Assignment no. 1. CODeL ASSIGNMENT COVER 2021 ACADEMIC YEAR Student Name RT KAMBINDJI Student number 201506548 Email Address firstname.lastname@example.org Cell/Tel no 0811443769 CODeL Centre MAIN CAMPUS Course/Module Name Course/Module Code MINING LAW PML 3870
A comparison and evaluation of the extent to which the legal frameworks in Namibia and South Africa promote or hamper investment into and tenure security within the extractives sector. Introduction All law is crafty. Perhaps none more so than mining law, particularly in resource wealthy Africa where miners are endeavoring for success in an unsteady global economy. The demands on their commercial enterprise are multi-fold, but most notably regard long-term investment cycles and dynamic regulatory and tax regimes. 1 Furthermore, in the African continent, we are experiencing the emergence of some level of resource nationalism, but surely not to the magnitude that it is deeply infeasible. Besides, the African continent is cursed with having to journey the resources cycle. At the underside, governments are offering everything to draw in investors while, at the higher end of the cycle, miners are generating favorable earnings and the government then attempts to increase taxes consequently. 2 In terms of article 100 of the Constitution of the Republic of Namibia: 3 “all natural resources, including mineral 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 belong to the state, unless they are otherwise lawfully owned”. Mining in Namibia is regulated by the Minerals (Prospecting and Mining) Act 4 and section 2 of the Act vests all rights relating to mineral resources in the custody of the state. The Act further stipulates for the management of the minerals industry and access to mineral resources through different forms of authorisations. 5 In addition, all health and safety facets associated with the mining industry were passed in terms of the previous Mines, Works and 1 Africa Legal. Available at https://www.africa-legal.com/; last accessed on 5 April 2021. 2 Ibid. 3 Of 1990. 4 No. 33 of 1992. 5 Ibid.
Minerals Ordinance 6 . These regulations are still effective in terms of the Minerals Act 7 and will stay effective until they are repealed. The overall health and safety modulates under the Labour Act 8 are also applicable to all employment relationships in Namibia, including those in the extractives industry. Moreover, the exploitation of extractives is also affected mostly by the Environmental Management Act 9 (“EMA”) and in terms of this Act, no person may initiate a listed activity without an environmental clearance certificate. Listed activities include mining and quarrying activities and the Minister of mines and energy is not allowed to issue a mining licence before the applicant has duly acquired an environmental clearance certificate. Different other Namibian statutes might be relevant to the mining industry. These include the Diamond Act 10 , the Minerals Development Fund of Namibia Act 11 , the Namibia Investment Promotion Act 12 , the Soil Conservation Act 13 , the Hazardous Substance Ordinance 14 , the Atmospheric Pollution Prevention Ordinance 15 , the Prevention and Combating of Pollution of the Sea by Oil Act 16 , the Forest Act 17 , as well as the Atomic Energy and Radiation Protection Act 18 On the other hand, South African Mining Law is regulated by the Mineral and Petroleum Resources Development Act 19 (“MPRDA”), which is the paramount composition of statute law dealing with acquisitions or rights to conduct reconnaissance, prospecting and mining in the country. There are various other compositions of statute law which deal with such auxiliary issues such 6 No. 20 of 1968. 7 No. 33 of 1992. 8 No. 11 of 2007. 9 No. 7 of 2007. 10 No. 13 of 1999. 11 No. 19 of 1996. 12 No. 9 of 2006. 13 No. 76 of 1969. 14 No. 14 of 1974. 15 No. 11 of 1976. 16 No. 6 of 1981. 17 No. 12 of 2001. 18 No. 5 of 2005. 19 No. 28 of 2002.
as the Mineral and Petroleum Resources Royalty Act 20 , which deals with royalties, the Mining Titles Registration Act 21 which deals with title registration and the Mine Health and Safety Act 22 which regulates health and safety in the extractives sector.