Merger control in Namibia is governed and regulated by the Competition Act No. 2 of 2003 (the “Competition Act”), read with the Rules made under the Competition Act published in Government Notice No. 54 of 3 March 2008 – Commencement of Competition Act, 2003, as amended (the “Rules”), and Government Notice No. 307 of 24 December 2015 – Determination of class mergers to be excluded from Chapter 4 of the Competition Act (the “Thresholds Determination”).

The Mergers and Acquisitions Directorate of the Namibian Competition Commission (NaCC) has further developed the Mergers and Acquisitions Merger Guidelines (2016) (the “NaCC Merger Guidelines”) for the assessment of mergers in line with international best practice, such as the International Competition Network’s Merger Guidelines Workbook (the “ICN Merger Guidelines”).

The Namibia Investment Promotion Act No. 9 of 2016 (NIPA) was passed to replace the Foreign Investments Act No. 27 of 1990 and significantly revised the Namibian foreign investment regime. However, the NIPA has not entered into force and is now likely to be superseded by new legislation being contemplated by the Government of Namibia. There is unfortunately no certain timeline for this new legislation.

The Competition Act established the NaCC, which acts as the regulator charged with implementing and enforcing the Competition Act. The NaCC became operational on 9 December 2009.

Notification is compulsory. Section 44 of the Competition Act mandates that each undertaking involved in a notifiable transaction must notify the NaCC. Typically, a single joint notification is submitted by all parties involved. The seller is generally not considered a party to the notification, and when assessing potential penalties for failure to notify or gun-jumping, the NaCC usually focuses on the target and the acquiring group or merging parties.

Section 51 of the Competition Act empowers the NaCC to apply to the court for an injunction restraining parties from implementing a merger, to order parties to dispose of any acquired shares or assets, or to declare any agreement void if a transaction is found to have been implemented without a required approval.

Section 53 of the Competition Act provides that a court may impose a penalty which it deems appropriate but not exceeding 10% of the global turnover of an undertaking during its preceding financial year.

An order imposing a pecuniary penalty – including one arising from a consent agreement confirmed by the court in accordance with Section 40 – has the same effect as, and may be enforced in the same manner as, a civil judgment of the court in favour of the Government of Namibia. All court proceedings are publicly accessible.

The Competition Act defines a “merger” broadly, covering any transaction where one or more undertakings directly or indirectly acquire or establish control, either wholly or partially, over another undertaking’s business.

Essentially, any transaction involving an acquisition of control may be subject to notification. This includes, but is not limited to, full mergers, majority share acquisitions, controlling minority shareholdings and the formation of new joint ventures.

Internal reorganisations within the same corporate group are not notifiable.

Creating a new legal entity as a preparatory step for a new joint venture is not notifiable; however, clearance may be required from the NaCC before assets or personnel are transferred from the parent entities.

Section 42 of the Competition Act provides that a merger occurs when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking.

This control can be acquired through various means, such as purchasing or leasing shares, interests or assets, or through an amalgamation or another form of combination.

Section 42(3) of the Competition Act provides a list of instances in which a person will be deemed to have acquired control over an undertaking. Namely, it provides that “[a] person controls an undertaking if that person –

(a) beneficially owns more than one half of the issued share capital of the undertaking;

(b) is entitled to vote a majority of the votes that may be cast at a general meeting of the undertaking, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking;

(c) is able to appoint, or to veto the appointment, of a majority of the directors of the undertaking;

(d) is a holding company, and the undertaking is a subsidiary of that company;

(e) in the case of the undertaking being a trust, has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust;

(f) in the case of the undertaking being a close corporation, owns the majority of the members’ interest or controls directly or has the right to control the majority of members’ votes in the close corporation; or

(g) has the ability to materially influence the policy of the undertaking in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (a) to (f).”

The NaCC has repeatedly stated in advisory opinions that Section 42(3), which sets out examples of “control”, “only provides guidance on instances of control, which are not exhaustive of the circumstances in which control arises. The acquisition of control may extend to any circumstances satisfying the definition of a merger in section 42(1).”

