Namibia Film Commission Act, 2000
Act 6 of 2000
[Amended by Namibia Film Commission Amendment Act, 2001 (Act 11 of 2001) on 28 September 2001]
ACTTo provide for the establishment of the Namibia Film Commission; to provide for the objects, powers, duties and functions of the Commission; to provide for the establishment of the Film and Video Development Fund; to regulate activities relating to film production, and the development and promotion of a film industry in Namibia; and to provide for matters incidental thereto.BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:-
In this Act, unless the context otherwise indicates -“alternate member” means an alternate member of the Commission appointed under section 5(6);“authorization” means an authorization granted under section 20 to produce a film in Namibia;“Commission” means the Namibia Film Commission established by section 2;“film” means any sequence of visual or digital images recorded on material of any description, and includes audio-visual productions such as cinematographic film, video, television and interactive media, so as to be capable, by the use of that material -(a)of being shown as a moving image; or(b)of being recorded on other material by the use of which it can be shown as a moving image,but does not include any production being a report on news or current affairs;“film production” means to produce for sale or commercial exploitation any film, and includes the organization and preparation for such production, directing and operating of cameras, and “produce a film” shall have a corresponding meaning;“film producer” means a person responsible for the film production;“Fund” means the Film and Video Development Fund established by section 14;“member” means a member of the Commission appointed under section 5(1), and includes in circumstances contemplated in section 5(6)(b), an alternate member;“Minister” means the Minister responsible broadcasting services;“Ministry” means the Ministry responsible for the administration of broadcasting services;“person” shall include any company incorporated or registered as such under any law and any body of persons corporate or unincorporate;“prescribed” means prescribed by regulation under section 28;“secretary” means the secretary of the Commission appointed under section 12(1);“this Act” includes the regulations made under section 28.
Part I – NAMIBIA FILM COMMISSION
2. Establishment of Commission
There is hereby established a commission to be known as the Namibia Film Commission.
3. Objects of Commission
The objects of the Commission shall be to support, encourage and promote the development of film production, the film industry and film marketing in Namibia, by -(a)promoting Namibia as a location for film production on the international market;(b)attracting film producers and facilitating their initiatives to carry out film productions in Namibia;(c)encouraging film producers to employ or make use of Namibian personnel and facilities for film production; and(d)establishing relationships with any local or international person which may contribute to the development and promotion of the film industry in Namibia.
4. 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 Fund;(b)to authorize under section 20 the film productions referred to in that section;(c)to provide information with regard to -(i)Namibian writers, audio-visual technicians, actors, performers, and musicians;(ii)hotels, caterers, transportation and other facilities in Namibia;(iii)legislation and regulations relevant to the film making industry, including information in respect of Namibian work permits and visas, customs procedures, taxation, traffic, employment, and environmental legislation and any other matters likely to affect film producers contemplating film production in Namibia;(d)to ensure that the terms and conditions of any authorization issued under this Act are complied with;(e)to enter into any agreement, with the approval of the Minister with the concurrence of the Minister of Finance, with any person with expert knowledge in a particular field to assist or advise the Commission in connection with any matter relating to its objects on such conditions as may be mutually agreed upon;(f)to undertake such investigations or research with regard to its objects as it may deem necessary or the Minister may require;(g)to advise the Minister on matters pertaining to its functions; and(h)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 in terms of this Act, 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 paragraph (a) shall be deemed to have been exercised or performed by the Commission.
