applicable legal regime
The Namibian legal regime is strongly influenced by South African law and is based on Roman, Roman-Dutch and Common law. To an extent, the regime is also influenced by English law, and a very remote German law influence is linked to the principles underlying the mineral laws.
There is currently no arbitration court in Namibia. However, informal arbitration is in use with reference to the Arbitration Act, handled by a voluntary arbitration association, the Professional Arbitration and Mediation Association of Namibia, which presides over cases involving labour and commercial disputes.
The Foreign Investment Act also allows for settlement of commercial disputes by international arbitration, in which case arbitration shall be in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law in force, unless an alternative method is selected by the government and foreign investor.
land acquisition, planning and use
Foreign investment is restricted in relation to agricultural land. The Agricultural (Commercial) Land Reform Act prohibits the acquisition of ownership of land and leases exceeding 10 years for commercial agricultural land by foreigners or foreign-controlled entities without the prior written consent of the Minister of Lands, Resettlement and Rehabilitation.
Generally, all land not situated within declared local authority areas, not being communal land or not being State land, would ordinarily be commercial agricultural land.
|The Namibian Competition Act, regulates merger control in Namibia. |
The Competition Act defines a merger as the direct or indirect acquisition or establishment of direct or indirect control by one or more undertakings over the whole or part of the business of another undertaking.
The Competition Act provides examples of what constitutes control for the purposes of merger regulation.
In calculating merger thresholds, Namibia uses financial thresholds based on turnover in, into or from Namibia and/or asset value in Namibia. Mandatory notification applies to undertakings that have a minimum combined threshold of NAD30-million and the turnover or asset value of the target undertaking is above NAD15-million.
Filing fees are payable on a sliding scale between NAD10 000 and NAD500 000.
The Namibian competition authority will take into account public interest considerations in making a determination on the merger.
Namibia has a pre-implementation regime, therefore approval must be sought from the Namibian competition authorities prior to implementation of the proposed transaction.
Undertakings that implement a merger in contravention of the Competition Act may be liable for a penalty of an amount not exceeding 10% of the global turnover (during the preceding year) of the undertakings in question.
Namibia is not a member of any regional competition bodies.
| prohibited practices|
The Competition Act prohibits horizontal and vertical agreements between undertakings, decisions by associations of undertakings or concerted practices by undertakings that have as their object or effect the prevention or substantial lessening of competition in trade in any goods or services in Namibia, or a part of Namibia, unless they are exempt.
Conduct such as price fixing, market division, collusive tendering, minimum resale price maintenance, applying dissimilar conditions to equivalent transactions, the bundling of contracts, are prohibited by the Competition Act.
The Competition Act prohibits abuses of dominance.
The Namibian competition authority adopted a draft leniency policy in 2012. As at August 2017, Namibia’s corporate leniency programme is not yet operational.
A firm that engages in a restrictive horizontal or vertical agreement or abuses its dominant position in contravention of the Competition Act may be liable for a penalty not exceeding 10% of the global turnover of that firm during its preceding financial year. A person who contravenes, or fails to comply with, an interim or final order of the High Court of Namibia given in terms of the Competition Act commits an offence and shall be liable, on conviction, for imprisonment up to 10 years or to a maximum fine of NAD500 000, or both.
In terms of the Namibian Immigration Control Act, any person who intends to enter or reside in Namibia for the purpose of productive work must apply for a work visa if the duration of stay does not exceed six months. For any period exceeding six months, a work permit application must be completed and submitted to the Ministry of Home Affairs and Immigration.
A valid employment visa or permit is to be obtained prior to entering Namibia.
Depending on the purpose and duration of the visit or stay in Namibia, different immigration applications are required by the Ministry of Home Affairs and Immigration.
|local employment vs secondment|
In terms of labour legislation, an employee may be seconded to Namibia and it is not a requirement for the employee to be employed by a local Namibian entity when performing services in Namibia. Local employment may be required and/or preferred for tax or immigration purposes.
|typical employment – fixed term contracts and temporary employment services|
Fixed-term contracts are permitted. However, an employee is presumed to be employed indefinitely, unless the employer can establish a justification for fixed-term employment, other than in the case of a managerial employee.
|participation in statutory schemes|
In terms of Namibian law, every employee must be a member of the Social Security Fund, except if he/she is a member of any other fund or scheme approved by the minister on recommendation of the Social Security Commission.
|payment in local currency||Remuneration must be paid in NAD. For expatriates working in Namibia, up to two-thirds of their earnings may be remitted outside Namibia. Expatriates may also repatriate all their savings at the completion of the employment contract in Namibia.|
|restraint of trade agreements||Restraint of trade agreements are valid and enforceable in Namibia, subject to the requirement that they are reasonable and do not offend public policy.|