Competition and specifically merger control is regulated by the following legislation:

1. Competition Act No.2 of 2003 (the “Competition Act”);
2. Rules in terms of the Competition Act (the “Rules”);
3. Government Notice 307 of 21 December 2015 (the “Notice”) (establishing revised thresholds)
4. Explanatory Note on the New Merger Thresholds

The Competition Act establishes the Namibian Competition Commission (“NaCC”) which acts as the regulator charged with implementing and enforcing the Competition Act. The NaCC became operational on 09 December 2009.

It is a mandatory notification regime, and the NaCC’s assessment considers both competition law factors and public interest considerations as more fully described in paragraph 14 below.

Notification is compulsory. Section 44 of the Competition Act mandates that each undertaking involved in a notifiable transaction must notify the NaCC. Typically, a single joint notification is submitted by all parties involved. The seller is generally not considered a party to the notification, and when assessing potential penalties for failure to notify or gun-jumping, the NaCC usually focuses on the target and the acquiring group or merging parties.

Yes, section 43(3) of the Competition Act prohibits any person, either individually or jointly or in concert from implementing a proposed merger before it has been approved by the NaCC.

The NaCC may, however, consider permitting parties to ring-fence the Namibian portion of a transaction, allowing the closing or completion to proceed outside of Namibia before the NaCC’s review is complete.

The Competition Act defines “mergers” broadly, covering any transaction where one or more undertakings directly or indirectly acquire or establish control, either wholly or partially, over another undertaking’s business. Essentially, any transaction involving an acquisition of control may be subject to notification. This includes, but is not limited to, full mergers, majority share acquisitions, controlling minority shareholdings, and the formation of new joint ventures.

Note: Internal reorganizations within the same corporate group are not notifiable.

Note: Creating a new legal entity as a preparatory step for a new joint venture is not notifiable; however, clearance may be required from the NaCC before transferring assets or personnel from the parent entities.

Paragraphs 3.6 – 3.9 of the Merger Guidelines, reflecting the catch-all provision in section 42(3)(g) of the Competition Act, specifically include minority shareholdings that provide the ability to exert material or decisive influence. This influence can involve vetoing strategic commercial decisions, such as those related to budgets, business plans, major investments, senior management appointments, or rights specific to certain markets, including technology choices where technology is a key aspect of the merged undertaking.

Step 1: If the value of the target’s assets in Namibia and its turnover in, into, or from Namibia are each ≤ NAD 15 million (approx. USD 800,000, EUR 751,000*) the transaction does not require notification or approval. If either of these amounts exceed NAD 15 million Step 2 must be considered.

Step 2: If the combined total of the higher of each party to the transaction’s value of assets in Namibia and turnover in, into, or from Namibia is ≤ NAD 30 million (approx. USD 1.60 million, EUR 1.50 million*) the transaction does not require notification or approval.

Transactions Below Thresholds: The NaCC has the authority to demand notification of a transaction that falls below the mandatory notification   thresholds if it “considers it necessary to address the merger in accordance with the Act.” This provision is broadly framed, granting the NaCC significant discretion to request notifications. For example, the NaCC has exercised this power to make its approval conditional on the notification of all future transactions, including those that do not meet the thresholds.

Note: for the second step the calculation is based on the combined total of the higher of each party’s assets and turnover. If, for example, Party A’s asset value is higher than its turnover and Party B’s turnover is higher than its asset value, these figures are combined (as opposed to taking the higher of the party’s combined assets or combined turnover).

Note: approximate USD and EUR figures are provided for convenience. USD figures are based on the average of the Bank of Namibia’s monthly average bilateral NAD/USD rates for the last complete calendar year (2025: USD 1 = NAD 18.6467). EUR figures are based on the previously used EUR conversion rate (EUR 1 = NAD 19.9534). Threshold and exemption figures are always rounded down, other figures follow standard rounding rules.

The above thresholds will be applicable to all sectors.

Government Gazette 5905 Government Notice 307 of 21 December 2015 provides that GAAP and IFRS accounting principles should be used in calculating turnover and assets.