As a comparison, the South African Competition Tribunal held in a matter that the instances of control identified in Section 12(2)(a) to (f) of the South African Competition Act (the equivalent provisions to Section 42(3)(a) to (f) of the Namibian Competition Act) constitute “bright lines” that, if crossed, constitute an acquisition of control without the need for detailed analysis.

An assessment of when control is acquired will always involve a fact-based analysis and, as a comparison, this has been stressed by both the European and South African competition authorities.

The question is always whether or not the relevant transaction gives rise to an acquisition of control. In other words, it is not simply the fact that, after the implementation of the transaction, an entity will be able to exercise joint or sole control (for the purposes of Section 42(1) as read with Section 42(3) of the Competition Act), but the question is whether the relevant entity has acquired control as a result of the proposed transaction.

Paragraphs 3.6 to 3.9 of the NaCC Merger Guidelines, reflecting the catch-all provision in Section 42(3)(g) of the Competition Act, specifically include minority shareholdings that provide the ability to exert material or decisive influence. This influence can involve vetoing strategic commercial decisions, such as those relating to budgets, business plans, major investments, senior management appointments, or rights specific to certain markets, including technology choices where technology is a key aspect of the merged undertaking.

Step 1: If the value of (i) the target’s assets in Namibia and (ii) its turnover in, into or from Namibia are each less than or equal to NAD15 million (approx. USD832,870 (see Note 1 below)), the transaction does not require notification or approval. If either of these amounts exceeds NAD15 million, Step 2 must be considered.

Step 2: If the combined total of (i) the value of assets in Namibia or (ii) the turnover in, into or from Namibia (whichever is the higher; see Note 2 below) of each party to the transaction is less than or equal to NAD30 million (approx. USD1.66 million), the transaction does not require notification or approval.

The NaCC has the authority to demand notification of a transaction that falls below the mandatory notification thresholds if it “considers it necessary to address the merger in accordance with the [Competition] Act”. This provision is broadly framed, granting the NaCC significant discretion to request notification. For example, the NaCC has exercised this power to make its approval conditional on the notification of all future transactions, including those that do not meet the thresholds.

Note 1: Approximate US dollar figures are provided for convenience based on the average of the Bank of Namibia’s monthly average bilateral NAD:USD rate for 2025 to date (2025: USD1 = NAD18.01). Threshold and exemption figures are always rounded down to the nearest dollar; other figures follow standard rounding rules.

Note 2: For Step 2, the calculation is based on the combined total of the higher of each party’s assets and turnover. If, for example, Party A’s asset value is higher than its turnover and Party B’s turnover is higher than its asset value, these two higher figures are combined (as opposed to taking the parties’ combined assets or combined turnover, whichever is the higher).

The above thresholds are applicable to all sectors.

The Thresholds Determination provides that Namibian GAAP or IFRS accounting principles shall be used in calculating turnover and assets.

The turnover in, into or from Namibia, as well as the assets in Namibia, of each party to the transaction should account for all undertakings directly or indirectly controlled by that party, as well as all undertakings controlled by the ultimate direct or indirect controlling parent of that party.

There is no distinct rule for attributing the turnover and assets of partially owned companies, but pro-rating based on ownership share is generally acceptable, depending on the circumstances.

A seller that will not retain control over the target after the transaction is not considered in the threshold analysis. However, a seller or existing shareholder that will share joint control of the target post-transaction must be included as an acquiring party for the threshold analysis.

While the regulatory framework does not provide a specific exchange rate method, it is standard practice to convert foreign-denominated turnover or assets to Namibian dollars using the prevailing central bank or GAAP/IFRS-approved exchange rates as close as possible to the date of submission of the merger filing.

In terms of the Thresholds Determination, an “acquiring undertaking” is defined as the total of all undertakings that are acquiring undertakings in respect of a merger, which includes:

(a) any undertaking that, as a result of a transaction, would acquire or establish direct or indirect control over the whole or part of the business of another undertaking;

(b) any other undertaking that has direct or indirect control over the whole or part of the business of an undertaking referred to in paragraph (a); and

(c) any other undertaking that is controlled by, or direct or indirect control over the whole or part of its business is held by, an undertaking referred to in paragraph (a) or (b).

