Social Security Act, 1994

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Social Security Act, 1994

Act 34 of 1994

  • Published in Government Gazette no. 992 on 6 December 1994

  • Assented to on 30 November 1994
  • Commences on 15 January 1995 unless otherwise noted

  1. [Amended by Public Enterprises Governance Act, 2006 (Act 2 of 2006) on 1 November 2006]

  2. [Amended by Labour Act, 2007 (Act 11 of 2007) on 1 November 2008]

[brought into force on 15 January 1995 by GN 7/1995 (GG 1006), with the exception of Part VI - (National Medical Benefit Fund) and Part VII (National Pension Fund), which have not been brought into force]ACTTo provide for the establishment, constitution and powers duties and functions of the Social Security Commission; to provide for the payment of maternity leave benefits, sick leave benefits and death benefits to employees and to establish for that purpose the Maternity Leave, Sick Leave and Death Benefit Fund; to provide for the payment of medical benefits to employees and to establish for that purpose the National Medical Benefit Fund; to provide for the payment of pension benefits to retired employees and to establish for that purpose the National Pension Fund; to provide for the funding of training schemes for disadvantaged, unemployed persons and to establish for that purpose the Development Fund; and to provide for incidental matters.BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:-

Part I – Introductory provisions


1. Definitions

In this Act, unless the context otherwise indicates -actuary” means any Fellow of an institute, faculty or society of actuaries approved by the Minister;authorized person” means any person authorized under section 38 to exercise or perform the powers, duties and functions contemplated in that section;benefit” means any benefit, grant, aid or advantage of any kind derived from any fund in terms of the provisions of this Act;Commission” means the Social Security Commission established by section 3;committee” means any committee of the Commission established under section 11(1);contribution” means an amount paid or payable by an employer or employee to any fund concerned in terms of this Act;death benefits” means death benefits payable in terms of section 31;dependant”, in relation to a member of any fund, means -(a)a person in respect of whom the member is legally liable for maintenance, including the spouse, natural children or adopted children of the member;(b)a person in respect of whom the member is not legally liable for maintenance, if such person was, in the opinion of the Commission, upon the death of the member in fact dependent on the member for maintenance; or(c)a person in respect of whom the member would have become legally liable for maintenance, had the member not died;Development Fund” means the Development Fund established by section 37;employee” means any person younger than 65 years, other than an independent contractor, who -(a)is employed by or working for any employer and who is receiving or entiled to receive any remuneration in respect thereof; or[The word “entitled” is misspelt in the Government Gazette, as reproduced above.](b)in any manner assists in the carrying on or the conducting of the business of an employer,and includes, in the case of an employer who carries on or conducts business mainly within Namibia, any such natural person so employed by, or working for, such employer outside Namibia or assisting such employer in the carrying on or conducting of such business outside Namibia, if such person is a Namibian citizen or lawfully admitted to Namibia for permanent residence therein, and “employed” and “employment” shall have corresponding meanings;[definition of “employee” amended by Act 11 of 2007]Employees’ Compensation Act” means the Employees’ Compensation Act, 1941 (Act 30 of 1941);employer” means any person, including the State -(a)who employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate that person;(b)who permits any person to assist him or her in any manner in the carrying on, or conducting of, his or her business,and “employ” and “employment” shall have corresponding meanings;employers’ organization” means an employers’ organization registered under section 54 of the Labour Act;executive officer” means the executive officer of the Commission appointed under section 12, or any other employee of the Commission designated to act as executive officer under that section;financial institution” means -(a)any banking institution registered under section 4 of the Banks Act, 1965 (Act 23 of 1965);[The Banks Act 23 of 1965 has been replaced by the Banking Institutions Act 2 of 1998.](b)any building society registered under section 4 of the Building Societies Act, 1986 (Act 2 of 1986);(c)any insurer registered under section 4 of the Insurance Act, 1943 (Act 27 of 1943);[The Insurance Act 27 of 1943 has been replaced by the Short-term Insurance Act 4 of 1998 and the Long-term Insurance Act 5 of 1998.]fund” means the Development Fund, Maternity Leave, Sick Leave and Death Benefit Fund, National Medical Benefit Fund or National Pension Fund, as the case may be;Labour Act” means the Labour Act, 1992 (Act 6 of 1992);[The Labour Act 6 of 1992 has been replaced by the Labour Act 11 of 2007. Section 16 of Act 11 of 2007 provides that “any reference to a provision of the previous Act must be read as if it were a reference to the corresponding provision of this Act, in so far as possible”.]maternity leave benefits” means maternity leave benefits payable in terms of section 29;Maternity Leave, Sick Leave and Death Benefit Fund” means the Maternity Leave, Sick Leave and Death Benefit Fund established by section 28;member” in relation to any fund concerned, means an employee who is a member of such fund by virtue of section 21(1);Minister” means the Minister of Labour and Human Resources Development;National Medical Benefit Fund” means the National Medical Benefit Fund established by section 32;National Pension Fund” means the National Pension Fund established by section 34;Permanent Secretary” means the Permanent Secretary: Labour and Human Resources Development;prescribe” or “prescribed” means prescribe or prescribed by regulation;regulation” means any regulation made under this Act;retirement age” means the age prescribed as such;sick leave benefits” means sick leave benefits payable in terms of section 30;State” includes -(a)any body established by or under any law and -(i)controlling or being entitled to control by virtue of any such law funds accruing or being entitled to accrue to it as a whole or in part from moneys -(aa)appropriated for the purposes of those funds or of a loan to the credit of those funds or, in the case of a body with a share capital in which the State or Government of Namibia may, under the law in question take up shares, the taking up of such shares;(bb)loaned by virtue of a guarantee or approval granted in terms of any law by the President or any Minister;(ii)which may levy fees for services rendered at a rate, tariff or scale approved or determined in terms of any law by the President or any Minister;(b)any regional council established under section 2 of the Regional Councils Act, 1992 (Act 22 of 1992);(c)the council of any area declared or deemed to be declared to be a municipality, town or village under section 3 of the Local Authorities Act, 1992 (Act 23 of 1992);this Act” includes the regulations;trade union” means a trade union registered under section 54 of the Labour Act.

2. Application of Act

This Act shall apply in relation to every employer, including the State, and every employee.

Part II – Social Security Commission


3. Establishment of Social Security Commission

(1)There is hereby established a commission to be known as the Social Security Commission.
(2)The Commission shall be a juristic person.

