storage. During the operational phase, such water may be
used to cover the tailings while they are accumulating.

With in situ leach (ISL) operations, the orebody stays in the

ground and uranium is recovered by circulating oxygenated and
acidified groundwater through it, using injection and recovery
wells.

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Unit 7 Mine Rehabilitation in Namibia

The saline quality of this groundwater in Australian ISL mines

makes it far from potable in the first place, and after the uranium
is recovered, oxygen input and circulation are discontinued,
leaving the groundwater much as it was.

The main environmental consideration with ISL is avoiding

pollution of any groundwater away from the orebody, and
leaving the immediate groundwater no less useful than it was
initially.

1. What is mine rehabilitation?

2. How useful is the Mine Closure Framework for Namibia in mine

Activity rehabilitation?

3. Does the Constitution of Namibia address matters pertaining to

rehabilitation?

4. What are ISO 1400 standards?

1. See the Environmental Justice Organizations, Liabilities and

Trade (EJOLT) Report 22, Titled: Evaluation of Nuclear
Legislation: The issue of rehabilitation of uranium mine sites in
Namibia.
Feedback
2. The Chamber of Mines (CoM) Rehabilitation and Closure
Committee produced a document known as the Namibian Mine
Closure Framework (NMCF). The purpose of this document is to
provide guidance for the Namibian mining industry in how to
develop relevant, practical and cost-effective closure plans and to
lay down minimum requirements for the members of the CoM of
Namibia bound by the Chamber’s Code of Conduct and Ethics
(COC). Mining Companies such as the former Rössing Uranium
and Langer Heinrich have developed Mine Closure Strategies and
Mine Closure Plans on the basis of the NMCF. Workshops were
conducted with relevant authorities to obtain their input with
regards to the closure objectives and strategies. See Chapter 11 of
the Constitution. See also Article 1(6); Article 100; Article 91(c)
and Article 144.

3. ISO 14000 is a family of standards related to environmental

management that exists to help organizations:

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7.11. Waste rock, Water and Seepage Management

The waste rocks produced in mining, though not containing
radioactivity of any significance, need to be controlled.

What is not used for backfill of mines is often used for the
construction of embankments on the mine site road-building.

If the material is used for building, then it is monitored by the

appropriate competent authority to ensure that any resulting
radiation exposures of the public will stay within acceptable
limits.

The effects of any seepage from waste rock piles which contain
concentrations of natural radionuclides higher than the
surrounding background levels, are assessed and, where required,
the seepage is collected and treated.

Mine-water is as far as possible reused in the mine and the mill.

It may contain dissolved uranium, thorium, radium or other
metals which could increase radon levels in mine air.

By adequate engineering of the waste retention system, seepage

is reduced. Where it occurs, the solution is pumped back to the
system or treated. Long-term control of seepage on a continuing
basis is a challenge and needs constant attention.

7.12. Tailings Management

Uranium mill tailings, containing radioactive and non-radioactive
materials, are the solid residues and the associated liquids which
remain after uranium has been extracted from the ore.

The solids consist primarily of the finely-ground bulk of the

original ore, and also of a variety of chemicals precipitated from
the tailings liquids.

At present there does not appear to be any generally applicable

alternative to the disposal of solid tailings in waste-retention
systems. Tailings are carefully sited, building to the best
standards, operated in a careful manner and maintained at a high
standard.

The basic design and operating objectives for the impoundment

of mill tailings are to provide for the physical and chemical
stability of the tailings and to keep the loss of radioactive

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elements to acceptable low levels.

Unit summary
In this unit you learnt about Mine rehabilitation in Namibia. You also
learnt that The Chamber of Mines (CoM) Rehabilitation and Closure
Committee produced a document known as the Namibian Mine Closure
Framework (NMCF). The purpose of this document is to provide
Summary guidance for the Namibian mining industry in how to develop relevant,
practical and cost-effective closure plans and to lay down minimum
requirements for the members of the CoM of Namibia bound by the
Chamber’s Code of Conduct and Ethics (COC). Mining Companies such
as the former Rössing Uranium and Langer Heinrich have developed
Mine Closure Strategies and Mine Closure Plans on the basis of the
NMCF. Workshops were conducted with relevant authorities to obtain
their input with regards to the closure objectives and strategies. Apart
from tailings, other solid wastes at a mine include equipment which is not
able to be sold at the end of the operation. This is usually buried with the
tailings. At the conclusion of mining, tailings are covered permanently
with enough clay and soil to reduce both gamma radiation levels and
radon emanation rates to levels near those naturally occurring in the
region, and enough rock to resist erosion. A vegetation cover is then
established. Apart from groundwater considerations discussed above,
rehabilitation of ISL mines is very straightforward, making this a
technique with remarkably low environmental impact. Upon
decommissioning, wells are sealed or capped, process facilities removed,
any evaporation pond revegetated, and the land can readily be returned to
its previous uses. Experience at many mine sites is networked throughout
the industry and available to present and future operators.

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References
1. Environmental Management Act 7 of 2007;

2. Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals

References Act);

3. The Namibian Constitution of 1990;

4. Environmental Justice Organizations, Liabilities and Trade

(EJOLT) Report 22, Titled: Evaluation of Nuclear Legislation:
The issue of rehabilitation of uranium mine sites in Namibia

5. Soil Conservation Act 76 of 1969;

6. Hazardous Substance Ordinance 14 of 1974;

7. Atmospheric Pollution Prevention Ordinance 11 of 1976;

8. Prevention and Combating of Pollution of the Sea by Oil Act 6 of

1981;

9. Forest Act 12 of 2001;

10. Atomic Energy and Radiation Protection Act 5 of 2005.

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Unit 8 Indigenisation, Corporate Social Responsibility and mining in
Namibia

Unit 8

Indigenisation, Corporate
Social Responsibility and
mining in Namibia
Introduction
In this Unit you will learn about how the principle of permanent
sovereignty over wealth and natural resources has now evolved
into an important international legal principle governing the
ownership, control and development and exploitation of the
wealth and natural resources of states especially of developing
countries. This principle has now evolved into an important
international legal principle governing the ownership, control and
development and exploitation of the wealth and natural resources
of states especially of developing countries. The principle of
permanent sovereignty over wealth and natural resources of
states is the foundational principle of the economic self-
determination of the newly emerging independent states in
Africa, Asia and the Pacific. It emerged as a counterpoint to the
exploitation of the wealth and natural resources of these states by
companies based in the metropolitan colonial powers which
exercised hegemony over these territories. It was a direct
challenge or response to the economic/ business privileges
monopolized by the colonial companies in the various colonized
territories under the regime of traditional concessions which were
granted to them with extremely favourable terms such as the
actual ownership of the natural resources of the territories in
which they operated. These concessions were usually for long
periods sometimes extending to periods of over 60 years.

In this Unit you will also learn about Corporate Social

Responsibility, the social licence to operate, amongst other issues
related to mining and transformation in Namibia.

Upon completion of this unit you should be able to:

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Discuss the impact of indigenisation policies on tenure security for mining

investors;

Examine the significance of the principle of Permanent Sovereignty over

Outcomes natural resources on the indigenisation of the mining sector in Namibia;

Explain the impact of Article 100 of the Constitution on indigenisation calls

for the mining sector in Namibia;

Discuss the NEEEF and NEEEB’s impact on sustainable mining and

investment in the mining sector in Namibia;

Discuss the concept of social licence to operate in Namibia

Discuss corporate social responsibility in Namibia’s mining sector

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Namibia

Students must read:

Prescribed reading Minerals Policy of 2002

2018 Mining Charter (Namibia)

1990 Constitution of Namibia

United Nations Resolution 1803 (Principle of Permanent Sovereignty over

natural resources)

National/New Equitable Economic Empowerment Framework

National/New Equitable Economic Empowerment Bill

Baleni and Others v Minister of Mineral Resources and Others (73768/2016)

[2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP); 2019 (2) SA 453 (GP)
(22 November 2018)

NamCode (NamCode Index - Namibian Stock Exchange)

Warikandwa, T. and Osode, P. (2017) “Regulating against business

“fronting” to advance black economic empowerment in Zimbabwe: lessons
from South Africa,” PER vol. 20.

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta) 2015

A Stritter, “Mining Law 2018 – Law and regulations – Namibia,”

International Comparative Legal Guides available at
https://iclg.com/practice-areas/mining-laws-and-regulations/namibia

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law, Environment,

Society and Politics in Historical and Multidisciplinary Perspectives (2017)

Chamber of Mines, “Namibian Mining: The Economic Stronghold,” 2006

available at
http://www.chamberofmines.org.na/files/2914/7092/7973/Namibian_Mining-
The_Economic_Stronghold1.pdf

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8.1. Origin of the Principle

The principle evolved from the early 1950s in the United Nations organs
especially the General Assembly. The first UNGA resolution in which the
principle was enunciated was in 1952. This resolution emphasized the
right of the newly independent states to own, control and be able to
dispose of their wealth and natural resources.

An important milestone in the evolution of this principle is the

establishment of a UN General Assembly Committee to conduct a
comprehensive study of the principle. The work of this Committee led to
the adoption of UNGA Resolution 1803 (1960) on permanent sovereignty
over wealth and natural resources of states.

This resolution substantially elaborated on the principle to include the

following matters:

• The right of host states to admit multinational corporations

into their economies and grant them permits to develop their
natural resources subject to the legislative/ regulatory frame
work of the host state;

• The right of host states to revise inequitable concession

agreements which were granted to multinational corporations
during the colonial period usually by the metropolitan/
colonial power; Many of these concession agreements with
respect to the natural resources of colonized territories were
of long periods ranging from 30 to 60 years; under such
agreements, the companies owned their minerals/petroleum
which they mined and were free to dispose of them the way
they deemed fit. These colonial concessions also covered
vast tracts of territory over which they exercised unrestricted
jurisdiction; the concessionaires paid minimal tax to the
colonial government which could have used such tax revenue
for the infrastructural development of the colony;

• Resolution 1803 also stated the right of host states to

expropriate / nationalize their mineral resources which were
under foreign control subject to the payment of
APPROPRIATE compensation which for the first time stated
a standard of compensation different from the traditional
standard formulated by the US Secretary of State, Mr.
Cordell Hull in 1938 i.e. that the compensation payable
should be prompt, adequate and effective.

• This principle was further elaborated upon and incorporated

into the UN General Assembly document entitled the Charter
of Economic Rights and Duties of States in 1974. The
Charter was adopted by a large majority of the member states
of the United nations;

Other important international instruments into which the principle has

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been incorporated are the following:

Article I of the International Covenant on Economic, Social and Cultural

Rights which provides that:

“2. All peoples may, for their own ends, dispose of their natural
wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the
principle of mutual benefit, and international law. In no case may
a people be deprived of its own means of subsistence”.

These provisions are stated verbatim in Article 1 (2) of the sister

instrument of the International Covenant on Civil and Political
Rights.

Regionally, the principle has also been incorporated into the

African Charter on Human and Peoples Rights, which is the
foremost African human rights instrument (Article 21).

This article provides as follows:

“1. All peoples shall freely dispose of their wealth and natural
resources. This right shall be exercised in the exclusive interest of
the people. In no case shall a people be deprived of it.

2. In case of spoliation the dispossessed people shall have the

right to the lawful recovery of its property as well as to an
adequate compensation.

3. The free-disposal of wealth and natural resources shall be

exercised without prejudice to the obligation of promoting
international economic cooperation based on mutual respect,
equitable exchange and the principles of international law.

4. States parties to the present Charter shall individually and

collectively exercise the right to free disposal of their wealth and
natural resources with a view to strengthening African unity and
solidarity.

5. States parties to the present Charter shall undertake to

eliminate all forms of foreign exploitation particularly that are
practiced by international monopolies so as to enable their
peoples to fully benefit from the advantages derived from their
natural resources.”

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8.2. Experience of South Africa and Zimbabwe

Zimbabwe

In view of the above stated, Indigenisation programmes in Zimbabwe and

South Africa have often seen indigenous people who were previously and
are still excluded from the economic mainstream going into a state of
euphoria as they regard such programmes as a panacea to addressing their
economic challenges [Section 2(1)(b) of the Zimbabwean Indigenisation
and Economic Empowerment Act [Chapter 14:33] of 2007 (IEEA)
provides that: “indigenous Zimbabwean” means any person who, before
the 18th April, 1980, was disadvantaged by unfair discrimination on the
grounds of his or her race, and any descendant of such person, and
includes any company, association, syndicate or partnership of which
indigenous Zimbabweans form the majority of the members or hold the
controlling interest”. These provisions must be read together with section
14 and section 20(1)(c) of the Zimbabwean Constitution Act 20 of 2013.

Zimbabwe has since amended the IEEA which initially sought to have 51
percent of the equity shareholding of all businesses to be ceded to
Zimbabweans.10

South Africa

Section 1 of the South African Broad-Based Black Economic

Empowerment Act (B-BBEEA) 53 of 2003 provides that: “‘black people’
is a generic term which means African, Coloureds and Indians”. In the
same section of the B-BBEEA, it further provided that “broad-based
economic empowerment” means the economic empowerment of all black
people including women, workers, youth, people with disabilities and
people living in rural areas through diverse but integrated socio-economic
strategies…”].

This reasoning appears to be premised on the values set in the African

Charter on Human and People’s Rights, which advance a need to
recognise the right to the free disposition of wealth and natural resources,
in the best interests of indigenous people.

10
For a detailed outline of the IEEA see T Chidede and TV Warikandwa
“Foreign Direct Investment and Zimbabwe’s Indigenisation and
Economic Empowerment Act: Friends or Foes?” 2017 Midlands State
University Law Review 3, pp. 25-45. See further Warikandwa, T. and
Osode, P. (2017) “Regulating against business “fronting” to advance
black economic empowerment in Zimbabwe: lessons from South
Africa,” PER vol. 20.

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It is thus not surprising to realise that as justification for indigenisation in

Zimbabwe and South Africa, there is an ideology that land and mineral
resources are there to solely benefit indigenous people and not
multinational corporations.

The term multinational corporation, for the purposes of the interpretation

of indigenous black economic empowerment laws, is often understood to
refer to western owned companies.

This controversial approach appears to ignore the detrimental effect of

corporations from the East, in particular China, on indigenisation
programmes.

The plausible central claims to indigenisation are often advanced as the

need to remedy colonial injustices and improve the ratio of the
participation of the indigenous black majority into the economic
mainstream.

Premised on the distributive justice theory, indigenisation programmes

have promised much to the highly anticipating majority but delivered
little.

Instead, much has gone to a few well-connected elites due to unethical

business practices such as business fronting.

In South Africa, the application of indigenisation laws and policies

highlighted above has taken place regardless of the existence of the King
Reports on Corporate Governance and Corporate Social Responsibility.
- The King reports contain and institutionalise South Africa’s
celebrated corporate governance rules. Though not equivalent to
official legal documents the King reports are regarded
fundamental good corporate governance guidelines. Their
adoption has been greatly welcomed in South Africa’s business
domain. The key objectives of the King Reports are briefly
outlined as follows:

King I Report
- In 1994, the King Committee on corporate governance issued the
first report, King I, aimed at promoting corporate governance and
adequate standards for the board of directors of listed companies,
financial institutions and some public enterprises. While
encouraging good governance practices, the report also
emphasized the need for corporations to be socially responsible
in the areas and communities in which they operate.

King II Report
- In 2002, the King II report on corporate governance was
published. More or less at the same time, the Johannesburg

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Stock Exchange requested listed companies to comply with the

King Report or otherwise justify why they were not adhering to
the norm. The King II Report clearly established and explained
the seven good corporate governance elements that any
corporation adopting the report should pay attention to:
discipline, transparency, fairness, social responsibility,
independence, accountability and responsibility.

King III Report

- The third Report on corporate governance in South Africa (King
III) became necessary because of the anticipated 2008
Companies Act and changes in international governance trends.
The King III Report became effective in March 2010. as
compared to the previous versions (King I and King II), the King
III report focuses on sustainability and risk issues, while
continuing to highlight the importance for companies to respond
to all stakeholders. The topics covered in the King III report are:
ethical leadership and corporate citizenship, boards and directors,
audit committees, the governance of risk, the governance of
information technology, compliance with laws, rules, codes and
standards, internal audit, governing stakeholder relationships and
integrated reporting and disclosure. The companies must report
annually on how they:
• ... both positively and negatively affected the
economic life of the community in which they
operated during the year under review; and
• ... Intend to enhance those positive aspects and
eradicate or ameliorate the negative aspects on the
economic life of the community in which they will
operate in the year ahead.

South Africa has come up with a draft of pieces of legislation to

strengthen their resolve to promote interests of indigenous people.
- The 2013 BEE Amendment Act which regulates business
fronting.
- The use of scorecards which offer incentives to companies which
increase black representation in the managerial levels of
companies etc.
- The 2013 and 2015 Promotion and Protection of Investment Bills
which are pro-indigenous.

All the policies and laws relating to indigenisation have adopted a

“comply or else approach” …
- However, practical lessons can be drawn from the
implementation of the Sarbanes-Oxley Act of 2002. (Public Law

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Namibia

107-204, 116 Statute 745) enacted on 30 July 2002, in the United

States of America using the ‘comply or else’ statutory regime to
corporate governance which produced negative effects on
business. Professor Ribstein of Illinois Law School said: “It is
unlikely that hasty, crash-induced regulation like SOX can be far
sighted enough to protect against future problems, particularly in
light of the debatable efficiency of SOX’s response to current
market problems. Even the best regulators might err and enact
regulation that is so strong that it stifles innovation and
entrepreneurial activity. And once set in motion, regulation is
almost impossible to eliminate...”
- An example of the problems posed by the BEE driven policies
and legislation is that in 2014 South Africa’s Foreign Direct
Investment (FDI) declined and has largely remained in the
negative.
- The volatile global economic patterns have been blamed for this
development, but evidence points to the problem lying in external
investment flows exceeding internal investment flows by a
significant amount estimated at R13 billion.
- This pattern has been informed by the negative and aggressive
indigenisation policies which have threatened investor security.
The negative FDI trends continued into 2015, with first quarter
figures of the year showing that, “inward directed FDI declined
by R22 billion due to foreign investors withdrawing capital
injection from South African markets.”
- Further, South Africa’s credit rating was downgraded by
Moody’s to a level just one rank above the “junk economy”
status. The 2015 AT Kearney Foreign Direct Investment
Confidence Index which lists the world’s 25 most business-
friendly destinations also saw South Africa dropping out of the
group of the world’s 25 most attractive investment destinations.
- The latest developments must be viewed from the perspective
that in 2012, South Africa was ranked 11th, fell to 15th in 2013
and rose to 13th in 2014.

1. How does indigenisation impact upon the mining sector?

2. What is the principle of permanent sovereignty over natural

Activity resources?

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1. The principle evolved from the early 1950s in the United Nations
organs especially the General Assembly. The first UNGA
resolution in which the principle was enunciated was in 1952.
Feedback This resolution emphasized the right of the newly independent
states to own, control and be able to dispose of their wealth and
natural resources.

2. The principle of permanent sovereignty over wealth and natural

resources of states is the foundational principle of the economic
self- determination of the newly emerging independent states in
Africa, Asia and the Pacific. It emerged as a counterpoint to the
exploitation of the wealth and natural resources of these states by
companies based in the metropolitan colonial powers which
exercised hegemony over these territories. It was a direct
challenge or response to the economic/business privileges
monopolized by the colonial companies in the various colonized
territories under the regime of traditional concessions which were
granted to them with extremely favourable terms such as the
actual ownership of the natural resources of the territories in
which they operated. These concessions were usually for long
periods sometimes extending to periods of over 60 years.

8.3. Is Namibia’s policy framework any different

from SA and Zimbabwe’s policies?

• Article 23 of the Namibian Constitution prohibits discrimination,

except under an act of parliament expressly providing for the
advancement of persons who have been socially, economically or
educationally disadvantaged by past discriminatory laws.

• In December 2010, the Chamber of Mines officially presented its

proposal on empowerment in the form of a draft “Mining Charter for
Sustainable Broad-Based Transformation” to the Prime Minister and
the Minister of Mines and Energy.

• This Charter, endeavours to address the following issues:

- Ownership (all mining, development and exploration

companies would have to make a minimum of 5% and a
maximum of 25% equity available exclusively to historically
disadvantaged Namibian investors by the year 2015);
- Education and skills (mining companies to invest a
percentage of their annual payrolls in developing skills of
historically disadvantaged employees – from 3% in the year

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2011 to 5% in the year 2015);

- Affirmative Action (historically disadvantaged Namibians to
be represented at all levels of management over 10 years –
from 20 percent in the year 2012 to 60 percent in the year
2020;
- Decent work and mine safety;
- Employment, procurements and enterprise safety;
- Beneficiation;
- National infrastructure;
- Mining communities;
- Environment;
- Reporting; and
- Review.
- The Cabinet of the Republic of Namibia has, towards the end
of the year 2011, adopted the National/New Equitable
Economic Framework (NEEEF). Legislation is envisaged to be
implemented as per the NEEEF policy and its underlying
principles.
- NEEEF does not have the force of law but is a policy
framework.

• NEEEF will be based on voluntary business practice, but Government

would use all the legitimate market mechanisms at its disposal, in the
form of procurement programmes and licensing regimes, to promote
transformation and empowerment.
• The objectives of this policy are to be achieved through five
empowerment pillars. In order to be recognised as compliant with
NEEEF, a business would have to achieve 50 of a total of 100 points
made up of 20 points per empowerment pillar. A minimum of 10 points
on each of the three pillars of ownership, management control, and
employment equity, and human resources and skills development would
be mandatory.

The five pillars are:

1. Ownership
2. Management control and employment equity
3. Human resources and skills development
4. Entrepreneurship development
5. Community investment

The NEEEF mirrors South Africa’s Preferential Procurement Policy

Framework Act (PPPFA) 97 of 2000 which prohibits discrimination on the
basis of race, gender e.t.c in awarding tenders.

There were three conclusions

1. NEEEF is a policy and no more. There are some companies that

produce NEEEF scorecards because they feel it is a competitive
advantage. But without some pressure from the government nothing is
going to happen.

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2. A transformation policy that must apply to the whole economy needs

something like preferential procurement to make it work. NEEEF
assumes that government procurement will force companies to comply
but all that will happen under these circumstances is that a handful of
compliant companies will become agents for those that don't. And it
will only be those few that do comply.
3. There is no comprehensive definition of a Previously Disadvantaged
Namibian yet.
4. Namibia has tabled the National/New Equitable Economic
Empowerment Bill before Parliament. There is no consensus as to the
nature of the Bill yet with the private sector resisting attempts to have a
25% equity shareholding being transferred to indigenous persons as
there is no clarity as to who will fund such a policy initiative. 11

8.4. The Corporate Governance Code for

Namibia (NamCode)
Corporate governance in Namibia has largely been guided by the
Corporate Governance Code for Namibia (NamCode). NamCode
provides a list of the best practice principles to assist and guide directors
to make the right choice for their entities. The NamCode is based on King
III and provides guidance to all Namibian corporate entities on various
governance related aspects, including:
• Ethical leadership and corporate citizenship;
• Boards and directors;
• Audit committees;
• Governance of risk;
• Governance of information technology;
• Compliance with laws, codes, rules and standards;
• Internal audit;
• Governing stakeholder relationships; and
• Integrated reporting and disclosure.12
The King III report on corporate governance in South Africa became
necessary because of the passing into law of a then new Companies Act
No. 71 of 2008 and transformation in international governance trends.

11
See more at: http://bbbee.typepad.com/paul_janisch/new-equitable-
economic-empowerment-framework-neeef/#sthash.g6DcDxPc.dpuf.
12
Deloitte. n.d. NamCode: The Corporate Governance Code for Namibia.
Available at
https://www2.deloitte.com/na/en/pages/risk/articles/namcode-
overview.html.

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The King III report was compiled by the King Committee with the
assistance of the King subcommittees. Eleven subcommittees were
established for the King III process, namely: 1) boards and directors; 2)
accounting and auditing; 3) risk management; 4) internal audit; 5)
integrated sustainability reporting; 6) compliance and stakeholder
relationships; 7) business rescue; 8) fundamental and affected
transactions; 9) Information Technology governance; 10) alternative
dispute resolution; and 11) editing.

Companies in Namibia do not have a statutory obligation to comply with

the NamCode. The central objective of the NamCode is not to compel
companies to comply with the recommended practice but for them to
“apply or explain”. This implies that Directors are accountable to
shareholders and other stakeholders and hence in instances where
Directors opt not to implement the recommended practices, as set out in
the NamCode, such Directors should explain their reasoning and
motivation to shareholders. This is attributed to the fact that Directors are
accountable for compliance with their duties towards the company
(including the fiduciary duty and the duty of care and skill). The
NamCode’s best practice principles thus relate to the legal duties of a
Director to exercise their powers and perform their functions in good
faith and for a proper purpose in the best interest of the company, with a
degree of care, skill and diligence that may reasonably be expected of a
Director.

The NamCode builds on the principle of the triple bottom line by

emphasising sustainability. The concept of the triple bottom line was
introduced into King II to emphasise the need for companies to account
not only for economic and financial issues, but also for social and
environmental issues.

Directors have accountability to shareholders and an obligation to all

stakeholders to ensure that the company’s resources are utilised in a way
the continuing viability of the company is safeguarded. This involves not
only environmental sustainability (resource management with an eye on
future needs), but also issues such as social responsibility (ensuring a
positive impact on the community within which the company operates),
respect for human rights, and the effective management of stakeholder
relationships (including the utilisation of alternative dispute resolution
mechanisms to resolve potential disputes efficiently, expeditiously and
inexpensively).

A focus on sustainability will not only positively impact a company’s risk

management, but also its strategic planning processes. Governance,
strategy and sustainability have become intrinsically linked, and directors

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should ensure that the company’s strategy accounts for sustainability

issues and report all such issues to the relevant stakeholders.

The NamCode also points out that the economic value of a company can
no longer be based on the balance sheet only. Rather, the economic value
will be impacted by a range of non-financial issues such as brand and
reputation, stakeholder relations and goodwill, an evolving and forward-
looking strategy, environmental sustainability, social responsibility,
quality of governance, etc.

It is imperative to point out that at the point of conducting this study,

NamCode remained as the favoured corporate governance framework
with the 64% of Namibian Coprorates opting for the NamCode, 27 %
making use of the King IV principles and 9% having not adopted a
corporate governance framework. This serves as no surprise as to why the
Namibia Stock Exchange (NSX), in 2019, had already started exploring
the possibility of determining the applicability of the King IV Report to
the Namibian environment.13 The King IV Report is the current corporate
governance framework for South Africa.

Apart from the King IV principles, the Environmental, Social, and

Governance (ESG) criteria on corporate governance also emerged as a
topical issue with studies having already been conducted in the Namibian
context.14 The Environmental, social, and governance (ESG) criteria
refers to a set of standards for a company’s operations that socially
conscious investors use to screen potential investments.15 Environmental
criteria consider how a company performs as a steward of nature. Social
criteria examine how it manages relationships with employees, suppliers,
customers, and the communities in which it operates. Governance deals
with a company’s leadership, executive pay, audits, internal controls, and
shareholder rights.

The Companies Act of 28 of 2004 also plays a role with regards to

corporate governance in Namibia though it may not expressly cover all
aspects of corporate governance as does the NamCode, King IV and the
ESG as will be pointed out later in this chapter. In line with international
practice, companies in Namibia are represented by two bodies, namely

13
Delloite. 2019. 4th Edition of the Deloitte corporate governance survey
for Namibia 2019. Delloite Namibia.
14
See for example De Klerk, J. 2017. Private equity and responsible
investment in Namibia. University of Pretoria. Available at
http://hdl.handle.net/2263/59814.
15
Chen, J. 2020. Environmental, Social and Governance (ESG) Criteria.
Available at https://www.investopedia.com/terms/e/environmental-
social-and-governance-esg-criteria.asp.

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the shareholders, who ultimately own the company, and the board of
directors, which is responsible for managing the company (Koep &
Partners. 2019. Corporate leadership in Namibia. The Law Reviews. 29
March 2019). The relationship between the company, its shareholders and
the board of directors is determined by common law, the Companies Act
and the articles of association of the company. Often, the shareholders of
a company will also enter into a shareholders' agreement, which amplifies
the roles and responsibilities of shareholders and directors in respect of
the company. This chapter will therefore provide an outline of the
Corporate Governance framework in Namibia, its strengths and related
challenges. It will start with an analysis of the standards and codes that
inform corporate governance in Namibia.

