NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
2.9 Market Share Jurisdictional Threshold Namibia does not have a market share jurisdictional threshold. Instead, it uses a turnover and asset value- based threshold. 2.10 Joint Ventures The Competition Act and related legislation do not contain specific provisions regarding joint ventures. However, if the parents of a joint venture contribute existing businesses or assets, this may result in a change from sole to joint control of those businesses or assets (or parts thereof), making the transaction notifiable if the relevant thresholds are met. There is no legal requirement that a joint venture be “full-function” for notification purposes. However, in practice, the NaCC often applies the “full-function” principle when determining whether joint ventures require notification. Establishing a new legal entity as a preparatory step for a joint venture is not notifiable, but clearance may be needed from the NaCC before the transfer of assets or personnel by the parent companies. 2.11 Power of Authorities to Investigate a Transaction In terms of Section 4 of the Thresholds Determination, the NaCC is empowered to demand notification of any merger which falls below the compulsory notification thresholds if the NaCC considers it necessary to deal with the merger in terms of the Competition Act. There is no prescription period or statute of limitations appli - cable to this power. The authors are not aware of any instances of this power being exercised by the NaCC. 2.12 Requirement for Clearance Before Implementation A merger may not be implemented before the merger has been approved, or before the time has expired within which the NaCC must make a determination and the NaCC has failed to do so.
2.13 Penalties for the Implementation of a Transaction Before Clearance If a transaction is being or has been implemented in contravention of the provisions of the Competition Act, Section 51 empowers the NaCC to apply to the court for an injunction restraining parties from implementing a merger, to order parties 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. Penalties imposed by the NaCC are made public by publication in the Government Gazette. Recent penal - ties imposed for gun-jumping include: • July/August 2024 – Fan Qingmei; Wang Zhongke; Hong Xiang Holdings Ltd; Whale Rock Cement (Pty) Ltd – penalty in the amount of NAD5 million (approximately USD301,550); • December 2024 – Choppies Supermarket Namibia (Pty) Ltd – penalty in the amount of NAD2.2 million (approximately USD132,616); and • May 2024 – Johannes !Gawaxab; Ismael Gei- Khoibeb; Gamma Investments CC – penalty in the amount of NAD1 million (approximately USD60,280). 2.14 Exceptions to Suspensive Effect There are no exemptions from or waivers of the sus - pensive effect available in terms of the Competition Act. 2.15 Circumstances Where Implementation Before Clearance Is Permitted There are no circumstances in which the NaCC will permit the closing of a transaction prior to the approv - al thereof. The Namibian part of the transaction can be ring- fenced so that the transaction can proceed in other jurisdictions without receiving approval for the Namib - ian transaction. The parties must give an undertaking to the NaCC that the Namibian part of the transaction
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