- CHAPTER 1 PRELIMINARY PROVISIONS
- CHAPTER 2 NAMIBIAN COMPETITION COMMISSION
- Establishment of Commission
- Constitution of Commission
- Alternate members
- Term of office
- Vacation of office and filling of vacancies
- Remuneration
- Conduct of members and disclosure of interest
- Meetings of Commission
- Committees of Commission
- Staff of Commission
- Inspectors
- Consultants
- Functions, powers and duties of Commission
- Funds of Commission
- Bank accounts
- Investment of money
- Financial year, accounts and audit
- Annual report
- Power of Commission to make rules
- CHAPTER 3 RESTRICTIVE BUSINESS PRACTICES
- Part I Restrictive Agreements, Practices and Decisions
- Part II Abuse of Dominant Position
- Part III Exemption of Certain Restrictive Practices
- Grant of exemption for certain restrictive practices
- Determination of application for exemption
- Revocation or amendment of exemption
- Exemption in respect of intellectual property rights
- Exemption in respect of professional rules
- Investigation by Commission
- Entry and search of premises
- Power of Commission to take evidence
- Proposed decision of Commission
- Conference to be convened for oral representations
- Action following investigation
- Interim relief
- Consent agreement
- CHAPTER 4 MERGERS
- Merger defined
- Control of mergers
- Notice to be given to Commission of proposed merger
- Period for making determination in relation to proposed merger
- Conference in relation to proposed merger
- Determination of proposed merger
- Determination of proposed merger
- Revocation of approval of proposed merger
- Review of decisions of Commission on mergers by Minister
- Compliance with other laws relating to mergers
- Merger implemented in contravention of this Chapter
- CHAPTER 5 JURISDICTION OF COURT
- CHAPTER 7 OFFENCES AND PENALTIES
- CHAPTER 8 APPLICATION OF THIS ACT AND OTHER LEGISLATION RELATING TOCOMPETITION
- CHAPTER 9 TRANSITIONAL
GOVERNMENT GAZETTE
OF THE
REPUBLIC OF NAMIBIA
N$7.00 WINDHOEK - 24 April 2003 No.2964 CONTENTS Page GOVERNMENT NOTICE No. 92 Promulgation of Competition Act, 2003 (Act No. 2 of 2003), of the Parliament ... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 92 2003
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 2 of 2003: Competition Act, 2003.
ACT
To safeguard and promote competition in the Namibian market; to establish the Namibian Competition Commission and make provision for its powers, duties and functions; and to provide for incidental matters.
(Signed by the President on 3 April 2003)
ARRANGEMENT OF SECTIONS
CHAPTER 1 PRELIMINARY PROVISIONS Section
- Definitions
- Purpose of Act
- Application of Act
CHAPTER 2
NAMIBIAN COMPETITION COMMISSION
- Establishment of Commission
- Constitution of Commission
- Alternate members
- Term of office
- Vacation of office and filling of vacancies
- Remuneration
- Conduct of members and disclosure of interest
- Meetings of Commission
- Committees of Commission
- Staff of Commission
- Inspectors
- Consultants
- Functions, powers and duties of Commission
- Funds of Commission
- Bank accounts
- Investment of money
- Financial year, accounts and audit
- Annual report
- Power of Commission to make rules
CHAPTER 3
RESTRICTIVE BUSINESS PRACTICES
Part I
Restrictive Agreements, Practices and Decisions
23. Restrictive practices prohibited
Part II Abuse of Dominant Position - Application of this Part
- Criteria for determining dominant position
- Abuse of dominant position
Part III Exemption of Certain Restrictive Practices - Grant of exemption for certain restrictive practices
- Determination of application for exemption
- Revocation or amendment of exemption
- Exemption in respect of intellectual property rights
- Exemption in respect of professional rules
- Notification of grant, revocation or amendment of exemption
Part IV Investigation Into Prohibited Practices - Investigation by Commission
- Entry and search of premises
- Power of Commission to take evidence
- Proposed decision of Commission
- Conference to be convened for oral representations
- Action following investigation
- Interim relief
- Consent agreement
- Publication of decision of Commission
CHAPTER 4 MERGERS
- Merger defined
- Control of mergers
- Notice to be given to Commission of proposed merger
- Period for making determination in relation to proposed merger
- Conference in relation to proposed merger
- Determination of proposed merger
- Revocation of approval of proposed merger
- Review of decisions of Commission on mergers by Minister
- Compliance with other laws relating to mergers
- Merger implemented in contravention of this Chapter
CHAPTER 5 JURISDICTION OF COURT - Jurisdiction of court
- Pecuniary penalties
CHAPTER 6 GENERAL PROVISIONS - Civil actions and jurisdiction
- Prohibition on disclosure of information
- Disclosure of private interest by staff
- Time within which investigation may be initiated
- Limitation of liability
- Standard of proof
CHAPTER 7 OFFENCES AND PENALTIES - Hindering administration of Act
- Failure to comply with summons
- Failure to comply with order of the Court
- Other offences
- Penalties
- Jurisdiction of magistrates’ courts
CHAPTER 8
APPLICATION OF THIS ACT AND OTHER LEGISLATION RELATING TO
COMPETITION
- Definitions for this Part
- Relationship with other authorities
CHAPTER 9
TRANSITIONAL
- Transitional provisions
- Repeal of laws
- Short title and commencement Schedule
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:CHAPTER 1 PRELIMINARY PROVISIONS Definitions
1. In this Act, unless the context otherwise indicates
“agreement” includes a contract, arrangement or understanding, whether or not legally
enforceable;
“chairperson” means the chairperson of the Commission appointed under section 5(1);
“Commission” means the Namibian Competition Commission established by section 4;
“committee” means a committee of the Commission established under section 12;
"concerted practice” means deliberate conjoint conduct between undertakings achieved
through direct or indirect contact that replaces their independent actions;
“confidential information” means trade, business or industrial information that belongs
to an undertaking, has a particular economic value and is not generally available to or
known by others;
“court” means the High Court of Namibia;
“goods” does not include - (a)
- agricultural commodities which have not undergone a process of manufacture; and
- (b)
- goods exempted under section 3(1)(c);
“historically disadvantaged persons” means persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices;
“member” means a member of the Commission appointed under section 5(1);
“Minister” means the Minister of Trade and Industry;
“Ministry” means the Ministry of Trade and Industry;
“Part I prohibition” means the prohibition imposed by Part I of Chapter 3;
“Part II prohibition” means the prohibition imposed by Part II of Chapter 3;
“premises” includes land, any building, structure, vehicle, vessel, aircraft or container;
“prescribed” means prescribed by a rule made under section 22;
“Secretary” means the Secretary to the Commission appointed in terms of section 13(1);
“services” does not include
(a) the performance of work under a contract of service; and
(b) services exempted under section 3(1)(c); “small undertaking” means an undertaking which falls within a category prescribed; “this Act” includes the rules made under section 22; “undertaking” means any business carried on for gain or reward by an individual, a body
corporate, an unincorporated body of persons or a trust in the production, supply or distribution of goods or the provision of any service.