A “transferred undertaking”, being the object of an acquisition, means the total of all the undertakings that are transferred undertakings in respect of a merger which include any undertaking, or the business or assets of the undertaking, that as a result of a transaction:

(a) would become controlled by another undertaking; and

(b) any other undertaking that is controlled by, or the direct or indirect control over the whole or part of its business is held by, an undertaking referred to in paragraph (a).

The Thresholds Determination, at the Annexure, Section 2, provides that the asset value of an undertaking at any time is based on the gross value of the undertaking’s assets as recorded on the undertaking’s balance sheet for the end of the immediately previous financial year.

If, between the date of the financial statements being used to calculate the asset value of an undertaking and the date on which that calculation is being made, the undertaking has acquired any subsidiary undertaking, associated undertaking or joint venture not shown on those financial statements, or divested itself of any subsidiary undertaking, associated undertaking or joint venture shown on those financial statements, then:

• the following items must be added to the calculation of the undertaking’s asset value if these items must in terms of GAAP or IFRS be included in the undertaking’s asset value:
1. the value of assets recently acquired; and
2. any assets received in exchange for recently divested assets; and
• the following items may be deducted in calculating the undertaking’s asset value if these items were included in the undertaking’s asset value:
1. the value of recently divested assets at the date of their divestiture; and
2. the value of any asset that has been shown on the balance sheet and has been subsequently used to acquire the recently acquired asset.

In respect of the calculation of annual turnover, Section 3 of the Annexure provides that the annual turnover of an undertaking at any time is the gross revenue of that undertaking from income in, into or from Namibia, arising from the following transactions and events as recorded on the undertaking’s income statement for the immediately previous financial year:

• the sale of goods;
• the rendering of services; and
• the use by others of the undertaking’s assets yielding interest, royalties and dividends.

If, between the date of the most recent financial statements being used and the date on which the calculation is made, the undertaking has acquired any subsidiary undertaking, associated undertaking or joint venture not shown on those financial statements or divested itself of any subsidiary undertaking, associated undertaking or joint venture shown on those financial statements, then:

• the turnover generated by recently acquired assets must be included in the calculation of the undertaking’s turnover if this turnover must in terms of GAAP or IFRS be included in the turnover of the undertaking; and
• the turnover generated by recently divested assets in the immediately previous financial year may be deducted from the undertaking’s turnover if this turnover has been included in the turnover of the undertaking.

Foreign-to-foreign transactions are subject to merger control in Namibia if they have a local nexus, that is, if the transaction has an effect within Namibia.

Under Section 42(1) of the Competition Act, a merger occurs when one undertaking directly or indirectly acquires or establishes control over the business or part of the business of another undertaking. The Competition Act applies to all economic activity within, or having an effect within, Namibia.

In the event that the target has absolutely no nexus to the jurisdiction – ie, it conducts no business in or which may have an effect in Namibia – and has no assets or turnover in, into or from Namibia, then such a transaction will not be notifiable.

Namibia does not have a market share jurisdictional threshold. Instead, it uses a turnover and asset value-based threshold.

The Competition Act and related legislation do not contain specific provisions regarding joint ventures.

However, if the parents of a joint venture contribute existing businesses or assets, this may result in a change from sole to joint control of those businesses or assets (or parts thereof), making the transaction notifiable if the relevant thresholds are met.

There is no legal requirement that a joint venture be “full-function” for notification purposes. However, in practice, the NaCC often applies the “full-function” principle when determining whether joint ventures require notification.

Establishing a new legal entity as a preparatory step for a joint venture is not notifiable, but clearance may be needed from the NaCC before the transfer of assets or personnel by the parent companies.

In terms of Section 4 of the Thresholds Determination, the NaCC is empowered to demand notification of any merger which falls below the compulsory notification thresholds if the NaCC considers it necessary to deal with the merger in terms of the Competition Act. There is no prescription period or statute of limitations applicable to this power.

The authors are not aware of any instances of this power being exercised by the NaCC.

A merger may not be implemented before the merger has been approved, or before the time has expired within which the NaCC must make a determination and the NaCC has failed to do so.

