The Namibian Competition Commission was successfully launched in December 2009, nearly six years after the Namibian Competition Act was passed. What are the implications for South African and neighbouring entities with business links and interests in Namibia?
The NaCC has been a long envisaged goal for the Namibian legislature and hopefully signals the beginning of an effective body which can oversee and promote healthy competition within the ever-growing Namibian economy. The NaCC will allow for the implementation and enforcement of Namibian competition law as enshrined in its Competition Act and is an encouraging step towards ensuring the infiltration and implementation of competition policies and laws on the African continent.
Deputy Permanent Secretary for the Minister of Trade and Industry, Daniel Nghidinua, explained at the launch of the NaCC that the body aims to enhance the development of enterprises, which in turn will hopefully yield economic benefit and growth in the form of competitive prices and healthy competition between manufacturers and suppliers of goods and services in Namibia. The NaCC aspires to promote and safeguard competition within the Namibian market and to ensure that this is done in a way that does not compromise consumers' interests.
The Act is applicable to all economic activity within or having an effect in Namibia, barring the exempt categories of collective bargaining activities and concerted conduct designed to achieve a non-commercial socio-economic objective. The legislation specifically deals with the major competition concerns of abuse of dominance, anti-competitive mergers and any anti-competitive agreements or arrangements between firms and it is now up to the NaCC to effectively enforce and implement competition policies for the benefit of consumers and to enhance competition as a whole.
The enforcement and interpretation of the Act have been supplemented by the rules made under the 2003 Act, which were published in March 2008. Firms throughout the Namibian business sector, as well as South African companies which have business interests there, must ensure that they are familiar with the Act and rules now that the NaCC us finally up and running, in order to ensure that they do not fall foul of the Act.
Although in theory, the establishment of the NaCC is certainly a step in the right direction and the body will enable the proper enforcement of competition policy, there is according to the interim chairperson of the Commission, Dr Omu Kakujaha, a need to develop the investigative skills of the Commission's investigators, as well as the general analytical, research and legal skills of the Commission's employees.
According to Dr Kakujaha, there is a limited number of people with the required knowledge or skills who could play a role in the NaCC and its potential investigations into any problematic practices. It is now up to the Namibian competition authorities to ensure that the relevant expenditure and resources are made available to ensure the NaCC is able to effectively tackle competition related issues. This is stated to be a top priority for the body.
The role of South Africa's Competition Commission should not be overlooked and there are definite similarities between the two bodies' empowering legislation. Speaking at the NaCC launch, the Commissioner at the South African Competition Commission, Shan Ramburuth, observed that Namibia and South Africa have similarities in the law and therefore Namibia can learn from South Africa's experiences. The South African Commission has also done extensive investigations and frequent prosecutions of prohibited mergers and anti-competitive practices and therefore has valuable experience which it can share with its Namibian counterpart to assist it with its expansion of expertise.
The Namibian launch of its own Commission is a welcome step towards a progressive, competitive and flourishing African continent, but it does signal the need for hard work and specialised training in the field of compliance both on the part of the Authority, and for companies with Namibian interests. The progression and effectiveness of the NaCC will be interesting to follow, as will the development of competition law in other African countries, which will no doubt follow suit. Companies with interests in Namibia should not rely on a slow start and must ensure that any anti competitive practices are discovered and weeded out.
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