NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
3.2 Type of Agreement Required Prior to Notification A binding agreement is not required prior to notifica - tion. The parties may submit less formal agreements such as a letter of intent, a memorandum of under - standing, or draft versions of the agreements. A merger filing can be made even where there is noth - ing in writing, based on a bona fide intention to con - clude an agreement, provided that the parties have reached a sufficient degree of understanding regard - ing the structure of the proposed transaction. A merg - er filing will be required if the transaction meets the definition of a “merger” as defined in the Competition Act. 3.3 Filing Fees The filing fees have been determined in Govern - ment Notice No 2 of 5 January 2017 – Amendment of rules made under the Competition Act, 2003. The minimum filing fee payable is NAD10,000 (approxi - mately USD602), whereas the maximum filing fee is NAD500,000 (approximately USD30,150). The filing fee is determined by reference to the “com - bined figure” of the merging parties. The combined figure is a combination of the annual turnover or the asset value in Namibia, whichever is the higher, of the target and acquiring undertakings. For the NaCC to consider a merger notification, the filing fee must be paid within five days of the lodging of the merger notification, failing which the merger notification will only be deemed to have been submit - ted on the date of receipt of the filing fee. 3.4 Parties Responsible for Filing Rule 28 of the Rules provides that each undertaking involved in a proposed merger is required to notify the NaCC. 3.5 Information Included in a Filing All documents submitted in respect of merger notifica - tion must be in the English language, being the official language of Namibia. There are three sets of documents which are ordinarily required to be submitted with a merger notification:
(that part of the transaction amounting to economic activity within Namibia or having an effect in Namibia) will not be implemented until the NaCC has provided its determination in respect of the transaction. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification Section 43 (3) of the Competition Act provides that no person, either individually or jointly or in concert with any other person, may implement a proposed merger unless the merger is approved by the NaCC and implemented in accordance with any conditions, or the period within which the NaCC is required to make a determination has lapsed. The consequences for implementing a merger in contravention of the Competition Act are set out in Section 51, which provides that the NaCC may make application to court for: • an interdict restraining the parties involved from implementing the merger; • an order directing any party to the merger to sell or dispose of in any other specified manner, any shares, interest or other assets it has acquired pursuant to the merger; • declaring void any agreement or provision of an agreement to which the merger was subject; • the imposition of a pecuniary penalty. 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 (approxi - mately USD301,550); December 2024 – Choppies Supermarket Namibia (Pty) Ltd – penalty in the amount of NAD2,200,000 (approximately USD132,616); and May 2024 – Johannes !Gawaxab; Ismael Gei-Khoibeb; Gamma Investments CC – penalty in the amount of NAD1 million (approximately USD60,280).
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