NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
6. Competition Law 6.1 Merger Control Notification
ing and safeguard measures, industrial rebates and drawbacks or refunds of duties and fuel levies. Correctly classifying goods under the proper Har - monised System (HS) code is very important as it determines the amount of duty payable, whether an import permit is required, whether the goods qualify for rebates and whether preferential tariffs apply. Namibia’s highest tariffs generally apply to agricultural products, processed foods, textiles, clothing, motor vehicles, transport equipment, and certain petroleum products. Maize, sugar, dairy products, and pro - cessed food products frequently attract tariffs above 10%, while petroleum products such as light oils may face tariffs of approximately 15%. Protective tariffs on textiles and vehicles are intended to support domestic industries. By contrast, imports from SACU and many SADC partners often enjoy duty-free or preferential access. Tariffs are therefore more commonly imposed on imports from non-preferential trading partners such as China, India, the United States, and the UAE. Chi - nese imports, in particular, are generally subject to Most Favoured Nation (MFN) tariffs. Namibia’s applied MFN average tariff is approximately 7.9%, while its bound World Trade Organization (WTO) average tariff is about 19%. Around 60% of tariff lines carry zero MFN duty. Industrial inputs such as ores, metals, and diamonds generally face lower tariffs, reflecting Namibia’s export-oriented mining sector. Businesses importing into Namibia therefore ben - efit from accurate tariff classification and preferential sourcing within SACU and SADC markets. For businesses importing to Namibia, it is important to consider that preferential sourcing from SACU/SADC partners reduces tariff exposure. Imports from Asia and the United States are more likely to attract MFN tariffs.
The Competition Act 2 of 2003 stipulates that no pro - posed merger, which does not fall within an excluded class of mergers, may be implemented by any person, either individually or jointly or in concert with another person, unless such merger has been approved by the Competition Commission in accordance with the applicable provisions of the Competition Act and implemented in accordance with the conditions attached to such approval. For purposes of the Competition Act, 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. An “undertaking” includes any business carried on for gain or reward by an individual, a body corporate, an unincorporated body of persons or trust in the pro - duction, supply or distribution of goods (excluding agricultural commodities which have not undergone a process of manufacture and excluded goods) or the provision of services (excluding the performance of work under a contract or service and exempted ser - vices). A merger can be achieved by, inter alia, the purchase or lease of shares, interest, or assets, or through amal - gamation or other combination (which may include joint venture arrangements). For purposes of merger control, a person is deemed to control an undertaking if that person: • (i) beneficially owns more than one half of the issued share capital of the undertaking; • (ii) is entitled to vote a majority of the votes that may be cast at a general meeting of the undertak - ing, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking; • (iii) is able to appoint, or to veto the appointment, of a majority of the directors of the undertaking; • (iv) is a holding company, and the undertaking is a subsidiary of that company; • (v) in the case of the undertaking being a trust, has the ability to control the majority of the votes of the
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