8.5. Corporate Social Responsibility

Corporate social responsibility (CSR) is a self-regulating business model
that helps a company be socially accountable - to itself, its stakeholders,
and the public. At its heart, CSR works with the notion that businesses
cannot be successful when the society around them fails. When
multinational companies move resources out of the country, it usually
leaves behind some form of footprint, and so moral philosophers ask that
corporations give back to societies that have allowed them to prosper.
One involves corporations providing funding and resources for
worthwhile social causes, such as donating money or employee time to
charities. Most companies, also in Namibia, opt for this as a way of
philanthropy. However, CSR is more than just donating money, or
printing double-sided flyers to save trees. It's about contributing to the
health and welfare of society, operating transparently and ethically.

Another type of CSR involves putting together a real plan to produce

products or provide services that are in the best interests of society. This
may include activities such as using safe materials in design and
manufacturing, corporate environmental initiatives, and other measures
such as job creation and economic development. This type of
philanthropy is known to have a long-lasting effect on society.

Mining companies operating in Namibia approach the notion of corporate

social responsibility (CSR) as a business strategy to gain favour with
communities in areas where mining takes place. Compliance with CSRs
means gaining acceptance from the relevant community and therefore
provides a social license to a mining company to operate in a specific
area or community effectively.

A company also demonstrates its intention to improve the society within

which it operates by promoting CSRs. Most mining companies operating

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in Namibia occasionally publish CSR reports on their respective websites

to display projects undertaken and to promote their image as a
responsible business in the communities. Mining companies such as
Rössing, Swakop Uranium, Langer Heinrich, B2Gold, Dundee Precious
Metals and the Debmarine-Namdeb Foundation, but to mention a few,
have taken CSR initiatives seriously and invested millions in various
communities and projects, ranging from skills upgrade to payment of
school fees.

It is, however, unclear whether the reports published on mining

companies’ websites give a clear picture on the status of CSR projects
since many of the reports are not dated. Furthermore, little research has
been conducted in the Namibian mining sector to determine whether
CSRs indeed bring about positive change for communities affected by
mining. Consequently, at present, there is no definitive way society can
determine whether mining companies live up to promises made or
whether CSRs are merely an attempt to create a positive image for
mining companies.

Part of the problem is the fact that in Namibia compliance with CSRs is
not imposed by legislation as a precondition for obtaining mining or
prospecting licenses. In South Africa, for example, CSRs have been given
recognition to such an extent that South African legislation makes it
mandatory for an applicant for mining rights to demonstrate how CSRs
will be complied with. In Namibia, it is up to mining companies if they
take the initiative to reduce the negative impacts of mining projects and
to improve the living conditions of local communities.

The positive effects of CSR can bring about social and economic change
in areas where the government cannot reach because mining companies
invest directly in areas where their mining activities take place.
Investments can take the form of building hospitals, schools, shops and
promoting other social projects.

CSRs, however, can also contribute on a larger scale by creating

economic infrastructure. In this manner, the capabilities of local services
and suppliers of materials required to produce the final product of mining
processes can be developed, thereby eliminating the need to export raw
materials. Value can be added locally thereby creating more jobs and
assisting the Namibian government in attaining the fundamental goal of
industrialisation as per Vision 2030. Therefore, CSRs have potential in
promoting the social and economic well-being of Namibian people. To do
so, however, effective regulation of CSR should be implemented in
consultation with all stakeholders, including the communities directly

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affected by mining operations.

Since the Namibian economy relies greatly on extractive industries,

mining companies can contribute significantly to socio-economic change
in Namibia. By giving effect to CSRs, mining companies can address
issues that are not addressed by existing government development
initiatives in poor and rural communities, which is where mining
activities usually take place. The identification of appropriate CSR
projects is therefore important. Regulation must ensure that CSR projects
do not only serve the concretizing of good reputation but that it also
provides relevant and suitable infrastructure and support for communities,
even after a mine has closed shop. However, until the Namibian
government introduces legislation to make compliance with CSRs
mandatory, mining companies will be able to decide whether and how
they are going to comply with CSR. It seems like an opportunity missed.
The table below outlines the pattern of good corporate citizenship per
sector.

Good Corporate Citizenship per sector

Type of Sector Type of

Organisation philanthropic
activity
Private Company Mining, banking, Education,
insurance, infrastructure
construction, development,
agriculture environmental
protection, poverty
alleviation
Public Company Banking, Education
communication,
tourism
Partnerships Construction Education
SOEs Energy, funding, Education and
education community
development,
technology and
innovation
NGOs Religion Education
Trusts Environment, mining Education, poverty
alleviation

There is evidence of good corporate citizenship in Namibia. However, the

question that must be posed is whether or not such corporate citizenship
is consistent with the benefits that companies obtain from investing in

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Namibia. The answer to this question is not simple as an unstable global

market and shocks on the international markets caused by the current
global pandemic amongst other factors may not create conducive
environments for effective CSR. However, there is room for more to be
done by companies in line with the proposed Pan-African Investment
Code, the United Nations Global Compact, and the Equator Principles
amongst other soft law mechanisms.

The Namibia Chamber of Mines in one of its annual reports (for 2015 and
2016) gives a fair indication of how companies are fairing in their CSR
and the general business performances. The statistical data provided is
always provided in a comparative analysis manner with the statistical
data of the year of reporting being compared with the previous year. An
example is provided in the Table below.

Industry Performance Comparison 2015 and 2016

2016 2015 % Change

Turnover N$28.85 billion N$25.28 billion 14%

Wages and salaries: N$4.17 billion N$3.76 billion 11%

operating mines and
mine development
companies

Fixed investment N$3.48 billion N$5.47 billion -36%

Exploration: N$428.3 million N$326.2 million 31%

operating mines
(excluding Swakop
Uranium)

Exploration: N$99.9 million N$164.7 million -39%

exploration
companies and mine
development
companies

Corporate tax N$1.75 billion N$2.35 billion -26%

Royalties N$1.45 billion N$1.41 billion 3%

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Total taxes paid N$3.2 billion N$3.76 billion -15%

Total taxes and N$4.1 billion N$4.34 billion 6%

dividends paid

Procurement N$11.8 billion N$11.2 billion 5%

CSR: operating N$88 million N$60 million 47%

mines and
development
companies

Permanent 9,574 8,853 8%

employees

Temporary 699 716 -2%

employees

Contractors 5,400 9,423 -43%

Source: Presentation by Veston Malango, Chief Executive Officer of the

Namibian Chamber of Mines titled, “Mining Industry Performance in
2016,” presented at the Mining Conference, 26th April 2016, Windhoek
Show Grounds.

Data as indicated in the Table above can be used to determine whether

mining companies in Namibia are following global initiatives on CSR.
Such initiatives as already indicated in this chapter include the United
Nations Global Compact amongst others. These initiatives include self-
assessment tools16 and external assessment17 tools. The Table below
provides a comprehensive outline of the tools used to measure CSR in the
world.

16
Self-Assessment tools refer to a self-evaluation process of the mining
companies in which they provide data as regards their CSR initiatives. The
outcomes and assessment of the CSR is then published for consideration by
the public. Such assessment can be done online or through frameworks and
guidelines.
17
External assessment tools refer to the assessment that is done by Non-
Governmental Organisation or experts in the mining area in relation to the
activities of the mining companies which may impact on the society.

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Outline of existing measuring tools for CSR

NAME SHORT DESCRIPTION

SELF ASSESSMENT TOOLS

Online Mask/Tool

MDG Scan MDG scan is an online tool which works with

multiplicators, meaning companies fill in the number of
people directly positively influenced by its business
operation and added by multiplicators, the tool assesses the
total number of positively affected people. One of the few
tools that concentrates on all MDGs, includes value chain,
delivers report, give the possibility for all companies which
used the tool to exchange experience within the online
community.

Wildesoft Tools Impact Manager: By use of the individual contract data, it

measures organisational performance against key
Four online tools: performance indicators.
• Impact Manager LM3 Supply Chain Manager: Calculates an organisation’s
• LM3 Supply economic impact on its communities and manages supply
Chain Manager chains by identifying best and worst performing suppliers,
• Impact tracking supplier performance across different contracts and
Predictor over time and monitoring progress against targets quarterly,
• Social Tool annually, or by project.
Organizer Impact Predictor: For demonstrating indicative economic
and employment impacts of their approach for the local
economy providing a competitive advantage and evidence
for community benefit.
Social Tool Organizer: Matches procurement classification
systems against a library of social clauses to maximise
sustainability and community impact of procurements.

Social e-valuator Social e-valuator delivers web-based software and expert

knowledge that enables organisations to measure and
manage social impact, based on the principles of Social
Return on Investment (SROI). It represents social value in
monetary terms. Since the investment in the social projects
is typically monetary, the social value should be monetized
as well. In this way, something can be said about how big
the impact of the project has been relative to investments.

LBG Model The model also records the outputs and long-term
community and business impacts of Corporate Community
Investment projects online tool for companies to understand
the total amount of cash, time and in-kind invested in the
community. In an Excel toolkit the overall project input-
output-impact is assessed by consolidated information in
the sheet. Data can be used for major corporate
responsibility indices (DJSI; GRI; CR Index)

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Global Compact Self- This self-assessment online tool is a package concentrating

on Human Rights, Labour, Environment and Anti-
Assessment Tool
Corruption. Questions have to be answered by estimation
(Yes, No, F/A [further Information acquired], N/A [no
answer can be made]) and the tool calculates the
contribution towards achieving the 10 goals of the UN
Global Compact.

List Lives Saved Tool Online tool to estimate impact of different intervention
packages (maternal, newborn and child health intervention)
and coverage levels of the countries companies and
organisations operate in to help prioritize investments and
evaluate existing programs. Uses data from the UNICEF
household survey as given data. Targets have to be filled in
and the tool assesses impact for the whole time period of a
project.

Inclusive business It is an online tool to help companies and stakeholders

identify and implement models that profitably engage low-
challenge
income populations across companies' value chains and
develop affordable products and services that meet the
needs of low-income populations. It presents good practice
examples and suggests ways to integrate inclusive business
into company strategy.

HRIAM Guide to Seven steps online questionnaire approach for the

Human Rights Impact Identification of key human rights risks and impacts. Offers
Assessment, an interactive tool for engagement with stakeholder and to
communicate with other users.

MoNA (Monitoring By calculating a Materialrucksack the tool assesses impact

Nachhaltigkeit)
focusing on environmental sustainability only.

GIIRS (Global Impact GIIRS comprises two branches: Company Impact Ratings
Investing Rating System) and Fund Impact Ratings. Focusing on the first: A rating
by 15 sub-categories and key performance indicators of the
social and environmental impact of an individual company
is made. After filling in the GIIRS assessment the document
rating is uploaded and reviewed by a third party. 10% of
companies are selected for on-site review. Companies
receiving the 5-star rating on a scale from 1 to 5 are granted
a BCorp Certificate (sole use in America).

Human Rights Matrix This learning tool should enable companies to review their
human rights performance by identifying its policies on
human rights and the approaches it has taken towards them.
This snapshot of performance helps to get familiar with the
human rights expectations in the business and delivers
feedback on potential areas of concern.

Human Rights By making use of a database of 195 questions and 947

indicators the tool detects human rights risks in company
Compliance Assessment
operations and their impact on all stakeholders. It is
possible for companies to develop a tailored assessment
tool by picking questions based on country risk and features
of the company operation. In the final report areas of
compliance and non-compliance are listed by a score which
allows tracking and comparison over time.

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Accountability measures The tool deals with an organisation’s accountability issues.

The Non-profit Risk Management Centre in addition offers
several risk management online tools like: My Financial
Management Plan, My Risk Management Policies, My Risk
Management Plan, Free Risk Management Tutorials,
Accident Response, Basic Risk Management, Business
Continuity Planning, Volunteer Risk Management and
Workplace Safety.

UN Global Compact For the assessment of a company’s supply chain

Quick Self-Assessment sustainability strategy against suggested global guidance.
and Learning Tool This basically simple to use tool is recommended. The
outcome is a simple analysis of the 6 questions and then
offers several guidelines and ideas on how to follow up on
the outcome and how to improve the supply chain
sustainability efforts.

Partnership Assessment Tool to foster collaborations between UN and companies. It

Tool (PAT) demonstrates the sustainability performance of partnership
projects and gives an indication of their potential
developmental value. The tool further helps guide decision-
making and project planning. The outcome is easy to
understand - triangle, circle, and star in different colours
means negative, positive or excellent. For the actual impact
evaluation the use of the MDG scan is recommended.

Retail Supply Chain These tools concentrate on the retailer who can choose
whether to buy goods/products because it guarantees
Portal WercsHELP tool
sustainability. WercsHELP (Health and Environmental
GeenWERCS tool Library for Products) gives retailers access to complete data
on all chemical-containing products. The chemical-
screening tool GeenWERCS analyses the composition of
individual products from ingredient data entered by
manufacturers, examining its potential impact on human
health and environment and plotting its combined score.
Manufacturers are also able to see how their types of
products stack up to the buyer’s internal sustainability goals
which give incentives for innovation.

Online Platforms

CSRware-SSC Tool for the buyer who wants to assess the supplier’s
performance on CSR. Software helps to evaluate and
sustainable supply chain benchmark how suppliers affect a company’s sustainability
performance. Scores and ranks suppliers by a variety of
metrics and offers a track program to address sustainability
expectations and goals.

SIM - Arcus Supplier Companies create the platform for suppliers which they
Information invite to fill in data. This way the buyer company can
Management system monitor how all suppliers are doing and how they are
performing according to their sustainable behaviour. SIM is
not a platform with the effort of monitoring suppliers’ core
business performance - a supplier management platform.

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Supplier Portal Online platform which allows suppliers and their buyers to
share and monitor environment, labour, health and safety,
anti-bribery, and corruption information. The portal
includes a data wizard for suppliers to record and calculate
carbon, waste and water footprints based on business
consumption. Supplier gives access to the buyers and
thereby gives access to all information gathered.

HRIA A Human Rights HRIA is a platform which provides different frameworks

Impact Assessment with indices an 8 step and self-assessment questionnaires
Toolkit for the assessment of the current human right situation,
political contextual analyses and development of view of
desired situation.

Human Rights Impact A platform which provides different tools and instruments.
Assessment There are many different tools and instruments available -
only the ones necessary and helpful should be used.

Online tools which create country profiles

MDG Monitor The tool shows which MDGs are in which country at
hazard shown in an interactive world map and how they are
developing within the MDG framework. The MDG Monitor
showcases existing UN data. Country-level assessments of
progress by goal (“Very likely to be achieved”, “Possible to
achieve”, etc.), are derived primarily from national MDG
reports.

Maplecroft Tools This online tool offers a questionnaire for human rights,
environment and labour. The outcome shows in percentage
how good/bad the company does in one sector. The tool
follows guidelines by the Global Compact.

OECD Better Life Index The country index online tool is designed to visualise and
compare eleven key factors that contribute to well-being in
OECD countries. It’s an interactive tool which allows to see
how countries perform according to the importance one
gives to each of the eleven topics that make for a better life.

ORBIT The ORBIT company’s online database enables direct

access to the detailed information contained in the Oekom
Corporate Ratings of over 1,000 companies. The companies
• ORBIT are analysed and evaluated against up to 100 social and
companies environmental criteria, selected specifically for each
online database industry. ORBIT Countries offers companies the
• ORBIT country opportunity to familiarise themselves with the social and
online database environmental conditions in countries in which they are
planning to operate.

OECD Risk Awareness The tool aims to help companies which invest or do
Tool business in countries where governments are unwilling or
unable to take on their responsibilities. It basically offers a
Tool for Multinational set of questions which should be considered before doing
Enterprises in Weak business in countries of high risk.
Governance Zones

Corruption Perception The index measures the alleged levels of public sector
Index corruption in 176 countries and territories around the world.
The tool works with surveys and assessments of corruption
reported by a variety of reputable institutions. Thereby it
relies on the views of analysts, businesspeople and experts

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in countries around the world.

Bribe Payers Index The index ranks the likelihood of private sector companies
from world’s wealthiest countries to secure business abroad
by paying bribes. The index relies on results of a survey of
over 3000 senior business executives around the world
covering their perceptions of the likelihood of companies to
engage in bribery when doing business in their country.

Global Corruption The barometer is the outcome of a worldwide public

Barometer opinion survey on people’s views and experiences of
corruption. It detects the general public’s views about
corruption levels in their country as well as their
governments’ efforts to fight corruption. It also includes
information as the frequency of bribery, reasons for paying
a bribe in the past year, and attitudes towards reporting
incidents of corruption.

AGI Data Portal Information on countries facing lack in good governance

Actionable Governance and corruption are consolidated e.g., by the Global Integrity
Indicators Data Portal Index (GI) and there are several customized tools for data
management, analysis and display.

WGI project Worldwide The WGI shows aggregate and individual governance
Governance Indicators indicators for 215 economies for six dimensions of
governance: Voice and Accountability, Political Stability
and Absence of Violence, Government Effectiveness,
Regulatory Quality, Rule of Law and Control of
Corruption. The indicators combine the views of a large
number of enterprises, citizen and expert survey
respondents in industrial and developing countries.

Global integrity report Summarised in a tool and a report are the findings of
examining e.g. transparency of the public procurement
process, media freedom, asset disclosure requirements,
conflicts of interest regulations in over 30 countries. By
evaluating anti-corruption legal frameworks and the
practical implementation and enforcement of those
frameworks it takes a close look at whether citizen can
effectively access and use anti-corruption safeguards. The
Report is prepared by local researchers, journalists and
academics.

Dashboard of Shows the conditions companies are facing on site. It

Sustainability further shows in which countries MDGs could be achieved
and how they are proceeding over time.

Search Platforms for Tools

Trasi Platform for finding tools and methods to analyse and

measure impact.

Larrge Platform of numerous human right tools

Frameworks and Guidelines

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UNDP Company Level The main component of the CSR assessment framework is a
tailored questionnaire, consisting of 25 questions with
CSR Self-Assessment
mostly yes/no answering options. The questions are
Tool grouped under five overall categories: Governance,
Environment, Labour, Community Relations, and Business
Environment.

MFI Measuring Impact The Framework is based on a four-step methodology that

Framework attempts to merge the business perspectives of its
Methodology contribution to development with the societal perspectives
of what is important in the country the business operates.
Questions in four categories (Governance & Sustainability,
Assets as Infrastructure and Products & Services, People as
in Jobs and Skills & Training and Financial Flows need to
be filled out assessing estimation of ‘low/high importance’.

Bellagio STAMP The Guidelines offer a set of eight high level principles
Sustainability covering the areas content, process, scope and impact. They
Assessment and are intended to guide the whole sustainability assessment
Measurement Principles process, including the choice and design of indicators as
well as how they are interpreted and communicated.
Assessment systems based on the principles are supposed to
strengthen governance and to improve accountability in
meeting sustainable development goals and targets.

CR Reporting By joint efforts with AccountAbility improved quality and

AccountAbility usefulness of social sustainability reporting is the goal. A
Reporting clear framework for assessing the needs of reporting
organisations and for selecting assurance providers is
provided. Stakeholder engagement is most important within
the process of reporting.

OHCHR Guide Human The guide aims to assist in developing quantitative and
Rights Indicators: A qualitative indicators, in compliance with international
Guide to Measurement human rights norms and principles, to measure progress in
and Implementation the implementation of international human rights norms and
principles.

G3.1 Sustainability This tool provides the framework for the GRI reporting
Reporting Guidelines package. For each GRI Report a context index (explained in
1.2.1) must be included with each GRI report.

Environmental A framework that helps a company achieve its

Management Systems environmental goals through consistent control of its
(EMS) operations. Each company's EMS is tailored to the
company's business goals and a company’s environmental
policy has to establish.

Assessing Development Tool for measuring impact of development projects of the

Inter-American Development Bank.
Impact

DJSI - Corporate The tools focus is on the company’s long-term value

Sustainability creation for 58 different DJSI sectors (general criteria
Assessment relating to standard management practices and performance
measures such as Corporate Governance, Human Capital
Development and Risk & Crisis Management are defined
and applied to each of the 58 sectors). DJSI members are
evaluated and analysed by SAM - Sustainability
Assessments. The tool is only useful for DJSI members.

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NONIE - Guidance on The document is structured around nine key issues that
Impact Evaluation provide guidance on conceptualizing, designing, and
implementing impact evaluation. It is a guide on how to
evaluate. These guidelines are recommended by OECD,
DAC and WB. Nonie is a network of networks for impact
evaluation comprised of the DAC Evaluation Network, the
United Nations Evaluation Group (UNEG) and the
Evaluation Cooperation Group (ECG)

Iooi-Method (input- The guideline offers a planning and evaluation matrix to

output-outcome measure social engagement of companies by using an
Input-Output-Outcome-Impact Model. Input indicates what
impact-Method) efforts a company’s needs to take up in order to realise its
engagement (time, goods, philanthropic giving); Output are
the actual measures which need to be realised; Outcome
shows the effect on the target group; Impact shows the
actual social impact.

Supply Chain Insight Guidelines with a comprehensive list of questions designed

Tool (SCi) to help companies understand and improve their supply
chain business practices. This customizable guide quantifies
supply chain performance in all areas of sustainability and
is intended to compliment a strictly performance-based
formal audit.

IESIA Integrated Approach for project assessment which covers the whole
Environmental and project cycle. The tool is solely for African Development
Social Impact Bank Projects, not for measuring impact of companies.
Assessment Guidelines

The Corporate ESR The Guide to Corporate Ecosystem Evaluation introduces

concepts and principles of ecosystem evaluation. It can be
customized to fit to different sectors.

Frameworks and Guidelines which focus on Sector Profiles

SEAT Guidelines only for use in the mining sector, specifically by

Anglo-American companies.
Anglo-American Socio-
Economic Assessment
Toolbox

Corporate Water The tool evaluates supply chain water use and water use in
Footprint terms of waste management.

Aqua Gauge The Aqua Gauge offers a comprehensive assessment tool

for evaluating an existing water strategy or building one
from the ground up. The excel sheet is supposed to help
with water management.

Supplier Self-Assessment The questionnaire was designed with the industrial goods
Questionnaire (SAQ) sector in mind. For use by those that are just beginning to
address sustainability issues in their supply chains a
‘conversation starter’.

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Sustainable Procurement The toolbox designed to help corporate managers

of Wood and Paper- understand and find the best advice on how to purchase
Based Products products originating from the world's forests. The guide to
the guides will help sustainability managers define and
implement purchasing policies for the entire range of forest-
based products.

RIMS Impact Framework for measuring and reporting impact of projects

Management System in finance. This tool is merely for IFAD-supported country
programmes.

Global Water Tool The tool compares companies’ sites with water, sanitation,
population and biodiversity information of a country. Tool
compares how much water is available with the amount of
water used/necessary by the company. The tool consists of
two parts: 1) An Excel workbook for site location and water
use data entry which will generate a water inventory. 2) An
online mapping system enabling companies to plot their
sites with external water datasets and download those
locations in a map.

External Assessment tools

Oxfam Poverty Combines local assessment of livelihood impacts, value

Footprint chain analysis, and an assessment of economic
contributions in one comprehensive approach. Assessment
is carried out by independent research teams supported by
the company and by an NGO. The research questionnaire is
individual for each company and region. The onsite
interviews take a long time and lots of resources are
necessary.

PPI Progress out of PPI is solely for the Microfinance Sector where it measures
Poverty Index the likelihood of clients to fall below national poverty line.
Microfinance Institute field staff visits the homes of clients
and collect key information. The country living index then
serves as a baseline from which client progress is measured.
By tracking poverty levels against other client demographic
information, the results of the PPI allow an MFI to make
key decisions about its mission and how to carry it out.
Well performing MFIs receive a PPI Certificate.

SAM Corporate Annual assessment based on online questionnaire of over

Sustainability 100 questions by an external assessment team. It provides a
Assessment Company Benchmarking Report (CBR) for assessed
companies and offers customized training and sustainability
management solutions as well as national sustainability
benchmarking. The results serve as the basis for the Dow
Jones Sustainability Indexes (DJSI).

Source: H Spitzer and A Martinuzzi, “Methods and Tools for Corporate Impact
Assessment of the Millennium Development Goals (MDGs) and Sustainable
Development,” European Sustainable Development Network (ESDN), ESDN
Case Study No. 14, April 2013, pp. 24-30.

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8.6. Security of Tenure in the Mining Sector

Just administrative action in Namibia aids in ensuring security of tenure
for mining investors. In principle, security of tenure is a crucial aspect of
mining especially at the exploration and mining stages and is therefore
“non-negotiable”.18 In principle it is accepted that foreign investors’ main
concern is security of tenure for their investments. When a government
starts to introduce policies that may antagonise investors and could
potentially have adverse effects on the rights they enjoy, their security of
tenure is compromised.19 In the NEEEF, Namibia Investment Promotion
Act and NEEEB, Namibia could soon be facing significant challenges in
so far as the security of tenure for mining investors is concerned.20 This
does not suggest that the transformation policies are not important, but it
points to the nature of the neoliberal economic order and it lack for room
for African countries’ developmental agenda.

8.7. Does Namibia recognise any indigenous rights

in respect of minerals?
Namibia does not recognise indigenous rights in respect of minerals.
However, a decision taken by Cabinet in April 2011 vested all rights in
respect of strategic minerals in the State-owned mineral company,
Epangelo Mining Limited (Pty) Ltd.21 The minerals affected by this

18
MO Dale, “Security of Tenure as a key issue facing the international
mining company: a South African perspective,” 2015 Journal of Energy &
Natural Resources Law, 14(3), pp. 298-309. See also JM Otto, “Results of a
survey of Mineral Investment Preferences, in Mineral Investment
Conditions in selected countries of the Asia-Pacific Region,” United
Nations ST/ESCAP/1200. New York, 1992, p. 12; and JM Otto, “The
International Competition for mineral investment: Implications for Africa,”
paper presented to the Chamber of Mines of South Africa, Johannesburg,
15 June 1995, p. 10.
19
J Feris, “South Africa: Investor Protection: Security of tenure of mining
rights in South Africa,” available at
http://www.mondaq.com/southafrica/x/282258/Mining/Investor+Protection
+Security+of+tenure+of+mining+rights+in+South+Africa (accessed 26
April 2018).
20
In the free market and/or capitalist contemporary global economic
environment, emphasis must be placed on: 1) improving the mining
regulatory system to make it “investor friendly”; 2) enhancing beneficiation
of minerals in a country; 3) removing ambiguities in the mining legislation;
and 4) streamlining the administrative process for licensing.
21
E Hawala, “Epangelo Mining Company: Investing on Solid Ground,”
available at
http://www.chamberofmines.org.na/files/5414/7035/4140/7_The_Role_of_

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decision include uranium, gold, copper, coal, diamonds and rare earth
metals. In Namibia, no distinction is made between prospecting and
mining operations on state land and prospecting and mining operations on
private land.22

There are no specific rules for foreign applicants. However, in terms of

the Foreign Investment Act,23 it may be a condition for the granting of a
licence or authorisation or an agreement for the granting of rights over
natural resources that the applicant shall have to accommodate the state,
as joint holder or shareholder. Furthermore, in terms of the Minerals Act,
the Minister may grant a licence, or the renewal of a licence, subject to
such terms and conditions as he may deem necessary.24 In the light of the
above, licences are often granted subject to the condition that there must
be some local ownership (which can include joint holding with
Epangelo).

Unit summary
In this unit you learnt about indigenisation and CSR in Namibia’s mining
sector. Lessons have been drawn from Zimbabwe and South Africa as
regards the impacts of indigenisation policies on a country’s mining
sector. Namibia has embarked on a plausible indigenisation policy and
Summary has tabled the NEEEB which may soon be passed into law. The idea
behind such a policy direction is that Namibia wants its indigenous
people to benefit from the proceeds of natural resource extraction in the
country.

Epangelo_in_the_Namibian_Mining_Industry.pdf (accessed 29 April

2018).
22
S 123(4) of the Minerals Act.
23
Foreign Investment Act 27 of 1990.
24
S 49(2)(iii) of the Minerals Act.