Purpose of Act
2. The purpose of this Act is to enhance the promotion and safeguarding of competition in Namibia in order to - (a)
- promote the efficiency, adaptability and development of the Namibian economy;
- (b)
- provide consumers with competitive prices and product choices;
- (c)
- promote employment and advance the social and economic welfare of Namibians;
- (d)
- expand opportunities for Namibian participation in world markets while recognizing the role of foreign competition in Namibia;
- (e)
- ensure that small undertakings have an equitable opportunity to participate in the Namibian economy; and
- (f)
- promote a greater spread of ownership, in particular to increase ownership stakes of historically disadvantaged persons.
Application of Act
3. (1) This Act applies to all economic activity within Namibia or having an effect in Namibia, except - (a)
- collective bargaining activities or collective agreements negotiated or concluded in terms of the Labour Act, 1992 (Act No. 6 of 1992);
- (b)
- concerted conduct designed to achieve a non-commercial socio-economic objective;
(c) in relation to goods or services which the Minister, with the concurrence of the Commission, declares, by notice in the Gazette, to be exempt from the provisions of this Act. - (2)
- This Act binds the State in so far as the State engages in trade or business for the production, supply or distribution of goods or the provision of any service, but the State is not subject to any provision relating to criminal liability.
- (3)
- This Act applies to the activities of statutory bodies, except in so far as those activities are authorised by any law.
CHAPTER 2
NAMIBIAN COMPETITION COMMISSION
Establishment of Commission
4. There is established a juristic person to be known as the Namibian Competition Commission, which - (a)
- has jurisdiction throughout Namibia;
- (b)
- is independent and subject only to the Namibian Constitution and the law; and
- (c)
- must be impartial and must perform its functions without fear, favour or prejudice.
Constitution of Commission
5. (1) The Commission consists of a chairperson and not less than two nor more than four other members all of whom are appointed by the Minister.
(2) When appointing members of the Commission the Minister must select persons who, in the opinion of the Minister, have expertise in industry, commerce, economics, law, accountancy, public administration or consumer affairs.
Alternate members
6. (1) The Minister may appoint for each member a person to be the alternate of the member.
(2) The alternate to a member may, in the event of the member’s absence from a meeting of the Commission, attend the meeting in the capacity of a member.
Term of office
7. Subject to section 8, a member holds office for a term of three years, and is eligible for reappointment at the expiration of that term, but a member may not hold office for more than two consecutive terms.
Vacation of office and filling of vacancies
8. (1) A member vacates his or her office, if the member - (a)
- is convicted of an offence and sentenced to imprisonment without the option of a fine;
- (b)
- resigns his or her office by giving the Minister one month’s notice in writing of his or her intention to resign;
- (c)
- has been absent for three consecutive meetings of the Commission without
leave of the Commission; or
- (d)
- is removed from office by the Minister under subsection (2).
- (2)
- The Minister may, by notice in writing, remove a member from office if the Minister, after giving the member a reasonable opportunity to be heard, is satisfied that the member
- (3)
- If the office of a member becomes vacant, the vacancy must be filled by the appointment of another person as member for the unexpired portion of the term of office of the person who ceased to hold office.
(a) has failed to comply with any obligation imposed by section 10; (b) is guilty of neglect of duty or misconduct; or (c) is incapable of performing the duties of his or her office, by reason of physical or mental illness.
Remuneration
9. The members of the Commission, and members of a committee who are not members of the Commission, must be paid such remuneration or allowances or other benefits as the Minister, with the concurrence of the Minister of Finance, may determine.
Conduct of members and disclosure of interest
10. (1) A member of the Commission may not - (a)
- engage in an activity that may undermine the integrity of the Commission;
- (b)
- participate in any investigation or decision concerning a matter in respect of which the member has a financial or other personal interest; or
- (c)
- use any confidential information obtained in the performance of his or her functions as a member to obtain, directly or indirectly, a financial or other advantage for himself or herself or any other person.
- (2)
- Every member of the Commission must in writing disclose to the Minister any direct or indirect financial interest which the member has or acquires in any business carried on in Namibia or elsewhere or in any body corporate carrying on any business in Namibia or elsewhere.
- (3)
- A member who has or acquires any financial or other personal interest, either directly or indirectly, in any matter which is before the Commission for discussion and determination must
- (a)
- immediately and fully disclose the interest to the Commission; and
- (b)
- withdraw from any further discussion or determination by the Commission of that matter.
Meetings of Commission
11. (1) The first meeting of the Commission must be held at a place and time that the chairperson determines and any meeting of the Commission thereafter must be held at a place and time that the Commission determines. - (2)
- If for any reason a meeting determined by the Commission cannot take place, the Secretary, with the concurrence of the chairperson, must convene the next meeting of the Commission.
- (3)
- The chairperson may at any time convene a special meeting of the Commission.
- (4)
- The chairperson presides at all meetings of the Commission at which he or she is present.
- (5)
- In the absence of the chairperson from a meeting, the members present must elect one of their number to preside at that meeting and perform the functions and exercise the powers of the chairperson.
- (7)
- The Commission may invite any person who has expert knowledge of a matter before the Commission for determination to attend a meeting of the Commission and take part in discussions in relation to that matter, but such person has no vote.
- (8)
- As soon as possible after a meeting of the Commission has taken place, the chairperson must cause a copy of the minutes of that meeting to be submitted to the Minister.
(6) At a meeting of the Commission (a) a majority of the members of the Commission forms a quorum; (b) all questions are decided by a majority of votes of the members present and voting; and (c) the member presiding has a deliberative vote and, in the event of any equality of votes, also a casting vote.
Committees of Commission
12. (1) The Commission may establish one or more committees to - (a)
- investigate and report to the Commission on any matter which the Commission may refer to the committee for the purpose; or
- (b)
- exercise any power or perform any function of the Commission which the Commission may delegate or assign to the committee, except the power under section 22 to make rules.
- (2)
- A committee may consist of members, or members and other persons, as the Commission may determine.
- (3)
- The Commission must designate a member to be the chairperson of a committee.
- (4)
- The chairperson of the Commission may attend any meeting of a committee of which he or she is not a member and may take part in the proceedings thereof as if he or she were appointed as a member thereof.
(5) The Commission may at any time dissolve or reconstitute a committee.
- (6)
- The Commission is not divested or relieved of a power or function which has been delegated or assigned to a committee.
- (7)
- A decision by a committee in the exercise of a power delegated to the committee, is subject to approval by the Commission, and the Commission may at any time vary or set aside the decision.
- (8)
- Subsections (1) and (3) of section 10, with the changes required by the context, apply to members of a committee who are not members of the Commission.
Staff of Commission
13. (1) The Commission must appoint a Secretary to the Commission and may appoint other employees as it deems necessary to assist in the performance of the functions of the Commission. (2) The Secretary is, subject to the directions of the Commission, responsible for (a) the formation and development of an efficient administration; and (b) the organisation, control, management and discipline of the staff of the Commission.
- (3)
- Unless the Commission or a committee directs otherwise, the Secretary must attend the meetings of the Commission and of a committee, but the Secretary has no vote.
- (4)
- The Commission determines the remuneration and other conditions of services and benefits of the Secretary and other employees of the Commission.
Inspectors
14. (1) The Commission may
(a) designate any of its employees; or - (b)
- appoint any other suitable person, to be an inspector for the purposes of this Act.