The turnover in, into, or from Namibia, as well as the assets in Namibia, of each party to the transaction should account for all undertakings directly or indirectly controlled by that party, as well as all undertakings controlled by the ultimate direct or indirect controlling parent of that party.

There is no distinct rule for attributing the turnover and assets of partially owned companies, but pro-rating based on ownership share is generally acceptable, depending on the circumstances.

A seller who will not retain control over the target after the transaction is not considered in the threshold analysis. However, a seller or existing shareholder who will share joint control of the target post-transaction must be included as an acquiring party for the threshold analysis.

The Competition Act, relevant secondary legislation, and the guidelines do not prescribe a specific exchange rate to be used. In the absence of further guidance from the NaCC, we recommend using the average of the monthly bilateral exchange rates published by the Bank of Namibia for the period that aligns with the party’s financial year.

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.

Note: 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.

Yes, transactions structured in multiple phases may require separate notifications for each phase if they involve significant changes in control and meet the notification thresholds. Additionally, if circumstances change significantly or if different parties are involved at various stages, each stage may need to be assessed and notified individually, especially when asset transfers occur at different times within the overall transaction.

In the event that the target has absolutely no nexus to the jurisdiction, i.e. conducts no business in or which may have an effect in Namibia and has no assets or turnover in, into, or from Namibia, then such a transaction will not be notifiable.

If the contrary is true, i.e. the target conducts business in Namibia and has assets or turnover in, into or from Namibia, then the thresholds discussed in 6 above will apply.

Not applicable.

The authority considers the theories of competitive harm which may arise as a consequence of the proposed merger. In some situations, mergers can have an anticompetitive effect on the market, enhancing the market power of the merging parties and thus harming consumers (or customers). Several theories of consumer (or competitive) harm have been developed within the context of mergers. Unilateral effects and coordinated effects theories are the two mainstream theories of competitive harm and are considered relative to the type of merger under consideration before the NaCC.

The test is applied to all merger applications submitted and in respect of all sectors.

Yes, The NaCC also takes into consideration the impact a proposed merger will have on the “Public Interest”. Public Interest considerations include:

1.  the effect on employment;
2.  the effect on an industrial sector or region;
3. the effect on small and medium enterprises and their ability to participate and enter local, regional, and international markets;
4. promoting a greater spread of ownership of previously or historically disadvantaged persons;
5. enhancing national competitiveness;
6.  consumer protection; and
7. natural resource management.

Public Interest considerations often lead to the NaCC approving the merger subject to conditions. For example, that the target undertaking may not retrench employees below management level for a period of three (3) or five (5) years, or that a party to the merger is required to divest itself of certain entities in its portfolio within a certain period of time, e.g. two (2) years from approval of the merger.

Yes, ancillary restraints are a major factor taken into consideration by the NaCC in whether or not to approve the merger and if it is approved, whether conditions are imposed on the merger parties as they have the potential to materially reduce or prevent competition. This is applicable to both vertical, e.g. exclusive distribution agreement, and horizontal restraints, e.g. non-compete agreement.

Although no statutory deadline is stipulated in section 44 of the Competition Act (or rule 28 of the Rules to the Competition Act), the merger parties are required to notify the NaCC of the merger before implementing the transaction, failing which the parties will be considered to have implemented a merger in contravention of the Competition Act.

The merger parties can notify the NaCC of the transaction as soon as the agreement(s) underlying the transaction are in near-final form. If the NaCC’s decision is not based on final agreements and the final terms materially differ from those submitted to the NaCC the parties would need to notify the NaCC of such material difference.

Mergers have, in certain instances, been notified up to eighteen months before the implementation of the proposed merger.

No, it is not usual practice but where a transaction is particularly complex or may have an impact on a market of national interest, e.g. engaging the NaCC informally in pre-notification discussions may prove useful in dealing with preliminary issues and speeding up the determination process. Such pre-notification discussions typically consist of one or two meetings.

The NaCC has 30 calendar days from the date on which a notification is formally accepted (i.e. once the filing is complete and the filing fee has been received) within which to consider a notified merger and issue its initial determination.

