Exchange Control

INTRODUCTION

Exchange Control within the Common Monetary Area is being regulated by the Currency and Exchanges Act No. 9 of 1933 and the Exchange Control Regulations 1961, issued there under.
Exchange Control in Namibia falls under the control of the Minister of Finance and the Treasury who have delegated the administration thereof to the Bank of Namibia, who, in turn have appointed the commercial banks as Authorised Dealers in foreign exchange.

The dual exchange rate system involving the Commercial Rand and Financial Rand mechanism of transferring funds to and from Namibia was replaced by a unitary foreign exchange system on 13 March 1995.

With effect from that date, exchange control over non-residents other than former Namibia residents as regards their blocked assets was abolished.

2. PURPOSE OF CONTROL

2.1 To ensure the timeous repatriation into the Namibian banking system of all foreign currency acquired by residents of Namibia, whether through transactions of a current or a capital nature.

2.2 To ensure that foreign currency outflows are for legitimate purpose only in the best interest of Namibia as a whole and not individuals concerned.

3. IMPORTANT DEFINITIONS

3.1 Common Monetary Area: Consist of Namibia, the Republic of South Africa, Lesotho and Swaziland.

3.2 Authorised Dealer: Local banks which have been authorised by Bank of Namibia to deal in foreign exchange.

3.3 Non-resident: is a person (or legal entity) whose normal place of residence, domicile or registration is outside the Common Monetary Area.

4. FORMS FOR INWARD AND OUTWARD TRANSFERS

FORMS A: Sales of exchange in amounts of N$50 000 and over and deposits in Rand to non-resident accounts must be supported by Forms A.

FORMS E: Purchase of exchange in amounts of N$50 000 and over and all payments in Rand to residents of the Common Monetary Area from non-resident account irrespective of the amount or purpose must be supported by a Form E.

5. INWARD TRANSFERS

5.1 FOREIGN LOAN FUNDS

The acceptance by a local entity of loan funds from abroad normally for a minimum period of six months, is subject to specific Exchange Control approval. Where the loan funds are to be introduced by the non-resident shareholder, the Control will not normally give an unqualified repatriation assurance but will undertake to consider such requests, as and when funds are available in the borrowing company, to effect repayment in the light of the conditions then prevailing and bearing in mind the local borrowing position of the company effecting repayment. Normally, if a company is wholly -owned by non-residents, the ratio of shareholders’ loans to share capital may not exceed the 3:1 ratio, i.e. if the share capital of the local company is N$1.00 then the Exchange Control will allow shareholders’ loans funds of N$ 3-00. Forward cover may be obtained for the repayment of foreign loans.

6. LOCAL FINANCIAL ASSISTANCE: EXEMPTION FROM REGULATION 3(1)(E) AND (F)

DEFINITIONS:

6.1 Affected Person:

Is defined as a body corporate, foundation, trust or partnership operating in Namibia in respect of which 75 percent or more of the capital, assets or earnings thereof may be utilised for payment to, or for the benefit in any manner of, any person who is not resident in the Republic, or
75 percent or more of the voting securities, voting power, power of control assets or earnings thereof are directly or indirectly vested in, or controlled by or on behalf of, any person who is not resident in Namibia.

6.2 Non-Resident:

Is defined as a person whose normal place of residence is outside the Common Monetary Area.

6.3 Financial Assistance:

Refers to the lending of currency, granting of credit, taking up of securities, conclusion of an installment sale or lease, guaranteeing of acceptance credits, suretyship, mortgage bonds, loans from local shareholders in excess of their percentage shareholding, etc.

6.4 Regulation 3(1)(e):

Essential refers to a guarantee being issued by a Namibian concern where the latter party relies on a foreign party in the event of the guarantee being implemented.

6.5 Regulation 3(1)(f):

Refers to any local borrowing, leasing, loans extended to a company that is being owned 75 percent or more by foreigners.

Formula for calculating the permitted percentage of the local borrowing base, i.e. the “Local Financial Assistance Ratio”.

100% + (Namibia % interest x 100%) Non-resident % Interest

The percentage is referred to as the “Local Financial Assistance Ratio”.

This ratio has now been doubled. In the past, a foreign investor could only borrow 50 percent of his capital funds locally. The rational for this requirement is to ensure that foreign investor, introduced a reasonable amount in respect of capital funds, without too much dependency on local borrowing.

Example:

A company with 40% non-resident interest may receive local financial assistance to the extent of:

100% + 60% x 100% = 100% + 150%
40%
= 250% of the Local Borrowing Base of the company

i.e. if the company has introduced an amount of N$300 000 in respect of capital funds, then we would allow an amount of N$750 000 (N$ 3000 000 x 250%) to be borrowed locally.

