107. Limitation of fundamental rights contemplated in Article 16 of Constitution.

The provisions of this Part, in so far as they provide for a limitation on the fundamental rights contemplated in subarticle (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 subarticle (2) of that Article.


108. Establishment of Minerals Ancillary Rights Commission

(1) There is hereby established a commission to be known as the Minerals Ancillary Rights Commission which shall consist of a chairperson and two other members appointed from time to time by the President. 

(2) A member of the Commission shall hold office at the President's pleasure.

(3) A member of the Commission who is not in the full-time service of the State may be paid such remuneration and allowances as may be determined in writing by
the Minister with the concurrence of the Minister of Finance.

(4) (a) The Administrative and clerical work involved in the performance of the Commission's functions, shall be performed by officers in the public service made available by the Permanent Secretary for that purpose.

(b) The Commission may designate an officer referred to in paragraph (a) to be the secretary of the Commission.



(5) Any meeting of the Commission shall be held at a time and place determined by the chairperson of the Commission.

(6) Two members of the Commission shall form a quorum for a meeting of the Commission.

(7) The decision of a majority of the members of the Commission shall be a decision of the Commission: Provided that in the event of an equality of votes the
chairperson shall have a casting vote in addition to his or her deliberative vote.

(8) The provisions of the Commissions Act, 1947 (Act 8 of 1947) shall apply mutatis mutandis in relation to the Commission as if it were a commission referred to in
section 1 of that Act.


109. Obtaining of rights by holder of non-exclusive prospecting licence, mineral licence or a mining claim.

(1) When 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;

(e) to do anything else in order to exercise any right conferred upon him or her by such licence or mining claim, 

and who is prevented from carrying on such operations by reason thereof -

(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.

(2) An application in terms of subsection (1) shall set out by way of a statement under oath or affirmation or in such other form, d any, as may be determined in writing by the Commission particulars of the right required, the circumstances under which such right is required and the circumstances under which the holder of the non-exclusive
prospecting licence, a mineral licence or mining claim is prevented from obtaining or exercising such right.

(3) The Commission shall as soon as possible after the receipt of an application referred to in subsection (2), cause -

(a) a notice to be published in the Gazette and in one newspaper circulating in the area in which the land in question is situated setting out the name of the holder of the non-exclusive prospecting licence, a mineral licence or mining claim concerned, the nature of the right required and a description of the land in respect of which it is so required;

(b) copies of such notice and application to be addressed and delivered to the owner or person competent to grant any such right, if known, calling upon such owner, person or other interested person to make representations, if he or she so wishes, in opposition to such application in such manner and within such period as may be specified in such notice.



110. Consideration of applications by Commission.

(1) The Commission shall inquire as soon as possible into any application made in terms of section 109.

(2) 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.

(3) The Commission, in considering whether any right to which an application relates should be granted and We term and conditions, if any, to be imposed if such a right is granted, shall have regard to the effect of the exercise of such right on such land and the facilities thereon.

(4) (a) If the Commission is on reasonable grounds satisfied that it i 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.

(b) The chairperson of the Commission -

(i) may at any time before or after publication of the notice referred to in paragraph (a) of subsection (3) of section 109, at the request in writing of the holder of a non-exclusive prospecting licence who in terms of section 109(l) has made an application to the Commission to be granted any right referred to in that section, in writing grant to such person, subject to such terms and conditions (including terms and conditions relating to the payment of compensation or the giving of security) as may be determined by him or her, the right referred to in paragraph (a) of section 109(l), as an interim measure, until such time as the matter is considered by the Commission in accordance with the provisions of this section;



(ii) shall not grant any right under subparagraph (i), unless he or she is on reason able grounds satisfied -

(aa)that the granting of such right ought not to be deferred until the Commission has dealt with the application; and

(bb)that the owner of the land in question or person competent to grant such right in relation to such land cannot be found timeously, or that he or she is absent from Namibia or that his or her whereabouts is unknown.

(c) Any right granted under paragraph (b)(i) shall lapse on the date on which the application made under section 109(1) is considered and decided upon by the Commission.

(5) No right granted under this section by the Commission shall confer any power or impose any obligation or liability upon the holder of a non-exclusive prospecting
licence, a mineral licence or mining claim concerned other than such power, obligation or liability which would otherwise have been conferred or imposed upon him or her
had such right been granted to such holder by the owner or other person concerned.


111. Costs incurred in respect of applications to Commission. 

(1) The Commission shall be empowered to order any party to the proceedings to pay the costs of, any part of such costs incurred by any other party in relation to the application and proceedings field in consequence of such application m if such order were an order made by a magistrate's court.

(2) Any order made in terms of subsection (1) shall be executable as if such order were a judgement of magistrate's court.



112. Compensation payable in respect of rights granted.

(1) If any right is granted in terms of section 110 the Commission shall, if no amount of compensation is agreed upon between the holder of the non-exclusive prospecting licence, a mineral licence or mining claim concerned and the owner or other person concerned, 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.

(2) If compensation is in terms of an order of the Commission to be paid in respect of any right granted by such order, it shall, unless the Commission determines otherwise, be a condition of such order that the compensation so payable shall be paid or that security for the payment thereof shall be given before the right is exercised.


113. Right of appeal. 

(1) Any person who feels aggrieved by a decision of the Commission shall have the right to appeal to the High Court of Namibia.

(2) For purposes of an appeal referred to in subsection (1) and the procedure to be followed in connection with such appeal the decision of the Commission shall be
deemed to be a judgement of a magistrate's court.