Southern African countries have moved to protect their local businesses by amending the competition laws that are deemed to have loopholes and vulnerable to exploitation by international companies, resulting in the closure of local businesses in the process.

Among the countries who have already amended their competition law is South Africa, which amended its Competition Act in 2009 to introduce prohibitions on anti-competitive conduct, restrictive practices (such as price fixing, predatory pricing and collusive tendering) and “abuses” by “dominant” firms.

Another SADC country which has also tighten the screws on unhealthy competition is Botswana which for many years didn’t have any law in place until 2009 when an Act to provide for the establishment of the Competition Authority, its mandate, the regulation of competition in the economy, and matters incidental thereto was enacted.

Namibia’s Minister of Trade and Industry, Calle Schlettwein this week confirmed that Namibia is working to amend the Competition Act of 2003 which was signed into law by the then President, Dr Sam Nujoma on 3rd April 2003.

“We have discussed such matters at the regional body’s meetings for example in the SADC’s Financial Investment protocol there are chapters which contain aspects of competition law regarding the region.”

A SADC wide competition law has already been mooted but that’s just about how far it went. 

“I think it’s a great idea but I have no idea why it hasn’t really taken off,” he said.

Schlettwein said the aim was not to scare international investors away but it’s rather to level the playing field and remove unwanted practices.

“This is to enhance competition while at the same time making sure that there are protective measure against unfair dominance. With Namibia’s amended competition law, the draft is still with the Namibia Competition Commission (NaCC) and nothing has been put in the system of Cabinet yet,” he said.

According to documents at hand the Namibia Competition Commission (NaCC), which is responsible for implementing the competition law hosted a workshop last week to discuss best practices in the area of competition law and policy, by bringing together relevant stakeholders, as well as to exchange experiences on how to deal with challenges in establishing adequate competition law and policies and their implementation.

At the workshop the Deputy Minister of Trade and Industry, Tjekero Tweya said numerous successes have been achieved by the government and most notable was the creation of strong institutions, good governance, upholding the rule of law and the protection of property rights.

“Competition regulation in Namibia is an integral part of the overall macroeconomic policies of Namibia. 

It complements the development of the recently enacted industrial policy, the Foreign Investment Act and the enactment of a Small and Medium Enterprises (SME) policy, as well as the Transformation Economic and Social Framework (TESEF) that outlines local empowerment provisions in Namibia,” he said.

He added that, “The adoption of competition law furthermore, became imperative because of the country’s closeness with South Africa, whose companies have many subsidiaries in Namibia and are engaged in various anti-competitive practices.

The broad objective of the NaCC is to safeguard and promote competition in the Namibian market.”

Information at hand also shows that as at the end of October 2013, the NaCC had handled over 291 competition cases and market investigations since its coming into operation in 2009. Of the total number of cases, 234 were mergers and acquisitions; 54 involved restrictive business practices, including exemptions; and three were market investigations.

The Inter-Governmental Group of Experts on Competition Law and Policy (IGE) of United Nations Conference on Trade and Development (UNCTAD), which considered and adopted the report on the Voluntary Peer Review of Competition Law and Policy in Namibia at its 14th Session held in Geneva, Switzerland, from July 7-11, 2014 made some recommendations to be included in the amended law.

The experts recommended the Act to provide a clear distinction between the treatment of horizontal agreements and vertical agreements, and between hard-core cartel and other “softer” horizontal agreements.

“It was found that while the Commission’s enforcement of the merger control provisions of the Act was impressive, its enforcement of the Restrictive Business Practices (RBPs) provisions had lagged far behind,” the IGE report seen by The Southern Times states in part.

The report added that, “There is also a need for a clear separation of the Commission’s investigative and adjudicative functions.”

Not all SADC countries have amended their Acts though as countries like Zimbabwe are still using the same Competition Act which formally adopted a competition policy and law in 1996 with the enactment of the Competition Act. 

The Act became operational in 1998 and in that year the Competition and Tariffs Commission was established to enforce the Act.