- (2)
- The Commission determines the remuneration and other conditions of engagement of an inspector who is not in the full-time service of the Commission.
Consultants
15. The Commission may engage persons to give advice to, and perform services for, the Commission on such terms and conditions of engagement as the Commission may determine.
Functions, powers and duties of Commission
16. (1) The Commission is responsible for the administration and enforcement of this Act and, in addition to any other functions conferred on the Commission, it has the following powers and functions:
(a) to disseminate information to persons engaged in trade or commerce and the public with respect to the provisions of this Act and the functions of the Commission; - (b)
- to liaise and exchange information, knowledge and expertise with authorities of other countries entrusted with functions similar to those of the Commission;
- (c)
- to carry out research into matters referred to the Commission by the Minister;
- (d)
- to advise the Minister on matters referred to the Commission by the Minister;
- (e)
- to implement measures to increase market transparency;
- (f)
- to be responsible for investigating contraventions of this Act by undertakings and for controlling mergers between undertakings;
- (g)
- either on its own initiative, or at the request of the Minister, to consult with the Minister on any matter which is of great economic or public interest;
- (h)
- to advise the Minister, and any other Minister responsible for a relevant industry, in relation to international agreements concerning competition matters governed by this Act.
- (2)
- The Commission may
- (a)
- acquire or hire such movable or immovable property as may be required for the effective performance of its functions, and dispose of property so acquired or hired; and
- (b)
- enter into contracts in connection with the performance of its functions.
Funds of Commission
17. (1) The funds of the Commission consist of - (a)
- money appropriated by Parliament for the purposes of the Commission;
- (b)
- fees payable to the Commission in terms of this Act;
- (c)
- money vesting in or accruing to the Commission from any other source; and
- (d)
- interest derived from the investment of funds of the Commission.
- (2)
- The Commission must submit to the Minister annually, at a time determined by the Minister, a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for its next financial year.
- (3)
- Expenditure incurred for the performance of the functions of the Commission, including remuneration, allowances or other benefits payable to members or other persons, must be defrayed from the funds of the Commission.
- (4)
- The Secretary is the accounting officer of the Commission and is responsible for
- (a)
- all income and expenditure of the Commission; and
- (b)
- all assets and the discharging of all liabilities of the Commission.
Bank accounts
18. (1) The Commission must open and maintain such bank accounts at one or more banking institutions in Namibia, registered in terms of the Banking Institutions Act, 1998 (Act No. 2 of 1998) as are necessary for the performance of the functions of the Commission. - (2)
- The Commission must ensure that
- (a)
- all money received by or on behalf of the Commission is deposited into its bank account as soon as practicable after being received;
- (b)
- any payment by or on behalf of the Commission is made from its bank account; and
- (c)
- no money is withdrawn, paid or transferred from its bank account without the Commission’s authority.
(3) Cheques drawn on the Commission’s bank account, or any other form or document to be completed for the withdrawal, payment or transfer of money from any of the bank accounts of the Commission, must be signed on the Commission's behalf by two persons authorised for that purpose by the Commission.
Investment of money
19. Any money of the Commission that is not immediately required for expenditure by the Commission may be invested at a banking institution referred to in section 18(1) or a building society registered in terms of the Building Societies Act, 1986 (Act No. 2 of 1986).
Financial year, accounts and audit
20. (1) The financial year of the Commission is as prescribed. - (2)
- The Commission must cause such records of account to be kept in accordance with general accepted accounting practices, principles and procedures as are necessary to represent fairly the state of affairs and business of the Commission and to explain the transactions and financial position of the Commission.
- (3)
- Not later than three months after the end of each financial year of the Commission, the Secretary must prepare and submit to the Commission for approval, financial statements, comprising
- (a)
- a statement reflecting, with suitable and sufficient particulars, the income and expenditure of the Commission during that financial year; and
- (b)
- a balance sheet showing the state of the Commission's assets, liabilities and financial position as at the end of that financial year.
- (4)
- The accounting records and the financial statements of the Commission must be audited annually by the Auditor-General.
Annual report
21. (1) The Commission must submit to the Minister an annual report of its activities within six months of the end of each financial year, or such longer period as the Minister may determine, which report must be accompanied by - (a)
- the audited financial statements of the Commission for that financial year;
and
- (b)
- the auditor's report relating to those financial statements.
- (2)
- The Minister must lay upon the Table of the National Assembly the annual report and financial statements submitted to the Minister in terms of subsection (1) within 30 days from the date of their receipt or, if the National Assembly is not then in ordinary session, within 14 days after the commencement of its next ordinary session.
- (3)
- The Commission must, if the Minister at any time so requires, furnish to the Minister a report and particulars relating to the performance of the functions of the Commission in relation to any matter as the Minister may require.
Power of Commission to make rules
22. The Commission, with the approval of the Minister, may make rules by notice in the Gazette (a) relating to the administration, organization and operations of the Commission; (b) prescribing the procedure to be followed in respect of applications and notices to, and proceedings of, the Commission; (c) prescribing forms of applications, notices, certificates and other documents required for the purposes of this Act; (d) prescribing fees to be paid for the purposes of this Act; (e) the manner for making a submission in relation to the subject matter of any application to, or investigation by, the Commission; (f) prescribing the procedures for investigations under this Act; (g) prescribing the requirements for a small undertaking; (h) relating to any other matter which is required or permitted to be prescribed under this Act, or considered necessary or expedient by the Commission in order to achieve the objects of this Act. CHAPTER 3 RESTRICTIVE BUSINESS PRACTICES
Part I Restrictive Agreements, Practices and Decisions
Restrictive practices prohibited
23. (1) Agreements between undertakings, decisions by associations of undertakings or concerted practices by undertakings which have as their object or effect the prevention or substantial lessening of competition in trade in any goods or services in Namibia, or a part of Namibia, are prohibited, unless they are exempt in accordance with the provisions of Part III of this Chapter.
(2) Agreements and concerted practices contemplated in subsection (1), include agreements concluded between
(a) parties in a horizontal relationship, being undertakings trading in
competition; or
(b) parties in a vertical relationship, being an undertaking and its suppliers or customers or both. (3) Without prejudice to the generality of the provisions of subsection (1), that
subsection applies in particular to any agreement, decision or concerted practice which - (a)
- directly or indirectly fixes purchase or selling prices or any other trading conditions;
- (b)
- divides markets by allocating customers, suppliers, areas or specific types of goods or services;
- (c)
- involves collusive tendering;
- (d)
- involves a practice of minimum resale price maintenance;
- (e)
- limits or controls production, market outlets or access, technical development or investment;
- (f)
- applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
- (g)
- makes the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject of the contracts.
- (4)
- Paragraph (d) of subsection (3) does not prevent a supplier or producer of goods or services from recommending a resale price to a reseller of the goods or a provider of the service, provided
- (a)
- it is expressly stipulated by the supplier or producer to the reseller or provider that the recommended price is not binding; and
- (b)
- if any product, or any document or thing relating to any product or service, bears a price affixed or applied by the supplier or producer, the words “recommended price“ appear next to the price so affixed or applied.