4. Constitution of Commission

(1)The Commission shall be constituted, and its members, including the chairperson and the deputy chairperson of the Commission, shall be appointed in accordance with, and for a period as determined under, sections 14 and 15 of the Public Enterprises Governance Act, 2006, but the membership of the Commission must include -[Subsection (1) is substituted by Act 2 of 2006, as amended by Act 8 of 2015. The Public Enterprises Governance Act referred to is Act 2 of 2006.](a)three representatives of the Government, of whom one shall be nominated by the Minister responsible for finance, one by the Minister responsible for social services and one by the Minister and of whom one shall be a female person;(b)three persons nominated by trade union, of whom at least one must be a woman; and(c)three persons nominated by employers’ organisations, of whom at least one must be a woman.
(2)The Minister shall by notice in the Gazette invite trade unions and employers’ organisations to nominate persons as members of the Commission under paragraphs (b) and (c) of subsection (1), and to submit such nominations to the Minister within the period stipulated in the notice.[subsection (2) substituted by Act 2 of 2006]
(3)If the trade unions or employers’ organisations fail to submit the nominations within the period contemplated in subsection (2), the Minister may, subject to the provisions of paragraphs (b) and (c) of subsection (1), appoint any person as a member of the Commission and any person so appointed shall be deemed to have been appointed in terms of the relevant paragraph.[subsection (3) substituted by Act 2 of 2006]
(4)A person who -(a)is not a Namibian citizen or lawfully admitted to Namibia for permanent residence therein, and resident in Namibia; or(b)is an unrehabilitated insolvent,shall not be appointed as a member of the Commission.
(5)The Minister shall notify the names of the members of the Commission and the dates of commencement of their terms of office in the Gazette as soon as possible after the constitution of the Commission or any change in the constitution of the Commission, as the case may be.
(6)[subsection (6) deleted by Act 2 of 2006]
(7)The deputy chairperson shall exercise the powers and perform the duties and functions of the chairperson to the extent determined in writing by the Minister and shall, in addition to such powers, duties and functions, exercise such other powers and perform such other duties and functions as may be determined by the Commission from time to time.

5. Terms of office and conditions of service of members of Commission

(1)[subsection (1) deleted by Act 2 of 2006]
(2)A member of the Commission who is not employed in the public service on a full-time basis shall be paid out of moneys appropriated by law such remuneration and allowances, if any, and in respect of a journey undertaken for purposes of the business of the Commission, such subsistence and travelling allowances, as may be determined by the Minister after consultation with the Commission.
(3)The remuneration and allowances determined under subsection (2) may differ according to the office held by the member of the Commission concerned or the functions performed by him or her.
(4)Upon the appointment of the Commission the Minister may, in addition to the remuneration and allowances payable in terms of subsection (2), determine further conditions of service in respect of such member after consultation with the Commission.

6. Vacation of office by members of Commission

(1)A member of the Commission shall vacate his or her office if such member -(a)by writing under his or her hand addressed and delivered to the Permanent Secretary, resigns from his or her office as a member of the Commission;(b)is in any country convicted of an offence and sentenced to imprisonment without the option of a fine;(c)without the leave of the chairperson, absents himself or herself from three consecutive meetings of the Commission;(d)becomes subject to any disqualification contemplated in section 4(4);(e)is removed from office under subsection (2).
(2)The Minister may remove any member of the Commission from office if the Minister is satisfied that such member -(a)is by reason of his or her physical or mental condition or for any other reason incapable of acting as a member of the Commission;(b)is guilty of conduct which renders him or her unsuitable to continue to hold office as a member; or(c)has failed to comply with any provision of this Act or any condition of service determined under section 5(4).

7. Filling of vacancies

Any casual vacancy on the Commission caused by the vacation of office by or death of any member of the Commission shall, with due regard to the provisions of section 4, be filled for the unexpired portion of the period of office of such former member.

8. Meetings and decisions of Commission

(1)Subject to subsection (2), a meeting of the Commission shall be held not less than once every three months at such time and place as the chairperson may determine.
(2)The Minister may at any time, and the chairperson shall, if instructed by the Minister or requested in writing by the executive officer or by not less than three members of the Commission, convene a special meeting of the Commission. ·
(3)The majority of the members of the Commission shall form a quorum.
(4)The chairperson shall preside at all meetings of the Commission and in his or her absence, the deputy chairperson shall preside.
(5)If both the chairperson and deputy chairperson are absent from any meeting, the members of the Commission present shall elect one from their number to preside at that meeting and the member so presiding shall have the powers and perform the duties and functions of the chairperson.
(6)The decision of a majority of the members of the Commission present at a meeting of the Commission shall be a decision of the Commission and in the event of an equality of votes, the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
(7)No decision taken by, or act performed under the authority of, the Commission shall be invalid by reason only of a vacancy on the Commission, or by reason only of the fact that any person who is not entitled to sit as a member of the Commission sat as a member of the Commission when the decision was taken or the act was authorized, if the decision was taken or the act authorized by the required majority of the members of the Commission who were present at the meeting and entitled to sit as members.
(8)The Commission shall cause a record to be kept of the proceedings of its meetings.
(9)The Minister may make rules in relation to the holding of and procedure at meetings of the Commission.

9. Powers, duties and functions of Commission

(1)Subject to the provisions of this Act, the powers, duties and functions of the Commission shall be -(a)to administer the funds established by this Act or by or under any other law, the administration of which are assigned to the Commission;(b)to make recommendations to the Minister regarding the application of this Act, amendments thereto and the making of regulations;(c)to advise the Minister on any power, duty or function which may or is required to be exercised or performed in terms of this Act;(d)to inquire into and advise the Minister on matters relating to social security in Namibia including the administration of any fund or scheme, whether established by this Act or any other law, and the determination of contributions and benefits;(e)to acquire, hire and improve property required for the exercise and performance of such powers, duties and functions and, with the approval of the Minister and the Minister of Finance, dispose of such property;(f)with the approval of the Minister, to borrow money on the security of the assets of the Commission, or accept and administer any trust or donation;(g)to exercise such other powers and perform such other duties and functions as may be provided for in this Act or any other law,and generally, to do all such things as the Commission considers necessary or expedient in order to achieve the objects of this Act.
(2)(a)The Minister may, until such time as the Commission has been properly constituted under section 4, exercise any power and perform any duty or function conferred or imposed in terms of this Act or any other law upon the Commission.(b)Any power exercised and any duty or function performed by the Minister by virtue of the provisions of this subsection shall be deemed to have been so exercised or performed by the Commission.

10. Agreements

(1)Subject to subsection (2), the Commission may, subject to such conditions as may be determined by the Commission with the concurrence of the Minister, enter into an agreement with any financial institution or other institution approved by the Minister for the purpose of administering any fund or scheme contemplated m paragraph (a) of subsection (1) of section 9.
(2)The Commission may enter into an agreement with the State, any financial institution, regional council or other council referred to in paragraphs (b) and (c) respectively, of the definition of “state” in section 1 or the employer of the person concerned, providing for, on such terms and conditions as may be agreed upon -(a)the disbursement of benefits payable out of any fund referred to in subsection (1) to any person entitled thereto; and(b)the collection of contributions payable to any such fund by any person.
(3)The Minister may, with the concurrence of the competent authority, and subject to and on such terms and conditions as may be agreed upon, make State land or land controlled by the State or any facilities thereon or any other movable property available for -(a)the performance of the functions of the Commission;(b)the conducting of any schemes referred to in paragraph (a) of section 37(4); and(c)any such other purposes as may be approved by the Minister.

11. Committees of Commission

(1)The Commission may establish such committees as it considers necessary, which shall, subject to the instructions of the Commission, investigate and report to the Commission on any matter falling within the scope of the functions of the Commission.
(2)A committee shall consist of -(a)any number of members of the Commission of whom one shall be designated as chairperson of the committee; and(b)such number of other persons as the Commission considers necessary,and the Commission may at any time dissolve or re-establish a committee.
(3)The provisions of section 5(2), (3) and (4) shall apply mutatis mutandis to a member of a committee appointed under this section.