Namibia’s merger control regime does not operate on a two-phase (Phase I / Phase II) basis. There is a single review period, which runs for 30 calendar days in the first instance but is capable of being extended in the circumstances described below.

If none of the extension mechanisms described below is triggered, a straightforward transaction that does not raise competition or public interest concerns is typically determined within 30 to 60 calendar days of formal notification, assuming any requests for information are answered promptly.

If, within the initial 30 calendar day period, the NaCC requests further information from the parties, the clock stops and the determination period is extended by a further 30 calendar days running from the date on which the requested information is received by the NaCC. Any request for information made after the initial 30-day period has expired does not stop the clock.

Where the NaCC considers a transaction to be complex, it may extend the review period further, for a period not exceeding 60 calendar days.

Where the NaCC considers that a proposed merger raises public interest considerations, it may convene a Public Stakeholders’ Conference, being a public forum at which interested stakeholders may make submissions. Convening such a conference similarly extends the determination period by 60 calendar days.

Taking all of the above together, the maximum period from formal notification to determination is therefore approximately 180 calendar days, assuming that requests for information are answered immediately and that there is no material delay between the calling of a stakeholders’ conference and the conference itself. In its Merger Guidelines, the NaCC has indicated that it regards 150 calendar days as the de facto maximum review period for most matters, although this is not fixed in the Competition Act itself and unusually complex matters may in practice take longer. Where the final day of a review period falls on a Saturday, Sunday or public holiday, the deadline moves to the next day.

A finding that a notification, or a response to an information request, is incomplete, incorrect or misleading does not itself “extend” the clock in a technical sense; rather, the NaCC will simply not treat the filing (or the relevant response) as validly made until the deficiency is cured, with the practical effect that the review period does not begin, or does not continue to run, until that point.

There is no formal fast-track or accelerated review procedure under the Competition Act or the Rules made under it.

In practice, the review timetable can occasionally be shortened where the NaCC’s Board approves a merger by way of a round-robin resolution rather than at a scheduled Board meeting. This tends to occur in exceptional cases, particularly straightforward transactions or transactions that have an impact on a market of national interest where speed is considered important. This is used sparingly and at the Board’s discretion; parties cannot request or rely on it as a matter of right, and the likelihood of it being applied to any given transaction is low.

Each undertaking that is a party to a notifiable merger is separately obliged to notify the NaCC. In practice, however, a single joint notification is almost invariably submitted on behalf of both (or all) parties, although the parties remain free to submit their respective portions of the filing separately.

The seller is generally not treated as a party to the notification (save where it will retain or acquire joint control of the target following the transaction, in which case it is treated as an acquiring party for these purposes and must be joined to the filing). When assessing potential liability for failure to notify or for gun-jumping, the NaCC’s focus is on the target and the acquiring group, or otherwise on the merging parties, rather than on a seller that is exiting the business entirely.

Where a transaction involves the acquisition of joint control of an existing business, or the creation of a new joint venture, each of the parties that will acquire joint control is required to notify, and in practice a joint filing is made on behalf of all the controlling parties.

A merger notification comprises two broad categories of material: prescribed statutory forms and supporting documents (including a narrative competitive assessment).

The statutory forms consist of: (i) Form 38 (Schedule 1), which sets out the effect the proposed transaction will have on employment; (ii) Form 39 (Schedules 2 to 5), an identification document covering matters such as the annual turnover and assets of the notifying party, its owners and controllers, the markets in which it operates, the goods, products or services it offers and where they are offered, its market shares, and its relationships with the other party to the transaction; (iii) certifications of accuracy in respect of Form 38 and Form 39; and (iv) where relevant, an affidavit explaining why any required document has not been provided.

Additional information is routinely required where the NaCC issues a request for further information during its review (see above), which is common for transactions that raise a horizontal overlap, vertical relationship, or public interest concern (most often the effect on employment). There is no minimum threshold that triggers this; it is driven by the facts of the particular transaction.