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 MINING LAW

You have also learnt that several tools can be used to monitor and report
social responsibility and community investment. Such tools can be
internally administered by the company or externally run by independent
parties. Such monitoring and evaluation emanate from the fact that
companies must engage in sustainable business behaviour which serves
the best interests of the societies in which such companies operate. In
Namibia, the frameworks for socially responsible behaviour include but
are not limited to the following: National Development Plans,25 the
Harambee Prosperity Plan,26 Vision 2030,27 the Millennium Development

25
The Government of the Republic of Namibia has developed national
development plans (NDPs) aimed at realising the country’s developmental
goals or aspirations in line with the purport, object and spirit of the
Namibian Constitution. Such national development plans include National
Development Plan (NDP) 1 (NDP1 was formulated for 1995/1996 to
2000/2001. It focused on the diversification of the economy and
consolidation of the achievements realised during the initial five years of
Namibia’s independence), NDP 2 (NDP 2 was in place from 2001 to 2005
with the objective to reduce poverty; create employment; promote
economic empowerment; stimulate and sustain economic growth; reduce
inequalities in income distribution and regional development; promote
gender equality and equity; enhance environmental and ecological
sustainability; and combat the spread of HIV/AIDS), NDP 3 (NDP3 was
introduced and targeted for implementation in the period 2008 to 2012. It
was developed as a major step in achieving Namibia’s vision to be a
prosperous industrialised country by 2030), NDP 4 (NDP4 was formulated
for 2012/2013 to 2016/2017. It focuses on three goals: faster and
sustainable economic growth; the creation of employment opportunities;
and enhanced income equality) and most recently, NDP 5 (NDP 5 was
formulated for 2017-2022. It is focused on structural transformation and
modernisation. It will focus on attaining four high level goals, namely: 1)
achieving and inclusive, sustainable and equitable economic growth, 2)
building capable and healthy human resources, 3) ensuring a sustainable
environment and enhancing resilience, and 4) promoting good governance
through effective institutions).
26
See Harambee Prosperity Plan 2016/17-2019/20, available at
http://www.gov.na/documents/10181/264466/HPP+page+70-
71.pdf/bc958f46-8f06-4c48-9307-773f242c9338 (accessed 19 April 2018).
The Harambee Prosperity Plan (HPP) consists of five (5) pillars, namely:
(1) Effective Governance, (2) Economic Advancement, (3) Social
Progression, (4) Infrastructure Development and (5) International Relations
and Cooperation. The HPP is constructed around the Namibian narrative. It
acknowledges that Namibians are not starting afresh, but that they must
continue with the construction of an inclusive Namibian House, built on a
solid foundation of peace and stability. They are unified by their national
identity and stand united in Cause, to usher Namibia into the epoch of
prosperity.
27
Vision 2030 focuses on eight themes to realise the country's long-term
vision. These are: 1) Inequality and Social Welfare; 2) Human Resources
Development and Institutional Capacity Building; 3) Macro-economic

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Goals,28 the United Nations Global Compact,29 the Global Reporting

Initiative Guidelines,30 Caux Round Table Principles for Business,31
OECD Guidelines for Multinational Enterprises,32 ISO 14000 series,33 SA
8000,34 AA 1000,35 and equator principles36.

Mining companies in Namibia therefore need to declare the actions they

are focusing on. They must indicate the positive impacts which are to be
expected from their business operations.37 It must be however observed
that monitoring a company’s behaviour is complicated.

issues; 4) Population, Health and Development; 5) Namibia's Natural

Resources Sector; 6) Knowledge, Information and Technology; and 7)
Factors of the External Environment. See The Government of Namibia,
“Vision 2030 overview,” available at http://www.gov.na/vision-2030
(accessed 20 April 2018).
28
The United Nations set eight (8) millennium development goals. These are:
1) To eradicate extreme poverty and hunger; 2) To achieve universal
primary education; 3) To promote gender equality and empower women; 4)
To reduce child mortality; 5) To improve maternal health; 6) To combat
HIV/AIDS, malaria, and other diseases; 7) To ensure environmental
sustainability; and 8) To develop a global partnership for development. See
http://www.un.org/millenniumgoals/ (accessed 18 April 2018).
29
UNGC, 2015, United Nations Global Compact: The ten principles,
available at
https://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.ht
ml (accessed 5 April 2018).
30
See https://www.globalreporting.org/information/about-gri/alliances-and-
synergies/Pages/United-Nations-Global-Compact.aspx (accessed 8 April
2018).
31
See http://www.cauxroundtable.org/index.cfm?menuid=8 (accessed 8 April
2018).
32
Organisation for Economic Cooperation and Development (OECD), OECD
Guidelines for Multinational Enterprises, 27 June 2000.
33
See http://www.omnex.com/members/standards/iso14000/iso_14000.aspx
(accessed 18 April 2018). See also Z Rezaee and R Elam, “Emerging ISO
14000 environmental standards: A step-by-step implementation guide,”
2000 Managerial Auditing Journal, 15(1/2), pp. 60-67.
34
See http://www.sa-
intl.org/index.cfm?fuseaction=Page.ViewPage&PageID=1689 (accessed 18
April 2018). See also K Rohitratana, “SA 8000: A tool to improve quality
of life,”
https://www.emeraldinsight.com/doi/full/10.1108/02686900210412252
(accessed 19 April 2018).
35
See http://www.accountability.org/standards/ (accessed 19 April 2018). See
also M Gobbels, “AA1000 and SA8000 compared: A systematic
comparison of contemporary accountability standards,” Managerial
Auditing Journal, 18(1), pp. 54-58.
36
See http://equator-principles.com/ (accessed 14 April 2018).
37
Companies are not necessarily expected to provide a uniform report as
regards their CSR. See Brink, Alexander; Tiberius, Victor A. (2005): Der

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References
Minerals Policy of 2002

2018 Mining Charter (Namibia)

References
1990 Constitution of Namibia

United Nations Resolution 1803 (Principle of Permanent Sovereignty

over natural resources)

National/New Equitable Economic Empowerment Framework

National/New Equitable Economic Empowerment Bill

Baleni and Others v Minister of Mineral Resources and Others

(73768/2016) [2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP); 2019
(2) SA 453 (GP) (22 November 2018)

NamCode (NamCode Index - Namibian Stock Exchange)

Warikandwa, T. and Osode, P. (2017) “Regulating against business

“fronting” to advance black economic empowerment in Zimbabwe:
lessons from South Africa,” PER vol. 20.

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta)

2015

Wert(e)orientierte Führungskräfte-Kodex. Zur freiwilligen moralischen

Selbstverpflichtung des Managements. In: Brink, Alexander; Tiberius,
Victor A. (eds.): Ethisches Management. Grundlagen eines
wert(e)orientierten Führungskräfte-Kodex. Bern, Stuttgart, Wien: Haupt
Verlag. 11-43; Burchell, Jon (2008c): Regulating corporations. The role
and impact of codes and guidelines. In: Burchell, Jon (ed.): The corporate
social responsibility Reader. New York: Routledge. 119-125, and Kuhlen,
Beatrix (2005): Corporate Social Responsibility (CSR). Die ethische
Verantwortung von Unternehmen für Ökologie, Ökonomie und Soziales.
Entwicklung-InitiativenBerichterstattung-Bewertung. Diplomarbeit der
Technischen Hochschule Aachen.

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A Stritter, “Mining Law 2018 – Law and regulations – Namibia,”

International Comparative Legal Guides available at
https://iclg.com/practice-areas/mining-laws-and-regulations/namibia

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law,

Environment, Society and Politics in Historical and Multidisciplinary
Perspectives (2017)

Chamber of Mines, “Namibian Mining: The Economic Stronghold,” 2006

available at
http://www.chamberofmines.org.na/files/2914/7092/7973/Namibian_Min
ing-The_Economic_Stronghold1.pdf

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Unit 9

Mining and the environment in

Namibia
Introduction

There is a number of impact assessments that mining companies must

adhere to. Key amongst these is an environmental impact assessment, an
authorised environmental management programme or plan, a water
impact assessment and a social risk assessment. Mining companies are
required to properly assess what the environment is like before mining
begins.38 The mining company must also try to predict what impact
mining will have on the environment, including what impact it will have
on communities who live near the mine.39 In this Unit you will learn
about the interface between mining and environmental regulation in
Namibia.

Upon completion of this unit you should be able to:

Discuss the process of environmental assessment before mining activities

commence in Namibia;

Discuss water assessment impact of mining in Namibia;

Outcomes
Discuss the process of social risk assessment in Namibia; and

Discuss the social obligation of mining companies upon closure in

Namibia.

38
Lawyers for Human Rights, “Mining and your community: Know your
rights,” available at https://cer.org.za/wp-content/uploads/2014/03/CER-
Mining-and-your-Community-Final-web.pdf (accessed 21 April 2018).
39
FP Carvalho, “Mining industry and sustainable development: time for
change,” 2017 Food and Energy Security, 6(2), pp. 61-77. See also RM
Maier et al, “Socially responsible mining: The relationship between mining
and poverty, human health and the environment,” 2014 Reviews on
Environmental Health 29(1), pp. 83-89.

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Unit 9 Mining and the environment in Namibia

Students must read:

Environmental Management Act (EMA) 7 of 2007

Prescribed reading Minerals Act 33 of 1992

Water Resources Management Act 11 of 2013

Labour Act 11 of 2007

Z Alberto, “A critical analysis of the impact of the Namibia 1992 Labour

Act on the Health and Safety Regulation in the Namibian mining
industry,” A Master of Laws Degree in extractive industry law in
Africa, 2017, University of Pretoria, available at
https://repository.up.ac.za/bitstream/handle/2263/62550/Alberto_Cri
tical_2017.pdf?sequence=1

Charter for Sustainable and Broad-Based Economic and Social

Transformation in the Namibian Mining Sector 2014-2020, available
at
http://www.chamberofmines.org.na/files/5014/6979/6192/MiningCh
arterFINAL19September2014.pdf

FP Carvalho, “Mining industry and sustainable development: time for

change,” 2017 Food and Energy Security, 6(2), pp. 61-77.

RM Maier et al, “Socially responsible mining: The relationship between

mining and poverty, human health and the environment,” 2014
Reviews on Environmental Health 29(1), pp. 83-89.

M Majer, “The Practice of Mining Companies in building relationships

with local communities in the context of CSR formula,” 2013
Journal of Sustainable Mining, 12(3), pp. 38-47.

R Goodland, “Responsible Mining: The key to profitable resource

development,” 2012 Sustainability, 4, pp. 2099-2126.

9.1. Environmental assessment

If a mining company is required to do an environmental assessment in or

near your community, you will have the opportunity to comment on this
assessment. The following information will be required before a mining
right is granted:

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a) Basic assessment report40 - this report is usually prepared for

small activities which will only have limited impacts. The basic
assessment report must describe the proposed mining or
prospecting and its impacts. It must say what will be done to
protect the environment. It must include a report describing the
consultation with interested and affected parties.
b) Scoping report and environmental impact reports41 - these are
generally used for bigger activities with more serious impacts.
The scoping report must properly describe the activity and
alternatives. Importantly, the scoping report must describe what
the impacts might be and how these impacts will be studied in the
environmental impact report. Mining companies have to prepare
a scoping report and an environmental impact report as part of
the process of compiling an environmental management
programme.
c) Environmental management programme or plan42 - before a
mining company can starts mining or prospecting it must have an
authorised environmental management plan (prospecting) or an
authorised environmental management programme (mining).
This document tells you how mining/prospecting must be
conducted and what must be done to manage the social and
environmental impacts of mining/prospecting.
d) Prospecting works programme or mine works programme43 -
this document contains all the information about how and where
the mining will happen. The works programme tells you whether
mining will happen 24 hours a day, and whether it will be on a
part of the land or on the whole of the licenced area. It will also
tell you how much money the mine has provided for
environmental rehabilitation and for its social and labour plan.
e) Specialist reports44 - in addition to an application form, mining
companies are usually required to provide government with
copies of the scientific reports they have relied on. These usually
include groundwater and surface water reports, biodiversity
reports, noise reports, heritage impact assessments, air quality
reports and social impact reports. One is entitled to see these

40
S 50(f)(i) of the Minerals Act. See also S 35 of the Environmental
Management Act (EMA) 7 of 2007.
41
S 50(f)(i) of the Minerals Act.
42
S 50(f)(ii) of the Minerals Act.
43
S 50(f)(ii) of the Minerals Act.
44
S 45 of the Minerals Act.

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Unit 9 Mining and the environment in Namibia

reports and to raise questions or concerns about the information

contained in them or the way it was gathered.
f) Social and labour plan45- this plan tells you how many people
will be working for the mine, and how the mining company is
going to train its employees and develop skills in the area where
it operates. The mining company must also describe how it will
contribute to and benefit the community in the area where it is
mining. The social and labour plan might include social projects
or plans to build schools or other infrastructure in the community.

9.2. Water impact assessment

The mining company may be asked to provide information about how the
mine will use water.46 It may also be asked to provide information related
to what impact the mine will have and how close it will be to nearby
rivers, streams, wetlands, lakes and other water sources.47 Further,
information relating to how the mine will keep the dirty mining water
away from clean water sources, whether the mine will treat its dirty
water, what the mine will do about rainwater runoff, whether there will
be enough water for the needs of people, animals, crops and the
environment, and who else is using water in the same area and what the
impact on them will be, has to be provided before a mining project can be
regarded as safe to the local community.

9.3. Social risk assessment

Conducting a social risk assessment and updating a risk register are
regarded as standard practice in the different phases of a mining project.48
As such, as part of the project risk assessment, a stand-alone social risk

45
See s 96(1) and 97(1) of the Labour Act 6 of 1992. See also s 42(3) of the
Labour Act 11 of 2007. See further, Z Alberto, “A critical analysis of the
impact of the Namibia 1992 Labour Act on the Health and Safety
Regulation in the Namibian mining industry,” A Master of Laws Degree in
extractive industry law in Africa, 2017, University of Pretoria, available at
https://repository.up.ac.za/bitstream/handle/2263/62550/Alberto_Critical_2
017.pdf?sequence=1.
46
S 33(v)(bb) of the Minerals Act. See also S 27(2)(b) of EMA.
47
S 23 of the Water Resources Management Act 11 of 2013.
48
See the Charter for Sustainable and Broad-Based Economic and Social
Transformation in the Namibian Mining Sector 2014-2020, available at
http://www.chamberofmines.org.na/files/5014/6979/6192/MiningCharterFI
NAL19September2014.pdf.

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assessment should be conducted. Social risk to the community occurs

when the proposed mining operations of a mining company have
potential to cause harm or injury to the community or individuals in a
community.49 The mining company must therefore adopt policies and
practices that avoid, minimise and mitigate negative impacts and to
create, maximise and enhance the socio-economic benefits that flow from
the development of the mining project.50 An example of how a perceived
negative social risk assessment outcome may negatively impact on
a mining project can be found in Namibia’s proposed phosphate
mining project.51 The project has been roundly condemned for its
potential impact on the environment and in turn on human life.52 To
that extent, the proposed phosphate mining project has been
suspended pending consultations on how to mitigate the negative
impacts of such mining practices on the environment.

9.4. Social obligations of a company upon closure

Mine closure is the process of shutting down mining operations on a

temporary or permanent basis.53 Mines have a limited lifetime which is
determined by the size and quality of the mineral deposit being
extracted.54 Mines are closed when the supply of ore runs out or the
commodity prices drop, making the mine uneconomical to operate.55 It

49
M Majer, “The Practice of Mining Companies in building relationships
with local communities in the context of CSR formula,” 2013 Journal of
Sustainable Mining, 12(3), pp. 38-47. See also R Goodland, “Responsible
Mining: The key to profitable resource development,” 2012 Sustainability,
4, pp. 2099-2126.
50
AM Esteves and M Barclay, “Enhancing the benefits of local content:
Integrating social and economic impact assessment into procurement
strategies,” 2011 Impact Assessment Project Appraisal, 29(3), pp. 205-215.
51
Swakopmund Matters, “The case against marine phosphate mining,”
available at https://cer.org.za/wp-content/uploads/2016/08/Swakopmund-
Matters-The-Case-Against-Marine-Phosphate-Mining.pdf (accessed 23
April 2018). See also the Environmental Impact Assessment Report for the
Marine Component, prepared by Mr Jeremy Midgley, March 2012
available at http://www.the-
eis.com/data/literature/NMP_FEIAR_App_5_Comments_Responses_30Ma
rch2012.pdf (accessed 20 April 2018).
52
S Immanuel, “AG warned Govt against phosphate mining,” The Namibian,
11 February 2016. See also D Collins, “NAFAU relentless on anti-
phosphate mining protest,” Windhoek Observer, 11 November 2016.
53
Namibia Mine Closure Framework Report, 2010, p. 4.
54
Ibid.
55
F Wellmer and RW Scholz, “What is the optimal and sustainable lifetime
of a mine?” 2010 Sustainability, 10, p. 480.

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Unit 9 Mining and the environment in Namibia

typically takes two to ten years to shut down a mine, but it can take
longer if long term water monitoring or treatment is required. Mine
closure activities typically consist of several steps. The steps are as
follows:

a) Shut-down56: Once production stops, the number of workers is

reduced, and only a small labour force is retained to permanently
shut down the mining equipment. In some cases, the mining
company may provide re-training or early retirement options to
their workers before the mine is closed.

b) Decommissioning57: Small crews or contractors decommission

or take apart the mining processing facilities and equipment.
Pipelines are drained, equipment and parts are cleaned and sold,
buildings are repurposed or demolished, warehouse materials are
recovered, and waste is disposed of.

c) Remediation/reclamation58: The objective of reclamation is to

return the land and watercourses to an acceptable standard of
productive use, ensuring that any landforms and structures are
stable, and any watercourses are of acceptable water quality.
Reclamation typically involves a few activities such as removing
any hazardous materials, reshaping the land, restoring topsoil,
and planting native grasses, trees, or ground cover. It is described
in further detail in the mine closure plan section below.

d) Post-closure59: Monitoring programs are used to assess the

effectiveness of the reclamation measures and to identify any
corrective action that may be needed. In addition, mines may
require long-term care and maintenance after mine closure such
as ongoing treatment of mine discharge water, periodic
monitoring and maintenance of tailings containment structures,
and monitoring any ongoing remediation technologies used such
as constructed wetlands.

Mining operations often begin closure and remediation during active

operations. Mining projects are typically divided into components or
facilities during closure and rehabilitation planning. These components
are typically things such as open pits, tailings facilities, underground

56
Namibia Mine Closure Framework Report, 2010, p. 19-20.
57
S 31 of the EMA.
58
S 91 of the Minerals Act.
59
Namibia Mine Closure Framework Report, 2010, p. 20.

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features, rock piles, amongst others. Rehabilitation objectives and

measures are largely categorised into the following processes: 1) Physical
Stability, 2) Chemical Stability, and 3) Land Use.60 Typical mine site
components include the following: a) Underground Mines, b) Open Pits,
c) Ore, Concentrate and Development of Rock Piles, d) Tailings
Impoundment Systems, e) Water Management, f) Buildings and
Equipment, g) Landfills and Other Wastes, and h) Infrastructure.61

The physical stability of structures such as crown pillars, pit slopes,

underground openings, tailings dams, spillways, diversion structures,
rock pile slopes, amongst others, must be stable to eliminate any hazard
to public health and safety.62 Surface and groundwater must be protected
against adverse environmental impacts resulting from mining and
processing activities.63 In a closed-out condition, the rehabilitated site
should be compatible with the surrounding lands. The general measures
to address mine closure issues related to the prior stated mine site
components is briefly explained below.

a) Remediation64: The clean-up of the contaminated area to safe

levels by removing or isolating contaminants. At mine sites,
remediation often consists of isolating contaminated material in
pre-existing tailings storage facilities, capping tailings and waste
rock piles with clean topsoil, and collecting and treating any
contaminated mine water if necessary.

b) Reclamation65: The physical stabilization of the terrain (dams,

waste rock piles), landscaping, restoring topsoil, and the return of
the land to a useful purpose.

c) Restoration66: The process of rebuilding the ecosystem that

existed at the mine site (where applicable) before it was
disturbed. The science of mine reclamation has evolved from
simple revegetation activities to a discipline which involves using
native plants to mimic natural ecosystem development over an
extended period of time.

60
Namibia Mine Closure Framework Report, 2010, p. 14-17.
61
MH Gorakhki and CA Bareither, “Sustainable reuse of mine tailings and
waste rock as water-balance covers,” 2017 Minerals, 7, p. 128.
62
S 54(3) of the Minerals Act.
63
S 23(2) of the Water Act.
64
S 128(1) of the Minerals Act.
65
S 91 of the Minerals Act.
66
S 57(1) of the Minerals Act.

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d) Rehabilitation67: The establishment of a stable and self-

sustaining ecosystem, but not necessarily the one that existed
before mining began. In many cases, complete restoration may be
impossible, but successful remediation, reclamation, and
rehabilitation can result in the timely establishment of a
functional ecosystem.

1. What social obligations fall on a mining company once a mine is

closed?

Activity 2. What is water impact assessment?

3. What is social risk assessment?

1. See section 9.4. of Unit 9 of this study guide.

2. See section 9.2 of this study guide.

Feedback
3. See section 9.3 of this study guide.

9.5 Mine closure provision

Namibia’s mining industry has been in existence for over one hundred
years. However, in the 20th century, the Chamber of Mines has observed
that there have been significant social and environmental impacts due to
unplanned mine closures In Namibia.68 In selected instances, substantial
environment damage has been left behind, a development which poses
significant danger on Namibia’s natural resources and the health and
safety of Namibians. It will also tarnish the image of Namibia’s
reputation as a country which promotes responsible mining. Sadly, no
comprehensive piece of legislation addresses aspects of mine closure. To
that end, the Namibia Chamber of Commerce has developed a Mine
Closure Framework which seeks to address the issue of abrupt mine
closures. This framework aims at addressing challenges brought about by

67
54(2)-(3), 57(1), 128, and 130 of the Minerals Act.
68
The Namibia Chamber of Mines points out that there are over two hundred
abandoned mines in Namibia for which the liability for rehabilitation
transferred automatically to the state when the mining companies that
operated the companies ceased to operate and vanished without a trace.

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mining companies operating without environmental baseline information,

impact studies and resulting closure plans. All mines must therefore go
through the process of planning for closure as early as possible in their
operational life. Closure requirements must be incorporated in mining
companies’ operational strategies to reduce the final closure obligations
and increasing revenue.

Mine closures must be planned, and form part of an integrated land use
strategy involving engagement with communities.69 Mining companies
must therefore constantly engage with communities and address social
responsibilities through support programs, training and community
participation.70 To ensure that companies adhere to their social
responsibility objectives, the Government of Namibia has the obligation
to put in place national policies and guidelines on rehabilitation.71
Namibia’s Environmental Assessment Policy for Sustainable
Development and Environmental Conservation of 1994, provides that
environmental assessments must be conducted to ensure that the
environmental consequences of development projects and policies are
considered, understood and incorporated into mining companies’
planning processes.72

The Policy for Prospecting and Mining in Protected Areas and National
Monuments of 1999, provides that the government of Namibia must
ensure that short- to medium-term mining projects jeopardise the country’
potential for long term sustainable development. The General
Environmental Assessment Guidelines for Mining (Onshore and Off-
shore) Sector of Namibia of 2000 provides guidelines to assist mining
developers in preparing environmental assessments. Such assessments
cover the exploration, mine and decommissioning phases of the mining
operations. The Policy for the Conservation of Biotic Diversity and
Habitat Protection of 1994, whilst not making specific reference to mine
closure, stipulates that all development must be sustainable and must be

69
See section 2.2.5 of the Minerals Policy of Namibia.
70
See section 2.2.6 of the Minerals Policy of Namibia.
71
See section 5.3 of the Minerals Policy of Namibia.
72
For example, section 5 of the Environmental Assessment Policy for
Sustainable Development and Environmental Conservation of 1994
provides that mining companies are required to enter into a binding
agreement to ensure that the mitigatory and other measures recommended
in the environmental assessment report are complied with. In particular, the
agreement must address the construction, operational and decommissioning
phases in the mine closure process.

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Unit 9 Mining and the environment in Namibia

evaluated at an appropriate level by means of environmental assessment

procedures.

The Minerals (Prospecting and Mining) Act 33 of 1992 provides that the
Minister may enter into an agreement with an applicant which is
consistent with the provisions of the Act and contains the terms and
conditions on which such mineral licence will be issued.73 As such, a
licence holder who intends to abandon a mining area should do so in
terms of section 54(1) of the Minerals Act.74

When the licence holder ends its mining operations, Sections 54(2) and
128 of the Minerals Act, 1992 require the licence holder to rehabilitate
the land. Section 54 (3) obliges licence holders, on announcement of
abandonment, to demolish accessory works, remove all debris and other
objects brought onto the land, and to take the necessary steps to remediate
‘to the reasonable satisfaction’ of the Minister of Mines any damage to
the environment.

Section 57(1) of the Minerals Act requires licence holders to apply ‘good
mining practices’ with respect to environmental protection, natural
resource conservation and the removal of accessory works or other goods
that were erected, constructed or brought on the land for the mining
activities. Section 91 regulates applications for mining licences. Section
91(f iii) requires the application to include the way the applicant intends
to: prevent pollution; deal with any waste; safeguard the mineral
resources; reclaim and rehabilitate land disturbed by way of the
prospecting operations and mining operations; and minimise the effect of
such operations on land adjoining the mining area.

Section 99(1) requires that licence holders:

(a) inform the Minister in writing before it intends to
reduce or to stop mining:
i. 6 months prior to permanent cessation of
operations
ii. 30 days before temporarily cessation of
operations

73
See section 48 of the Minerals Act.
74
Section 54(1) provides that: “The holder of a mineral licence may abandon
the reconnaissance area, prospecting area, retention area or mining area to
which such licence relates by notice in writing addressed and delivered to
the Commissioner and shall together with such notice return such mineral
licence …”

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 MINING LAW

iii. 7 days before an intended reduction of

operations.
(b) in the event of unexpected reduction or cessation of
mining operations outside the mine’s control, inform the
Minister as soon as possible after the event has occurred.

Section 101(2) (2) stipulates that the licence holder must, no later
than 180 days after cancellation or expiration of a mining licence, deliver
to the MC:
(a) all records kept in terms of the provisions of subsection (1)(a);
(b) all maps and plans referred to in subsection (1)(b);
(c) all reports, photographs, tabulations, tapes and discs prepared
by or on behalf of such person during such prospecting
operations; and
(d) such other books, documents, records and reports as the
commissioner may require by notification, in writing, addressed
and delivered to such person.

Section 128 (1) states that if a mining licence is cancelled or expired, the
Minister may, by notification in writing, require:
(a) the demolition of buildings and structures, and removal of
debris and objects
(b) the remedying of damage to the surface and the environment.
Although the provision is kept general, its importance and
consequence for any mine closure should not be underestimated. Section
128 (3) stipulates that failure to rehabilitate a mined area properly is an
offence carrying a penalty of N$100 000 or five years imprisonment.
Section 130 relates to pollution control. Licence holders have a general
duty of environmental care and are expected to practice continuous
rehabilitation at own cost in that they should immediately clean up a
mineral spill or other form of pollution of the environment. If a company
fails to do so, the Minister may order the company to comply and, if it
still fails to comply, the Minister may instruct a third party to rehabilitate
the area and claim the cost from the polluter; the mining licence holder
will be liable for spilling, pollution, loss or damage.

The Environmental Management Act (EMA) 7 of 2007 has three main

purposes, namely, to ensure that:
i. people consider the impacts of activities on the environment
carefully and in good time
ii. all interested and affected parties have a chance to participate
in Environmental Assessments (EAs)
iii. Findings of EAs are considered before decisions are made to
undertake certain activities.
Activities that are subject to EAs are listed in Section 27 of the EMA, and

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Unit 9 Mining and the environment in Namibia

include resource removal, such as mining. The EMA does not refer
specifically to decommissioning or rehabilitation of a site once an activity
ceases to operate. However, the draft regulations (May 2010) provide
clear reference regarding the compilation and implementation of
rehabilitation and closure plans.

