Respondent's Heads of Argument as Filed: Heads of Argument re appeal: Namibian Competition...

8/3/2019 Respondent's Heads of Argument as Filed: Heads of Argument re appeal: Namibian Competition Commission, The

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CASE NO: SA 41/2011INTHE SUPREME COURT OF NAMIBIA

In the matter between:

THE NAMIBIAN COMPETITION COMMISSION First AppellantTHE MINISTER OF TRADE AND INDUSTRY Second Appellant

. '._ . . . . -and \ : : :~~Ef~~0~~~~: . \WAL-MART STORESINCOR~ORATfID S E P . 7011~ I\ r:'F',:,,-:-,~:~,}:Y~8 1~ ~ ; ; ; : y , o E K 'i i : i% D

Respondent

FILING NOTICE

BE PLEASED TO TAKE NOTICE THAT, the above-named Respondentherewith files the following document(s):1. Respondent's Heads of Argument;2. Respondent's List of Authorities;3. Copy of: Letter from Engling, Stritter & Partners to the

Registrar of the High Court, dated 22 March 20114. Respondent's Power of Attorney to oppose appeal - filed under

cover of a separate filing notice simultaneously herewith.

Dated at WINDHOEK, this zo" day of September 2011.


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ENGLlNG, TRITTER & PARTNERSLegal Practttl ers for Respondent12 Love StreetWINDHOEKRef. No. AS/md W31166

TO: THE REGISTRARSUPREME COURT OF NAMIBIAWINDHOEK

AND TO:


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IN THE SUPREME COURT OF NAMIBIAHELD AT WINDHOEK

In the matter between:

THE NAMIBIAN COMPETITION COMMISSIONTHE MINISTER OF TRADE AND INDUSTRYandWAL-MART STORES INCORPORATED

Case no. SA4112011Case no. A6112011

First appellantSecond appellant

Respondent

RESPONDENT'S HEADS OF ARGUMENT(Enrolled for hearing on 18 October 2011)

INDEXA. IntroductionB. Factual background

(1) The merger transaction(2) The imposition of the impugned conditions(3) The procedural history(4) The enrolment of this application

c. The appellants' pleaded defences(1) First procedural defence: non-joinder(2) Second procedural defence: lack of urgency(3) Third procedural defence: lack of authority(4) Fourth procedural defence: lack of'jurisdiction/prematurity

Page no:3991113161717192425


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(a) Presumption against ousting High Court's jurisdiction 26(b) Interpreting provision for statutory remedy correctly 28(c) Both (a) and (b) apply here 29(d) In any event, not an effective remedy 30(e) Minister cannot be a judge in his own cause 32(f) Also ultra vires the Act 33(g) The Minister's new defence: that Wal-Mart made an election 35

D. Merits 37(1) The fourth condition: Ministerial approval in terms of section 3(4)

of the FIA 39(2) The third condition: no harmful effects on competition 46(3) The second condition: no employment losses 48(4) First condition: compulsory involvement of non-parties to the merger 50

E. Appropriate relief 56F. Conclusion 63

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A. Introduction

1. This is an appeal from the Full Bench (Muller et Smuts JJ) pursuant to the successfulchallenge to the legal validity of four conditions (and in turn, a notice purportedlyissued under section 3(4) of the Foreign Investments Act 27 of 1990 ("FIA")). TheChief Justice has directed that the appeal be heard on an expedited basis .

. . . . . . . -~ 2. The proceedings arise from the now concluded merger between the respondent ("Wal-Mart") and Massmart Holdings Limited ("Massmart") in South Africa, 1 whereclearance was granted (after the Full Bench judgment was handed down)? by theCompetition Tribunal. The Tribunal's ruling specifically records that "it is commoncause that this merger raises no competition concerns". 3 It confirms that nocompetition concerns arose in South Africa from the merger. Equally no competitionconcern can arise in associated jurisdictions where the merger takes secondary effect,especially where Wal-Mart had no prior presence (as is indisputably the case inNamibia)." It was notably not in issue before the court a quo that a competitionconcern arose in Namibia. Nor does either appellant contend for this in the heads ofargument. The absence of any competition concern is an important matter to whichwe revert in addressing the arguments now that the Full Bench erred mostfundamentally in not remitting the matter to the Namibian Competition Commission("the Commission").