The Local Borrowing Base or the Effective Capital of a company consists of:
1. Issued Share Capital
2. Share premium account
3. Distributable Reserves
4. Shareholders loans
5. Non Distributable Reserves
6. Deferred Tax
7. Hard Core Trade Credit – (in respect of goods imported from parent or associated company but payment still due from Namibian concern) on the condition that the level of the hard core will not be reduced during the currency of the local financial assistance authority.

6.6 Shareholders loans:

Loans from resident and non-resident shareholders of companies which are subject to Exchange Control Regulation 3(1)(f) are permitted by the Exchange Control to accept such loan funds, do not necessarily qualify for inclusion in the local borrowing base of the local company, as indicated in the table below:

Type of Loan	Local Borrowing Base
Non-resident Shareholders loan	Always qualifies
Resident Shareholder Loan without pro-rata matching loan from Non-Resident shareholders	Does not qualify and loan is classified as local financial assistance
Resident Shareholders Loan with pro-rata matching loan from Non-Resident Shareholder	Both Loans qualify

6.7 Excess facilities:

More favourable borrowing facilities may be authorised by the Exchange Control for an agreed period when a company’s operations would:-
- Increase or create local manufacture with resultant increase in employment
- Result in the development of a substantial export market
- Serve to reduce imports, or
- Be considered as being in the national interest in some other respect.

Applications must be fully explanatory and should be supported by projections indicating how and when the company proposes to again fall within the applicable limit, i.e. an increase in the local borrowing base or a decrease in the level of local financial assistance.

The Exchange Control would normally expect the excess facilities to be progressively reduced over a period of two to five years, depending on the circumstances surrounding the case. The Exchange Control also adopt a flexible attitude towards applications by companies who require temporary excess facilities for a period of time to implement local expansion or modernisation plans or to see through a negative situation.

6.8 When submitting requests to Bank of Namibia for local financial assistance facilities, the following documentation is required:

1. A duly completed Form MP 79(a) Questionnaire.
2. An audited balance sheet or unaudited interim financial statements, as appropriate.
3. Schedule of off-balance sheet finance facilities.
4. Guarantee by bank facilities.

7. CURRENT PAYMENTS

7.1 Dividends:

Trading profits and dividends earned on investments are transferable to non-resident beneficiaries. Such transfers may be authorised by Authorised Dealers without reference to Exchange Control. However, if the Namibian company is availing of any local financial assistance, an application should be lodged with Bank of Namibia, accompanied by an auditor’s certificate confirming that monies arise from normal trading profits, as opposed to disposal of Fixed Assets.

7.2 Interest:

Remittance of interest to non-residents may be allowed, provided the initial rate of interest has been cleared with Bank of Namibia. If loan is foreign denominated, then interest should be calculated at LIBOR (London Interbank Offered Rate) + 2 percent. If loan is Namibia Dollar denominated, Bank of Namibia would authorise interest at prime overdraft rate + 3 percent.

7.3 Directors’ fees:

Transfers of fees per annum to non-resident Directors may be allowed, upon production to the authorised dealer of a resolution by the company involved confirming the fees payable.

7.4 Management Fees/Technical Service Fees:

These type of fees require prior Exchange Control approval who will have to be satisfied as to the basis on which the payments are calculated and whether such payments are merited. The Exchange Control are not agreeable to payments being based on a percentage of sales, turnover or profit of the local concern. It should be based on actual services rendered.

7.5 Air fares for overseas visitors:

Where a Namibian resident company employ the services of foreign executives and is, in terms of the relative Agreement, liable for the settlement of the airfares, payment of such an air ticket should be arranged locally, in Namibia Dollars. The Control is not agreeable to reimbursement thereof being effected from Namibia. Similarly, the same procedures should be followed in respect of the foreign executive’s daily subsistence allowance and local travel.

8. CONTRACT AND TOUR OF DUTY WORKERS

Foreign nationals who came to Namibia on appointment to a local firm or were recruited by a Namibian company on a definite contract are required to declare whether or not they are in possession of foreign assets and give an undertaking that they will not place their foreign assets at the disposal of any third party normally resident in Namibia. The aforementioned Undertaking, together with the person’s Employment contract should be lodged with Bank of Namibia. Such individuals must be in possession of a valid work permit issued by the Ministry of Home Affairs.

9. IMMIGRANTS

9.1 On taking up permanent residence in Namibia, immigrants become subject to the Exchange Control Regulations.

9.2 Upon taking up permanent residence in Namibia, two regulations have an immediate effect upon immigrants. Exchange Control Regulation 6, which states that residents should declare any accrual of foreign currency and Exchange Control Regulation 7 which requires that any foreign assets including currency they own or to which they become entitled.

9.3 Upon arrival in Namibia an immigrant should complete a Form.

MP 335(a) and the attendant Declaration of Foreign Assets and Liabilities.

