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The Namibian Competition Commission has filed appeal papers with the Supreme Court of Namibia in the Walmart case whose hearing has been set for October 18 and 19.



“We filed the heads of argument on Friday,” Namibia Competition Commission secretary Mihe Gaomab II confirmed, while declining to go into details of the commission’s arguments, saying the case was now sub judice.



The commission also confirmed the appointment of South African senior counsel Rafik Bhana, as the leading legal counsel in the matter.



Namibia, just like the South African government, wants stricter and binding conditions imposed on the merger between Walmart and Massmart, as opposed to voluntary commitments that Walmart set itself.



However, the South African Competition Commission has already approved the merger which is currently in effect in both Namibia and South Africa – something which the Namibian commission described as “a challenge we have to address in our argument before the Supreme Court”.



The South African government has already filed heir appeal, asking that country’s competition commission to attach specific conditions to the merger.



The South African appeal comes from that country’s Trade and Industry, Minister Rob Davies, Minister of Agriculture, Forestry and Fisheries, Tina Joemat-Pettersson, and the Minister for Economic Development, Ebrahim Patel.



The three are asking for the South African Competition Appeal Court for a review and to set aside the merger approval by the Competition Tribunal.



Walmart’s legal team is now fighting battles at two fronts, and in Namibia, they have about seven days to respond to the papers filed with the Supreme Court.



The Namibian commission has been in close contact with the South African commission on the Walmart case, while the Namibian trade ministry has had consultative meetings with the South African ministries of trade and agriculture.



Gaomab II said the consultations were a mere process of informing the Namibian competition commission’s position in preparations for the courts.



“There are different dynamics at play, and the consultation had to do with [Walmart’s legal team] who are saying there would be [negative] effects if the merger is not approved here while it is approved in South Africa. We had to understand what is happening in South Africa,” he said.



The Namibian Competition Commission has said that the merger, if allowed to go without stringent conditions, would bankrupt 233 Namibian businesses.



The commission says Massmart “subsidiaries in Namibia obtain a considerable portion of their supplies from about 233 local vendors.”



Massmart subsidiaries in Namibia include Game, Makro, and Windhoek Cash & Carry.



The Massmart group has over 200 stores in South Africa, with a host of different brand names, and about 150 different stores in southern African countries. Common are Game, Makro, Dion, Jumbo, Builders Warehouse, and Builders Express.



Thus South Africa and Namibia want to ensure that Walmart’s infamous reputation does not follow it when the company does finally take ownership of the Massmart group.



The two governments are of the opinion that Walmart, with its documented history of poor trade union and employee relations, ought to be given a clear script on how to engage in business within southern Africa, with clearly stipulated consequences if it fails to play by the rules.



The Namibian Competition Commission is of the opinion that the High Court took away the decision-making power of the commission, a body entrusted by legislators to deal with matters of acquisition and mergers.



“We are not happy with how the process was handled. We feel that the court, by granting merger with conditions, decided on our behalf,” Gaomab II was quoted as saying earlier.





Article by Desie Heita



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