5. Constitution of Commission
(1)The Commission shall comprise five members appointed by the Minister, of whom -(a)one shall be a staff member in the Ministry;(b)one shall be a person nominated by the Minister of Home Affairs;(c)one shall be a person nominated by the Minister of Environment and Tourism; and(d)two shall be persons nominated by a body recognised by the Minister as representing film producers;(2)(a)In order to appoint a person referred to in paragraph (d) of subsection (1) or an alternate for a member so appointed, the Minister shall in writing request a body recognised by the Minister as representing film producers to submit to him or her within 30 days after the date of the request the name of a person who in its opinion represents its interests and is a fit and proper person to be appointed as a member of the Commission.(b)The Minister may appoint a person considered by him or her as suitable as a member or alternate member of the Commission under subsection (1)(d), if no nomination is submitted to him or her within the period specified in the relevant request under paragraph (a).(3)The Minister shall, in appointing persons as members under subsection (1), ensure that at least a one third of the members so appointed are female persons.(4)Notwithstanding subsection (1), a person shall not be eligible for appointment as a member referred to in that subsection, if he or she -(a)is not a Namibia citizen or lawfully admitted to Namibia for permanent residence therein and resident in Namibia;(b)is a member of Parliament or a local authority or regional authority;(c)has been convicted of an offence in any country and sentenced to a term of imprisonment without the option of a fine; or(d)is an unrehabilitated insolvent.(5)The members of the Commission shall elect from among their number a chairperson and a vice-chairperson.(6)(a)The Minister may, at the request of the Commission, appoint for every member of the Commission other than the chairperson, on such conditions and for such period as may be determined by him or her, an alternate member in the same manner as such member, and may terminate the appointment at any time.(b)Any alternate member appointed in terms of paragraph (a) shall during the absence of the member with respect to whom he or she has been appointed, or such member’s inability to act as member, act as member of the Commission or a committee thereof in the place of that member.(c)The provisions of sections 6(2)(a), (b) and (c) shall apply mutatis mutandis in relation to an alternate member appointed in terms of paragraph (a).(7)The Minister shall in the Gazette make known the names and the periods of office of members or alternate members appointed under this section.
6. Tenure and vacation of office of member
(1)Subject to subsection (2), a member shall hold office for a period of three years, but may be re-appointed as a member at the expiration of that period.(2)A member shall vacate his or her office as member, if he or she -(a)resigns from office as a member by writing under his or her hand addressed and delivered to the Minister;(b)has, without sufficient reasons or the leave of the Commission, been absent from three consecutive meetings of the Commission;(c)has become subject to any disqualification referred to in section 5(4); or(d)is removed from office under subsection (3) of this section.(3)The Minister may remove any member from his or her office, if -(a)the Minister is satisfied that such member is by reason of his or her physical or mental condition or for any other reason incapable of acting as such member;(b)such member is guilty of conduct which renders him or her unable or unfit to efficiently discharge the functions of the office as a member or has contrary to the provisions of section 10 divulged any matter which has been entrusted to him or her under secrecy or has taken part in the discussion of, or has voted in connection with, any matter referred to in section 11,but the Minister may only so remove a member from office after giving notice to such member and after affording him or her a reasonable opportunity to be heard.(4)Any vacancy on the Commission arising from any circumstance referred to in subsections (2) and (3) of this section, or caused by the death of any member of the Commission, shall, with due regard to the provisions of section 5, be filled for the unexpired portion of the period of office of the member who has vacated his or her office or who has died, as the case may be.
7. Meetings and decisions of Commission
(1)(a)The first meeting of the Commission shall be held at such place and time as the Minister may determine, and any meeting of the Commission thereafter shall be held at such time and place as the Commission may determine.(b)If the Commission has determined the time and place of a meeting and there cannot for any reason be a meeting held at that time and place, the secretary shall, after consultation with the chairperson of the Commission, determine the time and place of the next meeting of the Commission.(2)The majority of the members of the Commission shall form a quorum for any meeting of the Commission.(3)The chairperson of the Commission or, in the absence of the chairperson, the vice-chairperson, shall preside at all meetings of the Commission at which he or she is present and if both the chairperson and the vice-chairperson of the Commission are absent from any meeting, the members present shall elect one of their number to preside at that meeting and the member so elected may during that meeting perform all the functions and exercise all the powers of the chairperson.(4)The decision of the majority of the members present at any meeting of the Commission shall constitute a decision of the Commission, and in the event of an equality of votes the person presiding shall have a casting vote in addition to his or her deliberative vote.(5)The chairperson of the Commission may at any time, and shall on the written request of at least one-third of the members of the Commission or the Minister, convene a special meeting of the Commission.(6)The Commission may in its rules made in terms of section 27 determine the procedure at its meetings and the meetings of any of its committees.(7)No decision taken by the Commission or an 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 a person who is not entitled to sit a member sat as a member when the decision was taken or the act was authorized, if the decision was taken or the act was authorized by the requisite majority of members present at the time and entitled to sit as members.(8)Notwithstanding the provisions of subsection (4), a written resolution not passed at a meeting of the Commission, but signed by all the members at the time present in Namibia and sufficient to constitute a quorum, shall be as valid and effectual as if it had been passed at a meeting of the Commission duly convened and constituted, and such resolution shall be recorded in the minutes of the next ensuing meeting of the Commission.(9)The Commission shall cause written records to be kept of the proceedings of its meetings.