9.4 Within the first five years of residence immigrants are permitted to dispose or otherwise invest their foreign assets without any Exchange Control involvement, provided the forms detailed under point ( c) above have been lodged with Bank of Namibia.

9.5 Immigrants may also be given the assurance that, within 6 years of their arrival, the Bank of Namibia would, on application, allow the repatriation of all funds which were introduced through normal banking channels on and since arrival.

10. EMIGRANTS:

10.1 Persons wishing to emigrate must complete a Form MP336(a), together with a tax clearance certificate.

10.2 After emigrant has been furnished with the settling-in allowance on the following basis:

Single Persons:

A amount of N$200 000 after all liabilities including the cost of relative passenger tickets and the applicable travel allowance have been provided for.

Family Units:

An amount of N$400 000 after all liabilities including the cost of relative passenger tickets and applicable travel allowance have been provided for, all remaining local assets should be placed under the physical control of an Authorised Dealer. Such funds may not be transferred from Namibia, without Bank of Namibia consent.

10.3 Blocked funds may be utilised locally, for approved purposes, i.e. quoted securities, investment in unit trust certificates, payment of local rates and taxes, release of N$3 000 per day, up to a maximum of N$75 000 to cover living expenses of the emigrants during visits to Namibia.

10.4 Income earned on blocked assets may be remitted abroad.

10.5 In terms of the new measures, Namibian residents who have emigrated from Namibia on or before 1 April 1998, on application to the Bank of Namibia, are allowed to transfer their existing blocked funds abroad. However, subsequent to the aforementioned date, emigrants from Namibia are subject to normal emigrant procedures.

11. OUTWARD CAPITAL INVESTMENT

Investment abroad by Namibian residents.

11.1 Private individuals are now allowed to operate foreign Currency Accounts with local Authorised Dealers or alternatively, invest up to a maximum limit of N$750 000 per person offshore, provided that such persons are Namibian residents over the age of 18 years and are taxpayers of Good Standing.

11.2 A Namibian company may own/have an interest in an offshore company/structure. There are certain specific requirements that have to be met from an Exchange Control point of view.

The acquiring of such an interest must be of an ongoing benefit to Namibia, i.e. trade related.

a) The Namibian company must be either entering into the export market and be unable to deal directly with the overseas company or increasing existing exports which could only be achieved via an offshore presence.

b) The offshore entity must be needed to protect strategic imports into Namibia.

c) The offshore entity is required to facilitate trade with countries which would not normally trade with countries within Southern Africa.

In lodging a formal application with the Control, details of the Namibian company’s turnover, exports for last 3 years, estimates exports/imports for next 3 years, audited copy of their latest Balance Sheet. If the offshore business does not relate to their present type of business, a full explanation and motivation should be given.

Transfers may be effected from Namibia not exceeding N$50 Million.

However, expansion of the foreign subsidiary may be financed by foreign borrowing raised with recourse to or guarantee from Namibia. Thus the local company’s Balance Sheet could be used in negotiating such facilities. However, the expansion must be in the same line of business and that benefit to Namibia can be demonstrated. Profits generated by the foreign concern, should naturally be repatriated to Namibia in accordance with Exchange Control Regulation 6.

12 TRAVEL ALLOWANCE

a) The total amounts of foreign exchange which may be available of for travelling expenses during a calendar year for one or more visits are as follows:

N$130 000 per person of 12 years or older and N$40 000 per child under the age of 12 years for calendar year.

Previously, the limits were N$120 000 and N$35 000 per year, respectively. The distinction between neighbouring and other countries was dispensed with.

Authorised Dealers may authorise additional foreign exchange to a Namibian concern while abroad, provided the travel allowance subsequently effected does not exceed the person’s limit for the particular year. Upon return of the person from abroad, the additional amount should be endorsed in his/her passport.

b) Conditions:

The passenger ticket must be issued in Namibia in the name of the traveller for a journey commencing from Namibia.
Exchange may not be provided more than 60 days prior to date of departure.
Passenger ticket and passport must be endorsed. A Form A must be completed.
A maximum of N$5 000 in Namibia Dollar notes may be availed of by the traveller.

c) Credit Cards:

The cards listed hereunder have been approved by the Bank of Namibia for use outside the Common Monetary Area. South African credit cards may be authorised by local banks. We herewith list the authorised Namibian credit cards:

i) Standard Bank Namibia Master Card
ii) First National Bank of Namibia Visa Card
iii) Commercial Bank of Namibia Visa Card
iv) Bank Windhoek Visa Card.

d) Omnibus Travel Allowances:

Should it be necessary for various members of staff of a company to be sent abroad on business during any one calendar year, possibly at short notice, an application should be submitted in the name of the company concerned requesting an overall annual allowance.

