Hugo Meyer van den Berg, Partner, Koep & Partners

“Koep & Partners focuses on land disputes in addition to regulatory and financing matters.”

Please provide a brief history of Koep & Partners, including the firm’s current involvement in the mining industry in Namibia.

Hugo Meyer van den Berg (HMB): Koep & Partners was founded in 1982, and has since been an active player in the mining industry, representing at times the Chamber of Mines and major mining companies such as Swakop Uranium, B2Gold, and Okorusu Fluorspar. In addition, we have been involved in some of the largest project-financing transactions in the mining industry, representing the China General Nuclear Power Corp. (CGNPC) in its takeover of its uranium mine, and subsequent financing of some of its projects.

Koep & Partners is the best source for advice on general mining and regulatory issues. We regularly service companies or farmers with land disputes, and institute administrative reviews of decisions made by the Ministry of Mines and Energy, mostly concerning cancelling or refusing to issue licenses, attaching terms that are considered unreasonable etc. Our firm approaches mining from quite a diverse perspective, acting for various players in the industry and in multiple capacities—project financing, advising on regulatory issues with the environment, the introduction of amendments and provisions of acts, and so on.

Koep & Partners publishes regularly, contributing to the International Comparative Legal Guide’s mining chapter and environmental publications in Namibia. Additionally, we are preparing a publication for the University of Cape Town’s Mineral Law in Africa Project—they intend to create a library of mineral law in Africa in conjunction with the United Nations.

Which types of legal disputes are currently the most frequent in the mining sector?

HMB: Land access disputes are quite common. In Namibia you do not need a landowner’s permission to acquire a mineral right over his land. However, before you can exercise your rights over that land, one must be in agreement with the landowner on adequate monetary compensation, which can be challenging. Regulatory advice is also in demand, as clients who are interested in investing in Namibia are not always fully literate in Namibia’s mineral framework—namely the Minerals Act, environmental restrictions, financial aspects such as taxes and royalties, and the licensing process.

The Environmental Management Act’s most recent amendments were enacted in 2012. Has this been an easy transition for mining companies?

HMB: It continues to be a difficult change. For example, the current act does not provide for the renewal of an environmental certificate, but this is done in practice. There needs to be a standard method for renewal. Also, the Ministry of Mines and Energy may not issue a mining license before an environmental clearance certificate is obtained, but usually miners follow the reverse order of procedure. There is a misunderstanding as to the true state of affairs, but we are seeing improvement. New legislation takes time, and this is the first general environmental legislation to govern Namibia.

In general, Namibia has a very stable mineral regime, except for one change in 2008. The Ministry made alterations to the royalty provision, which was the only major change since 1992.

Namibia is known for its legislative consistency, which is very attractive for foreign investors. What flaws in the regime would you point out that are often overlooked?

HMB: Some of the royalties are uncapped, which investors do not always realize immediately and can seriously impact business. We also advise companies to consider the foreign-investment framework, as there is legislative protection but present policy contradictions. Many people are familiar with the Black Economic Empowerment (BEE) legislation, and in Namibia we have a similar initiative. It is not legislated, but it is a very strong policy that will soon be legislated. The New Equitable Economic Empowerment Framework (NEEEF) document seems to be the foundation of where our country is headed. NEEEF follows the same principle with five empowerment pillars as BEE; it just has a different weight of locally required percentage. The new attorney general has indicated on a number of occasions that he wants to see NEEEF come to law as soon as possible, thusly taking effect within the next couple of years.

What other regulatory change is impending in Namibia?

HMB: There will be more prominent involvement of Epangelo, the state-owned mining company, in the future as well as a more active presence of government in all mining projects. Health and safety has always been an issue, as the current regulations in the mining industry date back to 1971. They are very outdated. A new set of health and safety guidelines were prepared in 1987, which is currently in its 10th draft, so the future of that initiative is uncertain. Fortunately, there are not many negative legal instances with safety in mines, but that does not guarantee it will never be a problem.

For investors looking to break ground in Namibia, why is Koep & Partners the law firm of choice?

HMB: Koep & Partners has many awards and recognitions as a result of its strong leadership and devout interest in the industry at hand. We focus on gathering as much knowledge about mining as possible because there is a great value in upholding the theory that backs up our practice. Our support base is extremely stable, involving attorneys at various levels and ensuring a solid succession plan. Koep & Partners values teamwork, upholding communication, and fostering creative brainstorming for better solutions. We continually inform our clients of updates in the law, and we actively take part in the development of the law in Namibia, remaining as involved as possible

This article was written as part of research being conducted by GBR for its upcoming Mining in Africa Country Investment Guide (MACIG) 2016. A pre-release report on the Central African Copperbelt was released in October 2015 and can be accessed here. To participate in this report, please contact Molly Concannon at mconcannon@gbreports.com 

Advertisements