If a transaction is being or has been implemented in contravention of the provisions of the Competition Act, Section 51 empowers the NaCC to apply to the court for an injunction restraining parties from implementing a merger, to order parties to dispose of any acquired shares or assets, or to declare any agreement void if a transaction is found to have been implemented without a required approval.

Section 53 of the Competition Act provides that a court may impose a penalty which it deems appropriate but not exceeding 10% of the global turnover of an undertaking during its preceding financial year.

Penalties imposed by the NaCC are made public by publication in the Government Gazette. Recent penalties imposed for gun-jumping include:

• July/August 2024 – Fan Qingmei; Wang Zhongke; Hong Xiang Holdings Ltd; Whale Rock Cement (Pty) Ltd – penalty in the amount of NAD5 million (approximately USD277,623);
• December 2024 – Choppies Supermarket Namibia (Pty) Ltd – penalty in the amount of NAD2.2 million (approximately USD122,154); and
• May 2024 – Johannes !Gawaxab; Ismael Gei-Khoibeb; Gamma Investments CC – penalty in the amount of NAD1 million (approximately USD55,524).

There are no exemptions from or waivers of the suspensive effect available in terms of the Competition Act.

There are no circumstances in which the NaCC will permit the closing of a transaction prior to the approval thereof.

The Namibian part of the transaction can be ring-­fenced so that the transaction can proceed in other jurisdictions without receiving approval for the Namibian transaction. The parties must give an undertaking to the NaCC that the Namibian part of the transaction (that part of the transaction amounting to economic activity within Namibia or having an effect in Namibia) will not be implemented until the NaCC has provided its determination in respect of the transaction.

Section 43(3) of the Competition Act provides that no person, either individually or jointly or in concert with any other person, may implement a proposed merger unless the merger is approved by the NaCC and implemented in accordance with any conditions, or the period within which the NaCC is required to make a determination has lapsed.

The consequences for implementing a merger in contravention of the Competition Act are set out in Section 51, which provides that the NaCC may make application to court for:

• an interdict restraining the parties involved from implementing the merger;
• an order directing any party to the merger to sell or dispose of in any other specified manner, any shares, interest or other assets it has acquired pursuant to the merger;
• declaring void any agreement or provision of an agreement to which the merger was subject;
• the imposition of a pecuniary penalty.

Penalties imposed by the NaCC are made public by publication in the Government Gazette. Recent penalties imposed for gun-jumping include:

• July/August 2024 – Fan Qingmei; Wang Zhongke; Hong Xiang Holdings Ltd; Whale Rock Cement (Pty) Ltd – penalty in the amount of NAD5 million (approximately USD277,623);
• December 2024 – Choppies Supermarket Namibia (Pty) Ltd – penalty in the amount of NAD2,200,000 (approximately USD122,154); and
• May 2024 – Johannes !Gawaxab; Ismael Gei-Khoibeb; Gamma Investments CC – penalty in the amount of NAD1 million (approximately USD55,524).

A binding agreement is not required prior to notification. The parties may submit less formal agreements such as a letter of intent, a memorandum of understanding, or draft versions of the agreements.

A merger filing can be made even where there is nothing in writing, based on a bona fide intention to conclude an agreement, provided that the parties have reached a sufficient degree of understanding regarding the structure of the proposed transaction. A merger filing will be required if the transaction meets the definition of a “merger” as defined in the Competition Act.

The filing fees have been determined in Government Notice No. 2 of 5 January 2017 – Amendment of rules made under the Competition Act, 2003. The minimum filing fee payable is NAD10,000 (approximately USD555), whereas the maximum filing fee is NAD500,000 (approximately USD27,762).

The filing fee is determined by reference to the “combined figure” of the merging parties. The combined figure is a combination of the annual turnover or  the asset value in Namibia, whichever is the higher, of the target and acquiring undertakings.

For the NaCC to consider a merger notification, the filing fee must be paid within five days of the lodging of the merger notification, failing which the merger notification will only be deemed to have been submitted on the date of receipt of the filing fee.