12. Executive officer and other employees

(1)The Commission shall, after consultation with the Minister, appoint an executive officer for the performance of the functions of the Commission who shall hold office for a period of five years and be eligible for re-appointment at the expiration of that period.
(2)Subject to section 22(3) of the Public Enterprises Governance Act, 2006, the Commission shall determine the remuneration and other conditions of service of the executive officer and his or her service benefits, including the provision or supply of medical aid benefits, housing facilities or benefits and the provision for and payment of gratuities and pensions.[Subsection (2) is substituted by Act 2 of 2006, as amended by Act 8 of 2015. The Public Enterprises Governance Act referred to is Act 2 of 2006.]
(3)Section 6 shall apply mutatis mutandis to the executive officer.
(4)If the executive officer is unable to perform his or her functions, the chairperson of the Commission may designate any other employee in the employment of the Commission to act as executive officer until the executive officer can resume his or her functions.
(5)The Commission may appoint such other employees as it considers necessary to assist the executive officer in the performance of the functions of the Commission.
(6)The Commission may in consultation with the Minister determine the remuneration and other conditions of service of the employees, and their service benefits, including provision or supply of medical aid benefits, housing facilities or benefits and the provision for and payment of gratuities and pensions.
(7)The Commission may, in addition to the employees referred to in subsection (5) and on such conditions as may be agreed upon, obtain the services of any competent person, including, subject to section 17, an actuary, to advise the Commission in connection with or assist it in the performance of its functions.
(8)Any person outside the employment of the Commission may, on such conditions as may be determined by it, be employed for any particular service or for any period of time.
(9)The power to make appointments under this section shall be subject to section 58 of the Employees’ Compensation Amendment Act, 1994.

13. Duty of member to disclose interest

(1)A member or employee of the Commission who or whose spouse in any way has a material interest in an agreement entered into or to be entered into by the Commission, or who or whose spouse acquires such interest after such agreement has been entered into, shall disclose to the Commission full particulars of such interest.
(2)The disclosure of an interest shall be in writing and shall be submitted to the executive officer at or before the meeting of the Commission at which the issue of entering into the particular agreement is considered for the first time, or if the interest is acquired after that agreement has been entered into, at or before the first meeting of the Commission to be held after the acquiring of such interest.
(3)The disclosure of an interest under this section shall be entered in the minutes of the meeting of the Commission at which such disclosure is submitted.
(4)Any member or employee of the Commission who fails to comply with the provisions of this section shall be guilty of an offence.

14. Limitation of liability

Neither the Commission, nor any person engaged in carrying out any provision of this Act, shall be liable in respect of anything done or omitted in good faith and not attributable to intent or negligence in the exercise of a power or the performance of a duty or function under or by virtue of this Act or in respect of anything that may result therefrom.

15. Preservation of secrecy

(1)Every person engaged in carrying out any provision of this Act shall preserve and aid in preserving secrecy in relation to all matters that may come to his or her knowledge in the exercise of the powers or the performance of the duties and functions conferred or imposed upon him or her in terms of any provision of this Act, and shall not communicate any such matter to any other person or permit any other person to have access to any documents in his or her possession or custody, except in so far as any such communication -(a)is made in the ordinary course of the exercise of his or her powers or the performance of his or her duties under this Act or any other law, or is required by an order of a competent court;(b)is effected with the prior permission in writing of the person concerned.
(2)Any person who contravenes or fails to comply with the provisions of subsection (1) shall be guilty of an offence.

Part III – Administration of funds


16. Administration of funds

(1)The Commission shall, in accordance with sound business principles, administer every fund referred to in paragraph (a) of subsection (1) of section 9.
(2)(a)The Commission shall in respect of every such fund, open a current account with a banking institution registered under section 4 of the Banks Act, 1965 (Act 23 of 1965), into which shall be deposited all moneys accruing to the fund concerned.[The Banks Act 23 of 1965 has been replaced by the Banking Institutions Act 2 of 1998.](b)No moneys shall be withdrawn from any such account except by means of cheques signed by the executive officer and one other employee of the Commission specifically authorised thereto by the Commission, or by two such employees so authorized.
(3)The Commission may, after consultation with the Minister, invest such moneys of any fund administered by it which are not required to meet administrative expenses or the payment of benefits under this Act -(a)with any financial institution;(b)with the Post Office Savings Bank controlled and managed by Namibia Post Limited established by section 2 of the Posts and Telecommunications Companies Establishment Act, 1992 (Act 17 of 1992);(c)with such other institution approved by the Minister;(d)in any shares, securities, stocks, property or commercial enterprise approved by the Minister.
(4)The Commission shall, in accordance with such equitable principles and accounting principles relating to the allocation of administrative expenses as it may determine after consultation with the Auditor-General, recover such expenses from every such fund.
(5)The Commission shall not apply any moneys accruing to a particular fund for the payment of benefits which are payable out of moneys accruing to another fund.
(6)For the purposes of this section, “administrative expenses” means all expenses incurred in the administration of any fund and includes -(a)the payment of remuneration, allowances or fees due to members of the Commission and of any committee, the executive officer and other employees of the Commission and persons contemplated in section 12(7);(b)the cost of property acquired and all other expenses incurred which are necessary and incidental to the exercise and performance of the powers, duties and functions of the Commission.

17. Valuation of funds

The assets of every fund shall be valued and its liabilities be determined -(a)during the first three financial years after the commencement of this Act, once in every such financial year;(b)thereafter at such times as may be considered necessary by the Commission, but not less than once every three years,by an actuary appointed by the Minister m order to determine the sufficiency of such fund.

18. Accounting responsibility

(1)The executive officer shall be the accounting officer of the Commission, and as such shall be charged with the responsibility of accounting for all moneys received, the utilization thereof and the use and care of the property of the Commission.
(2)The accounting officer shall cause such records of account to be kept as are necessary to represent fairly the state of affairs and business of the Commission and any fund, and to explain the transactions and financial position of the Commission and such fund.

19. Auditing, furnishing of information and reports

(1)The Auditor-General shall audit the books of account, accounting statements and annual financial statements of the Commission and every fund and shall submit a copy of his or her report on such audit to the Commission.
(2)The Commission shall furnish the Minister with such information as the Minister may call for from time to time in connection with the activities and financial position of the Commission and any fund and shall as soon as practicable after the end of each financial year contemplated in subsection (4), submit to the Minister in respect of the financial year concerned, copies of -(a)the audited balance sheet and profit and loss accounts and the report of the Auditor-General; and(b)a report by the Commission on its activities during that financial year.
(3)The financial statements and reports submitted to the Minister in terms of subsection (1), shall be tabled in the National Assembly by the Minister within 30 days after receipt thereof, if Parliament is then in ordinary session or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ordinary session.
(4)The financial year of the Commission shall end on the last day of February in each year.