L Record vol 1 p 11 para 4.2.6.2 The judgment under appeal comprises Record vol 3 pp 286310.3 Para 26. A copy of the Tribunal's ruling will be made available. Itmay be noted that that an appeal has beenlodged against it by one trade union, and a review by SA government departments.4 Record vol 1 p 11 para 4.2.2; Record vol 1 p 12 para 4.2.8. Nor does the merger raise any public interestconcerns in Namibia (Record vol 1 p 12 para 4.2.9).


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3. Nevertheless, in February this year the first appellant.i the Commission, sought toimpose conditions" - some two and a half months after the transaction was notified toit. This was despite the fact that the Namibian notification was a purely formal stepby the merging parties, ex abundante cautela.' Similar notifications have been lodgedin all other relevant southern African countries in which Massmart had a commercialpresence. None of the other competition authorities in whose jurisdictions the mergerwould have only indirect consequences (as in Namibia) sought to impose anyconditions on the transaction. They approved the merger unconditionally.i (Asmentioned, in South Africa the merger was likewise approved. The approval wassubject only to such conditions as were voluntarily proffered" by the mergingparties.) 10

4. Itmay be noted in passing that the Minister suggests, in his heads before this Court, 11that Wal-Mart had (implicitly) misleadingly asserted in its application to the HighCourt that "the South African approval had become unconditional". Thismisrepresents the record reference cited for it: what Wal-Mart stated there, in terms,

5 Record vol I p 14paras 2.4.1-2.4.2; Record vol 1p 13 para 4.4.6 Record vol I p 35 para 3.7 For the reasons set out in Wal-Mart's founding affidavit (Record vol I pp 4-6 paras 4.2.1-4.2.9) the "localnexus" required for a Namibian competition authority to impose conditions in granting clearance is absent in thecircumstances (see in this regards fu 198 and the accompanying text below). For this reason alone - which isundisputed (Record vol 1 p 89 para 29.1 (Minister); Record vol 2 pp 197-209 and Record vol 3 pp 212-215(Commission - there can be no basis in law or fact to impose any conditions on the now accomplished merger.8 Record vol 1 p 26 para 10.11.9 The Minister's heads of argument, striving to equate the South African conditions with the Namibian ones(para 21), do not disclose the fact that the South African conditions were offered voluntarily by Wal-Mart andMassmart.III The SA Competition Tribunal's ruling is currently under appeal and review in South Africa on groundsranging from procedural directions by the Tribunal to its finding that it was not omnipotent to make the world abetter place.1 1 Para 21 of the Minister's heads.


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was that

"Should these proceedings not be finalized before the proposed transaction isapproved in South Africa, the merging parties would suffer substantial prejudice inthat they will be precluded from implementing the primary transaction even thoughthe transaction has become unconditional in South Africa and all other jurisdictions,but for Namibia."

The affidavit made it quite clear that there had not yet been a decision by the SouthAfrican authorities. 12

5. Although (as noted above) an appeal (and review) was noted against the Tribunal'sruling, no application was made by any party to stay the implementation of the mergerby Wal-Mart and Massmart. As a result, the merger has been implemented acrossSouthern Africa. When the appellants would not agree to a pragmatic arrangement asregards Namibia (namely that they not enforce the impugned conditions pending thisCourt's determination), it was unfortunately necessary to obtain an order by the HighCourt in terms of Rule 49(11) authorising implementation in Namibia. The conductof the appellants in relation to that interlocutory application was such as to give rise toa punitive costs order against them.

6. The question arising in this appeal is whether the Full Bench of the High Court erredin declaring invalid Notice 75 and the four conditions imposed by the Commission.In their pleaded case the current appellants (the Commission and the Minister ofTrade and Industry ("the Minister" raised only lengthy and multiple procedural

L 2 Record vol 1 P 22 lines 21-31.


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defences - challenging Wal-Mart's Vice-PresIdent's authority to institute theapplication; 13 contending that there was no, insufficient or lapsed urgency; 14 raisingthe non-joinder of Massmart's own wholly-owned subsidiaries.V and contending thatan internal remedy was not sufficiently exhausted in the circumstances. 16

7. None of these has any merit.l? All were correctly rejected by the High Court." Inany event (for the reasons set out below) only the latter procedural defence is capableof notionally constituting a ground of appeal (assuming that it had any substance).

