Related documents
- Is amended by Public Enterprises Governance Act, 2006
- Is amended by Abolition of Payment by Cheque Act, 2022
- Is commenced by Commencement of Competition Act, 2003
Competition Act, 2003
Act 2 of 2003
- Published in Government Gazette 2964 on 24 April 2003
- Assented to on 3 April 2003
- Commenced on 3 March 2008 by Commencement of Competition Act, 2003
- [This is the version of this document from 15 March 2023 and includes any amendments published up to 19 April 2024.]
- [Amended by Public Enterprises Governance Act, 2006 (Act 2 of 2006) on 1 November 2006]
- [Amended by Abolition of Payment by Cheque Act, 2022 (Act 16 of 2022) on 15 March 2023]
Chapter 1
PRELIMINARY PROVISIONS
1. Definitions
In this Act, unless the context otherwise indicates -“agreement” includes a contract, arrangement or understanding, whether or not legally enforceable;“chairperson” means the chairperson of the Commission appointed under section 5(1);“Commission” means the Namibian Competition Commission established by section 4;“committee” means a committee of the Commission established under section 12;“concerted practice” means deliberate conjoint conduct between undertakings achieved through direct or indirect contact that replaces their independent actions;“confidential information” means trade, business or industrial information that belongs to an undertaking, has a particular economic value and is not generally available to or known by others;“court” means the High Court of Namibia;“goods” does not include -(a)agricultural commodities which have not undergone a process of manufacture; and(b)goods exempted under section 3(1)(c);“historically disadvantaged persons” means persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices;“member” means a member of the Commission appointed under section 5(1);“Minister” means the Minister of Trade and Industry;“Ministry” means the Ministry of Trade and Industry;“Part I prohibition” means the prohibition imposed by Part I of Chapter 3;“Part II prohibition” means the prohibition imposed by Part II of Chapter 3;“premises” includes land, any building, structure, vehicle, vessel, aircraft or container;“prescribed” means prescribed by a rule made under section 22;“Secretary” means the Secretary to the Commission appointed in terms of section 13(1);“services” does not include -(a)the performance of work under a contract of service; and(b)services exempted under section 3(1)(c);“small undertaking” means an undertaking which falls within a category prescribed;“this Act” includes the rules made under section 22;“undertaking” means any business carried on for gain or reward by an individual, a body corporate, an unincorporated body of persons or a trust in the production, supply or distribution of goods or the provision of any service.2. Purpose of Act
The purpose of this Act is to enhance the promotion and safeguarding of competition in Namibia in order to -3. Application of Act
Chapter 2
NAMIBIAN COMPETITION COMMISSION
4. Establishment of Commission
There is established a juristic person to be known as the Namibian Competition Commission, which -5. Constitution of Commission
The Commission shall be constituted, and its members, including the chairperson and the vice-chairperson of the Commission, shall be appointed in accordance with, and for a period as determined under, sections 14 and 15 of the Public Enterprises Governance Act, 2006.[Section 5 is substituted by Act 2 of 2006, as amended by Act 8 of 2015. The Public Enterprises Governance Act referred to is Act 2 of 2006.]6. Alternate members
7. ***
[section 7 deleted by Act 2 of 2006]8. Vacation of office and filling of vacancies
9. Remuneration
The members of the Commission, and members of a committee who are not members of the Commission, must be paid such remuneration or allowances or other benefits as the Minister, with the concurrence of the Minister of Finance, may determine.10. Conduct of members and disclosure of interest
11. Meetings of Commission
12. Committees of Commission
13. Staff of Commission
14. Inspectors
15. Consultants
The Commission may engage persons to give advice to, and perform services for, the Commission on such terms and conditions of engagement as the Commission may determine.16. Functions, powers and duties of Commission