Rule 28 of the Rules provides that each undertaking involved in a proposed merger is required to notify the NaCC.

All documents submitted in respect of merger notification must be in the English language, being the official language of Namibia.

There are three sets of documents which are ordinarily required to be submitted with a merger notification:

• firstly, statutory forms set out in a prescribed format in the Rules, including:
1. Form 38 – Schedule 1 – outlining the unemployment the proposed transaction will have;
2. Form 39 – Schedules 2 to 5 – identification document, outlining information about the party such as annual turnover, assets, owners and controllers of the undertaking, the market in which the undertaking operates, what goods, products or services are offered and where these goods, products or services are offered, market shares in respect of products, and relationships between the parties;
3. Form 38 and Form 39 – certifying the accuracy of the filing; and
4. affidavits from representatives of the target and acquiring undertakings confirming that information relating to the transaction has been provided and giving reasons as to why certain documents are not provided;
• secondly, a detailed joint competitiveness report outlining the transaction, describing the parties and their activities, the rationale behind the transaction, the market in which the parties operate (defining a product and geographic market), the market shares of the acquirer and target in the relevant market, and the effect that the transaction would have on the market if it were to proceed both from a competitive aspect and from a public interest aspect; and
• thirdly, supporting documents to accompany the merger notification including:
1. a group structure or organogram;
2. annual reports or financial statements of the immediately preceding financial year;
3. the transaction documents, such as a sale of shares or merger agreement;
4. minutes, reports, presentations and summaries prepared for the boards of directors regarding the transaction;
5. the rationale for the transaction;
6. the estimated market shares;
7. details of the five biggest competitors within the jurisdiction of the target and acquiring undertakings;
8. details of the five biggest customers of the target and acquiring undertakings by turnover; and
9. a business plan, if available.

There are no penalties for an incomplete notification per se; however, the NaCC will not consider a merger notification which is incomplete.

Section 48 of the Competition Act empowers the NaCC to revoke a decision approving the implementation of a proposed merger if the decision was based on materially incorrect or misleading information.

The phases of review are set out in Sections 44(2) and 45 of the Competition Act.

The NaCC has an initial period of 30 calendar days after receipt of the filing to make a determination.

The NaCC may within the initial period request further information from the parties, thereby extending the determination period by a further 30 days from the date of receipt of the requested information.

Thereafter, the NaCC may extend the period for determination further for a period not exceeding 60 days if it is of the view that, owing to the complexity of the matter, such an extension is warranted.

If the NaCC is of the view that there are public interest considerations, it may call a stakeholders’ conference in terms of Section 46 of the Competition Act whereby interested stakeholders can make submissions in a public forum.

The parties can engage in pre-notification discussions with the NaCC. Such discussions are treated confidentially and are typically held when the proposed merger involves complex competition issues, when there are significant public interest issues to be considered, or when the proposed merger involves sectors or issues of national interest.

Requests for information are provided for in Section 44(2) of the Competition Act and are commonplace during the review process.

A request for information stops the clock until the receipt of the information requested. Any requests for information after the initial period do not stop the clock.

There is no official expedited or fast-track review process.

The board of the NaCC does, on very rare occasions, determine merger notifications on a round robin basis.

The substantive test applied by the NaCC is the substantial prevention or lessening of competition as provided for in Section 47(2) of the Competition Act, which provides that the NaCC may base its determination of a proposed merger on any criteria which it considers relevant, including:

• the extent to which the proposed merger would be likely to prevent or lessen competition, or to restrict trade or the provision of any service, or to endanger the continuity of supplies or services;
• the extent to which the proposed merger would be likely to result in any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;
• the extent to which the proposed merger would be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;
• the extent to which the proposed merger would be likely to affect a particular industrial sector or region;
• the extent to which the proposed merger would be likely to affect employment;
• the extent to which the proposed merger would be likely to affect the ability of small undertakings, in particular small undertakings owned or controlled by historically disadvantaged persons, to gain access to or to be competitive in any market;
• the extent to which the proposed merger would be likely to affect the ability of national industries to compete in international markets; and
• any benefits likely to be derived from the proposed merger relating to research and development, technical efficiency, increased production, efficient distribution of goods or provision of services, and access to markets.