8. As regards the substantive merits, the appellants could provide no answer to Wal-Mart's case. The Minister contented himself with the repeated concession that thevalidity of the impugned conditions and of Notice 75 turns on essentially legalissues.l" The Minister undertook to provide legal argument on this issue,2o but failedto do so before or during the hearing. As an indulgence, the Full Bench nonethelessafforded the Minister an additional opportunity to provide legal argument after thehearing on the validity of Notice 75,21 by filing supplementary written submissionsafter the hearing. Nevertheless, these too did not advance a supportable basis forjustifying the clear contradiction by Notice 75 of its empowering provision. Similarlyno justification was advanced for the four purported conditions. Nor, it is importantto stress at the outset, did the appellants on the papers or in argument seek remittal,

13 Record vall pp 86-87 para 25.14 Record vall p 84-85 paras 13-19; Record vall pp 204-205 paras 22-25; Record vol 3 p 215 para 9.15 Record vall p 85-86 paras 20-23.16 Record vall pp 81-83 paras 3-11.17 Record vol 2 pp 112-126 paras 7-41; Record vol 2 pp 153-154 paras 13-15_18 Record vol 3 pp 292-301 paras 14-39.19 Record vol 1p 88 para 28.4; Record vol 1 p 90 para 32.1; Record vol 1 p 91 para 34. L20 Ibid.21 Record vol 3 293 para 18; Record vol 3 P 302 para 40.


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notwithstanding the crystal-clear terms of the relief sought on the papers and arguedfor by Wal-Mart.

9. For the reasons set out below there is with respect no legal or factual basis to interferewith the Full Bench's judgment and orders. There was no defence on the meritsbefore court. Nevertheless, the High Court considered whether the cause of action

was borne out by the facts pleaded and the legal authorities relied on. In making thedeclaratory orders it granted discretionary relier2 which can only be interfered with inlimited circumstances'" - none of which are alleged or borne out by the record, thejudgment or the appellants' submissions.

10. At the outset it is important to note two factual misconceptions fundamental to theMinister's heads of argument. The first is the repeated complaint regarding theabsence of the record before the Commission from the High Court proceedings. Theposition is very different. In fact, Wal-Mart had originally attached to its foundingaffidavit the entire merger filing before the Commission - some 1 000 pages. Butwithout objection by either appellant, this was removed, in view of its obviousirrelevance to the issues raised. The letter proposing this on behalf of Wal-Mart isattached. The reason for the agreement is obvious. Each accepted that the record wasnot relevant to the explicitly facial (as the Minister's argument itself characterizes

22 Section 16(d) of the High Court Act 16 of 1990; Mushwena v Government of the Republic of Namibia (2)2004 NR 94 (HC) at para 20; Durban City Council v Association of Building Societies 1942 AD 27 at 32 infinem; Ex parte Nell 1963 (1) SA 754 (A) at 759B; read with S v Campbell 1990 NR 310 (HC) at 318D/E.23 Southern Engineering v Municipality of Windhoek (NamSC) (41712011) at para 51:

"Where a court has granted declaratory relief, the ordinary principle is that an appellate court will notinterfere with the decision to grant relief unless the appellate court is satisfied that the discretionconferred upon the lower court was not judicially exercised. (Ex parte Van Schalkwyk NO and Hay NO1952 (2) SA 407 (A) at 410 H; Lawson &Kirk (Pty) Ltd v Phil Morkel Ltd 1953 (3) SA 324 (A) at 332A-B)."


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them) legal challenges to the four conditions, and to Notice 75.

II. The second also relates to the Minister's attempt to explain why, once again beforethis Court, he offers no argument on the merits of the conditions. Apart from thefallacious attempt to justify this in terms of the absence of the record, the Ministerperiodically in his heads also calls in aid the short time allowed for the preparation ofpapers. There are three answers. The first answer is that the Minister had sufficienttime to devote himself extensively to serried procedural points. He could have betterdevoted the time and the paper to the substantive issues, but he chose not to do so.The second answer is that, had he wished, he could have applied in limine at thehearing for a postponement to file further affidavits. No such application was lodgedor argued - by either party. The third answer is that this cavil is really an attempt toargue, on appeal, that the Full Bench unjudicially exercised its discretion when,having heard full argument (with heads of argument in advance and allowingsupplementary written argument afterwards), it treated the matter as properly to bedetermined on an urgent basis.

12. It is apposite at the outset also to note one matter as regards the Commission's headsof argument. This is that these attached, "for convenience", the entire Rule 49(11)application and state that "a supplementary volume to the [appeal] record ... will beserved as soon as possible"." The Commission may not arrogate to itself the right to"supplement" the appeal record. Not only has it not sought this Court's leave to do

so, but the Commission, represented both by counsel and attorneys, expressly agreed24 Para 6.2 of the Commission's heads.


