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.
6.4 Abuse of Dominant Position In Namibia, unilateral conduct is mainly regulated through the prohibition against the abuse of a domi - nant position under the Competition Act 2 of 2003 (“the Act”), which is enforced by the Namibian Com - petition Commission. Namibia does not currently have separate legislation specifically dealing with “economic dependency”. Instead, situations involv - ing economically dependent businesses are gener - ally considered under the broader rules dealing with market dominance and restrictive business practices. The Competition Act aims to promote fair competition, protect consumers, and create equal opportunities for smaller businesses to participate in the economy. In terms of Section 26 of the Act, a business is prohib - ited from abusing a dominant position in a market in Namibia, or any part of the Namibian market. The law does not prohibit a business from being dominant or successful, but it does prohibit the unfair use of that power in a way that harms competition. Examples of conduct that may amount to an abuse of dominance include: • selling goods or services at unfairly low prices to force competitors out of the market; • charging excessive or unfair prices; • refusing to supply goods or services without proper justification; • unfairly discriminating between customers or com - petitors; and • engaging in conduct that excludes competitors from the market. Whether conduct amounts to an abuse of dominance will depend on the specific facts of each case and its effect on competition within the relevant market. Namibian law does not currently recognise “econom - ic dependency” as a separate legal basis for liability. Accordingly, where one business is heavily depend - ent on another, the main legal question will gener - ally be whether the stronger business has sufficient market power or dominance and whether its conduct amounts to an abuse under the Act.
Economic dependency may therefore be relevant when determining whether a business has market power or whether its conduct has anti-competitive effects, but dependency on its own is not a separate cause of action under Namibian law. Namibia follows an “effects-based” approach in com - petition law. This means that the important considera - tion is not necessarily where the conduct occurred, but whether the conduct has anti-competitive effects in Namibia. Therefore, if abusive conduct occurs within Namibia, the Competition Act applies directly, and if conduct occurs outside Namibia, but negatively affects competition within Namibia, the Act may nev - ertheless apply. A patent is the title granted under the Industrial Prop - erty Act No 1 of 2012 to protect an invention. An invention is an idea of an inventor in the form of new knowledge of a technical nature. A patent expires 20 years after its filing date. A pre - scribed annual fee is, however, payable for each year starting one year after the filing date of the application. An application for a patent must be filed with the Reg - istrar and must contain a written request; a specifica - tion comprising a description, one or more claims, and one or more drawings; and an abstract. 7. Intellectual Property 7.1 Patents The Registrar must examine the application as to form and substance and determine whether the claimed invention is patentable. If the application does not comply with the requirements of the Industrial Prop - erty Act No 1 of 2012, the Registrar must notify the applicant, setting out the reasons for the finding. The applicant may, within the specified period of receipt of the notification, submit arguments as to why the application should be granted, or submit changes to the description, claims or drawings to address the findings of the Registrar, failing which the application will be refused.
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