01 March 2024

Namibia Training Workshop On Competition Law And Policy : The State Of Article 40 "Competition Policy" And 41 " Unfair Trade Practices" As Contained In The 2002 SACU Agreement - Address By The Executive Secretary Tswelopele Moremi

31st July 2nd August 2007

Safari Court and Conference Centre, Windhoek, Namibia.

Director of Ceremony;
Honourable Minister of Trade and Industry, Mr. Immanuel Ngatjizeko
Acting Director of NEPRU, Dr Klaus Schade
Distinguished Participants

I would like to thank the organizers of this event for inviting me to participate and to give me an opportunity to inform you on the developments regarding competition policy issues within the Southern African Customs Union (SACU).

As you are aware, Competition Policy has emerged as a major issue on the global and regional trade agenda and that in an increasingly liberalized world economy, it should be more supportive of increased trade and economic development for any economy. This is especially true within the context of the developing nations. Developing countries have realized that as a prerequisite to long term objective of sustained economic growth, there is a need to have a competition policy that suits their level of development as well as their institutional capacities and capabilities.

There is some skepticism however that in practice, competition policy may not bring economic development to developing countries, as there is a notion that competition policy may conflict with industrial policy and its development policy objectives. Past experience in some developing economies and even in developed states however shows that competition law has never been a hindrance to economic development but rather can act as a driving force for the international competitiveness of private companies. There is also documented fact that sound competition policies and laws facilitate the optimal allocation of domestic economic resources and underpins the establishment and maintenance of sound market mechanisms.

Director of Ceremonies,

Distinguished Participants

It is therefore welcome development that there is a growing interest on competition issues within the Southern African region. I feel encouraged that NEPRU in cooperation with the Consumer Unit and Trust Society (CUTS) has embarked since 2004 on a process aimed at sensitizing and assisting the Southern African countries, in particular Botswana and Namibia in institutionalizing competition regimes in their economies.

Currently, within the SACU Member States, South Africa is the only Member State with a competition law with long established competitive institutions. Namibia is also having a competition law but is only about to become operational. The remaining member states are currently active in the process of preparing their legislations and are at varying

stages of development. Botswana for example is at an advanced stage of drafting a competition law whereas Lesotho and Swaziland are at early stages.

Director of Ceremonies

The process of considering Competition issues within SACU is driven by the Articles 40 and 41 of the 2002 SACU Agreement, but more importantly, it forms part of the objectives of the SACU agreement. Article 2 (c) states that SACU aims to promote fair competition in the Common Customs Area.

Article 40 deals with Competition Policy and the requirement for Member States to all have Competition Policies as a pre-requisite for a SACU wide cooperation mechanism. The cooperation mechanism should also point out the process with respect to the enforcement of Competition Policies and regulations within SACU. Article 41 requires that policies and instruments be developed to address Unfair Trade Practices between Member States and for these to be annexed to the SACU Agreement.

When the new SACU Agreement came into effect in 2004, the process of developing Annexes to these articles started when an initiative was taken to start work on the development of an Annex on Unfair Trade Practices as contained in Article 41 of the SACU Agreement.

UNCTAD funded the work and also provided resources in the form of intellectual expertise. As a first outcome, a study was undertaken and the findings were presented and discussed at workshops during 2004 to ensure a consultative process within Member States. The study investigated options for SACU, concentrating on the relevant Articles in the SACU Agreement and highlighted possibilities of how SACU could deal with Unfair Trade Practices and related issues in future.

With the continued support of UNCTAD, work towards developing a draft Annex on Unfair Trade Practices and cooperating mechanisms on competition policy, competition law and regulations being undertaken.

In this regard, the work on the development of Article 40 and 41 has commenced in December 2006 with the adoption of the Roadmap by the SACU Council on the proposed activities of developing a Cooperation mechanism on Competition Policy.

Director of Ceremonies

In conclusion, I would like to note that your workshop comes at a time when there is marked progress in terms of putting in place appropriate legislation for competition policy in each individual Member States of SACU as well as developing at an advanced stage the Articles 40 and 41 concerned with co-ordinated competition policies and Unfair Trade Practices.

I would also like to note the need for collaboration at the regional level, and specifically in the Southern and Eastern African region. We are all committed to the process on deepening Regional Integration in Africa. We therefore need to share information and build upon the work done by regional groupings and individual countries in COMESA, EAC, SADC and SACU on Competition Policy matters.

Your workshop is welcomed since it will further amplify and sensitise competition issues and serve as useful input towards the effective institutionalisation of competition authority both in Namibia and the rest of the region. The Secretariat looks forward working with all stakeholders in Namibia and to a healthy exchange of views during this workshop and beyond, which will further entrench the conceptual and practical understanding of Competition Law and Policy in Namibia and the region as a whole.

I therefore take this opportunity to wish you fruitful deliberations.

I thank you.