In the regulations the definition of “rehabilitation and closure plan” is a

plan which describes the process of rehabilitation of an activity at any
stage of that activity up to and including closure. Section 29(j) stipulates
that a scoping report must have a draft rehabilitation and closure plan,
containing matters set out in regulation 31.

Section 31 outlines in detail what a rehabilitation or closure plan must

contain, namely:
a) information on any proposed, management mitigation, protection
or remedial measures that will be undertaken to address the
environment impacts that have been identified including
environmental impacts or objectives in respect of -
(i) the rehabilitation of the environment; and
(ii) closure, if applicable;
b) details of -
(i) the person who prepared the plan; and
(ii) the expertise of that person to prepare the plan;
c) a detailed description of the aspects of the activity that are
covered by the plan;
d) information identifying the persons who will be responsible for
the implementation of the measures contemplated in paragraph
(a);
e) information in respect of the mechanisms proposed for
monitoring compliance with the and for reporting on the
compliance;
f) as far as is reasonably practicable, measures to rehabilitate the
environment affected by the undertaking of any listed activity or
specified activity to its natural or predetermined state or to a land
use which conforms to the generally accepted principle of
sustainable development; and
g) a description of the way it intends to -
(ii) modify, remedy, control or stop any action, activity
or process which causes pollution or environmental
degradation;
(ii) remedy the cause of pollution or degradation and
migration of pollutants.
(2) The environmental commissioner may accept a rehabilitation
and closure plan with or without the changes he or she may
require.
(3) If closure begins on a site the proponent must -

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(a) notify the environmental commissioner that closure

has begun; and
(b) comply with the requirements of the rehabilitation and closure
plan.
(4) If a proponent intends to change the method of closure of a
project, the proponent must file with the environmental
commissioner an amended rehabilitation and closure plan which
the commissioner may accept with or without changes.

The Water Act 54 of 1956 does not make specific reference to mine
closure.75 However it makes reference to long-term protection of water
resources in the following sections: 1) Section 21(5a) states that if a user
cannot treat effluent to the desired standard or cannot return it to the
appropriate public stream an exemption permit must be obtained from the
Minister; 2) Section 23(2) also allows the Minister to recover any costs
from the licence holder to prevent the pollution of public or private water
(including ground water) that occurs after mine closure as a result of
seepage or drainage from mining or industrial activities.

The Water Management Act 11 of 2013 makes provision for borehole

drilling for mining or other operations. S 61(1) provides as follows:

Despite any other law, or authorisation granted by a competent

authority under any other law, a person who, for the purpose of
exploring for or extracting minerals or any other substance, other
than groundwater, or for road or other construction work,
proposes to drill a borehole, deepen or enlarge an existing
borehole, or make or deepen an excavation in the ground to the
level or below the level of the water table, may not commence
with work in that regard unless the person, in accordance with
section 56, has applied for and has been granted a borehole
licence by the Minister to undertake such work.
(2) A borehole licence granted under subsection (1) -
a) must specify the work authorised to be carried out under
the licence;
and
b) is subject to the conditions -

75
Regulation 21.1 made under Section 26 of the Water Act requires that areas
used as depositing sites for tailings and waste (whether in operation or not)
need to be adequately fenced and shall not without the approval of the
Permanent Secretary / Minister of Water Affairs be used for any other
purpose.

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Unit 9 Mining and the environment in Namibia

(i) as prescribed; or
(ii) as imposed by the Minister and specified in the
licence.
(3) Conditions referred to in subsection (2)(b) may include
requirements as
to -
a) the furnishing of any specified data or information; and
b) the taking of specified measures for ensuring that
groundwater is conserved and protected.

The Atmospheric Pollution Prevention Ordinance, 11 of 1976 provides

that for the purposes of mine closure, Licence Holders should, in terms of
Section 28 of the ordinance, compile and submit to the Director of Health
Services a dust prevention and management plan; thereafter the Director
will issue a dust prevention certificate confirming that the licence holder
has made adequate provision for dust pollution emanating from those
parts of the mine that are due for closure. The licence holder may not
commence with mine closure, nor dispose of any of its assets as part
thereof, without such a certificate.

The Labour Act 6 of 1992 refers to severance allowances for employees

on termination of a contract of employment in certain circumstances.76
Namibia Chamber of Mines members should adhere to the appropriate
provisions of the Labour Act. In addition, if the employer has provided
for a gratuity, an insurance policy, a savings or other bank account, or
any other investment which is payable, in a lump sum, to the dismissed
employee in the event of, or at the time of, the termination, the employer
shall, in so far as such provision has been made at the employer’s
expense, subtract this sum from the amount calculated in terms of
severance pay due to the employee.

76
S 52 of the Labour Act 6 of 1992.

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Unit summary
In this unit you learnt that in terms of the EMA the Minister of Mines and
Energy may not issue a mineral licence until the applicant has been
furnished with an environmental clearance certificate.

Summary We also learnt that in terms of the Minerals Act, an environmental impact
assessment study must be furnished to the Ministry of Environment
before a mining project can proceed. We also learnt of other factors that
are considered with regards to environmental management such as the
need to ensure clean water sources.

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Unit 9 Mining and the environment in Namibia

References
Students must read:
Environmental Management Act (EMA) 7 of 2007
Referenc
es Minerals Act 33 of 1992

Water Act 54 of 1956

Water Resources Management Act 11 of 2013

Labour Act 11 of 2007

M Majer, “The Practice of Mining Companies in building relationships with local

communities in the context of CSR formula,” 2013 Journal of Sustainable Mining,
12(3), pp. 38-47.

R Goodland, “Responsible Mining: The key to profitable resource development,”

2012 Sustainability, 4, pp. 2099-2126.

Z Alberto, “A critical analysis of the impact of the Namibia 1992 Labour Act on the
Health and Safety Regulation in the Namibian mining industry,” A Master of
Laws Degree in extractive industry law in Africa, 2017, University of Pretoria,
available at
https://repository.up.ac.za/bitstream/handle/2263/62550/Alberto_Critical_2017.
pdf?sequence=1

Charter for Sustainable and Broad-Based Economic and Social Transformation in

the Namibian Mining Sector 2014-2020, available at
http://www.chamberofmines.org.na/files/5014/6979/6192/MiningCharterFINA
L19September2014.pdf

FP Carvalho, “Mining industry and sustainable development: time for change,”

2017 Food and Energy Security, 6(2), pp. 61-77.

RM Maier et al, “Socially responsible mining: The relationship between mining and
poverty, human health and the environment,” 2014 Reviews on Environmental
Health 29(1), pp. 83-89.

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Unit 10

Small scale and Artisanal

Mining in Namibia
Introduction
Namibia is endowed with large amounts of mineral wealth and is a global
player with regards to the production of minerals and mineral-related
products. The country is a major producer of a wide range of minerals,
including precious metals, base metals, precious and semi-precious
stones, and industrial minerals. Historically, this production can be
attributed to large - to medium - scale mines controlled mostly by multi-
national companies. Mining has contributed to the development of an
extensive and efficient physical infrastructure and to a limited extent, the
establishment of secondary industries. The historical impact of mining on
the development of this country is apparent from the correlation of
occurrence of high value mineral deposits and levels of development and
high population densities.
Past policies and discriminatory laws have resulted in little development
of the small-scale mining subsector and hindered the participation of
certain sections of the country’s population.

Upon completion of this unit you should be able to:

Discuss the concepts artisanal mining and small-scale mining;

Discuss the challenges of artisanal and small-scale mining in Namibia;

Outcomes Discuss the advantages and disadvantages of small-scale mining in

Namibia;

Discuss the role that the government of Namibia and the relevant
ministry play in promoting artisanal and small-scale mining in
Namibia;

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Unit 10 Small scale and Artisanal Mining in Namibia

Students must read:

Prescribed reading Environmental Management Act (EMA) 7 of 2007

Minerals Act 33 of 1992

Water Act 54 of 1956

Water Resources Management Act 11 of 2013

Labour Act 11 of 2007

Namibia Mine Closure Framework Report, 2010

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta)

2015

A Stritter, “Mining Law 2018 – Law and regulations – Namibia,”

International Comparative Legal Guides available at
https://iclg.com/practice-areas/mining-laws-and-regulations/namibia

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law,

Environment, Society and Politics in Historical and Multidisciplinary
Perspectives (2017)

10.1 Current status of small-scale mining

The definition of small-scale mining (particularly when considering

artisanal mining, which is primitive and informal) has been debated at
length at different fora. The most commonly used parameters for
classification of the scale of a mine are gross annual turnover and number
of employees.

Business has been classified into micro, very small, small and medium
according to criteria such as number of employees, total annual turnover
and total assets.

However, for mining this classification has some shortcomings. For

example, on the one hand companies may be employing as few as three
highly qualified professionals as consultants and have a gross annual
turnover of over N$ 12,542,732.80 (approximately US$753,770)’, and on
the other hand cooperative style mining operations with more than 50

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people working a single deposit, using elementary methods, could have

an annual turnover of less than N$150 000 (US$9,014 using the current
exchange range).

Table 1: Classification of mining and quarrying operations

Category Micro Very small Small (Class Medium
(Class 1) (Class 2) 3) (Junior Class
4)
No. of
Less than 5 Less than Less than 50 Less than 200
employees
20
Assets Less than N$ Less than N$ 4.5 million N$ 18 million
(proprty 100 000 N$ 1.8
exlcuded) million
Annual N$ 150 000 N$ 3 N$ 7.5 million N$ 30 million
revenue million
Description of Commonly Locally Provincially Namibia
operation informal (i.e. based, based based,
not producers contractors,
registered production
for purposes and
of mining, exploration
taxation, or companies.
labour
legislation.
Commonly
part-time.

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Unit 10 Small scale and Artisanal Mining in Namibia

Level of Artisanal, Simple Low medium High levels of

technology rudimentary, technology, technology technology
and non- simple and levels of and
mechanisation mechnised mechanised mechanisation mechanisation
equipment equipment

10.2. Areas of activity

Activities are concentrated in the known mineral regions of the country,
i.e., gold in the greenstone belts, diamonds where alluvial deposits exist.
Some artisanal and small-scale miners informally re-open old mine
workings to access whatever ore has been left by the large mining
companies. The reworking of dumps left behind by the same large mining
companies is also quite common.

10.3. Employee distribution in each mine size by

mineral commodity
Mineral Mine size (categorized by number of employees)
commodity 1-4 5-19 20-49 50-199 200+
Precious metals 0% 0% 0% 0.1% 99.9%
Coal 0% 0.02% 0.1% 0.5% 99.38%
Base & other 0.02% 0.1% 0.3% 3.5% 96.08%
metals
Precious stones 0.1% 1.4% 1.6% 6.0% 90.9%
Hard rock 0.1% 3.3% 9.9% 20.5% 66.2%
quarrying
Soft rock 3.2% 16.1% 24.6% 29.0% 27.1%
quarrying
Industrial 0.1% 1.7% 6.6% 37.6% 54.0%
minerals

The degree of participation of the small-scale mining subsector varies by

commodity. This can be seen in the percentage employment of the
subsector by commodity (see Table 2 above). The level of participation is
determined by: availability of deposits; ease of mining, processing and
extraction of the commodity; and access to markets.

Some activities, such as sand and clay mining for brick making, are
driven by local demand. These deposits fall within the soft-rock
quarrying commodity group and are readily available to the small-scale
miners. The minimum and uncomplicated processing requirements also
make them attractive to this subsector, as reflected by the higher
percentage of employees.

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10.4. Regulatory environment

There are a number of pieces of legislation that impact this group of
miners and they are the same ones to which the medium and large mining
companies are subject. These cover the environment; labour; mineral
rights; exploration and mine permits; and skills development.

• The mining policy of most countries, which is enforced by laws

and legislative regulations, is usually in a language too complex
for the artisanal and small-scale miners to comprehend. Most of
these miners are not even aware of the national laws and
regulations in force that affect the mining sector and
inadvertently violate them. In Namibia the following areas are
regulated:

• Mineral rights - The issue of mineral rights in Namibia is under

review. Minerals rights are like property rights and are protected
by the constitution. Previously, Namibia had a dual system of
private and public ownership, but the new Mineral and Petroleum
Bill will make the State the sole owner of mineral rights. The
issues of royalties, prospecting and mining rights also fall under
this bill.

• Health and safety - Health and safety aspects are governed by

the Minerals Act 33 and the Labour Act. Most of its regulations
do not apply to small-scale miners.

• Environment management - In Namibia the environmental

legislation is governed by the National Environmental
Management Act of 1998, the Minerals Act, environmental
impact assessment (EIA) guidelines, and the Environmental Act.
With the new legislation, however, all small-scale mining
operations applying for prospecting or mining licenses are forced
to pay a deposit for environmental rehabilitation.

• Compliance is very low, as non-registration or illegal mining

frequently occurs.

• Similarly, most small-scale miners have neither the resources nor

the capacity to carry out an EIA.

• In response to these problems, the Ministry of Mines and Energy

has established a Small-Scale Division (SSM) which comprises
of Mineral Resources/Information and Analytical &
Environmental Services subdivisions they work hand in hand to
provide:

• Providing Geotechnical Support Services to Small Scale Miners

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Unit 10 Small scale and Artisanal Mining in Namibia

(SSMs), especially Laboratory sample analysis for free to small

scale miners with a valid mineral licence.

Facilitating the formation of Small-Scale Mining legal

groups/bodies (associations or co-operatives) so that any form of
support from government, non-government organisation and
development partners, financial institutions could be channelled
through legal and recognised entities.
Facilitating the formation of regional SSM marketing centres to
display and market the mineral products of SSM
Providing training to small scale miners on Legal procedures of
acquiring mineral rights/ Claims
Promoting potential for small scale mining at exhibitions and
conferences
Encouraging small scale miners to participate in international
trade fairs in order to market their products
Monitoring and evaluating potential as well as existing SSM
projects through site visits and cooperation with development
partners.
Assisting Small Scale Miners with the pegging of Claims
Settling of land/farm access disputes

• Has developed simplified EIA requirements, which are applied

to artisanal miners – defined as non-mechanized operations.

• Labour relations - The key piece of legislation governing labour

relations in mining is the Labour Act 11 of 2007 (See also the
1968 Mining Ordinance, Article 15 of the African Charter, the
International Labour Organisation Convention on Health and
Safety in Mines). In each case, only small portions of the law are
applicable to small- and artisanal mining.

• Skills development - sets out the framework for developing a

coordinated approach to skills development in the country. The
act was promulgated to improve productivity in the workplace,
promote self-employment, and encourage employers to use the
workplace as an active learning environment and to provide
opportunities for new entrants to the labour market to gain work
experience. Its regulatory impact on the artisanal and small-scale
miners is also limited.

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10.5. Constraints to effective participation of

artisanal and small-scale miners in the industry
The effective participation of artisanal and small-scale miners in the
sector is hampered by their lack of technical, business and management
skills, and by their limited access to mineral deposits, capital and
markets. Artisanal/small-scale miners are involved in almost all mineral
commodities found in Namibia.

a) Limited access to mineral rights and deposits

The availability of deposits and the daunting task of acquiring mineral
rights limit the activities of artisanal and small-scale miners. It is often
difficult to find out where mineral rights are located. Most artisanal and
small-scale mining activities take place around small deposits, unsuitable
for exploitation by the large mining companies. This is particularly true
of deposits of precious metals and precious stones.

Artisanal and small-scale miners are also often allowed to reprocess

tailings dumps left behind by large mining companies. The lack of easy
access to mineral deposits could be part of the underlying reasons for the
existence of some of the informal artisanal mining activities.

b) Lack of access to appropriate technology and

skills
Comparisons between different scales of production show that, although
the basic industrial processes are the same, the differences in scale often
necessitate application of different technologies. With increasing scale,
there is a trend towards more sophisticated technologies. For the
established small-scale miner, access to technology is not as much of an
obstacle as it is for miners lower on the scale (i.e., artisanal). However,
common throughout this subsector is the preference for generic
technologies that are no longer protected by patents. Patented
technologies tend to be too expensive for small-scale operators.
Just as important as access to technology is the ability to use these
technologies. Within the upper end of the small-scale mining sector,
appropriately qualified skills may be hired. However, at the lower end
this is often not feasible.

The negative impacts resulting from lack of skills and limited access to
technology are evident in the observed operations that are rudimentary,
unsafe, environmentally unfriendly and using inefficient processes. A
most horrific example of the negative impacts is misuse of mercury
during gold extraction; the mercury is handled unsafely, posing a health

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hazard and there is no real concern for the environmental impact. Another
horrific common occurrence in the small-scale mining subsector is unsafe
coal and clay excavations, where the low competence of the rock makes
overhangs liable to collapse, resulting in injuries and sometimes fatalities.

In some SADC countries, the small-scale miners have been supported by

free or subsidized technical and management services training, and by
plant and equipment hire administered by governments.

Non-governmental organizations have also been known to be

instrumental in setting up central processing facilities for use by small-
scale miners, e.g., the Shamva Mining Centre in Zimbabwe established
by the Intermediary Technology Development Group. This provides an
alternative to the somewhat unsatisfactorily custom milling and
processing done by the more established small-scale mining companies
for the producers at the lower end of the scale (mostly artisanal miners).

c) Limited access to capital

Smaller companies have different financing requirements than do larger
companies, and they need support from the investment community. This
sector is perceived to be risky; consequently, the domestic banks
generally restrict lending to only short-term investments, if they lend at
all. This greatly hampers the development of the subsector.

The risk profile of a potential project is at its peak in the early stages and
decreases through the development phases. Most companies never find an
ore body, but a few are extremely successful. The risks at the early
stages, that is, before a pre-feasibility study is completed, are normally
beyond what typical commercial banks are willing to expose themselves
to.

d) Limited access to markets

Low capitalization limits the amount of funds that small-scale miners can
allocate to proper market research. At the artisanal level, the process of
finding markets is unsystematic and haphazard. In some countries, where
small-scale mining activities have been supported through government
initiatives, the establishment by government of a central buying facility
such as in Zimbabwe - assists the lower end of the scale. However, to
more established mining companies, this set-up could - if legislated-
become a hindrance to obtaining competitive prices. Some countries, for
example Bolivia and Peru, have acted to close their state-controlled
mining banks. Others have focused on precious metals and stones, like
Vietnam, which has contracted private trading companies to buy rubies

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from small-scale miners with an agreement to provide training in cutting

and polishing to the miners.

Central buying facilities exist in Namibia, but some assistance with

accessing foreign markets is needed.

Most artisanal and small-scale miners are usually unaware of the

existence of such services, and may also lack the capacity to individually
attain the critical mass required by the market.

1. What is artisanal mining and small-scale mining?

2. What are Constraints to effective participation of artisanal and

Activity small-scale miners in the industry?

3. What is the regulatory environment of artisanal and small-scale

mining?

1. See section 10.1 of Unit 10.

2. See section 10.5 of Unit 10.

Feedback
3. See section 10.4. of Unit 10.

10.10. Changing dynamics in small-scale

mining

a) Opening up of the industry

Policy-makers in Namibia recognize the need to promote the
development of an efficient small-scale mining subsector. Legislation in
Namibia is being adapted to play an important role in the support of
artisanal and small-scale mining and will play a major role in its
sustainability.

Government and investors (as part of their CSR) need to encourage and
facilitate the sustainable development of small-scale mining in order to
ensure the optimal exploitation of small mineral deposits and to enable
this sector to make a positive contribution to the national, provincial and
local economy.

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Unit 10 Small scale and Artisanal Mining in Namibia

A central database of all known state-owned deposits in Namibia exists,

thus making it easier to find out where mineral rights are located. There is
also a need to simplify the process of applying for mineral rights.

The change in attitudes has resulted in some encouraging developments,

such as joint ventures between small and large mining companies. This
allows access for small-scale operations to mineral deposits and
sometimes guarantees markets. However, the latter must be weighed
against the same negative impacts experienced with legislated central
buying systems.

An example of joint ventures in the SADC region is that of the Northern

Cape in South Africa, where the Small-Scale Miners Forum has gone into
a joint venture with Samancor Chrome Mining Company, which has
leased them its mineral rights to some manganese deposits.

Some large mining companies have allowed small-scale miners to rework

their tailings or marginal areas with the understanding that all the
production would be sold through the large companies. At the O’Kiep
Mine, a group of small-scale miners have been allowed to upgrade oxide
copper dumps by handpicking and selling the concentrate to the mine.

In Namibia, before selling its stake to a Chinese Company, Rossing

Uranium had started training artisanal mining on how to maximize their
operations.

10.11. Support and promotion of the small-

scale mining sector
The project on Mining, Minerals and Sustainable Development
(MMSD)” in Southern Africa made recommendations for the support of
the small-scale mining subsector by providing appropriate training and
capacity-building programmes through partnerships among government,
educational institutions, companies and donors.

It also recommended the creation of a regional forum to promote the

development of a harmonized regional legal framework. In many
countries where small-scale mining activities are present, the necessary
services are made more accessible through government programmes;
these may sometimes include subsidized rates.

In Namibia there is a small number of companies and individuals that

offer services to the small-scale mining sector at normal market rates.
Some of these service providers are government science councils. Low
capitalization of small-scale mining projects makes accessibility to
overseas service providers extremely difficult.

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 MINING LAW

For the lower end of the small-scale miners, the Ministry of Mines and
Energy’s Small-Scale Division (SSD) has been created to offer a more
accessible service in a one-stop-shop configuration for small scale
miners. The main motivation behind the establishment of the SSD was to
correct the practices of artisanal mining especially unacceptable safety
standards and environmentally unfriendly methods - by assisting this type
of operation to advance to the higher level of small-scale mining and
ensure sustainability. The services of the SSD are also extended to:

• First-time entrepreneurs with limited experience and expertise

and who are trying to enter the mining sector by starting green-
field operations;

• Formal small- or medium-sized operations that are operating

below the potential of the deposit being exploited, due to lack of
expertise and expansion capital. The SSD includes specialists in
geological prospecting, mining, minerals processing, diamond
recovery, capacity building and manufacturing. The SSD also
assists in ascertaining 1) the viability of the project; 2) The
composition of the promoting agent; and 3) Black economic
empowerment criteria.

10.12. Skills development

The skills requirements for artisanal and small-scale miners are covered
by the following broad areas:
• Geology;
• Mining;
• Mineral processing;
• Environment;
• Health and safety;
• Operational management;
• Marketing;
• Financial management;
• Human resources management; and
• Business planning.

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Unit 10 Small scale and Artisanal Mining in Namibia

Unit summary
In this unit you learnt that the small-scale mining subsector has great
potential for growth. This potential can be realized through coordinated
activities, such as those of the SSD, and as part of the integrated rural
development plans for local government.

Summary
The underlying ethos in all the initiatives is the drive towards sustainable
development through beneficiation, downstream processing and adding
value. SSD’s intervention strategies to support artisanal and small-scale
miners include:
• Beneficiation and value-addition development programmes for
poverty alleviation focused on the rural development nodes of
Namibia;
• Development/application of appropriate and safer technologies;
• Facilitation of technology transfer through training; and
• Provision of entrepreneurial skills and access to technology,
mineral deposits and financial resources.

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 MINING LAW

References
Environmental Management Act (EMA) 7 of 2007

Minerals Act 33 of 1992

References Water Act 54 of 1956

Water Resources Management Act 11 of 2013

Labour Act 11 of 2007

Namibia Mine Closure Framework Report, 2010

H Mostert, Mineral Law: Principles and Policies in Perspective (Juta)

2015

A Stritter, “Mining Law 2018 – Law and regulations – Namibia,”

International Comparative Legal Guides available at
https://iclg.com/practice-areas/mining-laws-and-regulations/namibia

A Nhemachena & TV Warikandwa (eds) Mining Africa: Law,

Environment, Society and Politics in Historical and Multidisciplinary
Perspectives (2017)

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Annexure Self-Assessment Questions

Annexure

Self-Assessment Questions
Introduction
In this section, you will learn about the preparation for trial. After
pleadings have closed, the issues between the parties are clear. The
parties must now begin their preparation for trial. The matter is down for
trial.

The Republic of Namibia (herein after Namibia) is a mineral rich country

which is well endowed in hard minerals such as diamonds (both on-shore
and off-shore) especially along the Orange River in the Southern border
of Namibia with South Africa.77 Namibia has vast deposits of uranium, a
leading energy source in the contemporary world.78 This strategic mineral
resource led to the establishment of the Rossing mine in what is now the
Erongo region, by the multinational corporation Rio Tinto in 1966, in
defiance of the United Nations Decree against the exploitation of mineral
resources in Namibia.79 The country also possesses vast deposits of base
minerals such as copper at the Tsumeb mine which has for many years
produced copper to supply the Tsumeb copper smelter.80 Namibia also

77
M Forrest, M Jones and S Walker, “Namibia: Abundant exploration
opportunities,” 1997 Mining Journal 329, p. 16. See also C Abankwah,
“Companies explore copper opportunities in Namibia,” Windhoek
Observer, 20 September 2013, and H Vella, “Offshore Namibia: braced for
big finds?” Offshore Technology, 11 January 2018.
78
Chamber of Mines, “Namibian Mining: The Economic Stronghold,” 2006
available at
http://www.chamberofmines.org.na/files/2914/7092/7973/Namibian_Minin
g-The_Economic_Stronghold1.pdf (accessed 19 April 2018). See also JN
Lambert, “A life cycle assessment of a Uranium mine in Namibia,” 2016
Graduate Theses and Dissertations, University of Florida, available at
http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=7487&context=
etd (accessed 19 April 2018).
79
RioTinto, “History and location of Rossing,” available at
http://www.rossing.com/history.htm (accessed 19 April 2018). See also
RioTinto, “Taking the long-term view,” Rossing Uranium Limited:
Working for Namibia, Report to stakeholders 2016, available
https://www.rossing.com/files/rossing_stakeholder_report2016_lowres.pdf
(accessed 19 April 2018).
80
CHM King, “An Introduction to the Geology of the Tsumeb Mine,
Namibia,” available at http://www.tsumeb.com/en/geology/ (accessed 19
April 2018). See also Chamber of Mines, “Namibia: Abundant Exploration

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 MINING LAW

has proven off-shore gas reserves in the form of the Kudu Gas field
whose development could result in substantial energy independence for a
country which relies on South Arica for 85 percent of its energy
requirements.81 Upon completion of this unit you should be able to
answer all the questions listed in this annexure in the manner outlined in
the sample responses as follows:

1. Which laws regulate minerals and mining in Namibia?

Namibia’s mining industry is regulated by the Minerals (Prospecting and

Mining) Act (herein after Minerals Act).82 Whilst it is accepted that there
are other pieces of legislation such as the Diamond Act,83 Petroleum
(Exploration and Production) Act 199184 and the Minerals Development
Fund of Namibia Act,85 the Minerals Act is by and large accepted as the
principal legislation governing mining law in Namibia. This section will
provide an overview of the Minerals Act of Namibia.

The Minerals Act of 1992 is the primary legislation regulating mining in

Namibia. It provides for the following issues; 1) rights and claims relative
to mining operations in Namibia, 2) the establishment of the Minerals
Board of Namibia, the administration of the Act, and 3) other issues
relative to mining such as financial matters, the sale export of minerals,
the protection of the environment, environment impact assessment, and
the liability of holders of licences or mining claims for pollution of the
environment or other damage caused. The Act provides for state
ownership of all mineral rights and/or licences in Namibia.86 The bundle
of rights referred to in the Minerals Act include reconnaissance,
prospecting, mining, sale or disposal of and the exercise and control of
minerals or group of minerals.87 There is a general prohibition on the
carrying out of various mining operations in Namibia without the
required licence.88 Similarly there shall be no transfer, grant, cession, or
assignment of any interest in such licence or the addition of any person as

Opportunities,” 1997 Mining Journal 329(8450), available at

http://www.gsn.gov.na/pdf/miningjournal.pdf (accessed 18 April 2018).
81
See the Namibian Government National Integrated Resource Report Plan
Review and Update Final Report, Developed for the Ministry of Mines and
Energy by the Electricity Control Board in Consultation with the Electricity
Supply Industry Stakeholders, September 2016. See also
82
Minerals (Prospecting and Mining) Act 33 of 1992 (Minerals Act).
83
Diamond Act 13 of 1999.
84
Petroleum (Exploration and Production) Act 2 of 1991.
85
Minerals Development Fund of Namibia Act 19 of 1996.