- (5)
- It is presumed that an agreement or a concerted practice of the nature prohibited by subsection (1) exists between two or more undertakings if
- (a)
- any one of the undertakings owns a significant interest in the other or they have at least one director or one substantial shareholder in common; and
- (b)
- any combination of the undertakings engages in any of the practices mentioned in subsection (3).
- (6)
- The presumption created by subsection (5) may be rebutted if an undertaking or a director or shareholder concerned establishes that a reasonable basis exists to conclude that any practice in which any of the undertakings engaged was a normal commercial response to conditions prevailing in the market.
- (7)
- For the purposes of subsection (5), “director” includes
- (a)
- a director of a company as defined in the Companies Act, 1973 (Act No. 61 of 1973);
- (b)
- a member of a close corporation as defined in the Close Corporations Act,
1988 (Act No. 26 of 1988);
- (c)
- a trustee of a trust; or
- (d)
- in relation to an undertaking conducted by an individual or a partnership, the owner of the undertaking or a partner of the partnership.
(8) Subsection (1) does not apply in respect of an agreement entered into between, or a practice engaged in by - (a)
- a company and its wholly owned subsidiary, as contemplated in section 1 of the Companies Act, 1973, or a wholly owned subsidiary of that subsidiary company; or
- (b)
- undertakings other than companies, each of which is owned or controlled by the same person or persons.
Part II
Abuse of Dominant Position
Application of this Part
24. For the purposes of this Part, the Minister, with the concurrence of the Commission, must determine by notice in the Gazette in relation to undertakings in Namibia, either in general or in relation to a specific industry - (a)
- a threshold of annual turnover or value of assets below which this Part does not apply to an undertaking;
- (b)
- the method for calculating an undertaking’s annual turnover or value of assets for the purposes of paragraph (a).
Criteria for determining dominant position
25. For the purposes of this Part, the Commission must prescribe criteria to be applied for determining whether an undertaking has, or two or more undertakings have, a dominant position in a market, which may be based on any factors which the Commission considers appropriate.
Abuse of dominant position
26. (1) Any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market in Namibia, or a part of Namibia, is prohibited.
(2) Without prejudice to the generality of subsection (1), abuse of a dominant position includes - (a)
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- (b)
- limiting or restricting production, market outlets or market access, investment, technical development or technological progress;
- (c)
- applying dissimilar conditions to equivalent transactions with other trading parties; and
(d) making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts.
Part III
Exemption of Certain Restrictive Practices
Grant of exemption for certain restrictive practices
27. (1) Any undertaking or association of undertakings may apply to the Commission to be exempted from the provisions of Part I or Part II of this Chapter in respect of - (a)
- any agreement or category of agreements;
- (b)
- any decision or category of decisions;
- (c)
- any concerted practice or category of concerted practices.
- (2)
- An application for an exemption under subsection (1) must
- (a)
- be made in the prescribed form and manner;
- (b)
- be accompanied by such information as may be prescribed or as the Commission may reasonably require.
(3) The Commission must give notice in the Gazette of an application received in terms of subsection (1) - (a)
- indicating the nature of the exemption sought by the applicant; and
- (b)
- calling upon interested persons to submit to the Commission, within 30 days of the publication of the notice, any written representations that they may wish to make in regard to the application.
Determination of application for exemption
28. (1) After consideration of an application in terms of section 27 and any representations submitted by interested persons, the Commission must make a determination in respect of the application, and may -
REPUBLIC OF NAMIBIA
N$7.00 WINDHOEK - 24 April 2003 No.2964 CONTENTS Page GOVERNMENT NOTICE No. 92 Promulgation of Competition Act, 2003 (Act No. 2 of 2003), of the Parliament ... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 92 2003
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 2 of 2003: Competition Act, 2003.
ACT
To safeguard and promote competition in the Namibian market; to establish the Namibian Competition Commission and make provision for its powers, duties and functions; and to provide for incidental matters.
(Signed by the President on 3 April 2003)
ARRANGEMENT OF SECTIONS
CHAPTER 1 PRELIMINARY PROVISIONS Section
- Definitions
- Purpose of Act
- Application of Act
CHAPTER 2
NAMIBIAN COMPETITION COMMISSION
- Establishment of Commission
- Constitution of Commission
- Alternate members
- Term of office
- Vacation of office and filling of vacancies
- Remuneration
- Conduct of members and disclosure of interest
- Meetings of Commission
- Committees of Commission
- Staff of Commission
- Inspectors
- Consultants
- Functions, powers and duties of Commission
- Funds of Commission
- Bank accounts
- Investment of money
- Financial year, accounts and audit
- Annual report
- Power of Commission to make rules
CHAPTER 3
RESTRICTIVE BUSINESS PRACTICES
Part I
Restrictive Agreements, Practices and Decisions
23. Restrictive practices prohibited
Part II Abuse of Dominant Position - Application of this Part
- Criteria for determining dominant position
- Abuse of dominant position
Part III Exemption of Certain Restrictive Practices - Grant of exemption for certain restrictive practices
- Determination of application for exemption
- Revocation or amendment of exemption
- Exemption in respect of intellectual property rights
- Exemption in respect of professional rules
- Notification of grant, revocation or amendment of exemption
Part IV Investigation Into Prohibited Practices - Investigation by Commission
- Entry and search of premises
- Power of Commission to take evidence
- Proposed decision of Commission
- Conference to be convened for oral representations
- Action following investigation
- Interim relief
- Consent agreement
- Publication of decision of Commission
CHAPTER 4 MERGERS
- Merger defined
- Control of mergers
- Notice to be given to Commission of proposed merger
- Period for making determination in relation to proposed merger
- Conference in relation to proposed merger
- Determination of proposed merger
- Revocation of approval of proposed merger
- Review of decisions of Commission on mergers by Minister
- Compliance with other laws relating to mergers
- Merger implemented in contravention of this Chapter
CHAPTER 5 JURISDICTION OF COURT - Jurisdiction of court
- Pecuniary penalties
CHAPTER 6 GENERAL PROVISIONS - Civil actions and jurisdiction
- Prohibition on disclosure of information
- Disclosure of private interest by staff
- Time within which investigation may be initiated
- Limitation of liability
- Standard of proof
CHAPTER 7 OFFENCES AND PENALTIES - Hindering administration of Act
- Failure to comply with summons
- Failure to comply with order of the Court
- Other offences
- Penalties
- Jurisdiction of magistrates’ courts
CHAPTER 8
APPLICATION OF THIS ACT AND OTHER LEGISLATION RELATING TO
COMPETITION
- Definitions for this Part
- Relationship with other authorities
CHAPTER 9
TRANSITIONAL
- Transitional provisions
- Repeal of laws
- Short title and commencement Schedule
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:CHAPTER 1 PRELIMINARY PROVISIONS Definitions
1. In this Act, unless the context otherwise indicates
“agreement” includes a contract, arrangement or understanding, whether or not legally
enforceable;
“chairperson” means the chairperson of the Commission appointed under section 5(1);
“Commission” means the Namibian Competition Commission established by section 4;
“committee” means a committee of the Commission established under section 12;
"concerted practice” means deliberate conjoint conduct between undertakings achieved
through direct or indirect contact that replaces their independent actions;
“confidential information” means trade, business or industrial information that belongs
to an undertaking, has a particular economic value and is not generally available to or
known by others;
“court” means the High Court of Namibia;
“goods” does not include - (a)
- agricultural commodities which have not undergone a process of manufacture; and
- (b)
- goods exempted under section 3(1)(c);
“historically disadvantaged persons” means persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices;
“member” means a member of the Commission appointed under section 5(1);
“Minister” means the Minister of Trade and Industry;
“Ministry” means the Ministry of Trade and Industry;
“Part I prohibition” means the prohibition imposed by Part I of Chapter 3;
“Part II prohibition” means the prohibition imposed by Part II of Chapter 3;
“premises” includes land, any building, structure, vehicle, vessel, aircraft or container;
“prescribed” means prescribed by a rule made under section 22;
“Secretary” means the Secretary to the Commission appointed in terms of section 13(1);
“services” does not include
(a) the performance of work under a contract of service; and
(b) services exempted under section 3(1)(c); “small undertaking” means an undertaking which falls within a category prescribed; “this Act” includes the rules made under section 22; “undertaking” means any business carried on for gain or reward by an individual, a body
corporate, an unincorporated body of persons or a trust in the production, supply or distribution of goods or the provision of any service.