As regards defining the relevant market, the NaCC has drafted the NaCC Merger Guidelines, which are substantially informed by the ICN Merger Guidelines.

In terms of the NaCC Merger Guidelines and the ICN Merger Guidelines, the market definition focuses on the empirical question of substitutability of products and services from the point of view of customers. The substitutability from both the demand and supply sides is ordinarily considered.

Demand-side substitutability considers the extent to which customers can switch among substitute products in response to a change in relative prices or quality or availability or other features. Supply-side substitutability, on the other hand, examines the extent to which suppliers of alternative products can alter their existing production facilities to make other products in response to a change in prices, demand or other market conditions.

In refining the market definition, the NaCC applies the hypothetical monopolist test, otherwise known as the “small but significant and non-transitory increase in price” (SSNIP) test.

In applying the SSNIP test, the question is asked whether, if the monopolist raised the price by 5–10% permanently, enough customers would switch to another product or supplier to make that price rise unprofitable. If the answer to the question is affirmative, then there are close substitutes available, thereby expanding the market to include those substitutes and rendering the increase in price unprofitable. If, on the other hand, consumers would stick with the product whose price has been increased, then there are no substitutes and the market is restricted to that product.

The NaCC does not apply any de minimis thresholds in its assessment.

The NaCC does rely on case law from other jurisdictions. The jurisdictions most frequently relied on are South Africa and the European Union.

The types of competition concerns depend on the nature of the merger being investigated. The ordinary traditional theories of harm in relation to conglomerate, horizontal and vertical mergers are taken into consideration.

For horizontal mergers, the following are considered:

• unilateral effects;
• co-ordinated effects; and
• market foreclosure.

For vertical mergers, the following are considered:

• input and customer foreclosure;
• tying and bundling;
• facilitation of collusion; and
• the establishment of market power.

For conglomerate mergers, the following are considered:

• non-coordinated effects;
• co-ordinated effects;
• tying and bundling; and
• foreclosure.

In terms of Section 47(2)(c) and (h), the NaCC may consider:

• the extent to which the proposed merger would be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market; and
• any benefits likely to be derived from the proposed merger relating to research and development, technical efficiency, increased production, efficient distribution of goods or provision of services, and access to markets.

The NaCC would be required to perform a two-stage substantive analysis: firstly, whether the merger is likely to prevent or lessen competition; and secondly, whether any public benefits including efficiencies outweigh the potential detriment caused by the proposed merger. These efficiencies must be merger-specific, verifiable and beneficial to consumers.

Section 47(2)(c) to (g) of the Competition Act expressly permits the consideration of non-competition issues and provides the public interest factors which the NaCC may consider, including the extent to which a proposed merger would:

• be likely to result in a benefit to the public which would outweigh any detriment which would be likely to result from any undertaking, including an undertaking not involved as a party in the proposed merger, acquiring a dominant position in a market or strengthening a dominant position in a market;
• be likely to affect a particular industrial sector or region;
• be likely to affect employment;
• be likely to affect the ability of small undertakings, in particular small undertakings owned or controlled by historically disadvantaged persons, to gain access to or to be competitive in any market; and
• be likely to affect the ability of national industries to compete in international markets.

There are no rules relating to foreign subsidies; however, as regards foreign direct investments or foreign subsidies, please refer to 1.2 Legislation Relating to Particular Sectors.

The NaCC applies the same analytical framework as for other mergers, namely, whether the transaction is likely to substantially prevent or lessen competition in any market in Namibia.

In assessing a joint venture, certain additional considerations relating to possible collusion or co-ordination may arise. The NaCC will consider whether the creation of the joint venture could lead to co-ordination between the parent companies outside of the joint venture itself. This would be applicable where the parent companies would remain competitors in related or downstream markets and where the joint venture might facilitate the exchange of commercially sensitive information, or where the joint venture might create conditions conducive to co-ordination or collusion.

The NaCC does not interfere with transactions prior to notification or outside its statutory authority.