(1)The Commission may from time to time establish one or more committees to advise it on such matters as the Commission may refer to it, or to assist the Commission in the exercise of such of its powers or the performance of such of its duties and functions under this Act as the Commission may delegate or assign to it, and the Commission may give directives in connection with such delegation or assignment as it may deem expedient.(2)A committee established under subsection (1) shall consist of such members of the Commission, including alternate members, as the Commission may appoint to the committee.(3)The Commission may designate any member of a committee to be the chairperson thereof.(4)The Commission shall not be divested of a power, function or duty delegated or assigned by it to a committee and may amend or set aside any decision of such a committee made in the exercise of such delegated powers or in the performance of such assigned functions or duties.(5)The Commission may at any time dissolve or re-establish a committee.
9. Remuneration and expenditure
(1)A member or alternate member who is not the full time employment of the Public Service shall be paid out of moneys appropriated by Parliament for such purpose such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance, and such remuneration and allowances may differ according to -(a)the different offices held by such members or alternate members; or(b)the different functions performed, whether in a part-time or full-time capacity, by such members or alternate members from time to time.(2)The expenditure in connection with the application and administration of this Act and the exercise and performance of the powers, duties and functions of the Commission shall be paid out of moneys appropriated by Parliament for such purpose.
10. Preservation of secrecy
Every person engaged in carrying out the 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 Commission or person concerned.
11. Disclosure of interest
(1)A member who has in any way a direct or indirect material interest in any financial assistance from the Fund or authorization granted or to be granted under this Act, or who acquires such interest after such financial assistance or authorization has been granted, shall disclose to the Commission full particulars of such interest.(2)The disclosure of interest shall be in writing and shall be submitted to the secretary at or before the meeting of the Commission at which the issue of the particular financial assistance or authorization is considered for the first time, or if the interest is acquired after such financial assistance or authorization has been granted, at or before the first meeting of the Commission to be held after the acquiring of such interest, and if such financial assistance or authorization is discussed by the Commission during a meeting thereof, such member shall withdraw from that meeting during the discussion and he or she shall not participate in any voting in connection therewith.(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)A member who fails to comply with subsections (1) and (2) commits an offence and is liable on conviction to a fine not exceeding N$2000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
12. Administrative functions
(1)The Minister shall designate a staff member in the Ministry as the secretary of the Commission.(2)The secretary shall, in addition to such powers, duties and functions as this Act may confer or assign to him or her and such other functions as the Commission may delegate to or impose upon him or her, be responsible for the efficient administration of the functions of the Commission.(3)In the exercise of its powers and the performance of its duties and functions under this Act, the Commission and its secretary shall be assisted by staff members in the Ministry, made available for that purpose by the Permanent Secretary.(4)The secretary, or a staff member referred to in subsection (3) and authorized thereto by the secretary, shall attend meetings of the Commission, but shall have no right to vote on any matter before the Commission.
