NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
ed persons to make representations on the potential effects of the merger. In addition, the NaCC has entered into memoranda of understanding with several sector regulators in Namibia. Where a merger is likely to impact a par - ticular regulated sector, the NaCC may seek the views of the relevant regulator before making its decision. 7.2 Contacting Third Parties The NaCC typically contacts third parties as part of its review process. The NaCC ordinarily provides written questionnaires to stakeholders or engages with sec - tor regulators. 7.3 Confidentiality The fact of the notification and a limited description of the transaction is made public and is published on the NaCC website shortly after notification. The Competition Act prohibits all NaCC members and employees present at any meeting of the NaCC or of a committee or at any investigation in terms of the Com - petition Act, from disclosing any information regarding any person or undertaking which said person obtained in the exercise of any power or performance of any duty or function in terms of the Competition Act, or obtained as a result of such person’s attendance at any meeting or investigation. Further, the parties to the merger notification ordinarily complete a statutory form titled “Form 1 – Confiden - tiality Claim” in terms of Rule 11, in which the parties specify specific information over which they claim confidentiality. The NaCC may agree to be bound by that claim without determining whether or not the information is confidential. It should be pointed out that the NaCC may determine that the information is not confidential and thereby reject the confidentiality claim. 7.4 Co-Operation With Other Jurisdictions The NaCC co-operates closely with and has memo - randums of understanding with: • the Competition Commission of South Africa; and • the Competition and Consumer Authority (Bot - swana).
The NaCC participates in regional and international forums, including the African Competition Forum, the Southern African Development Community Commit - tee on Competition and Consumer Policy, and UNC - TAD’s Intergovernmental Group of Experts on Com - petition Law and Policy. These relationships primarily support the exchange of best practices and the devel - opment of regional policy approaches. Co-operation or sharing information in terms of merger-specific investigations is, however, limited to instances where there may be a multi-jurisdictional element to the transaction. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review The Competition Act provides for a process whereby a party to a proposed merger may apply to the Minister of Industries, Mines and Energy, in terms of Section 49, to review the NaCC’s decision. The Minister, upon review, may: • overturn the NaCC’s decision; • amend the decision of the NaCC by ordering restrictions or including conditions; or • confirm the NaCC’s decision. Beyond the ministerial review, there are no further internal appeals. However, as a public administrative decision, the Minister’s determination is subject to judicial review by the High Court of Namibia under Article 18 of the Constitution of Namibia and common A party to a proposed merger may, within 30 days after the NaCC publishes a notice in the Government Gazette regarding its determination on a merger, sub - mit an application to the Minister of Industries, Mines and Energy in the prescribed form determined by the Minister. Within 30 days of receiving such an application, the Minister must, by notice in the Government Gazette: law principles of administrative justice. 8.2 Typical Timeline for Appeals
435 CHAMBERS.COM
Powered by FlippingBook