The Competition Act does empower the NaCC to prohibit a transaction, or to approve a transaction subject to conditions, where it determines that the merger is likely to substantially prevent or lessen competition or otherwise contravene the Competition Act.

In making its determination, the NaCC must apply the substantive test set out in Section 47(2), considering, among other things, whether the merger would be likely to prevent or lessen competition, restrict trade, or create or strengthen a dominant position, and whether any public benefits outweigh the potential anti-competitive effects.

If the NaCC determines that a merger is likely to substantially prevent or lessen competition, it may either prohibit the transaction entirely or approve it conditionally.

Therefore, while the NaCC does not interfere in the negotiation or commercial terms of transactions, it may lawfully prevent completion or impose conditions if the transaction is found to have anti-competitive effects.

When the NaCC identifies potential competition or public interest concerns during its merger assessment, the merging parties are ordinarily afforded the opportunity to engage with the NaCC and propose remedies to address those concerns before a final decision is made.

Remedies are often used to address non-competition issues, particularly the public interest consideration of employment. In addressing this, the NaCC often imposes conditions prohibiting merger-related retrenchments for a specified period.

There is no single codified test or standard for the acceptability of remedies under the Competition Act; however, in line with comparative international best practice, the NaCC generally imposes remedies if:

• there is a causal link to the identified harm;
• the remedies are proportionate and necessary;
• the remedies are clear, enforceable, and capable of monitoring; and
• the remedies restore or preserve competition.

There are no formal procedural rules prescribed under the Competition Act or the NaCC Merger Guidelines regarding when or how remedy negotiations must occur. In practice, the NaCC adopts an administrative approach to remedies.

Negotiation of remedies typically occurs after the NaCC has identified potential competition or public interest concerns, usually shortly prior to the finalisation of their determination.

The NaCC proposes and drafts remedies on its own initiative. These conditions are presented to the parties in draft form for their comment; however, there is no statutory requirement that remedies must originate from the merging parties. Consequently, the NaCC often imposes remedies not agreed to by the parties.

There is no formal standard procedure for remedies under Namibian merger control. The NaCC imposes conditions based on the specific circumstances of each matter, and as a result, conditions are typically tailored and differ from case to case.

Ordinarily, conditions are set with a timeframe within which the parties must comply. In practice, merger implementation can often occur before all conditions are fully complied with; however, it is possible that certain conditions that are material to the merger’s implementation are required to be fulfilled prior to completion.

Section 48(1) of the Competition Act empowers the NaCC to revoke a decision approving the implementation of a proposed merger if any condition attached to the approval of the merger that is material to the implementation thereof is not complied with.

Section 47(7) of the Competition Act provides that the NaCC must give notice of the determination to the parties involved in the proposed merger in writing and give notice in the Government Gazette, the latter of which is available to the public.

The NaCC does not often prohibit foreign-to-foreign transactions owing to the often limited impact on the Namibian market.

However, in 2022, the NaCC in AKZO Nobel // Kansai Plascon Africa Ltd and KansaiI Plascon East Africa (Pty) Ltd, Case Number 2022NOV0048MER, involving a foreign-to-foreign merger, imposed substantial conditions relating to vertical foreclosure in Namibia.

The NaCC has not to the authors’ knowledge recently prohibited any foreign-to-foreign transaction.

The Competition Act does not expressly provide a framework for the assessment of ancillary restraints within merger proceedings. However, in practice, the NaCC’s merger clearance decision is understood to cover restrictions that are directly related and necessary to the implementation of the merger.

Ancillary restraints that are reasonable in scope, duration and geographic reach, and which are necessary to give effect to the merger, are deemed to fall within the merger clearance decision and do not require a separate notification. Any restraint or arrangement that extends beyond what is necessary to implement the merger may be treated as a restrictive business practice and could require separate investigation by the NaCC.

The NaCC may, in certain instances, seek the views of third parties as part of its merger review process. During its investigation, the NaCC typically contacts competitors and customers of the merging parties, and other market participants, to obtain their views and to assess the potential effects of the proposed merger on competition within the relevant market.

Where a proposed merger raises significant competition or public interest concerns, the NaCC may convene a stakeholders’ conference in terms of Section 46 of the Competition Act to allow affected or interested persons to make representations on the potential effects of the merger.

