16 April 2021 by and Competition Law Alert

Namibia publishes competition policy document

On 8 December 2020, the Namibian Ministry of Industrialisation and Trade published its first national competition policy document, “Growth at home National Competition Policy, 2020 – 2025” (NCP). Although the NCP was only published in December 2020, it was adopted and approved by Cabinet in August 2020.

The NCP outlines the principles, aims and objectives that will guide Namibia’s competition policy framework over the next ten years. The policy is designed to ensure economic growth and development and promote or maintain the level of competition in markets, including by addressing governmental measures that directly affect the behaviour of enterprises and the structure of industry and markets.

Despite the absence of a National Competition Policy, the Namibian Government enacted the Competition Act 2 in 2003, and the Namibian competition authority has to date been implementing the legislation. However, the government has determined that the presence of national legislation is inadequate to deal with the increasing complexity of the market as well as ensuring that markets work to achieve efficiency and equity goals, in the Namibian context, and therefore that a policy is required to direct these goals.

Companies with Namibian operations should take note of the precise objectives of the policy which will influence changes in legislation and enforcement.

The policy sets out both economic efficiency and public interest objectives of the NCP. The economic efficiency objectives of the NCP include:

  • provision of guiding principles in the effective review of policies, legislation and government programmes;
  • addressing regulatory and infrastructural challenges for effective implementation and enforcement of competition law and policy;
  • promotion of institutional coherence for cooperation with sectoral regulators to minimise jurisdictional gridlocks;
  • protection of Micro, Small and Medium enterprises from policies and legislation that are anti-competitive; and
  • creation of awareness and targeted advocacy initiatives to build and sustain a culture of competition.

The public interest objectives, in addition to overlapping with some of the economic efficiency goals, include:

  • safeguarding investment and employment;
  • promotion of interest and market opportunities for small firms;
  • promotion of ownership spread in relation to historically disadvantaged persons;
  • enhancement of energy and safety efficiency; and
  • protection of natural resource management.

To achieving these objectives, the NCP sets out a number of guiding principles, including:

  • limitation of anti-competitive conduct: addressing in particular abuse of dominance and collusive conduct, and requiring firms which own the rights to dominant infrastructure or intellectual property grant third party competitors access.
  • Developmental merger control: through balancing the anti-competitive effects of a merger with any pro-competitive or public interest effects which may result from a merger.
  • Adoption of a cross-border investment and transactions framework: to review and modify current rules that may affect complex cross-border acquisitions.
  • Oversight and surveillance on pricing provisions: addressing in particular legislation to restrain monopolistic pricing behaviour.
  • Market investigations: when features of a market may give rise to anti-competitive effects.
  • Fostering competitive neutrality between government and private business: to establish a level playing field between the government and private sector within a market.
  • Reformation of regulations and policies that may restrict competition: through impact assessments of new policies, regulation and law, and the introduction of voluntary compliance policies in the private sector.
  • Alignment of state support measures with competition: including by examining the impact of state support measures on competition conditions.
  • Coordination of competition policy with development policies: such as the national policies on Consumer Protection and Micro, Small and Medium Enterprises.
  • Harmonisation of competition, industrial and trade policies: through monitoring by the competition authority to ensure that benefits accrued from trade agreements are passed onto domestic customers and primary producers.
  • Adoption and prompting of voluntary or mandatory sectoral codes of conduct: to regulate the conduct of participants within a certain market, in relation to competitors and customers.
  • Defining the of scope of jurisdiction of competition and economic regulators: to mitigate any overlapping jurisdiction or potential interference.
  • Incorporation of multilateral, bilateral and regional trade agreements: to ensure the cooperation of regional and international firms with competition policy.

The NCP will be reviewed by an external entity every five years, and a review report will be submitted to the Ministry of Industrialisation and Trade for discussion with the National Competition Commission.

The adoption of the NCP has prompted proposed amendments to the Namibian competition law. The content of the Namibian Competition Draft Bill was covered in a separate article by CDH titled “Proposed Namibian Competition Bill set to introduce sweeping amendments”.

The Bill is an indication of how the rubber will hit the road in the implementation of the NCP. As was the case with the amendments to the South African Competition Act (embracing many of the same objectives reflected in the NCP), it is likely we will see some shifts in focus, particularly toward public interest considerations, when the Namibian competition authority carries out its mandate.

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