139
Annexure Self-Assessment Questions

a joint holder of any such mining licence without the necessary

permission issued or obtained in accordance with the provisions of the
Act.89

2. What influence does the Constitution of Namibia have over

the regulation of mineral resources, if any?

In terms of Article 100 of the Namibian Constitution, sovereign

ownership of the country’s natural resources vests in the state.90 Article
100 of the Namibian Constitution is consistent with the central aims of
the Principle of Permanent Sovereignty over Natural Resources.91
Resolution 1803 (XVII) of the Economic and Social Council and the
Second Committee of the United Nations General Assembly which gave
rise to the Principle of Permanent Sovereignty over Natural Resources
provides that states and international organisations shall strictly and
consistently respect the sovereignty of peoples and nations over their
natural wealth and resources in accordance with the Charter of the United
Nations and the principles contained in the resolution.92 African states
have for long had to forego fiscal earnings from mining in order to attract
foreign investment in the mining sector with little benefits accruing to
their people.93 To that extent, Article 100 is generally regarded as a

86
Part II, Section 2 of the Minerals Act.
87
Ibid.
88
See Part II, s 3(1)(a) of the Minerals Act. See also A Stritter, “Mining Law
2018 – Law and regulations – Namibia,” International Comparative Legal
Guides available at https://iclg.com/practice-areas/mining-laws-and-
regulations/namibia (accessed 20 April 2018). See also Author Unknown,
“Namibia: Abundant Exploration Opportunities,” 1997 Mining Journal,
329(8450), p. 5.
89
S 3(1)(a) of the Minerals Act.
90
Article 100 of the Namibian Constitution provides that, “Land, water and
natural resources below and above the surface of the land and in the
continental shelf and within the territorial waters and the exclusive
economic zone of Namibia shall belong to the State if they are not
otherwise lawfully owned.”
91
Permanent Sovereignty over Natural Resources General Assembly
Resolution 1803 (XVII), New York, 14 December 1962.
92
The principles are set out in eight articles concerning, inter alia, the
exploration, development and disposition of natural resources,
nationalisation and expropriation, foreign investment, the sharing of profits,
and other related issues.
93
A Nhemachena, and TV Warikandwa, “On the Challenges of African
Mining and Environments in the New World Order: An Introduction” in A
Nhemachena and TV Warikandwa (eds) Mining Africa: Law Environment

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 MINING LAW

progressive provision of the Namibian constitution, if it is considered that

the colonial pattern of extraction of natural resources and shipping
overseas had no linkages with local economies. It should be emphasised
there is nothing wrong with Namibia being in control of its natural
resources as specified by Article 100 of the Namibian Constitution.94

Due to Article 100 of the Namibian Constitution, mining rights no longer

vest in the owner of the land. The right to prospect is granted by the state
under licence. The right is therefore in nature more of a real right which
avails against the whole world. Whilst the licence confers upon the holder
a right to prospect or mine subject to the conditions of the Minerals Act,
the holder is not a real property owner.

There are other provisions of the Namibian Constitution which influence

the regulation of natural resources in the country. The Constitution
provides that the Ombudsman shall have the duty to investigate
complaints concerning the over-utilization of living natural resources, the
irrational exploitation of non-renewable resources, the degradation and
destruction of ecosystems and failure to protect the beauty and character
of Namibia.95 The State is also required to actively promote and maintain
the welfare of the people by adopting policies aimed at the maintenance
of ecosystems, essential ecological processes and biological diversity of
Namibia and utilization of living natural resources on a sustainable basis
for the benefit of all Namibians, both present and future; in particular, the
Government shall provide measures against the dumping or recycling of
nuclear and toxic waste on Namibian territory.96 The Constitution further
enjoins administrative bodies and officials to comply with administrative
justice.97 In principle, the Namibian Constitution makes adequate
provision for the regulation of natural resources in the country.
3. Which Government body/ies is/are responsible for administering
the mining industry in Namibia?

and Politics in Historical and Multidisciplinary Perspectives, (2017) pp 1-

55.
94
See De Sanchez v Banco Central de Nicaragua 770 F.2d 1385 US Court of
Appeals 5th Circuit September 19 1985, at paragraph 17 and AMCO v
Republic of Indonesia (Merits) 1992 89 ILR 368 at paragraphs 405 and 466
for a comparative analysis of how state ownership of natural resources is
recognised in other jurisdictions.
95
Article 91 of the Namibian Constitution.
96
Article 95 of the Namibian Constitution.
97
Article 18 of the Namibian Constitution.

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Annexure Self-Assessment Questions

The minerals industry in Namibia is administered by the Minister of

Mines and Energy, assisted by the Mining Commissioner and the
Minerals Board of Namibia. The Minister of Mines and Energy is
responsible for carrying out the functions assigned to him/her in terms of
the Minerals Act. The Minister of Mines and Energy shall appoint an
officer called the mining Commissioner who will exercise the powers and
duties conferred on him by the provisions of the Act or conferred on him
by the Minister himself.98 In the execution of his duties, the mining
Commissioner shall be assisted by such officers who may be designated
by the Permanent Secretary. These officers will perform any duties
delegated or assigned to them by the Mining Commissioner.99

4. Does Namibia recognise a fundamental right to just

administrative action and is this applicable to the
regulation of minerals and mining?
Article 18 of the Namibian Constitution guarantees the right to fair and
reasonable administrative justice.100 Therefore, any person who feels
aggrieved with any action or decision taken or made by the
Commissioner in terms of any provision of the Minerals Act, may, within
30 days from the date on which such action or decision was made known
to such person, lodge an appeal against any such action or decision, and
thereupon the Minister may confirm, set aside, or amend any such action
or decision. To ensure fair and reasonable administration of justice, the
Mining Commissioner is required to keep a register of mineral licences.
Such a register must be kept in a computerised data base kept by the
Ministry of Mines and should be available for inspection as and when
required. The register must be proven to be true and correct by the
Mining Commissioner should any evidence to the contrary suggest
otherwise. The register should thus reflect the names of the licence
holders, the validity periods of the licences, the extent of the licence areas
and the minerals in respect of which such licences had been issued.

Furthermore, the Commissioner and the Minister are administrative

bodies and any decision taken by them may be taken on review to the

98
S 4(1) of the Minerals Act.
99
S 4(2) and (3) of the Minerals Act.
100
Article 18 of the Namibian Constitution provides that, “Administrative
bodies and administrative officials shall act fairly and reasonably and
comply with the requirements imposed upon such bodies and officials by
common law and any relevant legislation, and persons aggrieved by the
exercise of such acts and decisions shall have the right to seek redress
before a competent Court or Tribunal.”

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 MINING LAW

High Court of Namibia. This was evidenced in the case of Samicor

Diamond Mining (Pty) Ltd v Minister of Mines and Energy & Others101 in
which the Namibia High Court dealt with the Minister of Mines’
unreasonable delay in review an administrative decision granting
applications for exclusive prospecting licences. In the Samicor case, the
court ruled that, “…it is also in the interest of the administration of justice
and in the public interest that finality in relation to the granting or refusal
of mineral licenses be reached within a reasonable time…”102 In the case
of Purity Manganese (Pty) Ltd v Minister of Mines and Energy and
Others; Global Industrial Development (Pty) Ltd v Minister of Mines and
Energy and Another103 the court held that:

It is further evident that the scope and object of the Act is to

provide for regulated prospecting and mining of minerals within
Namibia and the rights provided to applicants under the Act have
to be complied with. Specific time periods are provided for the
validity of such licences which may be renewed. The Minister
maintains strict control, not only in respect of the granting of
exclusive prospecting licences, but also in respect of the renewal
thereof. He must of course act reasonably within the scheme of
the Act and the object thereof. In the relative short periods that
such licences are valid, it would be unreasonable to wait several
months before a decision of the Minister is taken on review in
this court. An EPL is valid for three years when it is granted for
the first time (s 71(1)(a)) and for two years upon renewal (s
71(1)(b)). A period of anything more than three months before
instituting review proceedings would in my opinion be an
unreasonably long delay.104

The right to just administrative action is therefore a fundamental

component of Namibia’s mining regulatory framework. The failure to
promote just administrative action in Namibia’s mining sector will
negatively impact efforts to attract local and foreign investors in the

101
Samicor Diamond Mining (Pty) Ltd v Minister of Mines and Energy &
Others 2014 (1) NR 1 (HC), paragraph 48.
102
Ibid. See also Otjozondu Mining (Pty) Ltd v Minister of Mines and Energy
and Another 2007 (2) NR 469 (HC), paragraph 10.
103
See Purity Manganese (Pty) Ltd v Minister of Mines and Energy and
Others; Global Industrial Development (Pty) Ltd v Minister of Mines and
Energy and Another 2009 (1) Nr 277 (HC).
104
Ibid, paragraphs 287H-J.

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Annexure Self-Assessment Questions

mining sector as envisaged by Namibia’s Draft Minerals Policy,105

Foreign Direct Investment Act,106 the Constitution,107 and the Southern
African Development Community (SADC) Protocol on Mining.108 Whilst
there is so much debate surrounding African countries’ reliance on
foreign investors to exploit natural resources in their jurisdictions,109 the
Namibian Government has adopted the position that exploration and
development of its mineral wealth could be best undertaken by the private
sector.110 This serves as reason why the much roundly condemned
Namibia Investment Promotion Act (NIPA) 111 is currently being
reviewed by the Namibian Government so soon after it was passed into
law.

105
Article 99 of the Namibia Constitution. See also the Executive Summary of
the Draft Namibia Minerals Policy of 2002.
106
Foreign Direct Investment Act 27 of 1990.
107
Article 99 of the Namibia Constitution. It provides that, “Foreign
investments shall be encouraged within Namibia subject to the provisions
of an Investment Code to be adopted by Parliament.”
108
Article 6 of the SADC Protocol on Mining of 2006.
109
TV Warikandwa and NV Asheela “Towards a Pan-Africanist Mining
Regulatory Framework for Africa: Drawing Lessons from the Pre-colonial
Customary Law based Mining Practices,” in A Nhemachena, and TV
Warikandwa, (eds) Mining Africa: Law Environment and Politics in
Historical and Multidisciplinary Perspectives, (2017) pp. 237-282. See also
TV Warikandwa and A Nhemachena, “Exposing the Emperors’ Flawed
(Neo-) colonial Template: Charting a Contemporary Regulatory
Framework for Africa’s Mining Sector” in A Nhemachena and TV
Warikandwa, (eds) Mining Africa: Law Environment and Politics in
Historical and Multidisciplinary Perspectives, (2017) pp. 355-380.
110
See the Executive Summary of the Draft Minerals Policy of 2002.
111
See the Namibia Investment Promotion Act 9 of 2016 (NIPA). Busch has
argued that:
NIPA is set to replace the Foreign Investments Act, 1990 and, if
implemented, will result in far-reaching changes in the Namibian
foreign investment regime. In comparison with its predecessor
legislation, which provided for a free investment regime backed by
institutional support, NIPA provides for an investment approval regime
that affords wide-ranging discretionary powers to the Minister in charge
of investments (whose identity has not been clarified in NIPA) to
regulate and decide on investment matters, while also adding numerous
procedural hurdles for the approval of investments and registration of
investors (See S Busch, “The Namibia Investment Promotion Act,
2016: Hindering or promoting foreign investment?” ENSafrica ENSight
19 July 2017 available at https://www.ensafrica.com/news/The-
Namibia-Investment-Promotion-Act-2016-hindering-or-promoting-
foreign-invest?Id=2707&STitle=ENSafrica%20ENSight (accessed 29
March 2018).

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5. How do current laws define corruption? What

sanctions apply? To what extent is bribery and
corruption criminalised in Namibia?

Namibia has generally experienced a fairly restrained risk of corruption

as compared to other countries in Africa.112 However, corruption has been
steadily increasing113 a development which raises a cause for concern for
the country’s mining sector. Some mining companies in Namibia have
not resisted the urge to use political connections to obtain prospecting or
mining licences.114 Such corrupt practices have been attributed to the
frustration of applicants emanating from the slow bureaucratic process for
acquiring mining licences.115 If left uncontrolled, corruption could
become a significant threat to future prospects for the extractive sector
itself and broader socio-economic benefits. Corruption has generally been
defined as, “…the perversion of the integrity or fidelity of a person in
relationship to the discharge of his/her duties.”116 Namibia has a number
of laws that seek to curb corruption in the country, yet the enforcement of
such legislation is evidently inconsistent. A discussion of the laws
governing corruption in Namibia will be undertaken in this section.

The Constitution of Namibia, as the supreme law of the land, sets the tone
in so far as prohibiting corruption is concerned. It contains a fair number
of provisions relating to corruption. For example, Article 42 addresses
matters related to conflicts of interest on the part of Cabinet members. 117

112
F Links, “Namibia and the United Nations Convention Against Corruption
(UNAC)” Institute for Public Policy Research Briefing Paper, October
2016.
113
M Weylandt, “The crime of illicit enrichment in Namibia: New
opportunities for enforcement?” Institute for Public Policy Briefing Paper,
June 2017. See also Bertelsmann Foundation: Bertelsmann Transformation
Index 2016.
114
B Weidlich, “Corruption in mining sector alleged: report,” The Namibian, 4
June 2010.
115
Author Unknown, “Lack of transparency in mining creates opportunity for
corruption,” Namibia Economist, 21 June 2013.
116
N Sigh, The world of bribery and corruption: From Ancient Times to
modern Age, (1998), p. 283.
117
Article 42 of the Namibian Constitution provides that:
1. During their tenure of office as members of the Cabinet, Ministers
may not take up any other paid employment, engage in activities
inconsistent with their positions as Ministers, or expose
themselves to any situation which carries with it risk of a conflict

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Annexure Self-Assessment Questions

The constitution further provides that members of the National Assembly

should desist from any conduct that will lead to their undue enrichment or
alienate themselves from the people.118 The Namibian Constitution also
mandates the Ombudsman with the duty to investigate corruption on the
part of any official in the employ of any organ of Government.119

The constitutional provisions are given effect to in a number of laws

dealing with corruption. Such laws include the Prevention of Corruption
Ordinance 1 of 1928. The Prevention of Corruption Ordinance
specifically aims at addressing corruption in Namibia.120 The Namibia
Anti-Corruption Act121 specifies the relevant corruption offenses which
include but are not limited to abuse of public office, passive bribery,
money laundering, active bribery, bribing a foreign public official,
extortion and attempted corruption. All the listed corruption offenses are
criminalised in terms of the Anti-Corruption Act. The Act prescribes a
fine not exceeding N$ 500,000.00 and/or a prison term not exceeding 25
years for any of the listed criminalised practices.

The Prevention of Organized Crime Act (POCA)122 also seeks to combat

organised crime and money laundering. Considering that most mining
companies externalise their financial proceeds from mining, POCA is a
fundamental legal instrument aimed at preventing money laundering. The
Act imposes reporting obligations on suspicions of unlawful activities
and provides for the establishment of the Criminal Assets Recovery Fund
and Criminal Assets Recovery Committee. The Public Service Act123
prohibits all civil servants from holding positions in the private sector

developing between their interests as Ministers and their private

interests.
2. No members of the Cabinet shall use their positions as such or use
information entrusted to them confidentially ... directly or
indirectly to enrich themselves.
118
Article 60(1)(b) of the Constitution.
119
Article 91(a) of the Constitution.
120
The Prevention of Corruption Ordinance 1 of 1928 (as amended by Act 21
of 1985).
121
Namibia Anti-Corruption Act 8 of 2003.
122
Prevention of Organized Crime Act 29 of 2004.
123
S 25(1)(l) of the Public Service Act 13 of 1995, which provides that it shall
constitute an act of misconduct for any member of the public service, “... to
accept or demand in respect of the performance of his or her duties any
commission, fee or reward, pecuniary or otherwise, to which he or she is
not entitled by virtue of his or her office.” However, it is important to point
out that the misconduct is not criminal in nature but only provides grounds
for disciplinary action.

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while employed by the state. However, potential conflicts of interest are

created by the fact that the Public Service Commission or the prime
minister can grant exceptions which permit some civil servants to work
for the private sector.

Financial Intelligence Act (FIA)124 also makes it mandatory for financial

institutions and designated businesses to implement adequate policies and
procedures, such as customer due diligence and know-your-customer
policies. The FIA also established the Anti-Money Laundering Advisory
Council as the policy-making body on Namibian Anti-Money Laundering
matters.125 The Public Procurement Act126 established a new, transparent
board to oversee public procurement processes. It imposes strict limits on
the value of contracts state-owned entities can close without involving the
Central procurement Board.127 The Act imposes a five (5) year ban and/or
N$ 5 million fine on firms found guilty of engaging in illegal
procurement practices.128 Namibia has also ratified the African Union
Convention on Preventing and Combating Corruption129 and the United
Nations Convention against Corruption.130

Several other laws in Namibia address matters on corruption. These

include the Agriculture Bank Act,131 the Insolvency Act,132 the Customs
and Excise Act,133 the Local Authorities Act,134 the Regional Councils

124
The Financial Intelligence Act (FIA), 13 of 2012.
125
Part 3 of the FIA.
126
Public Procurement Act (PPA) 15 of 2015.
127
S 55 and 56 of the PPA.
128
S 68 of the PPA.
129
African Union, African Union Convention on Preventing and Combating
Corruption, 11 July 2003.
130
United Nations General Assembly, United Nations Convention Against
Corruption, 31 October 2003, A/58/422.
131
S 73(1) of the Agriculture Bank Act 13 of 1944. The Agriculture Bank Act
generally prohibits bribery.
132
S141 of the Insolvency Act 24 of 1936 (as substituted by s 20 of Act 14 of
1985).
133
S 80(k) and (l) of the Customs and Excise Act 91 of 1964. The
aforementioned sections render it unlawful for a public official or employee
to be offered and to accept any reward or inducement with regards to the
execution or non-execution of duties in terms of the Act. S 80(m) of the
same Act criminalises any attempts to commit any offence referred to in s
80(k) and (l) and holds criminally liable any such parties who assist others
commit offences listed in the Act.
134
S 20 of the Local Authorities Act 22 of 1992.

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Annexure Self-Assessment Questions

Act,135 the Police Act,136 the Immigration Control Act,137 the Companies
Act,138 the Close Corporations Act,139 the Powers Privileges and
Immunities Act of Parliament,140 and the Income Tax Act.141

6. Which other laws may have an impact on the mining

industry? In particular, please indicate which laws deal with
the flow of funds relating to mining (e.g. exchange control
regulations, taxation laws, mine royalty laws)? Are there
indigenization/prescribed local content/empowerment laws that
are applicable to mining? To what extent does mining feature
in laws relating to environmental impacts assessment,
agriculture, water allocation and conservation?

Aside from the Minerals Act, the exploitation of minerals is also affected
largely by the Environmental Management Act 7 of 2007 (EMA) and the
Environmental Impact Assessment Regulations passed in terms of this
Act. In terms of the EMA, no person may undertake a listed activity
without an environmental clearance certificate. Listed activities include
mining and quarrying activities. The minister of mines and energy may
not issue a mineral licence before the applicant has obtained an
environmental clearance certificate.

135
S 17 of the Regional Councils Act 22 of 1992. Section 17 provides that it is
a criminal offence for a member of the regional council, “... to accept any
commission, remuneration or reward from any person other than the
regional council for or in connection with the performance or non-
performance of his or her powers, duties and functions as such a member or
in connection with any transaction to which the regional council is a party.”
136
S 33(b)(i) of the Police Act 19 of 1990. S 33(b)(i) provides that any person
who, “... persuades any member [officer or non-officer of the Police Force]
to omit to carry out his/her duty or to do any act in conflict with his or her
duty ... shall be guilty of an offence and liable on conviction to a fine not
exceeding N$4000,00 or to imprisonment for a period not exceeding 12
months or both such fine and such imprisonment.”
137
S 54(d) of the Immigration Control Act 7 of 1993.
138
S 234-241 of the Companies Act 61 of 1973. The sections make it
mandatory for a company director to disclose a direct or indirect interest in
a proposed contract with the company or a contract already entered into by
the company. Similar conditions apply to authorised officers of the
company who have been mandated with the duty to enter into a contract on
behalf of the company. Compare the provisions of the Companies Act with
s 19(1) of the National Transport Corporation Act 21 of 1987.
139
S 42(2)(b) of the Close Corporations Act 26 of 1988. The section provides
that a member of a close corporation must, “avoid any material conflict
between his/her own interests and those of the corporation.”
140
S 22 of the Powers, Privileges and Immunities Act of Parliament Act 17 of
1996.
141
S 65 and 79 of the Income Tax Act 24 of 1981.

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 MINING LAW

Various other laws might be applicable to the mining industry. These

include the Soil Conservation Act 76 of 1969, the Hazardous Substance
Ordinance 14 of 1974, the Atmospheric Pollution Prevention Ordinance
11 of 1976, the Prevention and Combating of Pollution of the Sea by Oil
Act 6 of 1981, the Forest Act 12 of 2001, and the Atomic Energy and
Radiation Protection Act 5 of 2005. Finally, the mine health and safety
regulations passed in terms of the previous Mines, Works and Minerals
Ordinance 20 of 1968 are still applicable to the minerals industry.

The petroleum sector is governed by the Petroleum (Exploration and

Production) Act142; the Petroleum (Taxation) Act143; the Petroleum
(Exploration and Production) Amendment Act144; the Petroleum Laws
Amendment Act145; the Model Petroleum Agreement146; and the
Petroleum Products and Energy Amendment Act147; Foreign Direct
Investment Act148; Namibia investment Promotion Act149.

7. Which international treaties or other international

documents are applicable to the mining industry in
Namibia? Is Namibia party to any bilateral investment
treaties that affect mining?

In the sphere of international law and international agreements, Article

144150 provides that the general rules of public international law and
international agreements binding upon Namibia under the Constitution
shall form part of the law of Namibia. Namibia has signed and ratified a
number of international treaties and conventions and for example in the
area of mining and environment these include: 1) The Ramsar
Convention of Wetlands (Namibia became a signatory of this convention

142
Petroleum (Exploration and Production) Act 2 of 1991.
143
Petroleum (Taxation) Act 3 of 1991.
144
Petroleum (Exploration and Production) Amendment Act 1993 (Act 2 of
1993).
145
Petroleum Laws Amendment Act 24 of 1998.
146
Model Petroleum Agreement, 1998.
147
Petroleum Products and Energy Amendment Act 3 of 2000.
148
Foreign Direct Investment Act 27 of 1990.
149
Namibia investment Promotion Act 9 of 2016.
150
Article 144 of the Namibian Constitution provides that: “Unless otherwise
provided by this Constitution or Act of Parliament, the general rules of
public international law and international agreements binding upon
Namibia under this Constitution shall form part of the law of Namibia.”

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Annexure Self-Assessment Questions

in 1995);151 2) Convention on Biological Diversity (Namibia became a

signatory of this convention in 1992 with the purpose of conserving
diversity and sustainable use of its components)152; 3) United Nations
Convention to Combat Desertification (Namibia signed on to this
convention in 1994 to combat desertification and lessen the negative
effects of drought)153; and 4) Basel Convention on the Control of
Transboundary Movements of Hazardous Waste and their Disposal.154
Namibia has also signed Bilateral Investment Treaties with Switzerland,
Austria, Spain, France, Netherlands, and Germany.

Further Namibia is also a member of the Southern African Development

Community (SADC) and the Southern African Customs Union (SACU).
SADC through its SADC Treaty seeks to, “ensure, through common
action, the progress and well-being of the peoples of Southern Africa.”155
The SADC Treaty also places emphasis on regional integration of
national economies for the purposes of realising a harmonious, balanced
and equitable development of SADC. In particular, the SADC Protocol
on Mining places emphasis on adopting a comprehensive regional and
plan for the development of the mining sector.156 The SADC protocol on
mining aims at realising the following objectives: 1) enhancement of

151
The Convention on Wetlands, called the Ramsar Convention, is the
intergovernmental treaty that provides the framework for the conservation
and wise use of wetlands and their resources. The Convention was adopted
in the Iranian city of Ramsar in 1971 and came into force in 1975. Since
then, almost 90% of UN member states, from all the world’s geographic
regions, have acceded to become “Contracting Parties”. Available at
https://www.ramsar.org/about-the-ramsar-convention (accessed 23 April
2018).
152
The Convention on Biological Diversity is dedicated to promoting
sustainable development. It was signed by 150 government leaders at the
1992 Rio Earth Summit. Available at https://www.cbd.int/convention/
(accessed 23 April 2018).
153
The United Nations to Combat Desertification (UNCCD) (established in
1994) is the sole legally binding international agreement linking
environment and development to sustainable land management. Available
at https://www2.unccd.int/convention/about-convention (accessed 23 April
2018).
154
The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal was adopted on 22 March 1989 by
the Conference of Plenipotentiaries in Basel, Switzerland, in response to a
public outcry following the discovery, in the 1980s, in Africa and other
parts of the developing world of deposits of toxic wastes imported from
abroad. Available at
http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx
(accessed 23 April 2018).
155
See the Preamble of the SADC Treaty.
156
See the Preamble of the SADC Protocol on Mining.

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 MINING LAW

technological capacity in the mining sector,157 2) developing of

internationally accepted common national and regional standards of
mining,158 3) promoting private sector participation in the exploration for
and commercial exploitation of mineral resources,159 promoting
sustainable development by ensuring a balance between mineral
development and environmental protection,160 and cooperating in
improving the practices and standards of occupational health and safety
in SADC’s mining sector.161 As part of the poverty alleviation agenda,
the SADC Protocol on Mining also places emphasis on a need to grow
small scale or artisanal mining in the region.162 Small scale mining has
the potential to economically empower previously disadvantaged groups
by virtue of its low investment costs and short lead times.163

8. Which international soft law mechanisms (e.g., Extractive

Industries Transparency Initiative, Kimberley Process,
Publish-what-you-pay etc) are applicable to mining
industry in Namibia? Please elaborate.

Namibia is a member of international organisations with soft law

mechanism applicable to the mining sector. Such organisations include
the Kimberley Process (KP) which is a binding commitment to remove
conflict diamonds from the global supply chain. The KP was established
in 2003.164 KP members are responsible for stemming 99.8% of global
production of conflict diamonds.165 As part of the process of stemming
the trade in conflict diamonds, the following affirmative statement should
be on all invoices relating to diamond sales:

The diamonds herein invoiced have been purchased from

legitimate sources not involved in funding conflict and in
compliance with the United Nations resolutions. The seller

157
Article 4(1)-(5) of the SADC Protocol on Mining.
158
Article 5 of the SADC Protocol on Mining.
159
Article 6 of the SADC Protocol on Mining.
160
Article 8 of the SDAC Protocol on Mining.
161
Article 9 of the SADC Protocol on Mining.
162
Article 7 of the SADC Protocol on Mining.
163
See the 2002 Draft Mining Policy of Namibia, paragraph 2.3.
164
The Kimberley Process (KP) was adopted by the United Nations General
Assembly Resolution 55/56 following recommendations by the Fowler
Report.
165
Al Aolfe, “Kimberley Process ‘Whitewashes’ Blood Diamonds” New
Internationalist, 1 April 2012, p.10.

151
Annexure Self-Assessment Questions

hereby guarantees that these diamonds are conflict free based on

personal knowledge and/or written guarantees provided by the
supplier of these diamonds.166

Namibia has been the chair of the Kimberley Process in 2009,167 and
vice-Chair in 2008.168 Currently, Namibia is a member of the Artisanal
and Alluvial Working Group, Diamond Experts working Group (2011-
present),169 and the Selection Committee Working Group (2003-
present).170 Namibia is also a member of the Extractive Industries
Transparency Initiative (EITI).171 EITI is a global standard group that
promotes revenue transparency. It addresses issues on transparency and
accountability in extractive industry exploration. EITI was endorsed by
the African Development Bank Group in 2006. EITI focuses on: 1)
improving mining companies’ international credibility, 2) emphasising
governments’ commitment to fighting corruption, and 3) realising good
corporate governance commitment by the private sector in order to
improve a country’s investment climate.