Purpose of Act
2. The purpose of this Act is to enhance the promotion and safeguarding of competition in Namibia in order to - (a)
- promote the efficiency, adaptability and development of the Namibian economy;
- (b)
- provide consumers with competitive prices and product choices;
- (c)
- promote employment and advance the social and economic welfare of Namibians;
- (d)
- expand opportunities for Namibian participation in world markets while recognizing the role of foreign competition in Namibia;
- (e)
- ensure that small undertakings have an equitable opportunity to participate in the Namibian economy; and
- (f)
- promote a greater spread of ownership, in particular to increase ownership stakes of historically disadvantaged persons.
Application of Act
3. (1) This Act applies to all economic activity within Namibia or having an effect in Namibia, except - (a)
- collective bargaining activities or collective agreements negotiated or concluded in terms of the Labour Act, 1992 (Act No. 6 of 1992);
- (b)
- concerted conduct designed to achieve a non-commercial socio-economic objective;
(c) in relation to goods or services which the Minister, with the concurrence of the Commission, declares, by notice in the Gazette, to be exempt from the provisions of this Act. - (2)
- This Act binds the State in so far as the State engages in trade or business for the production, supply or distribution of goods or the provision of any service, but the State is not subject to any provision relating to criminal liability.
- (3)
- This Act applies to the activities of statutory bodies, except in so far as those activities are authorised by any law.
CHAPTER 2
NAMIBIAN COMPETITION COMMISSION
Establishment of Commission
4. There is established a juristic person to be known as the Namibian Competition Commission, which - (a)
- has jurisdiction throughout Namibia;
- (b)
- is independent and subject only to the Namibian Constitution and the law; and
- (c)
- must be impartial and must perform its functions without fear, favour or prejudice.
Constitution of Commission
5. (1) The Commission consists of a chairperson and not less than two nor more than four other members all of whom are appointed by the Minister.
(2) When appointing members of the Commission the Minister must select persons who, in the opinion of the Minister, have expertise in industry, commerce, economics, law, accountancy, public administration or consumer affairs.
Alternate members
6. (1) The Minister may appoint for each member a person to be the alternate of the member.
(2) The alternate to a member may, in the event of the member’s absence from a meeting of the Commission, attend the meeting in the capacity of a member.
Term of office
7. Subject to section 8, a member holds office for a term of three years, and is eligible for reappointment at the expiration of that term, but a member may not hold office for more than two consecutive terms.
Vacation of office and filling of vacancies
8. (1) A member vacates his or her office, if the member - (a)
- is convicted of an offence and sentenced to imprisonment without the option of a fine;
- (b)
- resigns his or her office by giving the Minister one month’s notice in writing of his or her intention to resign;
- (c)
- has been absent for three consecutive meetings of the Commission without
leave of the Commission; or
- (d)
- is removed from office by the Minister under subsection (2).
- (2)
- The Minister may, by notice in writing, remove a member from office if the Minister, after giving the member a reasonable opportunity to be heard, is satisfied that the member
- (3)
- If the office of a member becomes vacant, the vacancy must be filled by the appointment of another person as member for the unexpired portion of the term of office of the person who ceased to hold office.
(a) has failed to comply with any obligation imposed by section 10; (b) is guilty of neglect of duty or misconduct; or (c) is incapable of performing the duties of his or her office, by reason of physical or mental illness.
Remuneration
9. The members of the Commission, and members of a committee who are not members of the Commission, must be paid such remuneration or allowances or other benefits as the Minister, with the concurrence of the Minister of Finance, may determine.
Conduct of members and disclosure of interest
10. (1) A member of the Commission may not - (a)
- engage in an activity that may undermine the integrity of the Commission;
- (b)
- participate in any investigation or decision concerning a matter in respect of which the member has a financial or other personal interest; or
- (c)
- use any confidential information obtained in the performance of his or her functions as a member to obtain, directly or indirectly, a financial or other advantage for himself or herself or any other person.
- (2)
- Every member of the Commission must in writing disclose to the Minister any direct or indirect financial interest which the member has or acquires in any business carried on in Namibia or elsewhere or in any body corporate carrying on any business in Namibia or elsewhere.
- (3)
- A member who has or acquires any financial or other personal interest, either directly or indirectly, in any matter which is before the Commission for discussion and determination must
- (a)
- immediately and fully disclose the interest to the Commission; and
- (b)
- withdraw from any further discussion or determination by the Commission of that matter.
Meetings of Commission
11. (1) The first meeting of the Commission must be held at a place and time that the chairperson determines and any meeting of the Commission thereafter must be held at a place and time that the Commission determines. - (2)
- If for any reason a meeting determined by the Commission cannot take place, the Secretary, with the concurrence of the chairperson, must convene the next meeting of the Commission.
- (3)
- The chairperson may at any time convene a special meeting of the Commission.
- (4)
- The chairperson presides at all meetings of the Commission at which he or she is present.
- (5)
- In the absence of the chairperson from a meeting, the members present must elect one of their number to preside at that meeting and perform the functions and exercise the powers of the chairperson.
- (7)
- The Commission may invite any person who has expert knowledge of a matter before the Commission for determination to attend a meeting of the Commission and take part in discussions in relation to that matter, but such person has no vote.
- (8)
- As soon as possible after a meeting of the Commission has taken place, the chairperson must cause a copy of the minutes of that meeting to be submitted to the Minister.
(6) At a meeting of the Commission (a) a majority of the members of the Commission forms a quorum; (b) all questions are decided by a majority of votes of the members present and voting; and (c) the member presiding has a deliberative vote and, in the event of any equality of votes, also a casting vote.
Committees of Commission
12. (1) The Commission may establish one or more committees to - (a)
- investigate and report to the Commission on any matter which the Commission may refer to the committee for the purpose; or
- (b)
- exercise any power or perform any function of the Commission which the Commission may delegate or assign to the committee, except the power under section 22 to make rules.
- (2)
- A committee may consist of members, or members and other persons, as the Commission may determine.
- (3)
- The Commission must designate a member to be the chairperson of a committee.
- (4)
- The chairperson of the Commission may attend any meeting of a committee of which he or she is not a member and may take part in the proceedings thereof as if he or she were appointed as a member thereof.