Part IV – Registration and membership of funds


20. Registration

(1)Subject to subsection (3), every employer shall, in the prescribed manner and within the prescribed period, register -(a)himself or herself with the Commission as an employer; and(b)every employee employed by him or her, as an employee,for the purposes of this Act.
(2)Notwithstanding subsection (1), a self-employed person who does not employ any other person may, in the prescribed manner, voluntarily register himself or herself under that subsection as an employer and employee for the purposes of this Act.
(3)The name and such other prescribed particulars of every employer and employee registered under this section shall be recorded in a prescribed register to be kept by the Commission, and a prescribed certificate of registration, which shall, in the case of an employee, be known as a social security card, shall be issued to every employer and employee so registered.
(4)Any person who fails to comply with subsection (1) shall be guilty of an offence.

21. Membership of funds and payment of contributions

(1)Every employee registered under section 20 shall be a member of -(a)the Maternity Leave, Sick Leave and Death Benefit Fund;(b)the National Medical Benefit Fund, except if he or she is a member of any other medical fund or scheme approved by the Minister on recommendation of the Commission;(c)the National Pension Fund, except if he or she is a member of any other pension fund or scheme approved by the Minister on recommendation of the Commission.
(2)Subject to the provisions of this section, every employer and employee contemplated in subsection (1) shall be liable in respect of the prescribed contributions payable by every such employer and employee to every fund of which the employee is a member.
(3)Different contributions contemplated in subsection (2) may be prescribed in respect of different categories of employers or employees.
(4)An employer shall, subject to the regulations contemplated in subsection (2), deduct the contributions payable by his or her employee from such employee’s remuneration and pay it, together with the contributions payable by him or her as employer, over to the Commission within the prescribed period.
(5)A self-employed person registered as an employee in terms of section 20 shall pay both the contributions payable by an employer and an employee as contemplated in subsection (2).
(6)Subject to the provisions of this section, no claim for any benefit payable under this Act shall be considered by the Commission unless -(a)the person to whom such claim relates has been a member of the fund concerned for a continuous period of at least six months before the date on which such claim arose; and(b)all contributions payable in respect of his or her membership of such fund have been paid in full.
(7)The Commission shall, notwithstanding anything to the contrary in any law contained -(a)where paragraph (a) of subsection (6) had been complied with in respect of the employee concerned, not refuse any claim referred to in that subsection if, in the case of -(i)an employee who, subsequent to his or her dismissal from his or her employment or his or her subjection to disciplinary action, was reinstated or re-employed by his or her employer, whether by virtue of an order contemplated in section 46(1) of the Labour Act, or by virtue of a settlement agreed between such employee and his or her employer, the contributions contemplated in paragraph (b) of that subsection were not paid over because of his or her dismissal or of disciplinary action taken against him or her prior to the reinstatement or re-employment by such employer or the issue of such order, as the case may be;(ii)an employer who failed to pay over the full amount of such contributions, the employee concerned submits proof to the satisfaction of the Commission that the contributions deductable from his or her remuneration were in fact so deducted;[The word “deductible” is misspelt in the Government Gazette, as reproduced above.](b)where the said subsection (6) had not been complied with in respect of any female person concerned, not refuse any claim for maternity benefits if the failure to so comply was due to the termination of her employment by her employer within a period of three months before the actual date of confinement;(c)not refuse any claim which arose within the period of six months following immmediately upon the date of commencement of this Act, if -[The word “immediately” is misspelt in the Government Gazette, as reproduced above.](i)such claim is submitted within the period of 12 months following immediately upon such date of commencement; and(ii)all contributions payable in respect of the membership of the employee concerned have been paid in full in respect of the continuous period of six months preceding the date on which such claim for such benefits is submitted.
(8)Notwithstanding subsection (6) and without prejudice to subsection (7)(b), the Commission shall accept a claim for any benefit under this Act submitted by any person who, by reason of the termination of his or her employment, has ceased to be a member of the fund and to pay the contributions contemplated in paragraph (b) of the said subsection (6): Provided that -(a)such person, at the time when he or she ceased to be such a member, complied with the said subsection (6); and(b)such claim is submitted within the period prescribed for the purposes of this subsection following the cessation of his or her membership.
(9)Any person who ceases to be a member by reason of the termination of his or her employment and who, at the time that he or she so ceases to be a member, complied with subsection (6), shall, if he or she resumes his or her membership of the fund concerned within the period prescribed for the purposes of this subsection, be deemed, for the purposes of the said subsection (6), not to have ceased to be such a member or to have paid the contributions contemplated in that subsection.
(10)Different periods may be prescribed under subsections (8) and (9) in respect of different periods of employment served before the cessation of membership contemplated in those subsections.
(11)An employer who recovers from an employee any contribution or any portion thereof which is payable by the employer in respect of that employee, shall be guilty of an offence.
(12)An employer who deducts any contribution from the remuneration of an employee and fails to pay over such contribution to the Commission within the prescribed period, shall be guilty of an offence.

22. Keeping of records and furnishing of returns by employer

(1)An employer shall, in addition to the records to be kept under section 4 of the Labour Act, keep in respect of every employee employed by him or her, whether or not such employee has been registered in terms of section 20, records in the prescribed form of the contributions deducted from the employee’s remuneration and which have been paid over to the Commission in terms of section 21(4) and such other particulars as may be prescribed.
(2)An employer shall retain the records referred to in subsection (1) and any other prescribed documents relating to the payment of contributions at his or her place of business in Namibia for a period of five years, and shall keep such records or documents available for inspection on demand by an authorized person or the employee concerned.
(3)An employer shall, when paying over contributions to the Commission, submit to the Commission a return in the prescribed form containing the prescribed particulars in respect of the period for which such payment is being made.
(4)Any person who fails to comply with any provision of this section shall be guilty of an offence.

23. Offences relating to contributions, records and returns

(1)Any -(a)employer who fails to pay the contributions referred to in, and within the period prescribed under section 21;(b)person who, with intent to evade the payment of contributions referred to in section 21 or to reduce the amount of such contributions or to assist any other person in avoiding such payment or in reducing such amount -(i)makes or causes or allows to be made any false statement or false entry in a return referred to in section 22, or signs any such return without reasonable grounds for believing the contents or any part thereof to be true;(ii)prepares or maintains or authorizes the preparation or maintenance of any false books of account or other records or authorizes the falsification of any books of account or other records;(iii)gives any false answer, whether orally or in writing, to any request for information made under this Act by the Commission, any committee thereof or any authorized person; or(iv)makes use of any fraud, art or contrivance whatsoever, or authorizes the use of such fraud, art or contrivance,shall be guilty of an offence.
(2)Any person found guilty of an offence referred to in subsection (1) shall on conviction be liable to a fine not exceeding N$8 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

24. Interest levied on late payment of contributions

If an employer fails to pay the contributions referred to in, and within the period prescribed under, section 21, interest shall be payable on such arrear contributions at such rate, calculated from such date and at such intervals as may be prescribed.

