NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation Merger control in Namibia is governed and regulated by the Competition Act No 2 of 2003 (the “Competi - tion Act”), read with the Rules made under the Com - petition 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 fur - ther 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”). 1.2 Legislation Relating to Particular Sectors 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 Namib - ian foreign investment regime. However, the NIPA has not entered into force and is now likely to be super - seded by new legislation being contemplated by the government of Namibia. There is unfortunately no cer - tain timeline for this new legislation. 1.3 Enforcement Authorities 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.
alties for failure to notify or gun-jumping, the NaCC usually focuses on the target and the acquiring group or merging parties. 2.2 Failure to Notify Section 51 of the Competition Act empowers the NaCC to apply to the court for an injunction restrain - ing parties from implementing a merger, to order par - ties 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 appro - priate 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 Gov - ernment of Namibia. All court proceedings are publicly accessible. 2.3 Types of Transactions The Competition Act defines a “merger” broadly, cov - ering any transaction where one or more undertak - ings 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 acqui - sitions, controlling minority shareholdings and the for - mation 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, clear - ance may be required from the NaCC before assets or personnel are transferred from the parent entities.
2. Jurisdiction 2.1 Notification
Notification is compulsory. Section 44 of the Competi - tion 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 pen -
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