13. Report to Minister
(1)The Commission shall, not later than 31 October of every year, submit to the Minister a report on the activities of the Commission and the report of the Auditor-General referred to in section 17(3) in respect of the immediately preceding financial year.(2)The Minister shall lay the reports referred to in subsection (1) upon the Tables of the National Assembly within twenty eight days of receipt thereof, if the National Assembly is in ordinary session, or if the National Assembly is not sitting in ordinary session, then within twenty eight days after the commencement of its first ensuing ordinary session.
Part II – FILM AND VIDEO DEVELOPMENT FUND
14. Film and Video Development Fund
(1)There is hereby established a fund to be known as the Film and Video Development Fund.(2)The Fund shall be credited with -(a)moneys appropriated by Parliament for purposes of the Fund and paid for the benefit of the Fund at such times and in such manner as the Minister may determine;(b)moneys accruing to the Fund from any other source, including donations or grants made for the benefit of the Fund;(c)prescribed fees received by the Commission for granting, renewing or transferring any authorization in terms of this Act;(d)moneys, including interest, received by means of, or in respect of the repayment of any loan granted from the Fund in terms of section 16;(d)interest derived from the investment of moneys standing to the credit of the Fund.(3)The moneys available in the Fund shall be utilized -(a)to establish a film industry in Namibia;(b)to financially assist Namibia film producers; and(c)to develop, produce and distribute Namibian film, video and television production projects.(4)Donations to the Fund shall be utilized in the manner as agreed to between the Commission and the donor concerned.(5)Any unexpended balance in the Fund at the close of any financial year, including accrued interest on investment balances and other receipts, shall be carried forward as a credit in the Fund to the next ensuing financial year.
15. Management of Fund
(1)The Fund shall be managed and controlled by the Commission in accordance with an estimate or a supplementary or revised estimate of revenue and expenditure approved by the Minister in respect of each financial year of the Fund, and no expenditure payable from the Fund may be incurred except in accordance with such approved estimate of expenditure.(2)The secretary shall be the accounting officer in relation to the affairs of the Fund and shall, subject to the directions of the Commission and in accordance with its rules made under section 27, be responsible for the administrative functions pertaining to the Fund, including -(a)the collection and recovery, for the benefit of the Fund, of all moneys due or accruing to the Fund; and(b)the administrative control over payments from the Fund.(3)The Commission shall in the name of the Fund open and maintain an account-(a)with any banking institution or building society registered under the laws governing banking institutions and building societies in Namibia; or(b)with the Post Office Savings Bank controlled and managed by Namibia Post Limited established under the Post and Telecommunications Companies Establishment Act, 1992 (Act No. 17 of 1992),into which shall be deposited all moneys received by the Fund and from which all payments from the Fund shall be made.(4)No payments shall be made out of the account referred to in subsection (3), except -(a)by means of a cheque or withdrawal slip, as the case may be, signed by the chairperson and one other member of the Commission specifically authorized thereto by the Commission or by two such members so authorized; and(b)on authority of the Commission, reflected in the records referred to in section 7(9).(5)The Commission may, with the approval of the Minister and with the concurrence of the Minister of Finance, invest any moneys standing to the credit of the Fund which is not required for immediate use under this Act -(a)with any banking institution or building society registered in terms of the laws governing banking institutions and building societies in Namibia; or(b)with the Post Office Savings Bank controlled and managed by Namibia Post Limited established under the Post and Telecommunications Companies Establishment Act, 1992.
16. Disbursements from Fund
(1)The Commission may, either by way of donation or loan and on such conditions as it may determine, of its own accord or on application made to it in such form as it may determine, render from the Fund financial assistance to any person for any purpose referred to in section 14(3), including -(a)to provide training courses or training facilities in respect of film, video or television production;(b)for tuition, boarding fees, maintenance or travelling allowances to persons attending training courses in respect of film, video or television production.(2)The Commission may, for the purpose of rendering financial assistance in terms of subsection (1), require from the person in relation to whom such assistance is being considered, to furnish the Commission with such particulars or information or to submit or make available to it such books, documents, statements or records as it may require.(3)The Commission may require from a beneficiary of any financial assistance under subsection (1) to furnish it with such particulars and information or to submit or make available to it such documents, statements or records in respect of the appropriation of moneys paid to such beneficiary under that subsection, as it may require.