17. Funds of Commission
18. Bank accounts
19. Investment of money
Any money of the Commission that is not immediately required for expenditure by the Commission may be invested at a banking institution referred to in section 18(1) or a building society registered in terms of the Building Societies Act, 1986 (Act No. 2 of 1986).20. Financial year, accounts and audit
21. Annual report
22. Power of Commission to make rules
The Commission, with the approval of the Minister, may make rules by notice in the Gazette -Chapter 3
RESTRICTIVE BUSINESS PRACTICES
Part I – Restrictive Agreements, Practices and Decisions
23. Restrictive practices prohibited
Part II – Abuse of Dominant Position
24. Application of this Part
For the purposes of this Part, the Minister, with the concurrence of the Commission, must determine by notice in the Gazette in relation to undertakings in Namibia, either in general or in relation to a specific industry -25. Criteria for determining dominant position
For the purposes of this Part, the Commission must prescribe criteria to be applied for determining whether an undertaking has, or two or more undertakings have, a dominant position in a market, which may be based on any factors which the Commission considers appropriate.26. Abuse of dominant position
Part III – Exemption of Certain Restrictive Practices
27. Grant of exemption for certain restrictive practices
28. Determination of application for exemption
29. Revocation or amendment of exemption
30. Exemption in respect of intellectual property rights
31. Exemption in respect of professional rules
32. Notification of grant, revocation or amendment of exemption
The Commission must as soon as is practicable cause to be published in the Gazette notice of every exemption granted, and of every exemption revoked under any provision of this Part.Part IV – Investigation Into Prohibited Practices
[The word “into” should not be capitalised.]33. Investigation by Commission
34. Entry and search of premises
35. Power of Commission to take evidence
36. Proposed decision of Commission
37. Conference to be convened for oral representations
38. Action following investigation
After consideration of any written representations made in terms of section 36(2)(c)(i) and of any matters raised at a conference held in accordance with section 37, the Commission may institute proceedings in the Court against the undertaking or undertakings concerned for an order -39. Interim relief
40. Consent agreement
41. Publication of decision of Commission
Chapter 4
MERGERS
42. Merger defined
43. Control of mergers
44. Notice to be given to Commission of proposed merger
45. Period for making determination in relation to proposed merger
46. Conference in relation to proposed merger
47. Determination of proposed merger
48. Revocation of approval of proposed merger
49. Review of decisions of Commission on mergers by Minister
50. Compliance with other laws relating to mergers
Approval of a proposed merger granted by the Commission, or by the Minister upon a review, under this Chapter -51. Merger implemented in contravention of this Chapter
If a merger is being, or has been, implemented in contravention of the provisions of this Chapter, the Commission may make application to the Court for -Chapter 5
JURISDICTION OF COURT
52. Jurisdiction of court
Without prejudice to the powers vested in the Court, the Court has jurisdiction to hear and determine any matter arising from proceedings instituted in terms of this Act.53. Pecuniary penalties
Chapter 6
GENERAL PROVISIONS
54. Civil actions and jurisdiction
55. Prohibition on disclosure of information
56. Disclosure of private interest by staff
57. Time within which investigation may be initiated
An investigation into an alleged infringement of the Part I or the Part II prohibition may not be initiated after three years from the date the infringement has ceased.58. Limitation of liability
Neither the Commission nor any member, the Secretary, any employee of the Commission or any other person engaged by the Commission in connection with any function of the Commission is liable in respect of anything done in good faith in terms of this Act.59. Standard of proof