(5) The Commission may at any time dissolve or reconstitute a committee.
- (6)
- The Commission is not divested or relieved of a power or function which has been delegated or assigned to a committee.
- (7)
- A decision by a committee in the exercise of a power delegated to the committee, is subject to approval by the Commission, and the Commission may at any time vary or set aside the decision.
- (8)
- Subsections (1) and (3) of section 10, with the changes required by the context, apply to members of a committee who are not members of the Commission.
Staff of Commission
13. (1) The Commission must appoint a Secretary to the Commission and may appoint other employees as it deems necessary to assist in the performance of the functions of the Commission. (2) The Secretary is, subject to the directions of the Commission, responsible for (a) the formation and development of an efficient administration; and (b) the organisation, control, management and discipline of the staff of the Commission.
- (3)
- Unless the Commission or a committee directs otherwise, the Secretary must attend the meetings of the Commission and of a committee, but the Secretary has no vote.
- (4)
- The Commission determines the remuneration and other conditions of services and benefits of the Secretary and other employees of the Commission.
Inspectors
14. (1) The Commission may
(a) designate any of its employees; or - (b)
- appoint any other suitable person, to be an inspector for the purposes of this Act.
- (2)
- The Commission determines the remuneration and other conditions of engagement of an inspector who is not in the full-time service of the Commission.
Consultants
15. The Commission may engage persons to give advice to, and perform services for, the Commission on such terms and conditions of engagement as the Commission may determine.
Functions, powers and duties of Commission
16. (1) The Commission is responsible for the administration and enforcement of this Act and, in addition to any other functions conferred on the Commission, it has the following powers and functions:
(a) to disseminate information to persons engaged in trade or commerce and the public with respect to the provisions of this Act and the functions of the Commission; - (b)
- to liaise and exchange information, knowledge and expertise with authorities of other countries entrusted with functions similar to those of the Commission;
- (c)
- to carry out research into matters referred to the Commission by the Minister;
- (d)
- to advise the Minister on matters referred to the Commission by the Minister;
- (e)
- to implement measures to increase market transparency;
- (f)
- to be responsible for investigating contraventions of this Act by undertakings and for controlling mergers between undertakings;
- (g)
- either on its own initiative, or at the request of the Minister, to consult with the Minister on any matter which is of great economic or public interest;
- (h)
- to advise the Minister, and any other Minister responsible for a relevant industry, in relation to international agreements concerning competition matters governed by this Act.
- (2)
- The Commission may
- (a)
- acquire or hire such movable or immovable property as may be required for the effective performance of its functions, and dispose of property so acquired or hired; and
- (b)
- enter into contracts in connection with the performance of its functions.
Funds of Commission
17. (1) The funds of the Commission consist of - (a)
- money appropriated by Parliament for the purposes of the Commission;
- (b)
- fees payable to the Commission in terms of this Act;
- (c)
- money vesting in or accruing to the Commission from any other source; and
- (d)
- interest derived from the investment of funds of the Commission.
- (2)
- The Commission must submit to the Minister annually, at a time determined by the Minister, a statement of the Commission's estimated income and expenditure, and requested appropriation from Parliament, for its next financial year.
- (3)
- Expenditure incurred for the performance of the functions of the Commission, including remuneration, allowances or other benefits payable to members or other persons, must be defrayed from the funds of the Commission.
- (4)
- The Secretary is the accounting officer of the Commission and is responsible for
- (a)
- all income and expenditure of the Commission; and
- (b)
- all assets and the discharging of all liabilities of the Commission.
Bank accounts
18. (1) The Commission must open and maintain such bank accounts at one or more banking institutions in Namibia, registered in terms of the Banking Institutions Act, 1998 (Act No. 2 of 1998) as are necessary for the performance of the functions of the Commission. - (2)
- The Commission must ensure that
- (a)
- all money received by or on behalf of the Commission is deposited into its bank account as soon as practicable after being received;
- (b)
- any payment by or on behalf of the Commission is made from its bank account; and
- (c)
- no money is withdrawn, paid or transferred from its bank account without the Commission’s authority.
(3) Cheques drawn on the Commission’s bank account, or any other form or document to be completed for the withdrawal, payment or transfer of money from any of the bank accounts of the Commission, must be signed on the Commission's behalf by two persons authorised for that purpose by the Commission.
Investment of money
19. Any money of the Commission that is not immediately required for expenditure by the Commission may be invested at a banking institution referred to in section 18(1) or a building society registered in terms of the Building Societies Act, 1986 (Act No. 2 of 1986).
Financial year, accounts and audit
20. (1) The financial year of the Commission is as prescribed. - (2)
- The Commission must cause such records of account to be kept in accordance with general accepted accounting practices, principles and procedures as are necessary to represent fairly the state of affairs and business of the Commission and to explain the transactions and financial position of the Commission.
- (3)
- Not later than three months after the end of each financial year of the Commission, the Secretary must prepare and submit to the Commission for approval, financial statements, comprising
- (a)
- a statement reflecting, with suitable and sufficient particulars, the income and expenditure of the Commission during that financial year; and
- (b)
- a balance sheet showing the state of the Commission's assets, liabilities and financial position as at the end of that financial year.
- (4)
- The accounting records and the financial statements of the Commission must be audited annually by the Auditor-General.
Annual report
21. (1) The Commission must submit to the Minister an annual report of its activities within six months of the end of each financial year, or such longer period as the Minister may determine, which report must be accompanied by - (a)
- the audited financial statements of the Commission for that financial year;
and
- (b)
- the auditor's report relating to those financial statements.
- (2)
- The Minister must lay upon the Table of the National Assembly the annual report and financial statements submitted to the Minister in terms of subsection (1) within 30 days from the date of their receipt or, if the National Assembly is not then in ordinary session, within 14 days after the commencement of its next ordinary session.
- (3)
- The Commission must, if the Minister at any time so requires, furnish to the Minister a report and particulars relating to the performance of the functions of the Commission in relation to any matter as the Minister may require.
Power of Commission to make rules
22. The Commission, with the approval of the Minister, may make rules by notice in the Gazette (a) relating to the administration, organization and operations of the Commission; (b) prescribing the procedure to be followed in respect of applications and notices to, and proceedings of, the Commission; (c) prescribing forms of applications, notices, certificates and other documents required for the purposes of this Act; (d) prescribing fees to be paid for the purposes of this Act; (e) the manner for making a submission in relation to the subject matter of any application to, or investigation by, the Commission; (f) prescribing the procedures for investigations under this Act; (g) prescribing the requirements for a small undertaking; (h) relating to any other matter which is required or permitted to be prescribed under this Act, or considered necessary or expedient by the Commission in order to achieve the objects of this Act. CHAPTER 3 RESTRICTIVE BUSINESS PRACTICES
Part I Restrictive Agreements, Practices and Decisions
Restrictive practices prohibited
23. (1) Agreements between undertakings, decisions by associations of undertakings or concerted practices by undertakings which have as their object or effect the prevention or substantial lessening of competition in trade in any goods or services in Namibia, or a part of Namibia, are prohibited, unless they are exempt in accordance with the provisions of Part III of this Chapter.