17. Financial year, bookkeeping and auditing of books and accounts
(1)The financial year of the Fund shall end on 31 March of every year, the first such financial year commencing on the first day of the month immediately following the month during which the Fund was established.(2)The secretary shall -(a)keep such account books as are necessary to represent fairly the state of affairs and business of the Fund and to explain the transactions and financial position of the business of the Fund;(b)as soon as possible, but not later than three months after the end of each financial year, submit such accounts to the Auditor-General for audit.(3)The Auditor-General shall submit a report on every audit of the Fund to the Commission.
18. Exemptions from tax
The Fund shall be exempted from any tax on income and any stamp duty imposed by any law.
19. Liquidation of Fund
The Fund shall not be wound up except by or under the authority of an Act of Parliament.
Part III – AUTHORIZATION TO PRODUCE FILMS
20. Authorization to produce films
(1)No person who is not -(a)a Namibian citizen;(b)a company registered in Namibia; or(c)lawfully admitted to Namibia for permanent residence therein and resident in Namibia,shall carry out any film production in Namibia, except with the written authorization of the Commission granted on application made to it through the secretary in such form and manner as the Commission may determine.(2)An authorization referred to in subsection (1) shall authorize all matters pertaining or incidental to the film production in question.(3)An application referred to in subsection (1) shall be lodged with the secretary, together with the prescribed fee, if any, and -(a)shall contain -(i)in the case of a natural person, the full names, nationality, postal and residential address of such person;(ii)in the case of an incorporated or unincorporated body of persons, the name of such body of persons, its address and principal place of business, the names and addresses of its directors or management, as the case may be, and where applicable, particulars of its incorporation; and(b)shall contain particulars -(i)of the film production for which the authorization in question is being applied for;(ii)of the location where such film production is intended; and(iii)as may be specified by the Commission for purposes of considering such application.(4)In order to enable it to consider any application referred to in subsection (3), the Commission may cause such investigations to be made or undertaken by the secretary or otherwise as it may in its discretion deem necessary.(5)The Commission may with regard to an application made under subsection (1) -(a)approve such application, if it is satisfied that the application is in the interest of the film industry of Namibia, and upon payment of the prescribed fee, if any, grant a written authorization for the film production in question to the applicant concerned; or(b)refuse such application, if -(i)the information furnished in the application is incorrect or incomplete; or(ii)the granting of such authorization will not be in the interest of Namibia or the Namibian film industry: Provided that an application may not be refused merely on account of the content of the proposed film production, except if such content will be contrary to any of the fundamental rights enshrined in the Namibian Constitution or in violation of any other law.(6)A written authorization issued under subsection (5)(a) shall -(a)be in such form as the Commission may from time to time determine; and(b)be for such a period and, in addition to any prescribed terms and conditions, be subject to such terms and conditions as the Commission may determine.(7)Where the Commission refuses an authorization under subsection (5)(b) it shall in writing notify the applicant concerned of such refusal, setting out the reasons therefor.(8)The Commission shall not consider an application for the renewal of any authorization granted under subsection (5)(a), unless such application, together with the fee prescribed in connection with such application, if any, has been received by the Commission before the date on which that authorization expires.(9)The Commission may withdraw, or suspend on such conditions as it may determine, an authorization if it is satisfied that the holder thereof has failed to comply with any of the terms or conditions thereof or the provisions of this Act and shall in writing inform the holder of such authorization of such decision, setting out the reasons therefor.(10)An authorization granted under subsection (1) shall not derogate from the provisions of Chapter III of the Publications Act, 1974 (Act No. 42 of 1974).
21. Exemption from authorization
The Commission may, on such conditions as it may determine, exempt any person -(a)by notice in the Gazette; or(b)by notice in writing addressed to such person,from compliance with any or all the provisions of section 20, and may in like manner amend or withdraw any such notice.