Namibian merger control does not have a codified “short form” filing regime with reduced information requirements for straightforward transactions. The same statutory forms and categories of supporting information apply irrespective of the size or complexity of the transaction, although in practice the level of detail provided in the accompanying competitive assessment is generally proportionate to the extent of any overlap or public interest sensitivity.

The following supporting documents are ordinarily required to accompany a merger notification: a group structure chart or organogram (not limited to Namibia, but showing which group entities are Namibian); annual financial statements or annual reports for the immediately preceding financial year, covering both the party’s global operations and its Namibian operations; the transaction agreements (for example, a sale of shares or merger agreement, or, where these are not yet final,  a draft version); any board minutes, resolutions, reports, presentations or summaries prepared for the board of directors regarding the transaction; a statement of the commercial rationale for the transaction; asset value and turnover figures as at, or as close as possible to, the date of notification; a description of each group company’s activities within Namibia, including the areas in which it operates and the turnover generated by those activities; an estimate of the parties’ market shares in both the Namibian and worldwide markets for the relevant goods or services; details of the five largest competitors, and the five largest customers by turnover over the preceding 12 months, of both the target and the acquiring undertaking in Namibia; and a business plan, where one exists.

Much of this information is typically consolidated into a single narrative document, often referred to as a “Joint Competitive Report” or “Joint Report”, which describes the transaction, the parties, the relevant product and geographic markets, the parties’ market shares, and the likely competitive and public interest effects of the transaction.

All documents submitted to the NaCC must be in English, being the official language of Namibia; documents originally prepared in another language should be accompanied by an English translation. Beyond this, the Competition Act and the Rules do not impose notarisation, apostille or other certification requirements on these supporting documents. The only document that must be must be attested before a commissioner of oaths is the affidavit referred to above (where required).

The acquirer and target entities are responsible for providing the documents relating to its own business; while the Joint Competitive Report is ordinarily prepared jointly (or by a single legal representative instructed by both parties.

Yes. A filing fee is payable in respect of every merger notification, determined under the amended Rule 7 of the Rules made under the Competition Act, by reference to the “combined figure”. This is the higher of the combined annual turnover in Namibia of the acquirer and the target; or the combined assets in Namibia of the acquirer and the target; or the annual turnover in Namibia of the acquirer plus the assets in Namibia of the target; or the assets in Namibia of the acquirer plus the annual turnover in Namibia of the target.

The applicable fees, in Namibia Dollars, are set out on a sliding scale as follows: combined figure of more than NAD 30 million up to NAD 50 million – NAD 10,000; more than NAD 50 million up to NAD 65 million – NAD 25,000; more than NAD 65 million up to NAD 75 million – NAD 50,000; more than NAD 75 million up to NAD 100 million – NAD 75,000; more than NAD 100 million up to NAD 1 billion – NAD 125,000; more than NAD 1 billion up to NAD 3.5 billion – NAD 250,000; and more than NAD 3.5 billion – NAD 500,000.

The NaCC will only commence its substantive review once the filing fee has been received. The fee must be paid within 5 days of lodging the notification; if it is not, the notification is treated as having been submitted only on the date on which the fee is actually received, which correspondingly delays the start of the statutory review period described above.

There is no formal, immediate public announcement made by the NaCC at the moment a notification is lodged, and there is no express published policy governing the timing of any such disclosure. In practice, however, the fact that a notification has been made, together with a limited description of the transaction, is typically made public on the NaCC’s website after notification, and the NaCC also periodically publishes a list of the merger notifications currently under its consideration.

The NaCC’s final determinations on notified mergers are required to be published by notice in the Government Gazette.

Yes, the NaCC may invite the views of third parties as part of its review, although this is not done in every case. There is no formal exception for transactions that clearly raise no competition issues, but as a matter of practice the NaCC does not typically seek third party input on straightforward transactions where no material overlap or public interest issue is apparent.

Where the NaCC does seek third party views, it typically approaches competitors, customers and other market participants of the merging parties, most often by way of written questionnaires. Where a transaction touches on a regulated sector, the NaCC may also approach the relevant sector regulator, drawing on the memoranda of understanding it has concluded with a number of Namibian regulators.

