The extent to which requirements for local shareholding may influence

authorisation or concession owned by the investor or investment, to an alien investor through any sort of amalgamation, transferred possession, direct sale or conveyance without the commendation of the Minister.
Moreover, and according to the Act
34
, an investor or investment in Namibia who desires to change ownership or control of the investment in favour of an alien investor or to transfer any license, permit, authorisation or concession owned by the investor or investment to a foreign investor through any form of amalgamation, transferred possession, direct sale or other disposal is required, nonexempt to the demands of the Competition Act
35
, apply to the
Minister in the official form and demeanor for acceptance of such projected alteration or conveyance at least sixty (60) days before the date of the supposed alteration or conveyance or at any sooner date as the Minister may permit in any peculiar circumstances.
Likewise, an alien investor attempting to make an investment in the Namibian extractives sector must apply to the Minister for approval of the proposed investment in the official form and demeanour. Subsequently, in considering the request for acceptance of investment and in addition to any other demands of the Act
36
, the Minister would give regard to the ultimate benefit of such investment to Namibia, taking into consideration the contribution of the investment to national development, economic growth, public policy as well as the national security objectives of Namibia.
Furthermore, regard is likewise given to the potential contribution of the investment to the promotion of citizens who have been socially, economically or educationally underprivileged by foregone prejudiced laws and practices;
the potential contribution of the investment to the enforcement of programmes and policies designed to remedy social and economic imbalances in the country,notwithstanding gender-based imbalances; the potential contribution of the investment towards increasing employment opportunities in the country;
34
Ibid.
35
No. 2 of 2003.
36
Ibid.

as well as the contribution of the investment towards the progression of the improvement of a Namibian geographical area of a low social and economic development.
37
Lastly, the relevant Minister in considering a foreign investment application will also consider the contribution of such investment to the transfer of technical and managerial skills, cognition and invention; the contribution of such investment to economic value increase to the natural resources and manufacturing sector of the country; the extent to which the investment will procure goods and services from the SME sector and Namibian suppliers in general; and the impact on the environment and contribution to environmental benefits and any other factors the Minister may prescribe.
38
Furthermore, in terms of the Minerals Act
39
, the Minister may allocate a licence, or the replenishment of a licence, nonexempt to such terms and conditions as he may consider to be obligatory. In light of the above, licences are frequently given nonexempt to the stipulation that there must be some local ownership, which can include cooperative ownership with Epangelo
Mining (Pty) Ltd, the government-owned mining company. Besides, all extractives mining rights in regard of uranium, gold, copper, coal, diamonds,
and rare earth metals are vested in Epangelo.
40
In addition, there are indisputable restraints on foreigners acquiring a mining right. In terms of the
Minerals Act
41
, a mining right may only be acquired by a Namibian citizen or a
Namibian owned company. Nonetheless, the Minerals Act
42
does not eliminate foreign-owned close corporations from acquiring a mining right.
South African mining law on the other hand, has no postulate regarding foreign ownership by indigenous individuals or entities holding prospecting rights or mining rights in its jurisdiction. However, there is a requisite that at least 26% of the traceable units of production of extracting projects should be
37
Ibid.
38
Ibid.
39
No. 33 of 1992.
40
Ibid.
41
Ibid.
42
Ibid.

owned by historically underprivileged South African nationals.
43
Similarly, a mining charter published in 2018 and dealing with the modification of the mining industry to support the entry of historically underprivileged South
Africans into the extractives industry is applicable to all holders of prospecting rand mining rights. According to the charter, it is required that for all new mining right applicants, there should be a 30% shareholding interest by historically underprivileged South Africans. In addition, this would comprise a
20% effective interest to be held by a Black Economic Empowerment entrepreneur (5% of which must preferably be a woman), 5% carried involvement in favour of “qualifying employees” and another 5% carried interest in favour of the ”host community”.
44
Furthermore, there are no peculiar restraints under the South African jurisdiction in regard to foreign applicants. In fact, foreign applicants have to abide by a similar criteria for the allocation of a mining right as an indigenous applicant. Thus, prospecting and mining rights in South Africa can be owned by foreign establishments, whether natural or juristic. Nonetheless, if a foreign establishment conducts business in South Africa, it would be required to register at least as an international company in terms of the Companies Act
45
Lastly, the South African government does not own free carry rights in regard to prospecting or mining projects, nor rights to assume shareholding although there is a State owned mining company which itself is expected to apply for prospecting rights or mining rights in conformity with the MPRDA.
46

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