In any proceedings in terms of this Act, other than proceedings in terms of section 39(2) or criminal proceedings; the standard of proof is on a balance of probabilities.Chapter 7
OFFENCES AND PENALTIES
60. Hindering administration of Act
A person commits an offence who hinders, opposes, obstructs or unduly influences any person who is exercising a power or performing a duty conferred or imposed on that person by this Act.61. Failure to comply with summons
A person commits an offence who -62. Failure to comply with order of Court
A person commits an offence who contravenes or fails to comply with an interim or final order of the Court given in terms of this Act.63. Other offences
A person commits an offence who -64. Penalties
A person convicted of an offence in terms of this Act, is liable -65. Jurisdiction of magistrates’ courts
Notwithstanding any other law, a magistrate’s court has jurisdiction to impose any penalty provided for in section 64.Chapter 8
APPLICATION OF THIS ACT AND OTHER LEGISLATION RELATING TO COMPETITION
66. Definitions for this Chapter
67. Relationship with other authorities
Chapter 9
TRANSITIONAL
68. Transitional provisions
69. Repeal of laws
The following laws are repealed:70. Short title and commencement
History of this document
15 March 2023 this version
Amended by
Abolition of Payment by Cheque Act, 2022
03 March 2008
Commenced by
Commencement of Competition Act, 2003
01 November 2006
24 April 2003
03 April 2003
Assented to
Cited documents 3
Legislation 3
Documents citing this one 172
Discussion Paper 1
Gazette 142
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Judgment 21
- Alieta Elizabeth Wiese t/a Support.com v Pastec Distribution & Training CC (285 of 2011) [2012] NAHC 37 (24 February 2012)
- Amushelelo v The Magistrate, Windhoek (HC-MD-CIV-MOT-REV 397 of 2019) [2020] NAHCMD 559 (4 December 2020)
- Dr. Weder, Kauta & Hoveka Inc. and Another v Namibia Competition Commission and Others (HC-MD-CIV-MOT-REV-2022/00355; HC-MD-CIV-MOT-REV-2022/00357) [2023] NAHCMD 613 (4 October 2023)
- Engen Namibia (Pty) Ltd v Billy and Another (HC-MD-CIV-ACT-CON-2023/03285) [2024] NAHCMD 135 (5 March 2024)
- Kamwi v M B De Klerk & Associates (3086 of 2006) [2012] NAHC 113 (8 May 2012)
- Kamwi v Standard Bank Namibia Ltd and Others (1) (APPEAL 101 of 2011) [2015] NAHCMD 4 (30 January 2015)
- MobileTelecommunications Ltd v Namibia Communications Commission and Others (26 of 2011) [2012] NAHC 94 (3 April 2012)
- Namibia Competition Commission v Frans Indongo Group ((Pty) Ltd NO (HC-MD-CIV-MOT-GEN 180 of 2020) [2021] NAHCMD 297 (4 June 2021)
- Namibia Competition Commission v Puma Energy Namibia (Pty) Ltd [2020] NASC 33 (8 September 2020)
- Namibian Association of Medical Aid Funds and Others v Namibian Competition Commission and Another (18 of 2016) [2017] NASC 27 (19 July 2017)
- Namibian Association of Medical Aid Funds v Namibian Competition Commission (APPEAL 348 of 2014) [2016] NAHCMD 80 (17 March 2016)
- Namibian Competition Commission and Another v Wal-Mart Stores Incorporated (SA 41 of 2011) [2011] NASC 11 (4 November 2011)
- Namibian Competition Commission v Namib Mills (PTY) Ltd and Another (HC-MD-CIV-MOT-GEN 61 of 2017) [2019] NAHCMD 255 (23 July 2019)
- Namibian Competition Commission v Puma Energy (Namibia) (Pty) Ltd (HC-MD-CIV-MOT-EXP 275 of 2016) [2018] NAHCMD 356 (8 November 2018)
- Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-MOT-EXP 27 of 2016) [2018] NAHCMD 36 (16 February 2018)
- Namibian Competition Commission v Santam Namibia Ltd (HC-MD-CIV-ACT-OTH- 3064 of 2021) [2022] NAHCMD 433 (24 August 2022)
- S v Nuuyoma and Others (4) [2020] NAHCMD 277 (30 June 2020)
- Standard Bank Namibia Ltd v Nationwide Detectives and Professional Practitioners CC and Another (2051 of 2007) [2013] NAHCMD 200 (17 July 2013)
- Transworld Cargo (Pty) Ltd v Air Namibia (Pty) Ltd and Others (SA 11 of 2013) [2014] NASC 11 (15 July 2014)
- Tulela Processing Solutions (Pty) Ltd v Weatherly Mining Namibia Ltd and Another (HC-MD-CIV-ACT-CON- 94 of 2021) [2022] NAHCMD 211 (22 April 2022)
- Wal-Mart Stores Inc v Chairperson of Namibian Competition Commission and Others (1) (APPEAL 61 of 2011) [2011] NAHC 126 (28 April 2011)