PART XVI Financial matters |
| 114. Royalties payable on minerals. (1) The holder of a mining claim or a mining licence who has won or mined in the course of any prospecting or mining operations carried on by him or her, and the holder of any non-exclusive prospecting licence, exclusive prospecting licence or mineral deposit retention licence who has found or incidentally won in the course of any prospecting operations carded on by him or her, any mineral or group of minerals, shall be liable to pay to the Commissioner for the benefit of the State Revenue Fund a royalty - (a) in the case of any such holder in respect of any rough and uncut mineral of the precious stone group won or mined by such holder in the course of any prospecting operations or mining operations carried on by such holder in terms of such licence or on such mining claim, as the case may be, and sold or otherwise disposed of by such holder, at a rate of 10 per cent; (b) in the case of any such holder in respect of any rough or unprocessed mineral of the dimension stone group won or mined by such holder in the course of any prospecting operations or mining operations carried on by such holder in terms of such licence or on such mining claim, as the case may be, and sold or otherwise disposed of by such holder, at a rate of five per cent; (c) in the case of any such holder in respect of any other mineral or group of minerals so won or mined by such holder, levied by the Minister by notice in writing addressed and delivered to such holder in accordance with the provisions of subsection (2), at such rate, not exceeding five per cent, as may be determined by the Minister from time to time by notice in the Gazette, of the market value, determined as provided in subsection (3), of such mineral or group of minerals, on a date - (i) in the case of a holder referred to in paragraph (a), not later than the date on which the sale or disposal of such mineral or group of minerals takes place; (ii) in the case of a holder referred to in paragraph (b), not later than 30 days after the end of each period of six monks or pad of such period as from the date on which such licence is issued or such claim is registered, as the case may be; (iii)in the case of a holder referred to in paragraph (c), determined by the Minister and specified in the notice so referred to in relation to any mineral or group of minerals sold or disposed of during a period so determined. (2) (a) Subject to the provisions of paragraph (b), the Minister may, for purposes of the provisions of subsection (1)(c), levy, with due regard to any return submitted in terms of section 24, 45, 76, 89 or 101 by any holder of a licence or claim referred to in the said subsection and to any representations, if any, made by such holder in terms of paragraph (b), by notice in writing addressed and delivered to any such holder, upon such holder a royalty in respect of any mineral or group of minerals referred to in subsection (1)(c) won or mined by such holder in the course of any prospecting operations or mining operations carried on by such holder during such period as may be determined in writing by the Minister, if the Minister is of the opinion - (i) that, in the case of any mineral or group of minerals which has been or is about to be exported, any such mineral or group of minerals is of such a nature that it is capable of being increased in value by way of a practical and economical process which is available in Namibia; (ii) that the amount received by, or accrued to, or received in favour of, such holder in respect of the sale or disposal of such mineral or group of minerals in a sale at arm's length was not in conformity with prices which were in the opinion of the Minister paid at the time in international markets; or (iii)that the amounts deducted from the amount at which such mineral or group of minerals has been sold or disposed of in respect of fees, charges or levies were not in conformity with rates which were in the opinion of the Minister charged at the time in international markets. (b) The Minister shall not issue a notice referred to in paragraph (a), unless the Minister - (i) has by notice in writing addressed and delivered to the holder concerned, informed such holder of his or her intention to levy a royalty upon such holder in respect of any mineral or group of minerals won or mined by such holder and provided the grounds on which such intention is based; (ii) has afforded such holder an opportunity within such reasonable period as may be specified in such notice to make representations and, if such holder so desires, proposals in relation to any matter relating to such intention; and (iii) has taken into account such representations and proposals. (3) For purpose of subsection (1), the market value of any mineral or group of minerals shall be - (a) determined in accordance with any term and condition, if any, of the licence of the holder concerned; or (b) if no such term and condition exists, determined in writing by the Minister, having regard to the value agreed between the holder in question and the person to whom such mineral or group of minerals was sold or disposed of in an at arm's length sale and prices which were in the opinion of the Minister at the time paid on international markets for such mineral or group of minerals, less any amounts deducted in respect of fees, charges or levies which are in the opinion of the Minister charged on international markets. 