Where a proposed merger raises significant competition or public interest concerns, the NaCC may instead (or in addition) convene a public Stakeholders’ Conference, at which affected or interested persons may make submissions on the potential effects of the merger.

This market testing, in whichever form it takes, is generally carried out during the substantive assessment of the transaction, and is most likely to feature in matters where the review period has already been extended on the grounds of complexity or public interest.

The NaCC treats information provided by merging parties as confidential in the first instance, and will only disclose or publish what it considers absolutely necessary.

Parties may lodge a confidentiality claim, in the prescribed form (“Form 1 – Confidentiality Claim”), identifying the specific information over which confidentiality is claimed. The NaCC may agree to be bound by that claim without itself determining whether the information is, as a matter of law, confidential; however, the NaCC retains the power to reject a confidentiality claim and to treat the relevant information as non-confidential if it disagrees with the claim.

In practice, the two categories of material that are routinely made available to third parties or the public are: a short description of the fact and general nature of the notification (published on the NaCC’s website shortly after filing); and the NaCC’s final determination (published in the Government Gazette). Supporting documents and other submissions made during the process, such as responses to information requests, are not routinely published or disclosed to third parties, save to the extent relevant to, and required for, a stakeholders’ conference process.

Rather than being shown a draft of what is to be published and asked to comment on it after the fact, parties in practice protect their position up front, at the time of filing, by way of the confidentiality claim mechanism described above.

Yes. The NaCC cooperates closely with a number of regional competition authorities, most notably the Competition Commission of South Africa, and has also entered into a cooperation arrangement with the Competition and Consumer Commission of Botswana. The NaCC is additionally a party to cooperation arrangements with other members of the Southern African Development Community, and participates actively in the African Competition Forum, the SADC Committee on Competition and Consumer Policy, UNCTAD’s Intergovernmental Group of Experts on Competition Law and Policy, and the International Competition Network.

This cooperation is, in the main, focused on general policy matters, capacity-building and the exchange of best practice, rather than case-specific information sharing. Cooperation or the sharing of information in relation to a specific notified transaction is more limited, and tends to occur only where that transaction has a genuine multi-jurisdictional element.

We are not aware of the Competition Act imposing any specific legal consequence on a party that declines to grant a waiver permitting its confidential information to be shared with another competition authority; the general confidentiality obligations under the Competition Act are directed at NaCC members, staff and other persons involved in its processes, rather than at the merging parties themselves.

In determining a notified merger, the NaCC may approve the transaction unconditionally, approve it subject to conditions (remedies), or prohibit it outright.

Both behavioural and structural (for example, divestiture) remedies are, in principle, acceptable to the NaCC. In practice, behavioural remedies feature considerably more frequently than divestiture-type remedies, and are used more often, relative to structural remedies, than is typically the case in major jurisdictions such as the EU or the US. This reflects the strong public interest, and in particular employment, dimension of Namibian merger review: the most commonly imposed condition by far is a moratorium on the retrenchment of employees below management level for a specified period following approval (see further Question 36 below as to current practice on duration).

There is no codified requirement for an “up-front buyer” in divestment remedies (that is, a requirement that the parties refrain from closing until they have signed a binding agreement with an identified third-party purchaser), nor a codified requirement that any purchaser of a divested business first be approved by the NaCC as a suitable buyer. Given the case-by-case, administrative approach the NaCC takes to remedies generally, we are not aware of either practice having been applied to date; conditions of this kind, if imposed, would be a matter for negotiation on the facts of the particular transaction.

There is no formal procedure for remedies prescribed in the Competition Act or in the NaCC’s Merger Guidelines; the NaCC’s approach to remedies is administrative rather than governed by fixed procedural rules.

There is no statutory deadline by which parties must proactively offer remedies. In practice, negotiation of remedies typically takes place once the NaCC has identified a potential competition or public interest concern, usually shortly before the NaCC finalises its determination. The NaCC itself commonly proposes and drafts the relevant conditions, presenting them to the parties in draft form for comment; there is no requirement that remedies originate from the parties, and the NaCC may, and often does, impose conditions that have not been agreed by the parties.