Whilst Namibia has been actively involved in the KP and the EITI, it has
not featured prominently in campaigns of Publish-What-You-Pay
(PWYP).172 PWYP was established in 2002 by a group of civil society
organisations. Its main purpose is to ensure transparency in the extractive

166
See the World Diamond Congress Resolution, Kimberley Process, 29
October 2002, available at
https://www.kimberleyprocess.com/en/system/files/documents/WDCresolut
ion_0.pdf (accessed 24 April 2018).
167
Staff Reporter, “Namibia now chair of Kimberley Process,” The Namibian,
6 January 2009. See also the Kimberley Process, Namibia available at
https://www.kimberleyprocess.com/en/namibia (accessed 24 April 2018).
168
P Sibeene “Namibia to Vice-Chair Kimberly Process,” New Era, 15
November 2007. See also the 2008 Kimberley Process Communique,
available at https://www.state.gov/documents/organization/112009.pdf
(accessed 24 April 2018).
169
F Southward, “Kimberley Process: Observations from the sidelines – Part 1,”
available at http://ipisresearch.be/wp-
content/uploads/2013/11/20131120_KimberleyV2.pdf (accessed 10 April
2018).
170
Kimberley Process, Namibia available at
https://www.kimberleyprocess.com/en/namibia (accessed 12 April 2018).
171
G Hopwood, “Namibia’s New Frontiers: Transparency and Accountability
in extractive industry exploration,” available at http://ippr.org.na/wp-
content/uploads/2013/06/Mining%20%20Extractive%20Industries%20Lau
nch%20Presentation.pdf (accessed 24 April 2018).
172
For more information on Publish-What-You-Pay (PWYP), please see
http://www.publishwhatyoupay.org/ (accessed 24 April 2018).

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 MINING LAW

industry. PWYP advocates that companies must publish what they pay to
government for rights to extract oil, gas and other natural resources. It is
strongly recommended that companies operating in Namibia’s extractive
industry should disclose what they pay to the Namibian Government for
rights to extract natural resources. Such an approach could stem the
increasing concerns of corruption in Namibia’s mining sector.

9. Who owns mineral resources in Namibia? Are there

distinct property rights in the minerals as opposed to the
right to exploit them?

Fundamental principles of sovereignty vest the rights over the natural

resources of the state in the state for the benefit of the subjects of the
state. Consequently, under Article 100 of the Namibian Constitution
confirms the conferment of sovereign ownership of natural resources.
This is therefore a confirmatory provision on the internationally
recognized right of the State to exercise sovereignty over its natural
resources.173 The Government of the Republic of Namibia is committed
to the development of the Namibian mining industry, as demonstrated in
the Minerals Policy, within a free market environment. The introduction
of the Minerals Policy is driven by the commitment of the Ministry of
Mines and Energy and the government for the further development of the
Namibian mining industry. Therefore, subject to any right conferred
under any provision of the Minerals Act, any right in relation to the
reconnaissance or prospecting for, and the mining and sale or disposal of,
and the exercise of control over, any mineral or group of minerals vests,
notwithstanding any right of ownership of any person in relation to any
land in, on or under which any such mineral or group of minerals is
found, in the State.

Section 2 of the Minerals Act provides that:

173
See for example the 1962 UN General Assembly Resolution 1803 (XVII)
on the Permanent Sovereignty over Natural Resources, 14 December 1974;
See also clause 2 of the United Nations General Assembly Resolution 3281
(XXIX) Charter of Economic Rights and Duties of States, 12 December
1974,

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Annexure Self-Assessment Questions

Subject to any right conferred under any provision of this Act,

any right in relation to the reconnaissance or prospecting for, and
the mining and sale or disposal of, and the exercise of control
over, any mineral or group of minerals vests, notwithstanding any
right of ownership of any person in relation to any land in, on or
under which any such mineral or group of minerals is found, in
the State.
Part XV of the Minerals Act provides for Ancillary Rights.174 In
particular, s 109 of the Minerals Act provides that:

Where it is reasonably necessary for the holder of a non-

exclusive prospecting licence, a mineral licence or a mining
claim to obtain a right:

a) to enter upon land in order to carry on operations

authorized by such licence or mining claim on such
land;

b) to erect or construct accessory works on any land

for purposes of such operations;

c) to obtain a supply of water or any other substance

in connection with such operations;

d) to dispose of water or any other substance obtained

during such operations; and

e) to do anything else in order to exercise any right

conferred upon him or her by such licence or
mining claim.

The implication of s 109 is that if the owner of the land or any person
competent to grant a right in terms of a mineral licence prevents the
holder from carrying the applicable mining operations, the affected party
can approach the Ancillary Rights Commission to grant such right. The

174
See s 108 and 109 of the Minerals Act.

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 MINING LAW

Minerals Act of 1992 therefore provides for reconnaissance, prospecting,

mining, disposal of and the exercise of control over minerals in Namibia.
However, where a holder of the mineral licence has been granted a
mining right in terms of s 109 of the Minerals Act, only such party can
extract the minerals. The owner of the land or any person competent to
grant such right is prevented from carrying out the rights of the mining
licence holder.175 S 109(e) of the Minerals Act provides that a holder of a
mineral licence or any relevant licence and who is prevented by the
landowner from accessing the land in order to carry out mining
operations can write to the ancillary rights Commission to point out:

i. that the owner of the land in question or any person

competent to grant such right in relation to such land refuses
to grant such right or demands, in return for such right, terms
and conditions which are in the circumstances unreasonable,
or has raised a dispute in relation to the interpretation or
application of an order made by the Commission in terms of
section 110(4);

ii. that, due to the number of owners or persons competent to

grant such right involved or such owners or persons having
conflicting interests, it is not possible to obtain any such
right;

iii. that any such owner or person is absent from Namibia or

such owner or person’s whereabouts is unknown or is a
minor or of unsound mind or otherwise under any disability
to grant any such right,

may apply in writing to the Commission to grant any such right to him or
her.

However it is important to observe that Article 100 of the Namibian Constitution

vests mineral rights in the state, only to the extent that they are not privately

175
S 110(4) of the Minerals Act.

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Annexure Self-Assessment Questions

owned.176 The source for the enactment of the Minerals Act is to be found in
Article 100 of the Constitution itself which vests those rights in the State. 177
Constitutionally, these rights never formed part of ownership in landed property
and can therefore not be seen as ex post facto limiting the right of ownership of a
landowner in regard of which the provisions of Article 22 of the Constitution
must apply.178 The Minerals Act regulates the granting and the exercising of
those rights and the relationship between the State and any holder on which such
rights are conferred in terms of the Minerals Act.179 Because of a possible
conflict between the exercise of such rights and the rights of the owner of landed
property, the Minerals Act provides for machinery by means of which it attempts
to resolve any dispute by balancing the competing rights and thereby relieving
the tension so created.180

10. What rights are required in order to search for and to extract
minerals? Does the legislation make special provision for small-scale
and artisanal mining?

The Minerals Act provides for the granting of reconnaissance licences.181

These licences authorise the holder thereof to conduct reconnaissance
operations, which are operations carried out in a general search for any
mineral or group of minerals by means of aerial sensing techniques,
including geophysical surveys, photogeological mapping or imagery
carried out from the air.182 It is valid for a maximum period of six
months and may not be renewed. It may, however, be extended once for
a period of six months.183

176
For an analysis of the implication of Article 100 on State ownership of
mineral resources see in general Namibia Grape Growers and Exporters
Association and Others v Ministry of Mines and Energy and Others
(SA14/02, SA14/02) [2004] NASC 6 (25 November 2004).
177
Ibid.
178
Article 22 of the Namibian Constitution provides that: Whenever or
wherever in terms of this Constitution the limitation of any fundamental
rights or freedoms contemplated by this Chapter is authorised, any law
providing for such limitation shall:
a) be of general application, shall not negate the essential content
thereof, and shall not be aimed at a particular individual;
b) specify the ascertainable extent of such limitation and identify the
Article or Articles hereof on which authority to enact such
limitation is claimed to rest.
179
See Part XV of the Minerals Act.
180
See Part XV of the Minerals Act. See also sections 51 and 52 of the
Minerals Act.
181
See Part IX of the Minerals Act.
182
S 58 and 59 of the Minerals Act.
183
S 63 of the Minerals Act.

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 MINING LAW

a) Rights required for conducting exploration

Prospecting operations are conducted in terms of non-exclusive and

exclusive prospecting licences.184 “Prospecting” means intentionally
searching, whether by way of excavations or otherwise, for any mineral
or group of minerals with a view to delineating or evaluating deposits or
concentrations of any such mineral or group of mineral.185 A non-
exclusive prospecting licence is valid for a period of one year and is not
renewable.186 An exclusive prospecting licence, on the other hand, is
valid for a period of three years and may be renewed twice for a period of
two years per renewal.187 Further renewals are possible only if the
Minister deems it desirable in the interests of the development of the
mineral resources of Namibia.188

b) Rights required for conducting mining

Mining operations may be conducted in terms of a mining claim or a

mining licence. The holder of a non-exclusive prospecting licence may
peg a claim, which may not be bigger than three hundred metres by six
hundred metres.189 This claim is then registered with the Ministry, which
entitles the holder to conduct mining operations on the mining claim.190
A claim is valid for three years and may be renewed for two years at a
time.191 On the other hand, the holder of an exclusive prospecting licence
may apply for a mining licence over the prospecting area. A mining
licence is valid for a period of twenty-five years and may be renewed for
further periods of fifteen years per renewal.192

184
See Part X of the Minerals Act.
185
S 67 of the Minerals Act.
186
S 71 of the Minerals Act.
187
S 71(1)(a) of the Minerals Act.
188
S 71(1)(b) of the Minerals Act.
189
S 27 and 28 of the Minerals Act.
190
S 29 and 36 of the Minerals Act.
191
S 37 of the Minerals Act.
192
S 94 of the Minerals Act.

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Annexure Self-Assessment Questions

c) Small scale and artisanal mining

Namibia as a signatory to the SADC Protocol on Mining has an

obligation to promote small scale mining. Article 7 of the SADC Protocol
on Mining provides that:
1. Member States agree to promote policies that will
encourage and assist small scale mining in the region.
2. Member States shall facilitate the development of small-
scale mining through amongst others the provision of
technical extension services, establishment of marketing
facilities including exhibitions and establishment of
mineral exchanges.
3. Member States shall encourage the provision of training,
institutional and financial support for the small-scale
mining sector in the region.

The Namibian Minerals Policy in its executive summary provides that:

“Government acknowledges the participation of Namibians in small-scale
mining. The Government remains committed to the promotion and
development of the small-scale mining sector. It will investigate and take
measures to support orderly operations of small-scale mining to allow
legally supported operations in areas where large-scale mining is not
warranted.”193 Emphasis in this regard is placed on promoting the growth
of small-scale mining to improve the livelihood of previously
disadvantaged Namibians.194 As such, Section 11 of the Minerals Act
makes provision for small-scale miners. Section 11(c) of the Minerals Act
provides that the Minister shall appoint to the Minerals Board:
two persons … of whom -
i. one in the opinion of the Minister represents the interests
of persons involved in small-scale prospecting
operations; and
ii. one in the opinion of the Minister represents the interests
of persons involved in small-scale mining operations.

193
See the Minerals Policy of 2002, p. iii.
194
Paragraph 2.2.7 of the Minerals Policy of 2002. See also in general A
Nhemachena and TV Warikandwa, (eds) Mining Africa: Law,
Environment, Society and Politics in Historical and Multidisciplinary
Perspectives (2017).

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 MINING LAW

However, beyond the provisions of section 11, there is nothing more that
is provided in the Minerals Act regarding small scale mining. Only the
minerals policy provides a broader attention to the significance of small-
scale mining to Namibia. However, it must be emphasised that small
scale mining like other practices demands a principled attention from
Namibian policy makers.195

11. Mineral tenure security is an important consideration in

attracting investors to the mining sector. Please explain
how the arrangements in relation to rights to minerals
support or enhance mineral tenure security in Namibia.
Are there any other safeguards of mineral tenure security?
Please elaborate.

Mineral tenure security is an aspect of the minerals regulatory regime

which is closely associated with investor attraction.196 Investors strongly
consider the mineral tenure security of a country before investing in it.197
The mineral tenure security fits perfectly well with the World Bank’s
ease of doing business index198 which seeks to remove obstacles for
businesses to operate in a particular country. The Government of Namibia
recognises that the exploration and development of its mineral wealth
could best be undertaken by the private sector.199 Government therefore
focuses on creating an enabling environment for the promotion of private

195
JM Nyambe and T Amunkete, “Small-scale mining and its Impact on
poverty in Namibia: A case study of miners in the Erongo Region,” Trade
and Pro-Poo Growth Thematic Working Group, December 2009, p. 12,
available at http://www.tips.org.za/files/SSM_NEPRU_project_Final.pdf
(accessed 25 April 2018).
196
H van Niekerk, “Unlocking mineral-tenure security: The application
procedures under the Mineral and Petroleum Resources Development Act”
2015 Obiter 36(2), pp. 387-402. See also PJ Badenhorst, “Security of
Mineral Tenure in South Africa: Carrot or Stick?” 2014 Journal of Energy
and Natural Resources Law, 32(1), p. 5-40.
197
AE Bastida, “Security of mineral tenure: Issues and challenges,” 2001
Journal of Energy and Natural Resources Law, 19(1), p. 31-43, and BJ
Fielding, “Security of mineral tenure and the investment agreement,” 1998
Mineral Resources Engineering, 7(4), p. 385-392.
198
Economies are ranked on their ease of doing business, from 1–190. A high
ease of doing business ranking means the regulatory environment is more
conducive to the starting and operation of a local firm. See The World
Bank, “Doing Business,” available at
http://www.doingbusiness.org/rankings (accessed 25 April 2018).
199
See the Executive summary of the Minerals Policy of 2002.

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Annexure Self-Assessment Questions

sector investment in the mining sector.200 This will include competitive

policy and regulatory frameworks, security of tenure and the provision of
national geoscientific data to further stimulate exploration and mining.201
In the same vein the Government will expect the industry to take the
challenge of social responsibility in terms of planning for closure,
community involvement and empowerment of formerly disadvantaged
people.202
The Namibian Constitution also underscores the significance of private
sector investment and therefore security of tenure. S 98 of the Namibian
Constitution, titled “Principles of Economic Order”, provides that:
1) The economic order of Namibia shall be based on the principles
of a mixed economy with the objective of securing economic
growth, prosperity and a life of human dignity for all Namibians.
2) The Namibian economy shall be based, inter alia, on the
following forms of ownership:
(a) Public;
(b) Private;
(c) Joint public-private;
(d) co-operative;
(e) Co-ownership; and
(f) Small-scale family.

It is important to observe that the Namibian Constitution places emphasis

on a mixed economy model. This implies that the interests of investors in
a free market economy are taken into due consideration.

200
Ibid.
201
Ibid.
202
Ibid.

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12. What model of allocation is applied for distributing rights

to search for and exploit minerals? What principles
underlie the allocation of these rights (e.g. first in, first
assessed)? Does the law allow for any parties to be given
preference?

The Namibian mining regulatory framework, as it currently stands, does

not discriminate when it comes to the distribution of Mining rights. It is
generally accepted, as status quo is, that the allocation of rights is done on
a first come, first serve basis. This is attributed to the fact that Namibia’s
economic order is based on the principles of a mixed economy.203 In
terms of the mixed economy model, ownership shall assume the
following forms: 1) public; 2) private; 3) joint public-private; 4) co-
operative; co-ownership; and small scale family.204 On the basis of the
mixed economy, foreign investments are therefore encouraged.205 As
such, mineral licences may be held by a foreign entity, which would be
required to register as a branch or external company in terms of the
Companies Act 28 of 2004.

The Foreign Investment Act (FIA) 27 of 1990 provides that there shall be
no requirements for a foreign investor who seeks to operate in Namibia to
partner with a Namibia or involve the participation of the government in
its operations.206 The foreign investor shall also not be obliged to transfer
his/her business to the Namibian Government or any Namibian as a
condition of licensing.207 The Namibian Investment Promotion Act
(NIPA) 9 of 2016 which has been introduced to replace the FIA, partly
maintains the position adopted in s 3 of the FIA. In s 8 of the NIPA, it is
provided that: “an investor who had lawfully invested in an economic
sector or business activity before the sector or activity has been reserved
under s 8 is entitled to maintain his/her investment after the effective date
of the reservation of the sector or activity.”208 However, the NEEEF Bill
poses a challenge to the prevailing investment regime if it is passed into
law. The plausible NEEEF Bill seeks to realise the constitutional

203
S 98(1) of the Namibian Constitution.
204
S 92(2)(a)-(f) of the Namibian Constitution.
205
This approach is consistent with the objectives of the Harambee Prosperity
Plan’s “inclusive Namibian house”.
206
S 3 of the FIA.
207
Ibid.
208
See also s 9(3) of the NIPA.

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Annexure Self-Assessment Questions

objectives set out in Article 23 of the Namibian Constitution.209 Article

23 seeks to ensure equality and realise socio-economic transformation. It
is in this regard that the NEEEF Bill’s s 23(1) makes provision for
ownership restriction. S 23(1) of the NEEEF Bill provides that:

Any private sector enterprise that is established after the

commencement of the Act may commence business only when
such enterprise has secured 25 percent ownership by a racially
disadvantaged person or persons or such higher percentage as
may be determined by the Minister by notice in the Gazette.

However, section 23(1) has posed significant challenges to investors in

Namibia which has prompted discomfort in the business sector.210 It is in
this regard that the Namibian policy makers might want to find a
negotiated settlement on how to realise the constitutional transformation
objectives and the promotion of investor security in Namibia.

13. Who may apply for a right to search for and extract
minerals? Are there any restrictions that apply to the right
to search for and extract minerals (e.g. only allowing
nationals of the country to apply for small-scale and
artisanal mining)?

There are different categories of licences which allow one to search for
and extract minerals in Namibia. The Minerals Act makes provision for
the parties that qualify to apply for a particular mining licence. S 16 of
the Minerals Act provides for the non-exclusive prospecting licences. The

209
Article 23(1) of the Namibian Constitution provides that: “The practice of
racial discrimination and the practice and ideology of apartheid from which
the majority of the people of Namibia have suffered for so long shall be
prohibited and by Act of Parliament such practices, and the propagation of
such practices, may be rendered criminally punishable by the ordinary
Courts by means of such punishment as Parliament deems necessary for the
purposes of expressing the revulsion of the Namibian people at such
practices.”
210
TV Warikandwa and AV Ndatega, “Economic Transformation and
Investment Security in Namibia: An Appraisal of the National Equitable
Economic Empowerment Framework Bill,” 2016 University of Namibia
Law Review, 3(1), p. 53.

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 MINING LAW

holder of a non-exclusive prospecting licence, subject to the provisions of

s 16(2)211 and (3)212 of the Act, shall be entitled to:

a) to carry out prospecting operations on any land for any mineral or

group of minerals;
b) to remove any mineral or group of minerals other than a
controlled mineral or sample of such mineral or group of
minerals, for any purpose other than sale or disposal, from any
place where it was found or incidentally won in the course of
prospecting operations referred to in paragraph (a) to any place
within Namibia;
c) with the permission of the Commissioner previously obtained
generally or in every case in writing and subject to such
conditions as may be determined by the Commissioner or subject
to the conditions of an exemption granted under section 137 -
i. to remove any mineral or group of minerals
referred to in paragraph (b) for any purpose other
than sale or disposal, from any place where it
was found or incidentally won in the course of
prospecting operations referred to in paragraph
(a) to any place outside Namibia;
ii. to remove any controlled mineral or sample of
such mineral, for any purpose other than sale or
disposal, from any place where it was found or
incidentally won in the course of prospecting
operations referred to in paragraph (a) to any
place, whether within or outside Namibia;

211
S 16(2)(a)-(b) of the Minerals Act provides that: The holder of a non-
exclusive prospecting licence shall not exercise any rights conferred upon
such holder by subsection (1) - (a) in, on or under any private land until
such time as such holder has by way of an endorsement on such licence or
otherwise obtained the permission in writing of the owner of such land to
exercise such rights on such land without the payment of any compensation
to such owner, or has complied mutatis mutandis with the provisions of
section 52(1)(a)(i) or has been granted an ancillary right as provided in
section 110(4) to exercise such rights on such land; (b) unreasonably and in
such manner that the rights and interests of the owner of any land to which
such licence relates are adversely affected, except to the extent to which
such owner is compensated. See also s 16(2)(c) of the Minerals Act.
212
S 16(3) of the Minerals Act provides that, “The provisions of sections
52(1)(b), (c), (d), (e) and (f), (2), (3), (4), (5), (6) and (7) and 53 shall apply
mutatis mutandis in relation to the holder of a nonexclusive prospecting
licence.”

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Annexure Self-Assessment Questions

iii. to remove any mineral or group of minerals, for

purposes of sale or disposal, from any place
where it was found or incidentally won in the
course of such prospecting operations;
iv. to sell or otherwise dispose of any such mineral
or group of minerals.

S 17 of the Minerals act then expressly states the nature of the person
who may apply for a non-exclusive prospecting licence in Namibia. In
principle, any person (natural or juristic) may apply for a non-exclusive
prospecting licence. However, with regards to a natural person, there is a
set condition which must be satisfied; in the case of a natural person, such
person must be 18 years or above.213 A non-exclusive prospecting licence
is valid for only 6 months.

14. Do different procedures apply to different minerals?

Please describe

There are no different procedures applied with regards to the application

for licences for different minerals in Namibia or even different types of
land. The only exception is that licences pertaining to diamonds can be
realised in terms of the Diamonds Act 13 of 1999.214 Mineral licences
located on communal land would require prior notice to traditional
authorities.215 The holder of a mineral licence is prohibited from
exercising rights conferred upon such holder by the Minerals Act or
under such licence.216 S 52(1)(a) and (b) provide that:

The holder of a mineral licence shall not exercise any rights conferred
upon such holder by this Act or under any terms and conditions of such
mineral licence -
a) in, on or under any private land until such time as such holder -
i. has entered into an agreement in writing with the owner
of such land containing terms and conditions relating to
the payment of compensation, or the owner of such land
has in writing waked any right to such compensation and

213
S 17 of the Minerals Act.
214
See Part IV, s 15, 16 and 17 of the Diamonds Act 13 of 1999.
215
S 30 of the Communal Land Reform Act 5 of 2002.
216
S 52 of the Minerals Act.

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 MINING LAW

has submitted a copy of such agreement or waiver to the

Commissioner; or
ii. has been granted an ancillary right as provided for in
section 110(4) to exercise such rights on such land;
b) in, on or under any -
i. town or village;
ii. land comprising a proclaimed road, including such parts
adjoining such road as may in terms of any law
governing such road be regarded as the road reserve,
aerodrome, harbour, railway or cemetery; or
iii. land used or reserved for any governmental or public
purpose,
and otherwise in conflict with any law, if any, in terms of which such
town, village, road, aerodrome, harbour, railway, cemetery or land has
been established, erected, constructed or is otherwise regulated, without
the prior permission of the Minister granted, upon an application to the
Minister in such form as may be determined in writing by the
Commissioner, by notice in writing and subject to such conditions as may
be specified in such notice.

15. To what extent does the law require the applicant or state
to undertake public participation with other parties? With
whom must applicants consult?

The Environmental Management Act (EMA) 7 of 2007 provides that no

person may undertake a listed activity without an environmental
certificate having been issued by the environmental commissioner, except
when an exemption to that effect is granted.217 Mining is one such
activity which requires an environmental clearance certificate (ECC) as
there is a need for waste management, water resource developments,
hazardous substances treatment, storage and handling of hazardous
substances as well as the construction of infrastructure.218

The applicant of a mineral licence needs to apply to the Minister of Mines

and Energy for an ECC to be issued. The Minister of Mines and Energy
in turn submits an application to the Environmental Commissioner with
regards to the issuance of an ECC. The applicant prepares a draft scoping

217
S 27(3) of the EMA.
218
S 50(f) of the Minerals Act.

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Annexure Self-Assessment Questions

report and conducts a public consultation process. In the public

consultation process, the applicant affords interested and affected parties
an opportunity to makes comments on the proposed mining activities. A
final scoping report is then prepared by the applicant taking into
consideration all objections and representations received from the
interested and affected parties, during the public consultation process. A
holder of an exclusive prospecting licence must obtain prior permission
for the erection of any accessory works.219

16. Describe the level of discretion involved in attaching terms

and conditions to rights granted in respect of minerals?

The Minerals Act authorises the Minister of Mines and Energy to grant
applications for mineral licences on such terms and conditions as may be
determined by the minister.220 In 2016, the new standard licence
conditions which are to apply in respect of all new exclusive prospecting
licences and mining licences, and would be made applicable when such
mineral licences are renewed, were introduced.221
For standard licence conditions, it is provided that an applicant for a
mining licence or the renewal thereof would need to submit for approval
of the Minister, its projected production profile for the first year and the
following four years. In addition, with regards to royalties, the Minister
of Mines and Energy may impose a further royalty if the Minister is of
the opinion that amongst others, an addition to the value of the mineral in
question is possible in Namibia.222 The mineral licence holder must be
afforded the opportunity to make representations with regards to the
intended imposition of such royalties before they are implemented.
The Joint Value Addition Committee (JVAC) was approved by the
Committee of Ministers in line with the Government’s national
development plans objectives.223 The JVAC has been tasked to develop

219
See s 57 and s 58(2) of the Minerals Act.
220
S 48 of the Minerals Act.
221
See the Namibia Chamber of Mines Newsletter, a quarterly newsletter for
the Namibian mining industry, Issue 02/2016 available at
http://www.chamberofmines.org.na/files/3414/7092/8365/Chamber_Newsl
etter_June_2016.pdf (accessed 30 April 2018).
222
Ibid.
223
See the presentation made by Mr S Negumbo, the Permanent Secretary of
the Ministry of Mines and Energy and the Chairman of JVAC titled,
“Progress of Joint Value Addition Committee (JVAC),” presented during
the Mining Expo and Conference of 27-28 April 2016 at the Windhoek
Show Grounds, available at

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 MINING LAW

value addition on raw minerals.224 This would limit the export of minerals
in their raw state, a development which would create jobs and stimulate
economic growth.
The Export Levy Act225 encourages further processing or beneficiation of
or value addition to goods before export. The Act imposes an expert levy
at rates between zero to 2% depending on the type of raw materials
exported, calculated on the value of the export of raw minerals, which
would be the “free on board price” of such goods.226

17. Are rights granted in respect of certain minerals or groups

of minerals only or in respect of all minerals in, on or
under the land in respect of which the rights are granted?
Please elaborate.

The exclusive prospecting and a mining licence entitles the holder(s)

thereof to carry prospecting, and mining operations in the prospecting of
a mining area to which such licence relates in respect of only the mineral
or group of minerals specified in such licence. S 67(1)(a) of the Minerals
Act provides that:
Subject to the provisions of subsection (2) and the other
provisions of this Act, the holder of an exclusive prospecting
licence shall be entitled -
a) to carry on prospecting operations in the prospecting area to
which such licence relates in respect of such mineral or group
of minerals specified in such licence.
A licence holder is however allowed to remove any mineral, with the
permission of the Mining Commissioner, minerals for the purpose of sale
or disposal, from any place where it was found or incidentally won in the

http://www.chamberofmines.org.na/files/3614/7016/0728/3_Joint_Value_A
ddition_Committee_VAC_-_Opportunities_beyond_Mining.pdf (accessed
28 April 2018).
224
See the Terms of Reference for a Consultant to Develop Minerals
Beneficiation Strategy for Namibia available at
http://www.mme.gov.na/files/vacancies/a6c_Terms%20of%20Reference%
20for%20a%20Consultant%20to%20Develop%20Minerals%20Beneficiati
on%20Strategy%20for%20Namibia.pdf (accessed 28 April 2018).
225
Export Levy Act 2 of 2016.
226
See Schedule 1 of the Export Levy Act, titled Export Levy Goods and
Export Levy Rates for Minerals, Gas and Crude Oil Products.

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Annexure Self-Assessment Questions

course of prospecting or mining operations. S 67(1)(b) of the Minerals

Act states that:
Subject to the provisions of subsection (2) and the other
provisions of this Act, the holder of an exclusive prospecting
licence shall be entitled –
b) to remove any mineral or group of minerals other than a
controlled mineral or sample of such mineral or group of
minerals, for any purpose other than sale or disposal, from
any place where it was found or incidentally won in the
course of prospecting operations referred to in paragraph (a)
to any other place within Namibia.