12.1 Study Allowance:
Namibian residents proposing to study abroad on a full-time basis may be granted foreign exchange to meet the cost of tuition, maintenance and other incidental expenses. While payments of the full tuition fees may be permitted against production of suitable documentary evidence, a student’s allowance for maintenance and incidental expenses may be granted subject to the requirements set out.

Persons granted the facilities mentioned may each be furnished with a travel allowance of N$40 000 (N$80 000 if accompanied by a spouse) per annum for travelling expenses during vacation periods. Study allowance of up to N$130 000 per annum may be allowed a student or N$240 000 per annum for students accompanied by a spouse who is not studying.

13 IMPORTS

13.1 Time of payments:

Bank of Namibia is, generally, not prepared to provide foreign exchange in payment of imports prior to the date of shipment or dispatch of the relative goods to Namibia.

Payment in respect of imports may, however, be made against presentation to the Authorised Dealers of transport documentation and invoices.

13.2 Import Permits:

Goods, other than those which require a valid import permit appearing on the list published in the Government Gazette periodically, may be imported without an import permit. Import Permits are issued by the Ministry of Trade and Industry.

The responsibility currently rests with the authorised dealer to ensure that a covering import permit is available or is not required before establishing Letters of Credit, arranging payments or entering into forward contracts.

13.3 Advance payments:

33.3% of the ex-factory cost of Capital goods provided:

i) documentary evidence is produced
ii) that the order would otherwise be refused
iii) that it is normal in the trade concerned.

13.4 Evidence of importation:

i) Bills of Entry

Bills of entry show that the goods, as stated on the invoice, have entered Namibia. Fax copies, photocopies, etc. are acceptable as documentary evidence. However, the Customs Stamp must be original. Without the Bill of entry, payment may not be effected by Authorised Dealers.

IMPORTATION ON FISHING VESSELS:

i) In the event of a Namibian concern wishing to import a fishing vessel from abroad and payment effected subsequent to the arrival of the vessel in Namibian Water, then an Authorised Dealer can approve such a payment against production of documentary evidence confirming the transaction of proof regarding the arrival of the locally.

ii) However, should partial advance payment be required by the overseas Supplier, then application should be lodged with Bank of Namibia which should include details on the following:

a) The Memorandum of Agreement/Agreement of Sale/Offer to Purchase between the Namibian importer and the foreign exporter.

b) Important Permit issued by the Ministry of Trade and Industry.

c) Invoice confirming the value of the vessel.

d) Confirming that vessel will be registered in name of Namibian concern upon receipt of purchase price abroad.

e) Confirmation that advance payment is normal in the trade concerned and that the order would otherwise be refused.

iii) Full advance payment:

a) In the event of full advance payment, the documentation as detailed above is required. However, should the Exchange Control consent to such arrangements then we would only release purchase consideration to an Escrow account at the Bankers of the foreign seller.

b) Such funds may only be released to the Seller once the documentation confirming transfer of ownership to the Namibian concern and the Shipping route have been lodged with the foreign bank.

c) The local Authorised Dealer would have to view documentary proof regarding subsequent arrival of the vessel and impress “Exchange provided” stamp on the documents.

d) The Exchange Control should be advised upon arrival of vessel in Namibian Territorial Waters and its registry in the Namibian Ships Register.

14 EXPORTS

14.1 Exports Declarations

All exports, except those which have been exempted administratively, must be supported by the prescribed declaration on Forms F178 and NEP irrespective of the country of destination of the goods.

14.2 Forms F178

This form is a declaration of goods exported for sale abroad. These forms must be completed for all exports of goods for sale abroad to countries outside the Common Monetary Area if the value thereof exceeds N$ 50 000. The previous distinction between countries (neighbouring, etc) was dispensed with.

14.3 Forms NEP

This form is to control the export of goods not for sale abroad, i.e. for exhibition purposes, temporary exportation, for repairs, etc. This form should be completed for consignments with an insurance value exceeding N$2 000.

14.4 Exporter’s Obligation

i) To sell goods within 6 months from date of shipment
ii) To repatriate the sale proceeds within 6 months
iii) To receive payment in foreign currency or in Namibian Dollars from a Non-resident account
iv) To offer for sale the full foreign currency proceeds within 30 days of accrual
v) To report in writing the failure to sell the goods within 6 months or non-receipt of foreign currency proceeds within the stated period on the F178
vi) Exporters may grand credit to foreign importers up to a total of twelve months (as opposed to customary 6 months), provided:

� the credit being necessary in the particular trade
� the need to protect/capture the export market

GENERAL:

Namibian residents are at liberty to apply to the Exchange Control (through an Authorised Dealer) for permission to enter into transactions which cannot normally be permitted by an authorised dealer without specific Exchange Control approval. Authorities granted by the Exchange Control, unless otherwise authorised, is only valid for three months form date of response to application. Therefore, where projects will take much longer to conclude, it is imperative to state the estimated start and end dates to avoid delays in obtaining extensions in this regard.