Because Namibian merger control operates on a single review track rather than a two-phase system, there is no distinction between remedies accepted “in phase one” and remedies requiring a move to an extended “phase two”; remedies can be, and generally are, agreed within the single review period (as extended, where applicable).

There is no prescribed formal market testing procedure for a remedies proposal, although the NaCC may, as part of its broader third party consultation (see Question 28 above), take third party views into account in settling on the form of any conditions.

We are not aware of the Competition Act giving the NaCC an express statutory basis to waive a Namibian remedy solely because an equivalent remedy has already been agreed with a foreign authority. The NaCC’s cooperative relationships with regional counterparts, in particular the Competition Commission of South Africa, may inform its thinking, but the NaCC conducts its own independent assessment of the effect of the transaction on competition and the public interest within Namibia.

Where a merger is approved subject to conditions, the NaCC must issue its determination together with written reasons. If a condition that is material to the implementation of the merger is subsequently not complied with, the NaCC may revoke its approval of the merger.

Liability for a failure to notify, a late notification, or a breach of the prohibition on closing prior to clearance rests, as a matter of strict legal position, with the undertakings that are parties to the merger. In practice, and consistent with the position on which party is responsible for filing (see Question 22 above), the NaCC’s enforcement focus is on the target and the acquiring group, rather than on a seller that exits the business and retains no ongoing interest in it.

Where a merger has been, or is being, implemented in contravention of the Competition Act (whether by failing to notify at all, by closing before the statutory review period has run its course, or otherwise), the NaCC may apply to the High Court for: an interdict restraining the parties from implementing the merger; an order requiring a party to dispose of any shares, interest or other assets acquired pursuant to the merger; a declaration that the underlying agreement, or a provision of it, is void; and/or the imposition of a pecuniary penalty.

The maximum pecuniary penalty that a court may impose is 10% of the relevant undertaking’s global (that is, group-wide, worldwide) turnover for its preceding financial year; within that ceiling, the amount of any penalty is at the court’s discretion and is assessed on the facts of the particular contravention. There are no criminal penalties, such as imprisonment, available under the Competition Act for failure to notify, late notification, or breach of the prohibition on closing; the sanctions are civil and administrative in nature, imposed by the High Court on the NaCC’s application.

These penalties are applied in practice, and the NaCC has, in recent years, taken an increasingly active enforcement approach to “gun-jumping” (implementing a merger before clearance). Recent examples of penalties imposed include: a penalty of NAD 5,000,000 (approximately USD 288,200) imposed in mid-2024 on Fan Qingmei, Wang Zhongke, Hong Xiang Holdings Ltd and Whale Rock Cement (Pty) Ltd; a penalty of NAD 2,200,000 imposed in December 2024 on Choppies Supermarket Namibia (Pty) Ltd; and a penalty of NAD 1,000,000 (approximately USD 57,670) imposed in May 2024 on Johannes !Gawaxab, Ismael Gei-Khoibeb and Gamma Investments CC. These penalties, and the court orders confirming them, are made public: a penalty order has the same effect as, and is enforced in the same manner as, a civil judgment in favour of the Namibian Government, and court proceedings of this kind are publicly accessible. We are not aware of these particular penalties having involved a purely foreign-to-foreign transaction, and there is nothing in the NaCC’s practice to date to suggest that it applies a different enforcement approach to foreign-to-foreign mergers as such.