25. Failure to pay, and recovery of, contributions

(1)Any contribution or interest payable in terms of section 21 or 24, respectively, shall, when such contribution or interest becomes due or is payable, be a debt due and payable to the Commission.
(2)(a)If an employer fails to pay any contribution or interest when it becomes due or is payable, the executive officer may, irrespective of whether any criminal proceedings contemplated in section 21(12) have been instituted against such employer, file with the clerk or registrar, as the case may be, of any competent court a statement in the prescribed form certified by the executive officer as correct and setting forth the amount of the contributions or interest so due or payable by such employer, and the statement shall thereupon have the effect of, and any proceedings may be taken thereon as if it were, a civil judgement granted by the court concerned in favour of the Commission for a liquid debt in the amount specified in the statement.(b)The executive officer shall not file any statement referred to in paragraph (a), unless -(i)he or she has, mutatis mutandis in the manner prescribed by section 39(4), (5) and (6), caused to be served upon the employer concerned a notice in the prescribed form claiming payment of such contributions or interest within 21 days from the date of such service; and(ii)the said period of 21 days has expired.
(3)The executive officer may, by written notice addressed and delivered to the said clerk or registrar, withdraw any statement referred to in subsection (2) whereupon that statement shall, subject to subsection (4), cease to have any effect.
(4)The executive officer may, notwithstanding the withdrawal of a statement by him or her under subsection (3), at any time institute proceedings afresh under subsection (2) in respect of any contribution or interest referred to in the withdrawn statement.
(5)Notwithstanding section 46 of the Magistrate’s Courts Act, 1944 (Act 32 of 1944), the amount of any contributions or interest due or payable by an employer may, for the purposes of filing a statement under subsection (2), exceed the amount provided for in that section.
(6)Subject to the Insolvency Act, 1936 (Act 24 of 1936), and the Companies Act, 1973 (Act 61 of 1973), the executive officer may institute proceedings for the sequestration of the estate or the winding-up, as the case may be, of any employer in respect of whom a statement has been filed in terms of subsection (2), and for such purpose the executive officer shall be deemed to be the creditor in respect of any contributions or interest due or payable by that employer.[The Companies Act 61 of 1973 has been replaced by the Companies Act 28 of 2004.]

26. Discharge from liability

(1)No person shall be discharged from liability in respect of any moneys due to any fund without the authorization of the Commission.
(2)The Commission shall in every report referred to in paragraph (b) of subsection (2) of section 19 include particulars of any liability discharged under subsection (1)and its reasons therefor.

27. Principals and contractors

(1)If any person (in this section referred to as the principal) in the course of or for the purposes of his or her business operations enters into an agreement with any other person (in this section referred to as the contractor) for the execution by or under the supervision of the contractor of the whole or any part of any work undertaken by the principal, any employee engaged in such work shall be deemed to be the employee of the principal unless and until the employee has been registered under section 20(1) as the employee of that contractor and all contributions payable in respect of the employee have been paid.
(2)A principal who is held liable to pay any contributions by virtue of subsection (1)for which an employer is liable under this Act, may recover the amount thereof from the contractor concerned.
(3)A principal shall, after the registration of the employee of a contractor contemplated in subsection (1), ensure that any contribution payable by the contractor is duly paid, failing which the principal shall be personally liable in respect of such contribution.
(4)The Commission may upon the request of the principal, issue the principal with a prescribed certificate in which shall be stated whether the contractor -(a)has been registered as an employer;(b)has paid all contributions due by him or her,in respect of the work contemplated in subsection (1) and any employee concerned.

Part V – Maternity Leave, Sick Leave and Death Benefit Fund


28. Establishment of Maternity Leave, Sick Leave and Death Benefit Fund

(1)There is hereby established a fund to be known as the Maternity Leave, Sick Leave and Death Benefit Fund.
(2)The Fund shall be a juristic person.
(3)There shall be paid into the Fund -(a)the prescribed contributions payable to the Fund;(b)moneys appropriated by Parliament for the purposes of the Fund;(c)any interest or dividend earned in terms of section 16;(d)any fines paid by virtue of penalties imposed under this Act in respect of an offence involving the Fund;(e)any other moneys which may accrue to the Fund from any other source.
(4)The Fund shall, subject to the provisions of this Act, be applied to provide -(a)maternity leave benefits to every female employee;(b)sick leave benefits to every employee; and(c)death benefits to the dependants of every employee,who is a member of the Fund by virtue of subsection (1)(a) of section 21 and who has complied with the other provisions of that section.

29. Conditions relating to maternity leave benefits

(1)Subject to the provisions of this section, maternity leave benefits as prescribed shall be payable to a female member in respect of -(a)the period of four weeks before the expected date of her confinement, certified in writing by a medical practitioner to be such expected date; and(b)the period of eight weeks after the actual date of her confinement.
(2)Notwithstanding subsection (1), maternity leave benefits shall -(a)if the actual date of confinement of any female member precedes the expected date contemplated in subsection (1), be payable in respect of the period of four weeks which precedes such actual date of confinement;(b)if such expected date precedes such actual date of confinement, be payable in respect of the period of four weeks contemplated in paragraph (a) of subsection (1) and, in the discretion of the Commission, the number of days equal to the difference between such expected date and such actual date;(c)if the child concerned dies within two weeks after the actual date of confinement, be payable in respect of a further period of four weeks only, reckoned from the date of death.
(3)If a female member dies while receiving or being entitled to receive maternity leave benefits, such benefits shall, subject to the provisions of this Act and such conditions as the Commission may determine, be payable to the person in whose care the child concerned of such member is left or placed or any other person who is considered by the Commission to be a fit and proper person to administer such benefits on behalf of such child.
(4)No maternity benefits shall be payable to a female member who resumes her employment or takes up any other employment during any period referred to in this section.
(5)For the purposes of this section, “medical practitioner” means a medical practitioner registered or authorized to practise as a medical practitioner under the Medical and Dental Professions Act, 1993 (Act 21 of 1993), and includes a nurse or midwife registered or authorized to practise as a nurse or midwife under the Nursing Professions Act, 1993 (Act 30 of 1993).[The Medical and Dental Professions Act 21 of 1993 has been replaced by the Medical and Dental Act 10 of 2004. The Nursing Professions Act 30 of 1993 has been replaced by the Nursing Act 8 of 2004.]

30. Conditions relating to sick leave benefits

(1)Subject to the provisions of this section, sick leave benefits shall, in respect of a member who was incapable for at least 30 consecutive days, be payable as prescribed in respect of the number of days during which the member concerned was absent from work through incapacity which exceeds the number of days sick leave provided for in section 40 of the Labour Act.
(2)Not withstanding subsection (1), sick leave benefits shall not be payable in respect of a period of sick leave which exceeds two consecutive years.
(3)The Maternity Leave, Sick Leave and Death Benefit Fund shall, for the purposes of section 40 of the Labour Act, be deemed not to be a fund or organization contemplated in paragraph (a) of subsection (4) of that section.
(4)Notwithstanding the provisions of subsection (1), the Commission may in determining the amount of sick leave benefits payable to a member referred to in that subsection, make allowance for -(a)any disability pension referred to in section 2 of the National Pensions Act, 1992 (Act 10 of 1992);(b)any compensation referred to in section 38 or 39 of the Employees’ Compensation Act, 1941;(c)any compensation from a fund or organization contemplated in subsection (3); or(d)any compensation or remuneration from his or her employer,received by such member in respect of the period of sick leave.
(5)For the purposes of paragraph (d) of subsection (4), “remuneration” means the basic wage, salary or commission earned by the member concerned.