18. What rights to the surface of the land in respect of which

the right to search for or extract minerals is granted does a
holder have? Please elaborate

A person can be issued with a mineral licence or a mining claim. If

reconnaissance, exploration, or mining operations are to be conducted in,
on or under any private land, the holders of such licences would first have
to enter into an agreement with the owner of such land, as will later be
explained in this section. The agreement is required to provide for the
payment of compensation unless the owner waived the right to such
compensation. If the owner of the land refuses to enter into the agreement
or provides unreasonable claims, the holder of the mineral licence may
apply to the Minerals Ancillary Rights Commission to grant a right to
enter land to carry on operations authorised by its licence on such land.
Section 2 of the Minerals Act provides that:

Subject to any right conferred under any provision of this Act,

any right in relation to the reconnaissance or prospecting for, and
the mining and sale or disposal of, and the exercise of control
over, any mineral or group of minerals vests, notwithstanding any
right of ownership of any person in relation to any land in, on or
under which any such mineral or group of minerals is found, in
the State.

As such, for any person to mine lawfully on a piece of land that belongs
to another legal subject, a contract to do so should be entered into with
the surface owner. This claim is substantiated by the court’s decision in
the case of Namibia Grape Growers and Exporters Association and

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 MINING LAW

Others v The Ministry of Mines and Energy and Others227 in which the
following was stated:

In respect of the rights of a license holder to mine, before a

license holder can begin to exercise any of his rights, he must
enter into a written agreement with the owner of the land which
must contain terms and conditions relating to the payment of
compensation to the owner.

Should a contract not be entered into, no right to mine can be

exercised.228 Part XV of the Minerals Act deals with Ancillary Rights.
Section 108 establishes the Minerals Ancillary Commission. Section 109
of the Minerals Act then provides that where it is reasonably necessary,
the holder of a non-exclusive prospecting licence, a mineral licence or a
mining claim must obtain a right:

a) to enter upon land in order to carry on operations

authorized by such licence or mining claim on such
land;
b) to erect or construct accessory works on any land for
purposes of such operations;
c) to obtain a supply of water or any other substance in
connection with such operations;
d) to dispose of water or any other substance obtained
during such operations;
e) to do anything else to exercise any right conferred upon
him or her by such licence or mining claim.”

Should the holder of the ancillary right be prevented from carrying out
operations by the owner of the land or any such person competent to
grant such right, the holder of the licence can apply to the Commission to
grant him such right.229 Section 112 of the Minerals Act provides that the
Commission has to determine an amount for compensation in regard to
any right granted by it, which amount shall be payable before the exercise
thereof of ancillary rights, if security has not been given. Any person
aggrieved by an order of the Commission a right of appeal to the High

227
Namibia Grape Growers and Exporters Association and Others v The
Ministry of Mines and Energy and Others 2004 NR 194(SC), at page 219
para G.
228
See section 110(4) of the Minerals (Prospecting Mining) Act 33 of 1992
which provides another process through which the right to mine on the land
of another legal subject can be dealt with.
229
Ibid.

169
Annexure Self-Assessment Questions

Court of Namibia.230 Section 107 of the Minerals Act further provides

that:

The provisions of this Part, in so far as they provide for a

limitation on the fundamental rights contemplated in sub-article
(1) of Article 16 of the Namibian Constitution in order to
authorize, subject to an obligation to pay just compensation, the
holder of a non-exclusive prospecting licence, a mineral licence
or a mining claim to enter upon any land of any person for
purposes of carrying on operations authorized by such licence,
are enacted upon the authority conferred by sub article (2) of that
Article.

Article 16 of the Constitution, to which reference is made in s 107 of the

Minerals Act, is part of the Bill of Rights contained in the Namibian
Constitution.231 Article 16 of the Namibian Constitution should be read
together with other constitutional provisions such as Articles 22,232

230
See Section 113 of the Minerals Act.
231
Article 16 of the Namibian Constitution provides that:

(1) All persons shall have the right in any part of Namibia to
acquire, own and dispose of all forms of immovable and
movable property individually or in association with
others and to bequeath their property to their heirs or
legatees: provided that Parliament may by legislation
prohibit or regulate as it deems expedient the right to
acquire property by persons who are not Namibian
citizens.
(2) The State or a competent body or organ authorized by
law may expropriate property in the public interest
subject to the payment of just compensation, in
accordance with requirements and procedures to be
determined by Act of Parliament.
232
Article 22 of the Namibian Constitution provides for the limitation of
fundamental rights and freedoms. It provides as follows: Whenever
or wherever in terms of this Constitution the limitation of any
fundamental rights or freedoms contemplated by this Chapter is
authorized, any law providing for such limitation shall:
(a) be of general application, shall not negate the essential
content thereof, and shall not be aimed at a particular
individual;
(b) specify the ascertainable extent of such limitation and
identify the Article or Articles hereof on which authority to
enact such limitation is claimed to rest.

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 MINING LAW

25(1)233 and 131.234 In principle, the limitation of any right, including

ancillary mining rights will only be permissible if it is authorised by the
constitution and to the extent set out in Article 22. Article 16 establishes
an absolute right to property for the landowner. However, mineral rights
always vest in the state as spelt out in Article 100 of the Namibian
Constitution. To that end, the state is free to licence mining operations
without being limited by the existence of the absolute property right. The
right to mine granted by the state carries with it ancillary rights as set out
in Part XV of the Minerals Act.235

Article 100 of the Constitution vests mineral rights in the State, only to
the extent that they were not privately owned. As such, the source for the
enactment of the Minerals Act is to be found in Article 100 of the
Constitution itself which vests those rights in the State. Constitutionally
these rights do not form part of ownership in land as property and can
therefore not be seen as ex post facto limiting the right of ownership of a
landowner in regard of which the provisions of Article 22 of the
Constitution must apply. The Minerals Act regulates the granting and the
exercising of those rights and the relationship between the State and any
holder on which such rights are conferred in terms of the Minerals Act.
Because of a possible conflict between the exercise of such rights and the
rights of the owner of land, the Minerals Act provides for machinery by
means of which it attempts to resolve any dispute by balancing the
competing rights and thereby relieving the tension so created.236 Where a
party is aggrieved in so far as exercise and entitlement to their mining
rights is concerned, section 52(3) of the Minerals Act can be invoked.
The section provides for recourse in instances where there are restrictions

233
Article 25(1) of the Namibian Constitution provides for the enforcement of
fundamental rights and freedoms. It provides that: “Save in so far as it may
be authorized to do so by this Constitution, Parliament or any subordinate
legislative authority shall not make any law, and the Executive and the
agencies of Government shall not take any action which abolishes or
abridges the fundamental rights and freedoms conferred by this Chapter, an
any law or action in contravention thereof shall to the extent of the
contravention be invalid …”
234
Article 131 deals with the entrenchment of fundamental rights and
freedoms. It provides that: No repeal or amendment of any of the
provisions of Chapter 3 hereof, in so far as such repeal or amendment
diminishes or detracts from the fundamental rights and freedoms contained
and defined in that Chapter, shall be permissible under this Constitution,
and no such purported repeal or amendment shall be valid or have any force
or effect.
235
Minister of Defence v Mwandinghi 1993 NR 63 SC para 75.
236
It is in this regard that Part XV of the Minerals Act, and to a certain extent
also s 51 and 52, offer guidance on how to balance the conflicting rights.

171
Annexure Self-Assessment Questions

on the exercise of rights by holders of mineral licences. Any such

disputes will be resolved in a manner as outlined in Part XV of the
Minerals Act, specifically in terms of section 110. The section places
significance on the role to be played by the Minerals Ancillary Rights
Commission in resolving disputes pertaining to mining rights.

19. What obligations does the holder have towards the owner
and occupiers of the land? What obligations does the
holder have towards neighbouring owners and occupiers?
Is there a statutory right to compensation? Please describe.

The Minerals Act does not specifically address the issue of the interaction
of landowner’s property rights vis-à-vis the mineral licence holders’
rights under its licences and in terms of the Act. However, it would be
assumed that as is the case in South Africa, the holder of a mining right is
responsible for any environmental damage or ecological degradation
during the life span of the mining licence.237 In terms of the Mineral Act,
the holder of a mineral licence is required to exercise any right under
such licence reasonably and in a manner that the rights and interests of
the owner of any land to which such licence relates are not adversely
affected, except to the extent to which such owner is compensated.
Section 52(2) of the Minerals Act provides that:

When, in the course of any prospecting operations or mining operations

in any prospecting area, mining area or retention area, as the case may be,
any damage is caused or done to the surface of any land or to any water
source, cultivation, building or other structure therein or thereon as a
result of such operations, the holder of the mineral licence in question
shall be liable to pay compensation to the owner of the land, water
source, cultivation, building or other structure, as the case may be, in
relation to which such damage has been caused or done.

Section 52 of the Minerals Act provides that the holder of the mineral
licence must exercise his/her rights to mine in due consideration of other
parties’ rights. However, one can argue that neighbour law could be
relied upon to address the obligations that the holder of mineral licence
has towards neighbouring owners and occupiers. Efforts to protect the
rights of neighbours against arbitrary exercise of rights regarding land

237
See section 38(1)(d) of the Mineral and Petroleum Resources Development
Act 28 of 2002.

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 MINING LAW

emanate from the Roman Empire. Landowners, and indeed the holders of
rights on the land, were obliged to use such property in a manner that
another person would not be burdened or prejudiced.238 This would imply
that granting a right to mine to a holder does not deprive the surface
owner of his/her right to have the surface supported in its natural state so
that they may continue to enjoy the normal use of the surface.239 In
particular, in the case of Coronation v Malan,240 the court held that:

[T]he right to have the surface of land in its natural state supported by the
subjacent minerals is a right of property, and not of easement; and that a
lease or conveyance of the minerals, even though accompanied by the
widest powers of working carries with it no power to let down the
surface, unless such power is granted either expressly or by necessary
implication.

Lord De Villiers also developed the concept of lateral support of land in

the case of London and South African Exploration Co v Rouliot.241 The
principle means that every landowner has a right to lateral support which
his/her land naturally derives from adjacent land.242 Van der Walt also
explained that every landowner can expect, as part of his/her use and
enjoyment of the land, to have natural condition, position and topography
of his/her land preserved.243 The right is reciprocal on owners of
neighbouring land, placing a negative obligation on each of the parties to
refrain from conducting activities on their land is such a way that they
would lead to the withdrawal of the support the land provides the
adjacent property.244 Where a landowner’s land is damaged as a result of
subsidence caused by the activities of his neighbour, he may claim
compensation from the neighbour for the cost of repairing the damage
caused by the withdrawal of support.245

Whereas the principle of lateral support relates to the relationship

between owners of contiguous land, subjacent support refers to the

238
AJ Van der Walt and G Pienaar, Introduction to the Law of Property, 4th
edition (2004) p. 43.
239
See Coronation Collieries v Malan 1911 TPD 577 and London and SA
Exploration Company v Rouliot (1980) 8 SC 74.
240
1911 TPD 577.
241
1890 (8) SC 74.
242
Ibid.
243
AJ Van der Walt The Law of Neighbours, (2010), p. 88.
244
Ibid.
245
Ibid, p. 125.

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Annexure Self-Assessment Questions

relationship between parties who hold rights in respect of the same

land.246 Essentially the principle relates to the situation where a portion of
land derives its stability from the subsoil, including the minerals beneath
it, and as a result the owner is entitled to have his land supported by the
subsurface. The application of the principle of subjacent support becomes
relevant where the extraction of minerals compromises the stability of the
ground above the area from which the minerals are extracted. Subjacent
or subterranean support, therefore, refers to the natural right of vertical
support a landowner enjoys in respect of the soil beneath the surface of
his land. It is relevant in the context of the relationship between a mining
right holder and a landowner, particularly in determining whether the
mining right holder is duty bound to provide vertical or subjacent support
to the surface of the land.

It is important to point out that the principle of lateral support only

applies to neighbour law and pertains only to the support owed between
owners of neighbouring property.247 Brand JA established that the duty of
the mineral-right holder vis-à-vis the owner of the land in regard to
surface support, differs in the following material respects from the duty
of lateral support owed between neighbouring landowners.248 Therefore,
(a) the owner of land and the holder of the mineral rights hold rights in
the same land not in neighbouring lands; (b) in cases of conflict the
entitlement of the mineral right holder to exploit the relevant minerals
takes precedence over the entitlement of the surface owner to enjoy
undisturbed possession; and (c) the process of mining for minerals under
the surface of land necessarily involves letting down the surface.249

20. Are there any dispute resolution measures in place should

a dispute arise between the holder and the owner of the
land? Please describe.

246
The court in Elektrisiteitsvoorsieningskommissie v Fourie 1988 (2) SA 627
(T) concluded that lateral support involves the relationship between
neighbouring owners of land, whilst surface support involves the
relationship between a holder of a mineral (or mining) right and the
landowner in respect of the same land. See also Van der Walt AJ
“Onteiening van die reg op laterale en onderstut - Evkom v Fourie” 1987
(50) THRHR 462 473.
247
See the case of Anglo Operations v Sandhurst Estates 2007 (2) SA 363
(SCA) where it was held that a landowner may not be deprived of vertical
support which his land naturally derives from the minerals below the
surface without the landowner’s express or tacit consent.
248
See Van der Walt 1987 (50) THRHR 473.
249
Ibid.

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 MINING LAW

The owner of property has the right to possess, protect, use and to enjoy
his property. This is inherent in the right to own property. It is however
in the enjoyment and use of property that an owner may come into
conflict with the rights and interests of others. Section 52(3) of the
Minerals Act of Namibia makes provision for the resolution of disputes
between the holder of a mining licence and the owner of the land.250
Section 52(3) provides that:
When a dispute arises between the holder of a mineral licence and the
owner referred to in subsection (2) in relation to the liability for, or the
amount of, compensation payable under that subsection, such holder or
owner, or such holder and owner, may make application in writing to the
Commission to have the matter determined as provided in section 110.

In particular, section 110(2) provides that: “Any person whose interests

are or may be prejudicially affected by the grant of an application
referred to in subsection (1) shall be entitled to be heard either personally
or by way of a legal representative, and to examine and cross-examine
any person giving evidence before the Commission.” The disputes could
relate to any of the following issues: 1) That the owner of the land in
question or any person competent to grant such right in relation to such
land refuse to grant such right or demands, in return of such right, terms
and conditions which are in the circumstances unreasonable or has raised
a dispute in relation to the interpretation or application of an order made
by the Commission in terms of section 110(4)251; 2) That due to the
number of owners a person competent to grant such right involve or such
owners or persons having conflicting interest , it is not possible to obtain
any such right; and 3) That any such owner or person is absent from
Namibia or such owner or persons whereabouts is unknown or is a minor

250
See Namibia Grape Growers and Exporters Association and Others v
Ministry of Mines and Energy and Others (SA14/02) [2004] NASC 6 (25
November 2004).
251
Section 110(4) of the Minerals Act provides that: “If the Commission is on
reasonable grounds satisfied that it is reasonably necessary for the holder of
the non-exclusive prospecting licence, a mineral licence or mining claim to
obtain such a right in order to carry on operations authorized by such
licence or mining claim the Commission shall by order in writing grant
such right subject to such terms and conditions and for such period as the
Commission may think fit or make such other order as it may deem
necessary or expedient, whereupon such right shall, subject to the
provisions of subsection (5), vest in the holder of the non-exclusive
prospecting licence, a mineral licence or mining claim concerned.”

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Annexure Self-Assessment Questions

or a unsound mind or otherwise under any disability to grant any such

rights. The Commission shall endeavour to settle the dispute in question.
Where necessary it may make a ruling for compensation in terms of
section 112 of the Minerals Act. Should any party not be satisfied by the
decision of the Commission, such party shall have the right to appeal to
the High Court of Namibia.252 For the purposes of the appeal to the High
Court, the decision of the Commission shall be regarded as equivalent to
a decision taken by a magistrate’s court.

21. Is Corporate Social Responsibility binding or non-binding

in Namibia? Please elaborate on how measures to promote
Corporate Social Responsibility are treated in Namibia.
E.g., Are there any specific laws or regulations dealing
with corporate social responsibility in the mining industry?
Or is the emphasis on voluntary or soft law regulatory
mechanisms?

CSR in Namibia is not regulated253 unlike it is in a country like South

Africa.254 As such, CSR is not mandatory but voluntary.255 CSR is
therefore regrettably not a precondition for obtaining a mining or
prospecting licence in Namibia.256 It is simply a mechanism for mining
companies to gain favours in the community they are operating in and
thus provides a social licence to operate. Nevertheless, companies now
regard CSR as an important component of conducting business in

252
See section 113(1) of the Minerals Act.
253
See H Mostert, KM Chisanga, J Howard, F Mandhu, M Van den Berg and
C-L Young, “Corporate Social Responsibility in Mining industries of
Namibia, South Africa, Zambia: Choices and consequences,” in L Barrera-
Hernandez, B Barton, L Godden, A Lucas and A Ronne (eds) Sharing the
Costs and Benefits of Energy and Resources Activity (2016), p. 17.
254
See the s 23(h), 24(3), 25(2), 28(2), and 85(3) of the Petroleum Resources
Development Act 28 of 2002.
255
D Littlewood, “Corporate Social responsibility (CSR), Development and
the Mining Industry in Namibia: Critical Reflections through a relational
lens,” 2011 CRR Conference Paper, Queen’s University Management
School, Queen’s University Belfast.
256
In Namibia, CSR in the mining sector is more of a business strategy to gain
favour in the local communities in which mining operations are being
conducted. See P Nande, “Corporate Social Responsibility: The Need for
Legislation in the Namibian Mining sector,” Mineral Law in Africa, 1 June
2017, available at www.mlia.uct.ac.za/news/corporate-social-responsibility-
need-legislation-namibian-mining-sector (accessed 1 May 2018). See also
D Littlewood, “Corporate social responsibility, mining and sustainable
development in Namibia: A critical reflection through a relational lens,”
2015 Development in Southern Africa, 32(2), pp. 240-257.

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 MINING LAW

Namibia. CSR has been elevated from a mere theoretical concept largely
associated with funding and aiding community projects to a tool for
improving the socio-economic welfare of Namibians257 in pursuit of the
National Development Plans’ goals, Harambee Prosperity Plan’s
objectives and Vision 2030.
Namibian companies listed under the Global Compact Initiative,258 have
assumed the responsibility for their businesses to contribute to the socio-
economic needs of the societies in which they conduct operations by
joining the Global Compact Network Namibia (GCNN).259 By enlisting
to the Global Compact, Namibian mining companies endorsed the Global
Compact’s strategic policy initiative a development which obliges the
businesses to align their operations and strategies with the universally
accepted principles in the areas of labour, anti-corruption, environment
and human rights. The Global Compact’s ten (10) principles of doing
business are thus derived from the following internal instruments: 1) the
United Nations Convention against Corruption260; the Universal
Declaration of Human Rights261; the Rio Declaration of Environment and
Development262; and 4) the International Labour Organisation’s
Declaration on Fundamental Principles and Rights at Work.263 The
Global Compact therefore requires businesses to place emphasis on the
protection of the following values: 1) human rights264; 2) labour265; 3)
environment266; and anti-corruption.267

257
K Vries, “CSR slowly gains foothold in Namibia,” Windhoek Observer, 19
April 2013.
258
The Global Compact is a voluntary initiative based on businesses’ chief
executive officers’ willingness to implement universal sustainability
principles and to undertake partnerships in support of United Nations goals.
For more details see https://www.unglobalcompact.org (accessed 1 May
2018).
259
The Namibian Private Sector, which includes the mining sector, founded
the GCNN in the year 2008. The GCNN was established as Namibia’s local
chapter of the Global Compact chapter. The GCNN in turn established the
Namibian Employers’ Federation with the financial support of the German
development agency, Gesellschaft für Internationale Zusammenarbeit. The
Namibia mining sector is one of the active members of the GCNN.
260
United Nations General Assembly, United Nations Convention Against
Corruption, 31 October 2003, A/58/422.
261
United Nations General Assembly, Universal Declaration of Human Rights,
10 December 1948, 217 A (III)
262
Rio Declaration on Environment and Development, United Nations Doc.
A/CONF.151/26 (vol. I); 31 ILM 874 (1992)
263
International Labour Organization (ILO), ILO Declaration on Fundamental
Principles and Rights at Work, June 1988.
264
Under the Global Compact’s human rights obligations there are two (2)
principles which are:

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Annexure Self-Assessment Questions

In the absence of a piece of legislation regulating CSR, mining

companies self-regulate. This implies that mining companies in Namibia
set their own CSR targets.268 Such CSR targets are often based on the
performance of a specific mining sector’s business operations as

a. Principle 1 - Businesses should support and respect the

protection of internationally proclaimed human rights; and
b. Principle 2 - Businesses should make sure that they are not
complicit in human rights abuses.
265
Under the Global Compact’s labour rights obligations there are four (4)
principles which are:
a. Principle 3 - businesses should uphold the freedom of
association and the effective recognition of the right to
collective bargaining;
b. Principle 4 - businesses should eliminate all forms of forced
labour and compulsory labour;
c. Principle 5 - businesses must ensure they effectively abolish
child labour in their operations; and
d. Principle 6 - businesses must eliminate any form(s) of
discrimination in respect of employment and occupation.
266
Under the Global Compact’s environment protection obligations there are
three (3) principles which are:
a. Principle 7 - businesses should support a precautionary
approach to environmental challenges;
b. Principle 8 - businesses should undertake initiatives to
promote greater environmental responsibility; and
c. Principle 9 - businesses must encourage the development and
diffusion of environmentally friendly technologies.
267
Under the Global Compact’s anti-corruption obligations there is one (1)
principle which is:
a. Principle 10 - businesses should work against corruption in all
its forms, including extortion and bribery.
268
See for example the following: 1) Rossing Uranium, “Our neighbouring
community,” available at http://www.rossing.com/our_community.htm
(accessed 1 May 2018); and 2) B2Gold, “Corporate Social Responsibility:
Raising the Bar,” available at www.b2gold.com (accessed 1 May 2018).
See also, the Namibian Chamber of Mines quarterly newsletter for the
Namibian mining industry of 4 May 2014, issue 02/2014, p. 18. It must be
emphasised that it is difficult to measure the significance of the CSR
initiatives of mining companies in Namibia as most of the CSR reports are
undated. Further, the fact that the CSR obligations of mining companies in
Namibia are not necessarily measured as a proportion of the companies’
annual turnover brings to question the size of the contribution of mining
companies to the developmental goals of Namibia. It is therefore not clear
if the Namibian mining companies are doing enough in so far as CSR is
concerned (One could not be faulted for concluding that mining companies
in Namibia are not doing enough in terms of CSR if the state of mining
communities is taken into consideration. Arandis and Oranjemund, mining
communities in which some of the biggest mining companies in Namibia
are operating in, are not doing well at all. Mine closure operations are
simply left to the Namibian government, yet it is the duty of mining
companies to undertake mining closure operations as part of the CSR
obligations).

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determined by the commodity prices on international money markets. As

such, if the commodity prices are low and business operations are
stagnating, mining companies hardly commit to CSR let alone meet the
CSR the targets they set for themselves. Mining companies in Namibia
now also must set their CSR objectives or goals in line with the NEEEF
Policy Framework, the Harambee Prosperity Plan, National Development
Plan 5 and Vision 2030. In the not-so-distant future, the NEEEF Bill, if
passed into law, will render CSR a legal obligation for mining companies
operating in Namibia.269

22. How do mining companies support/develop/transform

local communities in Namibia? In what sectors do mining
companies invest?

In Namibia, mining companies which are doing CSR include but are not
limited to the following: 1) Dundee,270 2) B2Gold,271 Rossing Uranium,272
3) Debmarine-Namdeb Foundation,273 and 4) Langer Heinrich.274 These
companies have mainly been involved in skills upgrade, infrastructure
development, and paying school fees and/or tuition fees. However, the
reports in which information on CSR is contained are hardly up to date,
let alone accurate. This has led to fundamental questions being raised as
regards CSR’s ability to bring about substantive transformation in
Namibia’s societies.

269
S 3(1)(e) of the NEEEF Bill recognises CSR as one of the fundamental
pillars of economic empowerment for the previously and still
disadvantaged Namibians.
270
Dundee Precious Metals, “Environmental Responsibility,” available at
https://www.dundeeprecious.com/English/Operating-Regions/Current-
Operations/Tsumeb/Environmental-Responsibility/default.aspx (accessed 3
April 2018).
271
See http://www.b2gold.com/_resources/csr-
brochure/B2Gold_CRS_Brochure_M1_r20_web.pdf (accessed 3 April
2018).
272
Rio Tinto, “Corporate Social Responsibility: Rio Tinto at Rossing,” available
at
https://www.academia.edu/2913410/Corporate_Social_Responsibility_Rio_
Tinto_at_Rossing (accessed 3 April 2018).
273
Debmarine Namibia, “Our social footprint,” available at
http://debmarinenamibia.com/main/sustainabilitysocialfootprint (accessed 4
April 2018).
274
See the Namibia Chamber of Mines Newsletter, issue 2/2017, p. 11,
available at
http://www.chamberofmines.org.na/files/8314/9975/9023/Chamber_Newsl
etter_June_2017.pdf (accessed 4 April 2018).

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Annexure Self-Assessment Questions

Rossing Uranium established the Rossing Foundation in 1976.275 This

was in response to complaints levelled against the mining company by
Namibians regarding their approach to CSR.276 The Rossing Foundation
is directly funded by Rossing Uranium.277 It runs training and education
programmes. For example, Rossing has been funding students who want
to further their studies in areas of mining engineering and finance related
disciplines to go and further their studies in Dundee. The ability of
Rossing Uranium to fund the Rossing Foundation is nevertheless largely
dependent on the economic performance of the company. In the 1990s,
the company’s role in promoting CSR declined due challenges which the
mining sector was experiencing due to fluctuating market prices of
commodities at a global level.

B2Gold is also another mining company that has been involved in CSR in
Namibia. For example, B2Gold recently signed a Memorandum of
Understanding (MoU) with Total Namibia aimed at promoting
environmental protection. In terms of the MoU, Total has committed to
donating two (2) cents for every litre of Heavy Fuel Oil sold to B2Gold
Namibia to the Namibian Chamber of Environment (NCE).278 B2Gold
has also partnered with the NCE to develop a public private partnership
that will enable B2Gold and its partners to address the decline in the
productivity of farmland in Namibia due to bush encroachment and the
loss of perennial grasses.279 The central thrust of the programme is to link
B2Gold land and the Waterberg Plateau Park into an integrated
conservation and wildlife management landscape that optimises
biodiversity protection as well as unleashing wildlife and landscape
values through tourism, wildlife use and vertically integrated value
chains.280

275
Rio Tinto, “Reflection on 40 years of working for Namibia: The next ten
years: 1996-2006,” available at http://www.rossing.com/files/Rossing-40-
year-anniversary-Reflections-1996-2006-22-June-2016.pdf (accessed 15
April 2018).
276
Ibid.
277
See the Rossing Foundation Annual Report for the year 2016 available at
https://www.rossing.com/files/Rossing%20Foundation%20Annual%20Rep
ort%202016.pdf (accessed 16 April 2018).
278
See the quarterly newsletter of the Namibian mining industry, issue 4/2017,
November-December 2017, p. 17
279
Ibid.
280
Ibid.

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 MINING LAW

Ohorongo Cement is another company that has placed emphasis on CSR.

In particular, the company entered into an agreement with the workers
union to assist employees in acquiring land for housing in Tsumeb and
Otavi.281 Emphasis in this regard is in helping first time property owners
to access housing in a country which has been facing challenges in
providing adequate housing for its citizens. Ohorongo Cement’s approach
is in line with the objectives of the Harambee Prosperity Plan aimed at
providing housing to Namibians.282 The Otavi Town council has since
allocated 30 serviced ervens, measuring an average 375 square metres, at
the average cost of N$26 000, towards the Ohorongo Cement CSR plan.