115. Penalties for late payments. (1) When any person has failed to pay an amount on or before the date determined by or under the provisions of section 114, an additional amount, calculated at the rate of one-third of one per cent per day, shall be payable on such amount or any part thereof as from the date on which such amount was payable until such time as such amount is paid. (2) The provisions of paragraph (a) of section 116(1) shall apply mutatis mutandis in relation to an amount payable in terms of subsection (1). 116. Remission and deferment of royalties or penalties. (1) Notwithstanding the provisions of the State Finance Act, 1991 (Act 31 of 1991), the Minister may, with the concurrence of the Minister of Finance, on application made to him or her by the holder of a licence or mining claim referred to in section 114 - (a) by notice in writing addressed and delivered to such holder - (i) remit wholly or partly any royalty or penalty payable in terms of section 114 or 115; (ii) deter payment of any such royalty or penalty; (b) refund wholly or partly any royalty or penalty paid in terms of section 114 or 115, on such conditions as may be determined by the Minister and specified in such notice, or may refuse to so remit or refund such royalty or penalty or defer such payment. (2) The Minister shall on or before 30 June in each year lay upon the Table of the National Assembly a report consisting of the full names of such holders in respect of whom royalties or penalties were remitted or refunded or of which payment of royalties or penalties were deferred during the financial year which ended in that year and the amounts involved and the reasons for such remission, refund or deferment. 117. Powers of Minister in case of failure by holders of licences or mining claims to pay royalties. (1) If the holder of a licence or mining claim referred to in section 114 fails to pay any royalty payable in terms of that section by such holder on or before the date referred to in that section or such date to which the payment of such royalty has been remitted or deferred in terms of section 116, the Minister may by notice addressed and delivered to such holder prohibit - (a) the removal of any mineral or group of minerals from the prospecting area, mining area, retention area, claim area or other area to which the licence in question relates; (b) any dealings in connection with any mineral or group of minerals won or mined from such prospecting area, mining area, retention area, claim area or other area, until such time as such royalty has been paid, or the payment of such royalty has been remitted or deferred in terms of section 116. (2) Any holder of a licence or mining claim referred to in this section who contravenes or fails to comply with a notice issued under subsection (1) shall be guilty of an offence and on conviction liable to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. 118. Security for payment of royalties. (1) The Minister may, when he or she deems it necessary to secure the payment of a royalty, by notice in writing addressed and delivered to any holder of a licence or mining claim referred to in section 114 require such holder to provide the Minister with a guarantee given by a person approved by the Minister. (2) Any holder referred to in subsection (1) who contravenes or fails to comply with a notice issued under that subsection shall be guilty of an offence and on conviction be liable to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. 119. Powers of Minister relating to pricing of minerals. (1) Subject to the provisions of subsection (2), the Minister may, if he or she has reason to suspect that any mineral or group of minerals won or mined in the course of any prospecting operations or mining operations by a holder referred to in section 114 has been sold or disposed of by such holder - (a) at an amount which was intentionally fixed or agreed upon at an amount which is less than the price which was, in the opinion of the Minister, paid at the time on international markets; (b) at an amount from which was deducted an amount in respect of fees, charges or levies which was intentionally fixed or agreed upon which is more than the rates which were, in the opinion of the Minister, charged at the time on international markets, direct such holder to pay to the benefit of the State Revenue Fund an amount equal to the difference between an amount referred to in paragraph (a) or (b) and an amount which in the opinion of the Minister is in conformity with an amount determined in accordance with the prices and rates paid and charged on international markets at the time of the sale or disposal of the mineral or group of minerals in question. (2) The Minister shall not give a direction under subsection (1), unless he or she - (a) has by notice in writing addressed and delivered to the holder concerned, informed such holder of his or her intention to give such direction and provided the grounds on which such intention is based; (b) has afforded such holder an opportunity within such reasonable period as may be specified in such notice to make representations and, if such holder so desires, proposals in relation to any matter relating to such intention; and (c) has taken into account such representations and proposals. 120. Proof of amounts payable in terms of this part. In any proceedings to recover in a competent court any amount payable under any provision of this Part, a certificate purporting to be a certificate under the hand of the Minister certifying that an amount of money specified in such certificate is payable in terms of the provisions of this Part by any holder referred to in section 114 named in such certificate, shall be prima facie evidence of the facts stated in such certificate. |