31. Conditions relating to death benefits

(1)Subject to the provisions of this section, the death benefits payable in respect of the death of every member, shall be as prescribed.
(2)Death benefits payable to a dependant by virtue of the death of a member shall, if such dependant is a minor, be paid to his or her guardian or to any other person who is considered by the Commission to be a fit and proper person to administer such benefits on behalf of the dependant.
(3)If a member -(a)retires or becomes permanently disabled, the full value of the death benefits which would have been payable had the member died on the date of his or her retirement shall be paid to him or her and no further benefits shall be payable;(b)dies without leaving any dependants, the death benefits shall be paid into his or her deceased estate.

Part VI – National Medical Benefit Fund


32. Establishment of National Medical Benefit Fund

(1)There is hereby established a fund to be known as the National Medical Benefit Fund.
(2)The Fund shall be a juristic person.
(3)There shall be paid into the Fund -(a)the prescribed contributions payable to the Fund;(b)moneys appropriated by Parliament for the purposes of the Fund;(c)any interest or dividend earned in terms of section 16;(d)any fines paid by virtue of penalties imposed under this Act in respect of an offence involving the Fund;(e)any other moneys which may accrue from any other source.
(4)The Fund shall, subject to the provisions of this Act, be applied to provide medical benefits to every employee who is a member of the Fund by virtue of subsection (1)(b) of 21 and who has complied with the other provisions of that section.
(5)The Medical Schemes Act, 1967 (Act 72 of 1967), shall, except in so far as the Minister determines otherwise by notice in the Gazette, not apply to the Fund.[The Medical Schemes Act 72 of 1967 has been replaced by the Medical Aid Funds Act 23 of 1995.]

33. Medical benefits payable

The medical benefits payable in respect of medical expenses incurred by any member, shall be as prescribed.

Part VII – National Pension Fund


34. Establishment of National Pension Fund

(1)There is hereby established a fund to be known as the National Pension Fund.
(2)The Fund shall be a juristic person.
(3)There shall be paid into the Fund -(a)the prescribed contributions payable to the Fund;(b)moneys appropriated by Parliament for the purposes of the Fund;(c)any interest or dividend earned in terms of section 16;(d)any fines paid by virtue of penalties imposed under this Act in respect of an offence involving the Fund;(e)any other moneys which may accrue from any other source.
(4)The Fund shall, subject to the provisions of this Act, be applied to provide pension benefits to every employee who is a member of the Fund by virtue of subsection (1)(c) of 21 and who has complied with the other provisions of that section.
(5)Subject to subsection (6), the Pension Funds Act, 1956 (Act 24 of 1956), shall, except in so far as the Minister determines otherwise by notice in the Gazette, not apply to the Fund.
(6)The Commission may, mutatis mutandis in accordance with section 19 of the said Pension Funds Act, 1956, grant a loan to a member for the purposes contemplated in subsection (5) of that section.

35. Pension benefits payable

The pension benefits payable in respect of the retirement, permanent disability or death of members, shall be as prescribed.

36. Transfer of membership and contributions

(1)Notwithstanding anything to the contrary in any law contained, any employee who -(a)is also a member of any pension or provident fund registered under section 4 of the said Pension Funds Act, 1956; and(b)qualifies for membership of the Fund,may at any time have his or her membership of, and the contributions made by him or her or on his or her behalf to, such pension or provident fund, transferred to the Fund.
(2)The procedures relating to the transfer of membership and contributions in terms of subsection (1), shall be as prescribed.

Part VIII – Development Fund


37. Establishment of Development Fund

(1)There is hereby established a fund to be known as the Development Fund.
(2)The said Fund shall be a juristic person.
(3)There shall be paid into the Fund -(a)such portion of the prescribed contributions payable to any other fund as may be determined by the Commission with the concurrence of the Minister;(b)moneys appropriated by Parliament for the purposes of the Fund;(c)any interest or dividend earned in terms of section 16;(d)any moneys received by way of donation; and(e)any other moneys which may accrue to the Fund from any other source.
(4)The Fund shall, subject to the provisions of this Act, be applied for -(a)the conducting of training schemes and employment schemes approved by the President for the benefit of socio-economically disadvantaged persons who are unemployed;(b)the granting of bursaries, loans and other forms of financial aid to students enrolled at any technical or academic institution of higher education.

Part IX – General and supplementary provisions


38. Authorized persons and investigations

(1)This section, in so far as it provides for a limitation on the fundamental rights contemplated in Subarticle (1) of Article 13 of the Namibian Constitution by authorizing interference with the privacy of any person’s home, correspondence or communication, is enacted upon the authority conferred by that Subarticle.
(2)The Commission may, for the purposes of the effective application of this Act, at any time authorize any one or more of its employees or, on such terms and conditions as may be determined by mutual agreement, any other person, who shall subject to the direction and control of the Commission, exercise and perform the powers, duties and functions conferred or imposed upon an authorized person by or under this Act and perform such other functions as the Minister may determine.
(3)An authorized person shall at the time of his or her authorization be furnished with a certificate of authorization in the prescribed form.
(4)Subject to subsection (5), an authorized person may, for the purposes of the application of this Act -(a)mutatis mutandis in accordance with chapter 2 of the Criminal Procedure Act, 1977 (Act 51 of 1977), at any reasonable time and without prior notice -(i)enter any premises which he or she has reason to believe is occupied or used by an employer in connection with any matter to which this Act relates or where any employee is employed;(ii)search for any book, record, statement, other document or thing used by any employer or which concerns any employee;(iii)seize or make any copy of or extract from such book, record, statement, other document or thing,as if such authorised person were a police official referred to in that Act and such book, record, statement, document or thing were concerned in the commission of any offence;(b)question any employer, employee or other person who is present on any such premises in connection with -(i)the registration with the Commission of, or the payment of any benefit to, any employee;(ii)the payment of contributions in respect of any employee; or(iii)any other matter to which this Act relates;(c)direct that such premises or any part thereof or anything therein be left undisturbed, whether generally or in any particular respects, for as long as it is reasonably necessary to search such premises for any book, record, statement, other document or thing prepared or used in connection with any matter to which this Act relates;(d)by notice in writing addressed and delivered to any person who has control over or custody of any such book, record, statement, other document or thing which has been prepared or used in connection with any matter to which this Act relates, require such person to produce such book, record, statement, other document or thing to him or her forthwith or at such place, date and time as such authorized person may determine;(e)examine any book, record, statement, other document or thing and require from any employer, employee or other person who is present on such premises or exercises control or custody as contemplated in paragraph (d), an explanation regarding any entry in such book, record, statement, other document or thing;(f)require a member of the Namibian Police Force, or request any other person, to assist him or her as an interpreter or otherwise in the exercise or performance of his or her powers, duties or functions under this Act.
(5)When an authorized person exercises or performs a power or duty under this Act in the presence of any person affected thereby, the authorized person shall on demand by such person produce to him or her the certificate issued to such authorized person in terms of subsection (2).
(6)A member of the Namibian Police Force required, or any other person requested, by an authorized person to assist him or her as provided in subsection (4)(f) may accompany such authorized person in the exercise or performance of his or her powers, duties or functions as if such member or person were an authorized person.
(7)Any employer, employee or other person in charge of any premises on which persons are employed, shall at all times furnish such assistance as are reasonably required by an authorized person in order to enable him or her to exercise or perform his or her powers, duties or functions effectively on or in any premises occupied or used by such employer, employee or other person.
(8)Whenever any work has been given out on contract to any person by a principal or contractor, any authorized person may exercise in relation to that principal or contractor all the powers in relation to an employer conferred upon an authorized person by this section.
(9)No person shall -(a)hinder or obstruct an authorized person in the exercise of or performance of his or her powers, duties or functions;(b)refuse or fail to comply to the best of his or her ability with any requirements made by an authorized person in the exercise or performance of his or her powers, duties or functions;(c)subject to Article 12(1)(f) of the Namibian Constitution, refuse or fail to answer to the best of his or her ability any question which an authorized person has lawfully put to him or her in the exercise or performance of his or her powers, duties or functions;(d)wilfully furnish information to an authorized person which is false or misleading;(e)falsely give himself or herself out as an authorized person.
(10)Any person who contravenes or fails to comply with subsection (5) or (9) shall be guilty of an offence.
(11)A member of the Commission may, subject to the provisions of this section, exercise any powers which are conferred under this section upon an authorized person.
(12)For the purpose of this section, “premises” include any building or structure, or part thereof, whether above or below the surface of the land or water, or any vehicle, vessel or aircraft.