(2) Agreements and concerted practices contemplated in subsection (1), include agreements concluded between
(a) parties in a horizontal relationship, being undertakings trading in
competition; or
(b) parties in a vertical relationship, being an undertaking and its suppliers or customers or both. (3) Without prejudice to the generality of the provisions of subsection (1), that
subsection applies in particular to any agreement, decision or concerted practice which - (a)
- directly or indirectly fixes purchase or selling prices or any other trading conditions;
- (b)
- divides markets by allocating customers, suppliers, areas or specific types of goods or services;
- (c)
- involves collusive tendering;
- (d)
- involves a practice of minimum resale price maintenance;
- (e)
- limits or controls production, market outlets or access, technical development or investment;
- (f)
- applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
- (g)
- makes the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject of the contracts.
- (4)
- Paragraph (d) of subsection (3) does not prevent a supplier or producer of goods or services from recommending a resale price to a reseller of the goods or a provider of the service, provided
- (a)
- it is expressly stipulated by the supplier or producer to the reseller or provider that the recommended price is not binding; and
- (b)
- if any product, or any document or thing relating to any product or service, bears a price affixed or applied by the supplier or producer, the words “recommended price“ appear next to the price so affixed or applied.
- (5)
- It is presumed that an agreement or a concerted practice of the nature prohibited by subsection (1) exists between two or more undertakings if
- (a)
- any one of the undertakings owns a significant interest in the other or they have at least one director or one substantial shareholder in common; and
- (b)
- any combination of the undertakings engages in any of the practices mentioned in subsection (3).
- (6)
- The presumption created by subsection (5) may be rebutted if an undertaking or a director or shareholder concerned establishes that a reasonable basis exists to conclude that any practice in which any of the undertakings engaged was a normal commercial response to conditions prevailing in the market.
- (7)
- For the purposes of subsection (5), “director” includes
- (a)
- a director of a company as defined in the Companies Act, 1973 (Act No. 61 of 1973);
- (b)
- a member of a close corporation as defined in the Close Corporations Act,
1988 (Act No. 26 of 1988);
- (c)
- a trustee of a trust; or
- (d)
- in relation to an undertaking conducted by an individual or a partnership, the owner of the undertaking or a partner of the partnership.
(8) Subsection (1) does not apply in respect of an agreement entered into between, or a practice engaged in by - (a)
- a company and its wholly owned subsidiary, as contemplated in section 1 of the Companies Act, 1973, or a wholly owned subsidiary of that subsidiary company; or
- (b)
- undertakings other than companies, each of which is owned or controlled by the same person or persons.
Part II
Abuse of Dominant Position
Application of this Part
24. For the purposes of this Part, the Minister, with the concurrence of the Commission, must determine by notice in the Gazette in relation to undertakings in Namibia, either in general or in relation to a specific industry - (a)
- a threshold of annual turnover or value of assets below which this Part does not apply to an undertaking;
- (b)
- the method for calculating an undertaking’s annual turnover or value of assets for the purposes of paragraph (a).
Criteria for determining dominant position
25. For the purposes of this Part, the Commission must prescribe criteria to be applied for determining whether an undertaking has, or two or more undertakings have, a dominant position in a market, which may be based on any factors which the Commission considers appropriate.
Abuse of dominant position
26. (1) Any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market in Namibia, or a part of Namibia, is prohibited.
(2) Without prejudice to the generality of subsection (1), abuse of a dominant position includes - (a)
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- (b)
- limiting or restricting production, market outlets or market access, investment, technical development or technological progress;
- (c)
- applying dissimilar conditions to equivalent transactions with other trading parties; and
(d) making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts.
Part III
Exemption of Certain Restrictive Practices
Grant of exemption for certain restrictive practices
27. (1) Any undertaking or association of undertakings may apply to the Commission to be exempted from the provisions of Part I or Part II of this Chapter in respect of - (a)
- any agreement or category of agreements;
- (b)
- any decision or category of decisions;
- (c)
- any concerted practice or category of concerted practices.
- (2)
- An application for an exemption under subsection (1) must
- (a)
- be made in the prescribed form and manner;
- (b)
- be accompanied by such information as may be prescribed or as the Commission may reasonably require.
(3) The Commission must give notice in the Gazette of an application received in terms of subsection (1) - (a)
- indicating the nature of the exemption sought by the applicant; and
- (b)
- calling upon interested persons to submit to the Commission, within 30 days of the publication of the notice, any written representations that they may wish to make in regard to the application.
Determination of application for exemption
28. (1) After consideration of an application in terms of section 27 and any representations submitted by interested persons, the Commission must make a determination in respect of the application, and may -
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GOVERNMENT NOTICE |
No. 92 Promulgation of Competition Act, 2003 (Act No. 2 of 2003), of the Parliament ... 1 _______________ |
Government Notice |
OFFICE OF THE PRIME MINISTER
No. 92 2003
PROMULGATION OF ACT The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 2 of 2003: Competition Act, 2003.
ACT (Signed by the President on 3 April 2003)
ARRANGEMENT OF SECTIONS
CHAPTER 2 Part I 23. Restrictive practices prohibited
Part II Abuse of Dominant Position Part III Exemption of Certain Restrictive Practices Part IV Investigation Into Prohibited Practices CHAPTER 5 JURISDICTION OF COURT CHAPTER 6 GENERAL PROVISIONS CHAPTER 7 OFFENCES AND PENALTIES CHAPTER 8 APPLICATION OF THIS ACT AND OTHER LEGISLATION RELATING TO BE IT ENACTED by the Parliament of the Republic of Namibia as follows:CHAPTER 1 PRELIMINARY PROVISIONS Definitions
1. In this Act, unless the context otherwise indicates
“agreement” includes a contract, arrangement or understanding, whether or not legally through direct or indirect contact that replaces their independent actions; to an undertaking, has a particular economic value and is not generally available to or “historically disadvantaged persons” means persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices;
“member” means a member of the Commission appointed under section 5(1); “Minister” means the Minister of Trade and Industry; (a) the performance of work under a contract of service; and
(b) services exempted under section 3(1)(c); “small undertaking” means an undertaking which falls within a category prescribed; “this Act” includes the rules made under section 22; “undertaking” means any business carried on for gain or reward by an individual, a body
corporate, an unincorporated body of persons or a trust in the production, supply or distribution of goods or the provision of any service.
2. The purpose of this Act is to enhance the promotion and safeguarding of competition in Namibia in order to 3. (1) This Act applies to all economic activity within Namibia or having an effect in Namibia, except (c) in relation to goods or services which the Minister, with the concurrence of the Commission, declares, by notice in the Gazette, to be exempt from the provisions of this Act. CHAPTER 2 Establishment of Commission
4. There is established a juristic person to be known as the Namibian Competition Commission, which 5. (1) The Commission consists of a chairperson and not less than two nor more than four other members all of whom are appointed by the Minister.
(2) When appointing members of the Commission the Minister must select persons who, in the opinion of the Minister, have expertise in industry, commerce, economics, law, accountancy, public administration or consumer affairs.
6. (1) The Minister may appoint for each member a person to be the alternate of the member.
(2) The alternate to a member may, in the event of the member’s absence from a meeting of the Commission, attend the meeting in the capacity of a member.