The leading Namibian authority on how the court quantifies a pecuniary penalty for failure to notify is Namibia Competition Commission v Frans Indongo Group (Pty) Ltd N. O. (HC-MD-CIV-MOT-GEN-2020/00180) [2021] NAHCMD 297 (4 June 2021). The acquirer had, in November 2010, acquired a controlling shareholding in an abattoir business without notifying the NaCC, having received conflicting legal advice as to whether the transaction was notifiable at all; it self-reported the transaction to the NaCC some four years later, following which the NaCC approved the merger unconditionally, finding no competition concerns. The NaCC nonetheless applied to the High Court under the pecuniary penalty provision for a penalty of approximately NAD 2,733,018 (calculated on a formula the NaCC itself devised, as 1.19% of the parties combined global turnover). The High Court confirmed that the power to impose a pecuniary penalty rest exclusively with the court, not the NaCC (the NaCC’s role is limited to applying for one), and that the court is not bound to adopt any formula the NaCC proposes. The court held that it must apply a two-stage “double appropriateness” test: first, whether any penalty is appropriate at all, and second, if so, what amount is appropriate by reference to a non-exhaustive list of factors, including the nature, duration, gravity and extent of the contravention, any loss or damage caused, the level of profit derived from the contravention, the degree of the contravener’s co-operation with the NaCC and the court, and whether the contravener is a repeat offender. On the facts, the court treated the absence of any deliberate intention to evade the law (the delay having stemmed from genuinely conflicting legal advice on notifiability), the acquirer’s self-reporting and full co-operation, the absence of any proven loss, damage or profit, its status as a first-time contravener, and the NaCC’s own delay of roughly three years in bringing the application, as substantial mitigating factors, while also having regard to comparable South African penalties imposed for bona fide failures to notify. The court ultimately imposed a penalty of only NAD 250,000, expressly calculated as double the applicable filing fee, together with costs, a small fraction of the amount the NaCC had sought while confirming that the underlying merger had indeed been implemented in contravention of the Act.

Beyond the financial and injunctive consequences described above, the practical (non-financial) consequence of closing before clearance is that the underlying transaction, or steps taken to implement it, may be declared void, creating real uncertainty over the validity of the ownership or control that the parties believed they had acquired. To minimise these risks, parties who need or wish to close before Namibian clearance is obtained should, at a minimum: notify the NaCC as early as possible (a filing can be made well before the transaction documents are finalised); avoid taking any steps in Namibia that go beyond what is strictly necessary to sign the transaction (for example, avoiding integration steps affecting the Namibian business); and consider ring-fencing the Namibian leg of the transaction, giving an undertaking to the NaCC that the Namibian business will not be implemented or integrated until the NaCC has issued its determination, so that the balance of a global transaction can proceed elsewhere in the interim. Where a failure to notify has already occurred, the Frans Indongo case confirms that prompt, good-faith self-reporting and full co-operation with the NaCC’s investigation are treated by the court as material mitigating factors when the level of any penalty is eventually assessed.

An incomplete notification does not, of itself, attract a penalty; rather, the NaCC will simply decline to treat the filing as validly made, and will not commence its substantive consideration, until the notification is complete.

Where a notifying party is found to have supplied materially incorrect or misleading information, either in the notification itself or in response to the NaCC’s questions, the Competition Act empowers the NaCC to revoke its own prior decision approving the merger if that decision was based on the incorrect or misleading information. The practical effect of a revocation is that the merger reverts to being unapproved, exposing the parties to the full range of consequences described at Question 33 above (including the risk of an interdict, forced divestment, a declaration of voidness, and a pecuniary penalty of up to 10% of global turnover) as though clearance had never been obtained.

This power is available to, and has been exercised by, the NaCC as part of its broader enforcement approach to ensuring that filings are accurate and complete; we are not aware, however, of a published decision in which the NaCC has to date revoked an approval specifically on this ground.

The Competition Act does not provide for a direct appeal to a court from a NaCC merger determination. Instead, it provides for an administrative review, available to a party to the merger, before the Minister responsible for industrialisation and trade, who may confirm, overturn, or amend (for example, by imposing or adjusting conditions) the NaCC’s determination. Only a party to the merger may apply for this review; third parties who were not involved in the transaction have no equivalent right to apply for ministerial review and cannot appeal an approval decision on this basis on this basis.