39. Inquiries by Commission

(1)The Commission shall, for the purposes of this Act, have power to inquire into any matter in relation to -(a)any member of any fund;(b)any person who has applied for or is receiving any benefit in terms of this Act;(c)the employer of such member or person.
(2)The proceedings at such inquiry shall, in so far as is practicable, be minuted verbatim and the minutes of such inquiry shall be certified by the members of the Commission present at such meeting as being a true and accurate account of the evidence given at such inquiry, the exhibits presented and the decision of the Commission.
(3)The minutes referred to in subsection (2) shall be kept for a period of at least five years in safe-custody by the executive officer and shall for the purposes of an appeal in terms of section 45 be prima facie proof of the proceedings at such inquiry and the decisions taken by the Commission as a result of such inquiry.
(4)Any person in respect of whom an inquiry is to be held shall be notified in writing of such inquiry at least 21 days before the date of commencement of such inquiry by the delivery to such person of a notice in the prescribed form informing such person of the intended inquiry and the subject-matter thereof and obtaining from him or her an acknowledgement of receipt stating the place, date and time of receipt of the notice.
(5)Service of a notice in terms of subsection (4) shall be performed by -(a)any person designated for such purpose by the executive officer; or(b)any member of the Namibian Police Force designated for that purpose by the Inspector­ General of the Namibian Police Force.
(6)In the event of the person designated in terms of subsection (5) certifying that the person upon whom the notice is to be served -(a)cannot be traced;(b)refuses to accept such notice; or(c)refuses to sign the required acknowledgement of receipt,the executive officer may send such notice by registered letter to such person at his or her address as it appears in the records of the Commission.
(7)A notice sent by registered post shall be sent not less than 14 days prior to the date of the intended inquiry.
(8)If the person served with a notice in terms of subsection (4) or to whom a notice has been sent in terms of subsection (6) is not present at the commencement of the inquiry, the Commission may conduct the inquiry in the absence of such person.
(9)For the purpose of an inquiry the Commission may summon witnesses to appear at the specified place, date and time to give evidence before and to submit to the Commission any document, book, record or thing relevant to the inquiry.
(10)A summons contemplated in subsection (9) shall be substantially in the prescribed form and signed by the executive officer and shall be served either by registered letter or in the same manner as it would have been served if it were a subpoena issued by a magistrate’s court.
(11)Any person who, having been duly summoned -(a)refuses, or without sufficient cause fails, to attend the inquiry in question at the place, date and time specified in the summons;(b)refuses to take the prescribed oath or to make an affirmation when required to do so by the person presiding at the inquiry;(c)leaves the inquiry without the permission of the person presiding at such inquiry, whether or not such person has given evidence;(d)refuses to give evidence at the enquiry or refuses to answer fully and satisfactorily to the best of his or her knowledge and belief any question lawfully put to him or her or refuses to produce any document, book, record or thing which such person has in terms of the summons been required to produce,shall be guilty of an offence and on conviction be liable to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
(12)Every person summoned in terms of subsection (9) shall be entitled to all the privileges to which a witness subpoenaed to give evidence before the High Court is entitled.
(13)Any member, person or employer referred to in subsection (1) and who has been notified of an inquiry shall, if he or she is present at such inquiry, have the right, by himself or herself or through a representative referred to in section 44, to be heard at such inquiry, and for such purpose -(a)to give evidence under oath or affirmation;(b)to call witnesses to testify on his or her behalf;(c)to submit any document, book, record or any other thing relevant to the inquiry;(d)to examine any witness testifying against him or her.
(14)The Commission may appoint a person with adequate experience in the practice of law to be present at any inquiry and to advise the Commission on matters of law, procedure or evidence.
(15)For the purpose of the computation of any period referred to in subsections (4) and (7), no Saturday, Sunday or public holiday referred to in, or declared under, section 1 of the Public Holidays Act, 1991 (Act 26 of 1991), shall be regarded as a day contemplated in those subsections.
(16)Any person notified or summoned to appear before the Commission may, if the Commission is satisfied that he or she has by reason of such appearance suffered pecuniary loss or been put to any expense, be paid out of the fund concerned the prescribed allowances, or the amount of such loss and expense, whichever is the lesser.
(17)The person in respect of whom an inquiry was held shall, within 30 days after the completion of such inquiry, be notified of the Commission’s finding in the matter and of the steps (if any) which the Commission intends to take.
(18)Any person who gives false evidence under oath or affirmation at an inquiry in terms of this section knowing such evidence to be false, shall be guilty of an offence and on conviction be liable to the penalties prescribed by law for the crime of perjury.

40. Restrictions in respect of benefits payable in terms of Act

(1)Subject to the Maintenance Act, 1963 (Act 23 of 1963), and the Income Tax Act, 1981 (Act 24 of 1981), but notwithstanding the provisions of any other law, no benefits payable in terms of this Act, or any right to such benefits, shall be capable of being assigned, transferred, ceded, pledged or hypothecated, or be liable to attachment or any form of execution under any judgement or order of any court of law.[The Maintenance Act 23 of 1963 has been replaced by the Maintenance Act 9 of 2003.]
(2)If a person who is entitled to benefits in terms of this Act assigns, transfers, cedes, pledges or hypothecates such benefits or any right to such benefits, or attempts to do so, the Commission may withhold, suspend or cancel payment of such benefits.
(3)No benefits payable to any person in terms of this Act shall -(a)in any civil proceedings against him or her be included in his or her income or means;(b)in the event of the sequestration of his or her estate, form part of the assets of his or her insolvent estate.

41. Certain documents exempt from stamp duty

No stamp duty shall be payable in respect of any prescribed document or any power of attorney furnished by any person applying for or receiving a benefit in terms of this Act.