7. Subject to section 8, a member holds office for a term of three years, and is eligible for reappointment at the expiration of that term, but a member may not hold office for more than two consecutive terms.
8. (1) A member vacates his or her office, if the member 9. The members of the Commission, and members of a committee who are not members of the Commission, must be paid such remuneration or allowances or other benefits as the Minister, with the concurrence of the Minister of Finance, may determine.
10. (1) A member of the Commission may not 11. (1) The first meeting of the Commission must be held at a place and time that the chairperson determines and any meeting of the Commission thereafter must be held at a place and time that the Commission determines. 12. (1) The Commission may establish one or more committees to 13. (1) The Commission must appoint a Secretary to the Commission and may appoint other employees as it deems necessary to assist in the performance of the functions of the Commission. 14. (1) The Commission may
(a) designate any of its employees; or 15. The Commission may engage persons to give advice to, and perform services for, the Commission on such terms and conditions of engagement as the Commission may determine.
16. (1) The Commission is responsible for the administration and enforcement of this Act and, in addition to any other functions conferred on the Commission, it has the following powers and functions:
(a) to disseminate information to persons engaged in trade or commerce and the public with respect to the provisions of this Act and the functions of the Commission; 17. (1) The funds of the Commission consist of 18. (1) The Commission must open and maintain such bank accounts at one or more banking institutions in Namibia, registered in terms of the Banking Institutions Act, 1998 (Act No. 2 of 1998) as are necessary for the performance of the functions of the Commission. (3) Cheques drawn on the Commission’s bank account, or any other form or document to be completed for the withdrawal, payment or transfer of money from any of the bank accounts of the Commission, must be signed on the Commission's behalf by two persons authorised for that purpose by the Commission.
19. Any money of the Commission that is not immediately required for expenditure by the Commission may be invested at a banking institution referred to in section 18(1) or a building society registered in terms of the Building Societies Act, 1986 (Act No. 2 of 1986).
20. (1) The financial year of the Commission is as prescribed. 21. (1) The Commission must submit to the Minister an annual report of its activities within six months of the end of each financial year, or such longer period as the Minister may determine, which report must be accompanied by 22. The Commission, with the approval of the Minister, may make rules by notice in the Gazette Part I Restrictive Agreements, Practices and Decisions
23. (1) Agreements between undertakings, decisions by associations of undertakings or concerted practices by undertakings which have as their object or effect the prevention or substantial lessening of competition in trade in any goods or services in Namibia, or a part of Namibia, are prohibited, unless they are exempt in accordance with the provisions of Part III of this Chapter.
(2) Agreements and concerted practices contemplated in subsection (1), include agreements concluded between
(a) parties in a horizontal relationship, being undertakings trading in competition; or subsection applies in particular to any agreement, decision or concerted practice which (8) Subsection (1) does not apply in respect of an agreement entered into between, or a practice engaged in by Part II 24. For the purposes of this Part, the Minister, with the concurrence of the Commission, must determine by notice in the Gazette in relation to undertakings in Namibia, either in general or in relation to a specific industry 25. For the purposes of this Part, the Commission must prescribe criteria to be applied for determining whether an undertaking has, or two or more undertakings have, a dominant position in a market, which may be based on any factors which the Commission considers appropriate.
26. (1) Any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market in Namibia, or a part of Namibia, is prohibited.
(2) Without prejudice to the generality of subsection (1), abuse of a dominant position includes (d) making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts.
Part III 27. (1) Any undertaking or association of undertakings may apply to the Commission to be exempted from the provisions of Part I or Part II of this Chapter in respect of (3) The Commission must give notice in the Gazette of an application received in terms of subsection (1) 28. (1) After consideration of an application in terms of section 27 and any representations submitted by interested persons, the Commission must make a determination in respect of the application, and may
OF PARLIAMENT
To safeguard and promote competition in the Namibian market; to establish the Namibian Competition Commission and make provision for its powers, duties and functions; and to provide for incidental matters.
CHAPTER 1 PRELIMINARY PROVISIONS Section
NAMIBIAN COMPETITION COMMISSION
CHAPTER 3
RESTRICTIVE BUSINESS PRACTICES
Restrictive Agreements, Practices and Decisions
CHAPTER 4 MERGERS
COMPETITION
CHAPTER 9
TRANSITIONAL
enforceable;
“chairperson” means the chairperson of the Commission appointed under section 5(1);
“Commission” means the Namibian Competition Commission established by section 4;
“committee” means a committee of the Commission established under section 12;
"concerted practice” means deliberate conjoint conduct between undertakings achieved
“confidential information” means trade, business or industrial information that belongs
known by others;
“court” means the High Court of Namibia;
“goods” does not include
“Ministry” means the Ministry of Trade and Industry;
“Part I prohibition” means the prohibition imposed by Part I of Chapter 3;
“Part II prohibition” means the prohibition imposed by Part II of Chapter 3;
“premises” includes land, any building, structure, vehicle, vessel, aircraft or container;
“prescribed” means prescribed by a rule made under section 22;
“Secretary” means the Secretary to the Commission appointed in terms of section 13(1);
“services” does not include
Purpose of Act
Application of Act
NAMIBIAN COMPETITION COMMISSION
Constitution of Commission
Alternate members
Term of office
Vacation of office and filling of vacancies
(a) has failed to comply with any obligation imposed by section 10; (b) is guilty of neglect of duty or misconduct; or (c) is incapable of performing the duties of his or her office, by reason of physical or mental illness. Remuneration
Conduct of members and disclosure of interest
Meetings of Commission
(6) At a meeting of the Commission (a) a majority of the members of the Commission forms a quorum; (b) all questions are decided by a majority of votes of the members present and voting; and (c) the member presiding has a deliberative vote and, in the event of any equality of votes, also a casting vote. Committees of Commission
Staff of Commission
(2) The Secretary is, subject to the directions of the Commission, responsible for (a) the formation and development of an efficient administration; and (b) the organisation, control, management and discipline of the staff of the Commission.
Inspectors
Consultants
Functions, powers and duties of Commission
Funds of Commission
Bank accounts
Investment of money
Financial year, accounts and audit
Annual report
Power of Commission to make rules
(a) relating to the administration, organization and operations of the Commission; (b) prescribing the procedure to be followed in respect of applications and notices to, and proceedings of, the Commission; (c) prescribing forms of applications, notices, certificates and other documents required for the purposes of this Act; (d) prescribing fees to be paid for the purposes of this Act; (e) the manner for making a submission in relation to the subject matter of any application to, or investigation by, the Commission; (f) prescribing the procedures for investigations under this Act; (g) prescribing the requirements for a small undertaking; (h) relating to any other matter which is required or permitted to be prescribed under this Act, or considered necessary or expedient by the Commission in order to achieve the objects of this Act. CHAPTER 3 RESTRICTIVE BUSINESS PRACTICES Restrictive practices prohibited
(b) parties in a vertical relationship, being an undertaking and its suppliers or customers or both. (3) Without prejudice to the generality of the provisions of subsection (1), that
Abuse of Dominant Position
Application of this Part
Criteria for determining dominant position
Abuse of dominant position
Exemption of Certain Restrictive Practices
Grant of exemption for certain restrictive practices
Determination of application for exemption