An application for ministerial review must be lodged within 30 days after the NaCC publishes notice of its determination in the Government Gazette. Within 30 days of receiving the application, the Minister must publish a notice in the Government Gazette announcing receipt of the application and inviting interested parties to make written submissions within a specified period. The Minister must then make a determination within 4 months of the date on which the review application was submitted, must notify the NaCC and the parties to the merger in writing of that determination, must publish it in the Government Gazette, and must provide written reasons to the NaCC and the parties.

There is no further internal appeal beyond the ministerial review. However, because the Minister’s determination is itself a public administrative decision, it is subject to judicial review by the High Court of Namibia, applying the administrative justice guarantees in the Namibian Constitution and the common law principles of administrative justice.

The clearest recent trend concerns the public interest condition addressing employment. A moratorium on the retrenchment of employees below management level is now a standard condition attached to the substantial majority of approved mergers, and the duration of that moratorium has steadily lengthened: historically imposed for around two years following approval, the condition now averages closer to three years, with periods of up to five years having been imposed in some cases. This underlines the continuing, and if anything increasing, weight the NaCC gives to non-competition public interest factors, and in particular employment, relative to comparable authorities in the EU or the US.

On enforcement, the NaCC has, in step with competition regulators globally, become progressively more active and more severe in penalising contraventions of the Competition Act, with gun-jumping (premature implementation of a merger ahead of approval) receiving particular attention; the cluster of penalty decisions handed down during 2024 (see Question 33 above) illustrates this shift toward more assertive enforcement.

On substance, the NaCC’s approach to market definition and competitive assessment has remained broadly consistent, continuing to apply its Merger Guidelines (which draw heavily on the International Competition Network’s Merger Guidelines Workbook) and the hypothetical monopolist/SSNIP test, and continuing to draw on comparative case law and guidance from South Africa and the European Commission where Namibian precedent is limited.

Procedurally, engagement between parties and the NaCC ahead of formal notification has become more common for complex or nationally significant transactions, as parties increasingly look to manage timing and public interest sensitivities proactively; the NaCC’s occasional use of round-robin Board decisions for straightforward or nationally important matters requiring a swift outcome remains a feature of practice, albeit still the exception rather than the rule.

The NaCC has approved a revision of its merger notification thresholds and filing fee structure, following an evidence-based study that benchmarked Namibia against regional peers (including Angola, Botswana, Eswatini, Mozambique, South Africa, Zambia and Zimbabwe) and modelled the effect of several revision scenarios against roughly a decade of historical merger determinations. The impetus for the review was that the thresholds and fees had remained unchanged since 2015 and 2017 respectively, notwithstanding growth in the Namibian economy of approximately 42% (nominal GDP rising from around NAD 113 billion in 2010 to around NAD 160 billion in 2025) over the intervening period. The revision was formally introduced to stakeholders at an engagement held on 12 and 13 August 2026, led by the NaCC’s Chief Executive Officer and Secretary to the Commission.

As approved, the notification thresholds will double from current levels, moving from a combined value of NAD 30 million (with a target-only value of NAD 15 million) to a combined value of NAD 60 million (with a target-only value of NAD 30 million). The filing fee structure will also be simplified, from the current seven-tier scale into three bands (broadly, NAD 60 million to NAD 100 million; NAD 100 million to NAD 3 billion; and above NAD 3 billion), with the fee payable in each band increasing materially from current levels, alongside more modest increases to other administrative fees (for example, in respect of advisory opinions and exemption applications). As at the date of this guide, this revision has been approved by the Commission and formally presented to stakeholders, but had not yet been brought into force by amendment to the Rules made under the Competition Act; we are not aware of a published implementation date, and this should be confirmed at the time of any notification.

Separately, the NaCC has published a summary of a Draft Competition Bill intended to modify the Competition Act more broadly. Current proposals include, among other things, changes to the structure of the NaCC itself, more detailed guidance on the treatment of joint ventures, the introduction of formal review phases in place of the current single-track review period, an extension of the review period for transactions raising substantive concerns, and a power for the NaCC to require notification of transactions that do not meet the jurisdictional thresholds described elsewhere in this guide but which may adversely affect competition in Namibia. There is no confirmed timeline for when the Draft Competition Bill will be tabled in Parliament or promulgated into law.