42. Exemption from income tax

No tax on income shall be payable by the Commission or in respect of any fund established by this Act or scheme referred to in section 37(4).

43. Review of benefits by Commission

(1)The Commission may at any time, but only after the person concerned has been notified and granted an opportunity to be heard, review any benefits granted and payable to any person in terms of this Act if -(a)upon the request of the Commission, he or she refuses or fails without sufficient cause to submit himself or herself to a medical examination;(b)in the case of a person receiving maternity leave, sick leave or medical benefits, such person has become -(i)addicted to intoxicating liquor or any dependence-producing substance or uses such liquor or substance excessively;(ii)mentally or physically disabled to such extent that he or she is unable to care for himself or herself or the child concerned;(c)(i)in the case of a person receiving sick leave or medical benefits, he or she refuses or fails without sufficient cause to submit himself or herself to medical or surgical treatment when considered necessary by the Commission; and(ii)in the opinion of the Commission, such refusal or failure is prolonging or aggravating the condition as a result of which the benefits have been granted to such person;(d)such benefits, if payable by way of instalments, have due to altered circumstances become either insufficient or excessive to meet the circumstances of the case;(e)such benefits, due to mistake or misrepresentation, have been incorrectly granted or granted in a wrong amount.
(2)The proceedings relating to the review of a benefit shall be in the form of an inquiry conducted mutatis mutandis in accordance with section 39.
(3)The Commission may, at the conclusion of the review proceedings -(a)confirm the benefits referred to in subsection (1) or increase, decrease, cancel, recover or substitute such benefits;(b)pay the benefits to any other person to administer it on behalf of the person or child concerned, as the case may be;(c)take any such other steps as the Commission may deem fit.

44. Representation

(1)Any person who has applied for a benefit in terms of this Act or who has been summoned to appear before the Commission for the purposes of an inquiry in terms of section 39, shall be entitled to appear before the Commission in person and to represent himself or herself or to be represented by -(a)any member of his or her family;(b)any person in his or her regular employ;(c)a legal practitioner;(d)in the case of a person who is an employee, an officer of the trade union of which he or she is a member;(e)in the case of a person who is an employer, an officer of the employers’ organization of which he or she is a member;(f)any prescribed person;(g)with the written approval of the Commission, any other person.
(2)No person other than a legal practitioner may, subject to subsection (3), recover from any person any fees or disbursements for representing such person in terms of subsection (1).
(3)Notwithstanding subsection (2), any person other than a legal practitioner may, when he or she represents any other person before the Commission, with the approval of the Commission, recover from the person on whose behalf he or she so appears, the reasonable expenses incurred by him or her relating to such representation.
(4)The fees and disbursements which may be recovered in terms of subsection (2) or (3) and the taxation of such fees and expenses by the Commission, shall be as may be prescribed.
(5)No person shall recover or attempt to recover any fees or expenses from any other person unless such fees or expenses have been taxed by the Commission.
(6)Any person who contravenes or fails to comply with subsection (5) shall be guilty of an offence.
(7)Subsection (5) shall not be so construed as to prohibit a legal practitioner who is an attorney to receive from or on behalf of any person which he or she, or a legal practitioner who is an advocate instructed by him or her, has to represent, an amount of money being an estimate of the fees and disbursements to be incurred relating to such representation, and to retain such money in trust pending the taxation of the fees and expenses actually incurred.
(8)For the purposes of this section, “legal practitioner” means any person enrolled as an advocate in terms of the Admission of Advocates Act, 1964 (Act 74 of 1964), or admitted to practise as an attorney in terms of the Attorneys Act, 1979 (Act 53 of 1979).[The Admission of Advocates Act 74 of 1964 and the Attorneys’ Act 53 of 1979 have been replaced by the Legal Practitioners Act 15 of 1995.]

45. Appeals against decisions of Commission

(1)Any person aggrieved by any decision of the Commission taken in the performance of the Commission’s functions in terms of this Act may, within a period of 60 days from the date upon which he or she was notified of such decision, appeal by notice in the prescribed form against such decision to the Labour Court established by section 15(1)(a) of the Labour Act.
(2)The Labour Court may, on good cause shown, allow an appeal to be noted in terms of subsection (1) notwithstanding the expiry of the said period of 60 days.
(3)An appeal to the Labour Court in terms of this section shall be subject to the provisions of the Labour Act and its regulations and such appeal shall, for the purposes of that Act, be deemed to be an appeal from a district labour court established by section 15(1)(b) of that Act.

46. Notices

For the purposes of the giving or receiving of returns, notices or other documents under this Act, the word “employer” shall include the manager, secretary, accountant, treasurer or duly authorised agent of the employer concerned or any other responsible person designated by him or her.

47. Regulations

(1)The Minister may, on the recommendation of the Commission, make regulations in relation to -(a)the entering into agreements, handling of funds and keeping of books by the Commission;(b)except as otherwise provided by this Act, any fees, contributions or benefits payable under this Act;(c)the form of the registers and certificates to be kept or which may be issued in terms of this Act;(d)the procedure to be followed in the submission of claims and the requirements with which claims should comply;(e)the manner in which the Commission may execute or perform any power, duty or function in terms of this Act;(f)the management and control of any fund established by this Act and any training scheme referred to in section 37(4);(g)all other matters in general which are by this Act required or permitted to be prescribed or which are necessary or expedient to be prescribed m order to achieve the purposes of this Act.
(2)Any regulation made under this section may, except as otherwise provided in this Act, prescribe a fine not exceeding N$2 000 or imprisonment for a period not exceeding six months as a penalty for the contravention of such regulation or failure to comply therewith or both such fine and such imprisonment.

48. Delegation

(1)The Minister may, on such conditions as he or she considers appropriate, delegate in writing to the Commission or the Permanent Secretary any power conferred upon him or her, excluding the powers conferred by section 47.
(2)The Permanent Secretary may, on such conditions as he or she considers appropriate and with the approval of .the Minister, delegate to any officer in the Ministry of Labour and Human Resources Development any power conferred upon or delegated to him or her.
(3)The Commission may, on such conditions as it considers appropriate, delegate to a committee, the executive officer or any other employee of the Commission or any authorised person, if he or she is not such an employee, any power conferred upon or delegated to it, excluding the power to advise the Minister in terms of section 9(1)(d).
(4)The executive officer may, on such conditions as he or she considers appropriate and with the approval of the Commission, delegate to any employee of the Commission any power conferred upon or delegated to the executive officer.
(5)No delegation shall prevent the exercise of the relevant power by the Minister, Permanent Secretary, Commission or executive officer, as the case may be.

49. Penalties

Any person found guilty of an offence under this Act shall, unless otherwise provided, on conviction be liable to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding 12 months, or to both such fine and such imprisonment.

50. Short title and commencement

(1)This Act shall be called the Social Security Act, 1994, and shall come into operation on a date to be determined by the Minister by notice in the Gazette.
(2)Different dates may be determined under sub­ section (1) in respect of different provisions of this Act.
(3)Any reference in any provision of this Act to the commencement of this Act shall be construed as a reference to the date determined under subsection (2) in relation to such provision.

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