Namdeb also established the Namdeb Social Fund (NSF) in 1994.283

Since its inception, the NSF has donated over N$ 20 million dollars
towards various charity objectives in Namibia. It also developed the
Oshipe Development Fund which provides support and low interest loans
to Namibian entrepreneurs.284 The NSF has since been replaced by the
Namdeb Foundation.285 Skorpion Zinc Mine has also established the
Skorpion Zinc Foundation which has randomly donated funds for
charity.286

Mining Companies in Namibia has also gone beyond donating finds for
charity and have embarked upon sustainable development programmes.
For example, mining companies in Namibia have begun to address
matters related to local preferential procurement as a vehicle for
empowering previously disadvantaged and still disadvantaged

281
Ohorongo Cement, “Ohorongo Cement avails N$9 million for employee
housing,” available at http://www.ohorongo-cement.com/news-
media/article/ohorongo-cement-avails-n9-million-for-employee-housing/
(accessed 15 April 2018).
282
See the Harambee Prosperity Plan available at
http://www.gov.na/documents/10181/264466/HPP+page+70-
71.pdf/bc958f46-8f06-4c48-9307-773f242c9338 (accessed 12 April 2018),
p. 41.
283
See the Namibia Chamber of Mines, Annual Review 2011/2012, available
at
http://www.chamberofmines.org.na/files/9414/7006/6762/Chamber_of_Mi
nes_Annual_Review_11-12.pdf (accessed 12 April 2012).
284
Ibid.
285
Ibid.
286
Namibia Chamber of Mines, Annual Review 2011/2012. See also Staff
Reporter, “Skorpion Zinc spends big on social investments,” Namibia
Economist, 24 January 2014.

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Annexure Self-Assessment Questions

Namibians. To that end, Skorpion Zinc, Namdeb and Rosh Pinah Zinc
Mine had established the Namibia Preferential Procurement Council.287

However, regardless of the above specified CSR initiatives by mining

companies operating in Namibia, there are still concerns being raised
around issues relating to the stagnation of development in Namibian
towns in which mining companies are currently operating.288 There are
cases of deteriorating former mining communities and ghost mining
towns which can be found across Namibia. The existence of such towns
signifies how mining companies are creating social, environmental and
developmental problems.289 The idea here is that mining companies must
be involved in ensuring community viability and sustainability. A prime
example of a mining company trying to ensure community viability and
sustainability is that of Rossing Uranium’s Arandis Sustainable
Development Project which was run by the Rossing Foundation until
1994 when the Arandis community was handed over to the Namibian
Government due to the high costs involved in running the community.
Since being handed over to the government, Arandis has not grown and
has remained stagnated. Whilst Rossing Uranium continues to mine
uranium in the Erongo region, Arandis continues to decline. Questions
have thus been raised regarding the sincerity of Rossing Uranium in
handing over Arandis to the Government of Namibia.

More mining communities continue to be handed over to the Namibian

Government. For example, Rosh Pinah and Oranjemund are company
owned mining communities situated in the south of Namibia which are
being handed over to the Namibian Government.290 Rosh Pinah has been
operating on a sustainable basis. However, this has not been due to
extended community projects but the wages of workers and mine

287
T Naidoo, “Preferential procurement migrating within the region,”
Miningweekly, 17 June 2005. See also the Namibia Chamber of Mines,
Annual Review 2005-2006, available at
http://www.chamberofmines.org.na/files/8114/7040/2151/2005-
06_Annual_Review.pdf (accessed 17 April 2018).
288
V Stankevica, “Development of Mining settlements in Namibia: An
investigation into prospects for Rosh Pinah, Klein Aub and Tsumeb,”
Doctor of Philosophy Degree in Geography, University of Namibia, pp. 25-
31.
289
See Littlewood, 2011.
290
See the Namibia Chamber of Mines newsletter, issue 03/2014 available at
http://www.chamberofmines.org.na/files/7214/7008/6976/Chamber_Newsl
etter_August_2014.pdf (accessed 18 April 2018).

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procurement.291 On the other hand, Oranjemund has been on the decline

owing to the decline in Namdeb’s economic fortunes. It must therefore be
questioned whether mining companies in Namibia are committed to long
term development goals when establishing mining towns or the towns are
merely established to cut costs during the life span of the mining
operations. The fate of Arandis and Oranjemund justifies the scepticism
around mining companies’ commitment in broader development in
mining communities in Namibia.

The evident decline in most mining communities is therefore a cause for

concern in Namibia and raises question around the commitment of
mining companies to sustainable development in the country. There are
views to the effect that the Namibian Government must not place the
responsibility of ensuring that mining communities develop, squarely in
the hands of mining companies.292 However, mining companies must be
seen to promote social and community development in Namibia. It is no
longer plausible for mining companies to treat their CSR responsibilities
as a peripheral issue. Mining companies must be seen to develop the
communities in which they are operating in and not just focus on
exploiting the natural resources found in such places. This serves as
reason why African countries have embarked on negotiations to develop
the first continent-wide investment agreement termed the Pan-African
Investment Code (PAIC).293 PAIC has been drafted from the perspective
of African developing and least developed countries focusing on
Sustainable Development Goals.294 As such, to realise the developmental
goals, coherence and consistency must be fostered with respect to rules
and principles which govern investment protection, promotion and
facilitation in Africa.295 In Principle, CSR is a key feature of PAIC.
Article 22 of the PAIC, titled Corporate Social Responsibility, provides
that:
1. Investors shall abide by the laws, regulations, administrative
guidelines and policies of the host State.
2. Investors shall, in pursuit of their economic objectives, ensure
that they do not conflict with the social and economic
development objectives of host States and shall be sensitive to
such objectives.

291
Littlewood, 2011.
292
See Chapter 4 of PAIC.
293
See the Draft Pan-African Investment Code of 2015.
294
See Chapter 3 of PAIC.
295
See Article 1 of PAIC.

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Annexure Self-Assessment Questions

3. Investors shall contribute to the economic, social and

environmental progress with a view to achieving development of
the host State.

The above outlined objectives of the PAIC suggest that African countries,
including Namibia, may not be satisfied with the level of commitment of
mining companies to CSR. If the objectives of PAIC are to be read
together with the African Union’s African Mining Vision, then it is
evident that mining companies must embrace CSR and contribute to the
broader and not just narrow development objectives of Namibian
communities in which they extract natural resources.

It must be pointed out that there is a general acceptance that CSR in the
oil, gas and mining sectors has been significantly questioned on a global
scale.296 Whilst multinational mining companies have always presented
themselves as good corporate citizens, there is not much evidence
pointing to their commitment to sustainable development.297 As already
pointed out in this section, sustainability issues have greatly affected
mining communities in Namibia (and indeed elsewhere in Africa) which
has prompted questions as regards the mining companies’ commitment to
sustainable development. On the contrary, there are also concerns
regarding the potential risk of overly depending on mining companies to
realise community developmental goals. The Oranjemund and Arandis
mining communities bear testimony to the aforementioned concern. Since
Rossing Uranium handed over Arandis to the Namibian government, its
growth has stagnated. However, it remains indisputable that CSR remains
an important business objective for mining companies.
CSR is important for mining companies298 for the following reasons:

1. Maintaining “a licence to operate” is a constant challenge

(resistance by social organisations to the expansion of gold

296
JG Frynas “The false developmental promise of Corporate Social
Responsibility: evidence from multinational oil companies,” 2005
International Affairs, 81(3), pp 581-598.
297
H Jenkins and L Obara “Corporate Social Responsibility, (CSR) in the
mining industry – the risk of community dependency” A paper presented at
the Queen’s University, Belfast, 7-9 September 2008.
298
J Walker and S Howard “Voluntary codes of conduct in the mining
industry. Mining, Minerals and Sustainable Development Project
(MMSD),” (IIED 2002).

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mining at Mount Quilish in Peru led Newmont mining

company to suspend its activities);
2. Public opinion of the sector as a whole is poor (opinion of
natural resource extraction industries is influenced more by
concerns over environmental and social performance than by
performance in areas such as product pricing, quality, and
safety)299;
3. The financial sector is increasingly focusing on the sector
from both risk management and social responsibility
perspectives (It is not unusual for mining companies to be
screened out of Socially Responsible Investing (SRI) funds
altogether)300;
4. Pressure groups have consistently targeted the sector at local
and international levels, challenging the industry’s
legitimacy.

In promoting CSR, mining companies must “identify the interests,

concerns and objectives of various stakeholders (including national,
regional government, local authorities, indigenous people, local
communities, employees and competitors) and address their often-
varying needs.”301 Apart from external pressure, mining companies have
other reasons for prioritising CSR. Frynas302 outlines these as:

a) Obtaining a competitive advantage - community investment

programmes are used to aid the awarding of concessions as
companies appearing to be socially responsible are often
favoured in this process.

b) Receiving and maintaining a stable working environment - CSR

initiatives are occasionally initiated as a means of ‘buying’ the
local communities’ agreement to allow a company to operate.

299
M Rae and A Rouse “Mining Certification Evaluation Project -
Independent Certification of Environmental and Social Performance in the
Mining Sector,” A WWF-Australia Discussion Paper, Resources
Conservation Program, Mineral Resources Unit (WWF Australia), 2002.
300
SRI Compass “Feature: Screening policies for SRI funds” (2002).
301
MCG Guerra, “Community Relations in Mineral Development Projects,”
2002 The CEPMLP Internet Journal, vol 11, pp 1-31.
302
Fryans, 2005, p. 582.

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Annexure Self-Assessment Questions

c) Managing external perceptions and maintaining a good reputation

- CSR initiatives are used for PR purposes.
d) Keeping employees happy - CSR initiatives can often make staff
feel more positive about the company and can increase
motivation and efficiency. They can also help to retain and
recruit the best staff.

It is from the perspective of the issues that have been raised in this
section one may conclude that CSR in Namibia’s mining sector is yet to
significantly contribute to communities’ sustainable development.

23. Is the mining industry in Namibia self-regulative? Are there any

bodies / organisations supporting self-regulation? Please
elaborate.

The history of mining in Namibia has largely been closely related to

government regulation. To that extent, legal frameworks exist which
regulate mining activities in Namibia. However, there are selected aspects
of Namibia’s mining activities which are yet to be regulated.303 These
include rehabilitation of mines, artisanal mining and corporate social
responsibility. The concept of self-regulation emanates from the system
of conscious personal management which promotes the importance of
guiding one’s own thoughts, behaviours and feelings to reach goals. Self-
regulation has four components which are: 1) motivation to meet
standards; 2) monitoring of situations and thoughts that precede breaking
standards; 3) developing standards of a desirable behaviour; 4) will
power.304

There is a legitimate concern in the mining industry to the effect that

regulation in certain areas of mining is appropriate and not inevitably

303
S Carpenter, “Mining vs the Environment: Does Namibia need another
uranium,” http://www.the-
eis.com/data/literature/Mining%20vs%20the%20Environment_2005.pdf
(accessed 15 April 2018).
304
R Baumeister, B Schmeichel, K Vohs, “Self-Regulation and the Executive
Function: The Self as Controlling Agent” Social Psychology: Handbook of
Basic Principles (2007). See also M Muraven, R Baumeister, “Self-
Regulation and Depletion of Limited Resources: Does Self-Control
Resemble a Muscle?” 2000 Psychological Bulletin 126(2), pp. 247-259.

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costly in its effects, including the costs of compliance.305 Such regulation

should not be unduly prescriptive, should be clear and concise, must be
enforceable, be fairly and consistently administered by accountable
bodies, and be monitored and periodically reviewed to ensure that it
achieves its aims. In Namibia, mining practices are generally regulated by
a number of laws such as the Minerals Act, the Environmental Act,
Petroleum (Exploration and Production) Act, 1991; the Petroleum
(Taxation) Act, 1991; the Petroleum (Exploration and Production)
Amendment Act, 1993; the Petroleum Laws Amendment Act, 1998; the
Model Petroleum Agreement, 1998; and the Petroleum Products and
Energy Amendment Act, 2000; Foreign Direct Investment Act 27 of
1990; and the Namibia investment Promotion Act.

In principle Namibia has a broad scope of laws regulating the mining

industry. However, there are benefits of regulatory flexibility in the
mining sector. It is general accepted that where standards are needed,
there is a temptation for the regulating authority to provide for
prescriptive, process-based rules to provide for certainty and minimise
political risk. In a free-market business environment aligned to
capitalism, it is generally accepted that the nature of the problem and the
potential costs of dealing with it may not warrant regulation by the
Government. As such self-regulation would be preferred in selected
instances especially if there are downside risks which are high and there
are adequate incentives for self-monitoring in the mining industry. In
other instances, a combination of performance-based regulation and self-
regulatory codes would be ideal to ensure implementation and
enforcement. Self-regulation has been regarded as being a viable
approach to attracting Foreign Direct Investments. This approach is
consistent with the World Bank’s ease of doing business advocates for
flexible regulation of business practices in Africa. In some instances,
such an approach prompts a race to the bottom by African countries for
them to attract FDIs. Self-regulation therefore may have benefits related
to achieving community interests/objectives.306

305
G Banks, “‘Minimum effective regulation” and the mining industry,”
available at https://www.pc.gov.au/news-
media/speeches/cs20030603/cs20030603.pdf (accessed 12 April 2018). See
also AJ Bebbington and JT Bury, “Institutional challenges for mining and
sustainability in Peru,” 2009 Proceedings of the National Academy of
Sciences of the United States of America, 106(41), pp. 17296-17301.
306
For example, in Australia, the 1996 Code of Environmental Management
was adopted. Signatories of the code offered to improve environmental

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Annexure Self-Assessment Questions

Namibia therefore allows for self-regulation in matters related to

rehabilitation. In a report published by the Environmental Justice
Organisations, Liabilities and Trade (EJOLT) it was pointed out that
Namibia faces challenges of finding solutions in terms how nature
conservation and the protection of the biodiversity as well as mining and
exploration can co-exist.307 Whilst the Namibian Government recognises
that rehabilitation requires regulation, only a general duty to rehabilitate
exists in the current legal framework.308 Such general duty is not
regulated and does not provide for a precise definition of rehabilitation.
Without a specific and comprehensive legislation for regulating
rehabilitation, Namibia has relied on self-regulation. As such, the
Namibian Government relies on the sense of responsibility of the mining
companies and/or industry to manage rehabilitation in the best interest of
the public.

The Namibian Government’s approach may be effective if it is

considered that international mining companies ought to be concerned
about their image in the world regarding the way they conduct their
business. However, it is important to observe that the system of self-
regulation poses a significant challenge in that substituting the legal
framework with a company’s rules and recommendations might not
achieve the intended objectives. Mining companies aim at profiteering
and would thus hardly impose stringent obligations on themselves that
which deprive them of the advantages for which they came to Namibia.
It is undeniable that most mining companies operate in Africa due to the
existence of lax regulatory standards or a lowered compliance with the
regulatory standards. It has not escaped the attention of the Namibian
Government that self-regulation has brought unsatisfactory results. As
such, in the area of environmental management, the Namibian

protection. Environmental decisions, in terms of the code, are linked to

economic and financial assessment leading to improved public
accountability and transparency amongst mining companies. The Mineral
Council for Australia has begun the consultative development of a Minerals
Code for Sustainable Development. The code will be based on the
International Council on Mining and Metals’ sustainable development
framework. The objective is to put in place sustainable development
principles. A code assessment protocol will be used to measure each mining
company’s (which will be a signatory to the protocol) performance across a
range of areas including health and safety, environment and socio-
economic management.
307
OC Ruppel and K Ruppel-Schlichting (eds.), Environmental Law and
Policy in Namibia, (2011), p. 79.
308
A Le Roux, “Mine rehabilitation a burning issue,” Windhoek Observer, 27
March 2015.

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Government has established an expert committee to address the issue of

environmental degradation related to mining in the country. However, the
newly established committee has largely been filled with representatives
of the mining industry. Its objectivity and impartiality are therefore
subject to debate.

The Namibian Government thus has the obligation of regulating matters

related to rehabilitation in the mining sector.309 This is attributed to the
fact that the Namibian Constitution310 places a duty on the Namibian
Government to protect the environment.311 Article 95(l) of the Namibian
Constitution provides that the government has a duty to ensure the:
... maintenance of ecosystems, essential ecological processes and
biological diversity of Namibia and utilization of living natural
resources on a sustainable basis for the benefit of all Namibians,
both present and future; in particular, the Government shall provide
measures against the dumping or recycling of foreign nuclear and
toxic waste on Namibian territory.

Two key principles stand out from Article 95(1). Firstly, the Namibian
Government must ensure that that all the country’s living natural
resources are used on a sustainable basis for the benefit of all Namibians.
Secondly, the Namibian Government must provide measures to prevent
the dumping or recycling of foreign nuclear waste or toxic waste on
Namibian soil. Realising the aspirations of the two principles cannot be
left to self-regulation as is currently the case in Namibia. At least quasi-
regulation312 should be the current approach to realising the principles set
out in article 95(1). There are also additional articles of the Namibian
constitution which place emphasis on a need to ensure measures which

309
There are several challenges Namibia is facing with regards to planning and
implementing rehabilitation programmes. Such challenges include but are
not limited to the following: 1) The failure to find a solution to the
financing of rehabilitation, 2) insufficient scientific knowledge on land
degradation, 3) no solution for the abandoned mines and illegal mine sites,
4) lack of cooperation between decision makers and scientists, 5) lack of
transparency, 6) legal shortcomings, and 7) lack of human capacity.
310
See the Namibian Constitution (Namibian Constitution) Act 1 of 1990.
311
See Chapter 11 of the Namibian Constitution.
312
In instances where the Namibian wants to promote the continued self-
regulation of the environment in Namibia’s mining sector, mechanisms
short of regulating must be employed. These could include government-
endorsed industry codes of practice or standards, government agency
guidance notes, industry-government agreements and national accreditation
schemes.

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Annexure Self-Assessment Questions

protect the Namibian environment. These include Article 1,313 Article

100,314 and Article 91(c).315

Other self-regulation mechanisms relate to the issues of equality316 and

Affirmative Action,317 amongst other fundamental rights as enshrined in
chapter 3 of the Namibian constitution. Such rights must be realised
through maximising the benefits obtained from the mining sector. Article
23 of the Namibian Constitution prohibits discrimination, except under an
act of parliament expressly providing for the advancement of persons
who have been socially, economically, or educationally disadvantaged by
past discriminatory laws. To this extent, the New Equitable Economic
Empowerment Framework (NEEEF) policy has been adopted by the
Namibian Cabinet. The NEEEF does not have a force of law but is a
policy framework. Compliance with the NEEEF is voluntary. The
NEEEF is used as a policy mechanism to try and ensure that the
Government, through procurement programmes and business licensing
regimes, promotes transformation and empowerment of previously
disadvantaged Namibians. Businesses, including mining companies, are
expected to participate in promoting the NEEEF as part of the CSR.
However, it is important to point out that the NEEEF is a policy and
nothing more. Companies may choose to participate in realising the
NEEEF’s objectives if they feel it provides them with a competitive
advantage in doing business in Namibia; failure which, nothing will
happen to the companies as compliance with the NEEEF is voluntary and
thus a form of a self-regulatory CSR mechanism.

24. Please describe any additional trends or observations

relevant to social aspects of mining in your jurisdiction.
Please refer to recent legislative amendments, speeches by

313
Article 1(6) provides for constitutional supremacy. As such if the
constitution provides for the regulation of environmental regulation, self-
regulation should not be encouraged.
314
Article 100 provides that: “Land, water and natural resources below and
above the surface of the land and in the continental shelf and within the
territorial waters and the exclusive economic zone of Namibia shall belong
to the State if they are not otherwise lawfully owned.”
315
Article 91(c) provides that the state has, “the duty to investigate complaints
concerning the over-utilization of living natural resources, the irrational
exploitation of non-renewable resources, the degradation and destruction of
ecosystems and failure to protect the beauty and character of Namibia.”
316
See Article 10 of the Namibian Constitution.
317
See Article 23 of the Namibian Constitution.

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government representatives, the media and anything else

which may offer insight.

The Namibian Constitution prohibits discrimination in all its forms.318 To

that end, the Namibia Chamber of Mines proposed a draft Mining Charter
for Sustainable Broad-Based Transformation in December 2010. The
Charter focuses on various pillars of realising economic transformation
such as ownership, education skills, affirmative action, decent work and
mine safety, employment procurements and enterprise safety,
beneficiation, development of national infrastructure, sustainable
development of mining communities, and conservation and protection of
the environment.

The proposed Mining Charter has been followed up by the adoption of

the New Equitable Economic Empowerment Framework (NEEEF). The
NEEEF was adopted as a voluntary mechanism to encourage businesses
to conduct their procurement programmes and licensing regimes, to
promote transformation and empowerment of previously disadvantaged
Namibians. A business would have to achieve fifty (50) of a total of one
hundred (100) points. The one hundred points are made up of a total of
(twenty) 20 points per empowerment pillar. A minimum of ten (10)
points on each of the three pillars of ownership, management control and
employment equity and human resources and skills development must be
realised by a business. The NEEEF is premised on five pillars which are:
a) ownership;
b) management and employment equity;
c) human resources and skills development;
d) entrepreneurship development; and
e) community investment.

The NEEEF mirrors South Africa’s preferential Procurement Policy

Framework Act (PPPFA) 97 of 2000. The PPPFA prohibits
discrimination based on race, gender in awarding tenders. The NEEEF is
merely a policy and nothing more. There is therefore the need to develop
a legal instrument which could render the NEEEF objectives enforceable.
The New Equitable Economic Empowerment Bill (NEEEB) of 2016, in

318
See article 23 of the Namibian Constitution.

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Annexure Self-Assessment Questions

section 2 of its Part II titled “The Namibia Equitable Economic

Empowerment Framework,” provides that:

There is established the National Equitable Economic

Empowerment Framework comprising the pillars of economic
empowerment referred to in section 3 and their interrelations in
the-

a) development, implementation and monitoring of the

economic empowerment of previously disadvantaged
persons;
b) creation of an equitable and socially just society through
transformation of the existing economic framework; and
c) stimulus of a vibrant and dynamic economy.

The pillars of economic empowerment are listed in section 3 of the draft

NEEEB.319 In principle, the NEEEB, as is the case with the draft mining
charter, aims at promoting equality and socio-economic transformation.
The targeted beneficiaries are the previously disadvantaged Namibians
who for long have been excluded from participating in the economic
mainstream. To that end, section 23(1) of the NEEEB provides that:

Any private sector enterprise that is established after the

commencement of this Act may commence business only when
such enterprise has secured 25 per cent ownership by a racially
disadvantaged person or persons or such higher percentage as
may be determined by [the] Minister by notice in the Gazette.

The President of Namibia, Dr Hage Geingob, in his 2018 State of the

Nation Address pointed out that:

319
Section 3 of the NEEEF Bill provides that the economic empowerment
framework encompasses six pillars of empowerment comprising, 1)
economic ownership, 2) management control and employment equity, 3)
human resources and skills development, 4) entrepreneurial development
and marketing, 5) corporate social responsibility, 6) value addition,
technology and investment, and 7) financing of transformation.

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The NEEEF is under conversion into a legislative framework

(NEEEB). It is a necessary instrument for corrective action. In
line with the philosophy of inclusive governance, nationwide
consultations were undertaken and we have heard your concerns
and considered your proposals. During consultations, several key
policy and legal issues were highlighted. These include four
problematic areas. These are:

1) Definitional issues relating to Previously Disadvantaged

Persons and the targeted Private Sector Enterprises;
2) The mandatory nature of the ownership equity and
management control pillars;
3) The role of sectoral charters vis-à-vis the empowerment
framework;
4) The need for monitoring and evaluation tools and
funding mechanisms to ensure effectiveness.320

President Hage Geingob appeared to submit to the fact that the 25 percent
equity share ownership proposals were unrealistic as previously
disadvantaged Namibians did not have the resources to invest in the
empowerment transactions.321 However, the introduction of the NEEEF
and NEEEB led to Namibia’s economic outlook being downgraded by
FITCH,322 a development which could negatively affect the Namibian
mining sector which is heavily reliant on foreign direct investments.
FITCH is an international ratings agency. In apparent sensitivity to
FITCH’s negative economic outlook ratings, the Namibian President
pointed out that:
The Marxian principle of ‘each according to his/her ability needs
and each according to his/her ability’ guides us. The role of
Government is to create an appropriate business environment

320
See The State of the Nation Address (SONA) presented by His Excellency
Dr Hage Geingob, President of the Republic of Namibia, Windhoek, 11
April 2018, p. 19.
321
See SONA, pp 19-20. See also TV Warikandwa and AV Ndatega,
“Economic Transformation and Investment Security in Namibia: An
Appraisal of the New Equitable Economic Empowerment Framework Bill,”
2016 University of Namibia Law Review volume 3(1), p. 53.
322
Reuters Staff, “Fitch downgrades Namibia to ‘BB+’; outlook stable,”
Reuters, 20 November 2017. See also Reuters Staff, “Fitch revises
Namibia’s outlook to negative; affirms at ‘BBB-‘,” Reuters, 2 September
2016.

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Annexure Self-Assessment Questions

where owners, whether black or white, who can afford risk

capital, can participate in equality transactions under NEEEF.
Those who want to participate in public procurement will have to
do more to be NEEEF compliant.323
It remains subject to much debate as to whether the NEEEF and NEEEB
will be accommodated by the neo-liberal economic order.324 It must be
borne in mind that the decline of Africa’s mining sector in the 1980s was
prompted by African governments’ legitimate attempts to nationalise
mines in line with the principle of permanent sovereignty over natural
resources. The African governments were not recognised as mining on
the continent declined. It only improved after the capitalist oriented
liberal reforms of the World Bank proposed a raft of measures to attract
foreign direct investment into Africa’s mining sector. Such reforms
required that African governments had to change their mining regimes as
follows:

1) Reduce or eliminate state participation in mining enterprises;

2) Provide a wide range of incentives, causing foreign direct
investment into the industry to surge;
3) Make tax regimes more competitive to other developing
regions;
4) Liberalise exchange controls and exchange rate policies;
5) Introduce investment-protection assurances, such as
stabilisation periods, dividend repatriation and non-
expropriation.325

The former minister of Mines, Obeth Kandjoze pointed out that in

addition to the NEEEF, there were vigorous review processes of the

323
See SONA, page 20.
324
TV Warikandwa, and PC Osode, PC “Regulating against Business
‘Fronting’ to Advance Black Economic Empowerment in Zimbabwe:
Lessons from South Africa” 2017 Potchefstroom Electronic Law Journal
volume 20(1), pp. 1-43. See also TV Warikandwa and PC Osode “Legal
Theoretical Perspectives and their Potential Ramifications for Proposals to
Incorporate a Social Clause into the Legal Framework of the World Trade
Organisation” 2014 Speculum Juris volume 28(2), p. 41 and T Chidede and
TV Warikandwa “Foreign Direct Investment and Zimbabwe’s
Indigenisation and Economic Empowerment Act: Friends or Foes?” 2017
Midlands State University Law Review volume 3, pp. 25-45.
325
The Africa Mining Vision, “Africa’s mining legacy and the search for a
new policy direction,” available at
http://www.africaminingvision.org/amv_resources/ISGbulletin1.pdf (18
April 2018).

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legislative framework covering the mining sector which includes the

Minerals Act, the Diamond Act, the Products and Energy Act, and
Exploration and Production Act.326 This review extends to the 1998
White Paper on Energy.327 Whilst the proposed reforms of the Namibian
mining and socio-economic sectors are still taking place, there have been
concerns raised around corruption in Namibia’s mining sector.328 It is
envisaged that with the improved regulation of CSR in Namibia and
development of anti-corruption legislation in the country, corruption and
the related opportunities will be curbed and/or eradicated.

326
See the Statement by Honorable Obeth M. Kandjoze, Minister of Mines
and Energy at opening of the 2017 Mining EXPO, 27 April 2017, available
http://www.mme.gov.na/files/publications/3c1_Opening%20of%20the%20
Mining%20expo%202017%202.pdf (available 18 April 2018).
327
See the White Paper Policy developed by the Energy Policy Committee of
the Ministry of Mines and Energy, Namibia, May 1998, available at
http://www.mme.gov.na/files/publications/1e3_energy_policy_whitepaper.
pdf (accessed 18 April 2018).
328
B Weidlich, “Corruption in mining sector alleged: report,” The Namibian, 6
April 2010.

195