In addition, the NaCC has entered into memorandums of understanding with several sector regulators in Namibia. Where a merger is likely to impact a particular regulated sector, the NaCC may seek the views of the relevant regulator before making its decision.

The NaCC typically contacts third parties as part of its review process. The NaCC ordinarily provides written questionnaires to stakeholders or engages with sector regulators.

The fact of the notification and a limited description of the transaction is made public and is published on the NaCC website shortly after notification.

The Competition Act prohibits all NaCC members and employees present at any meeting of the NaCC or of a committee or at any investigation in terms of the Competition Act, fromdisclosing any information regarding any person or undertaking which said person obtained in the exercise of any power or performance of any duty or function in terms of the Competition Act, or obtained as a result of such person’s attendance at any meeting or investigation.

Further, the parties to the merger notification ordinarily complete a statutory form titled “Form 1 – Confidentiality Claim” in terms of Rule 11, in which the parties specify specific information over which they claim confidentiality. The NaCC may agree to be bound by that claim without determining whether or not the information is confidential. It should be pointed out that the NaCC may determine that the information is not confidential and thereby reject the confidentiality claim.

The NaCC co-operates closely with and has memorandums of understanding with:

• the Competition Commission of South Africa; and
• the Competition and Consumer Authority (Botswana).

The NaCC participates in regional and international forums, including the African Competition Forum, the Southern African Development Community Committee on Competition and Consumer Policy, and UNCTAD’s Intergovernmental Group of Experts on Competition Law and Policy. These relationships primarily support the exchange of best practices and the development of regional policy approaches.

Co-operation or sharing information in terms of merger-specific investigations is, however, limited to instances where there may be a multi-jurisdictional element to the transaction.

The Competition Act provides for a process whereby a party to a proposed merger may apply to the Minister of Industries, Mines and Energy, in terms of Section 49, to review the NaCC’s decision.

The Minister, upon review, may:

• overturn the NaCC’s decision;
• amend the decision of the NaCC by ordering restrictions or including conditions; or
• confirm the NaCC’s decision.

Beyond the ministerial review, there are no further internal appeals. However, as a public administrative decision, the Minister’s determination is subject to judicial review by the High Court of Namibia under Article 18 of the Constitution of Namibia and common law principles of administrative justice.

A party to a proposed merger may, within 30 days after the NaCC publishes a notice in the Government Gazette regarding its determination on a merger, submit an application to the Minister of Industries, Mines and Energy in the prescribed form determined by the Minister.

Within 30 days of receiving such an application, the Minister must, by notice in the Government Gazette:

• announce the receipt of the application for review; and
• invite interested parties to make written submissions to the Minister on any matter subject to review, within the time and in the manner specified in the notice.

The Minister must, within four months from the date the application for review was submitted, make a determination:

• overturning the NaCC’s decision;
• amending the NaCC’s decision by imposing restrictions or conditions; or
• confirming the NaCC’s decision.

The Minister must:

• notify the NaCC and the parties to the proposed merger in writing of the determination;
• publish a notice of the determination in the Government Gazette; and
• provide written reasons for the determination to the NaCC and the parties involved.

The Minister may prescribe the procedure to be followed in conducting a review.

An application for review to the High Court of Namibia of the Minister’s decision should be made within a reasonable time. What constitutes a reasonable time will depend on the circumstances.

Please refer to the process described in 8.1 Access to Appeal and Judicial Review,which only affords the right to review a clearance decision to a party to the merger under investigation.

The NaCC applies the same analytical framework to assess foreign direct investment as for other mergers, namely, whether the transaction is likely to substantially prevent or lessen competition in any market in Namibia.

In assessing a joint venture, certain additional considerations relating to possible collusion or co-ordination may arise. The NaCC will consider whether the creation of the joint venture could lead to co-ordination between the parent companies outside of the joint venture itself. This would be applicable where the parent companies would remain competitors in related or downstream markets and where the joint venture might facilitate the exchange of commercially sensitive information, or where the joint venture might create conditions conducive to co-ordination or collusion.