22. Transfer of authorization
(1)A holder of an authorization (including the executor, trustee, or other administrator of the estate of such holder or its liquidator) may transfer such authorization to another person only with written approval of the Commission, given upon -(a)application made to it in writing; and(b)payment of the prescribed fee, if any.(2)An application referred to in subsection (1) shall contain such information and documents as the Commission may require.(3)The Commission shall consider each application for the transfer of an authorization, and may -(a)approve such transfer, subject to such terms and conditions as it may determine; or(b)refuse such transfer, and shall in writing notify the applicant concerned of such refusal, setting out the reasons therefor.
(1)Any person who is aggrieved by a decision taken in terms of section 20 or 22 may, within 30 days of receiving the written notice of such decision, appeal in writing to the Minister against that decision.(2)The Minister may in respect of an appeal lodged in terms of subsection (1), upon consideration of the grounds of appeal and after consultation with the Commission-(a)confirm, set aside, or amend the decision in question; or(b)make such order with regard thereto as he or she may deem expedient.
24. Inspections of authorizations
(1)Every person required to hold an authorization under this Act shall on demand of a person appointed thereto by the Commission make such authorization available for inspection by such person.(2)The Commission shall issue a letter of appointment to each person appointed by it for the purposes of subsection (1).(3)Any person who requires that an authorization be made available to him or her for inspection shall produce his or her letter of appointment referred to in subsection (2) to the person from whom he or she requires such authorization.
In so far as this Part provides for a limitation of a fundamental freedom contemplated in Article 21 of the Namibian Constitution, in that it authorizes a limitation upon a person’s right to carry on any occupation, trade or business, such limitation is enacted on authority of Sub-Article (2) of that Article.
Part IV – MISCELLANEOUS
26. Film copies to be furnished to National Archives
(1)Every film producer shall furnish the National Archives established by section 3 of the National Archives Act, 1992 (Act No. 12 of 1992) with two copies of any film produced in Namibia.(2)The National Archives shall deal with such copies in accordance with the laws governing legal deposits of documents to libraries in Namibia.
27. Rules by Commission
(1)The Commission may make rules for the proper control and conduct of its affairs.(2)A rule of the Commission shall not be amended, substituted or withdrawn unless at least two-thirds of the members of the Commission present at a meeting convened for the purposes of considering such amendment, substitution or withdrawal, have voted in favour thereof.
The Minister may, after consultation with the Commission, make regulations in relation to -(a)the terms and conditions subject to which authorizations may be issued, renewed or transferred;(b)the fees payable for the application, issue, transfer or renewal of an authorization;(c)the administration of the Fund,and generally any matter which is required by this Act to be prescribed or which the Minister considers necessary or expedient to prescribe in order to achieve the objects of this Act.
29. Delegation or assignment of powers, duties and functions to secretary
(1)The Commission may delegate or assign to the secretary any power, duty or function conferred upon or assigned to it by or under the provisions of this Act, but shall not be divested of any power so delegated and may amend or withdraw any decision made in the exercise of a power so delegated.(2)A delegation or assignment under subsection (1) may be made subject to such conditions and restrictions as may be determined by the Commission, and any such condition or restriction may be withdrawn or amended by it.
The Commission, the Minister, a member, an alternate member, or person engaged in carrying out any provision of this Act shall not personally be liable in respect of anything done bona fide under this Act.
Any person who contravenes or fails to comply with -(a)section 10 or 24(1) shall be guilty of an offence, and on conviction be liable to a fine not exceeding N$5 000 or to imprisonment for a period not exceeding 12 months, or to both such fine and such imprisonment;(b)section 20(1) or 22(1) shall be guilty of an offence, and on conviction be liable to a fine not exceeding N$10 000 or to imprisonment for a period not exceeding 24 months, or to both such fine and such imprisonment.
32. Short title and commencement
This Act shall be called the Namibia Film Commission Act, 2000, and shall come into operation on a date to be determined by the Minister by notice in the Gazette.