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at a formal pre-appeal conference with the Registrar that the appeal record was correctand final. These aspects aside, the exercise is pointless. What is in issue before thisCourt is whether the Full Bench erred on the record before it. Moreover, if the pointof the whole exercise is (as the Commission's heads later suggest)25 to establish thatafter the Full Bench proceedings the Commission in the interlocutory proceedings interms of Rule 49(11) then raised a desire to have the matter remitted, this onlyhighlights the fact that neither appellant ever sought remittal, either on the papers orin argument (when it mattered). The suggestion that Wal-Mart "sought to snatch animproper benefit from the plainly defective order,,26 of the Full Bench is itselfimproper. The point is an own goaL The logic of an appeal is that a lower courterred, and if a lower court is not asked to remit a matter when it is not in law bound todo so, it does not lie in the mouth of a party in the position of the appellants,bethinking itself, to ask later that the order be set aside. In any event, as will beshown, there were and are compelling grounds for the order made, without remittal.

1 3 . In what follows our submissions track the scheme set out in the index hereto.

B. Factual background

(1) The merger transaction

14. The impugned conditions were imposed by a decision on 9 February 2 0 1 1 by the

25 Paras 86-87 of the Commission's heads, quoting at length from documentation not part of the appeal record,and in any event subsequent to the Full Bench judgment.26 Para 88 of the Commission's heads.


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Commission purportedly pursuant to section 47 of the Competition Act 2 of 2003("the Act") to approve the Wal-MartlMassmart merger transaction." The transactionin question is in its essence very simple: it entails the acquisition by Wal-Mart (aUnited States company) of a controlling interest in Massmart (a South Africancompany) which has five subsidiaries (two dormantj" in Namibia. The transactionstraddles fourteen countries involving five national competition regulators.i''

"i,..... 15. The notification of the proposed transaction to the Commission triggers the technicalrequirements for a notifiable merger set out in the Act,30 because it entails theacquisition of 51% of the shareholding in Massmart, and thereby a change ofownership and control at the ultimate holding company level in South Africa whereMassmart is incorporated. There is no competitive overlap between the activities ofthe merging parties in Namibia: Wal-Mart does not trade in Namibia, while theNamibian subsidiaries of Massmart are already in existence and are already foreign-owned.i'

16. The further details of the transaction are set out clearly in the founding affidavit.fNone of the respondents disputes those facts. (The Commission has had these factssince the merger filing on 26 November 2010, and considered itself sufficientlyinformed to take its decision on 9 February 2011, while the Ministry has had access to

27 Record vol I pp 34-36.28 Record vol I p 11 at para 4.2.3.29 Record vol 2 p 129 at para 51.30 Record vol 1 p 38 lines 35-40.31 Record vol I pp 11-12 paras 4.2.5-4.2.8.32 Record vol I p 10 para 4.1 to p 12 para 4.2.9, read with Record vol 1pp 37-41.


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the same facts since 15 December 2010.)33

(2) The imposition of the impugned conditions

17. The approval of the merger (but with the four conditions imposed) has the unfortunatehistory apparent from the unanswered letter of 15 December 2010.34 The applicationfor regulatory approval (or "merger notification", in competition-law parlance) waslodged on 26 November 2010.35 The Commission took some two and a half monthsto rule on it; it seeks to justify this now by reference to its part-time membership ofcontracted Commissioners, and the fact that it only meets quarterly." (This is a factnot without relevance when the respondents complained of delay on the part ofWal-Mart, and about time pressures a quo.)

18. Matters were hardly assisted by the fact that the Commission's officials were initiallyconfused between the Wal-MartiMassmart merger notification and a separate mergernotification (between Massmart and Pupkewitz). They admitted this confusion.f Itwas also pointed out to the Commission that section 3(4) of the FIA (and thus a noticemade pursuant to it) could have no application at all to the present matter, becauseMassmart's Namibian subsidiaries were already in existence at the time Notice 75

33 Record vol I pp 37-41. The Minister admits receipt by the Ministry of these facts in the form of this letter,but states that "it was not brought to my attention", even after his return on 1 February 2011 from a seven-weekabsence. It is common cause that even to date, the Wal-Mart's attorney's letter of 15 December 2010 has neverbeen answered: Record vol I p 23 paras 10.2.2 and 10.2.3; admitted at Record vol 1 p 89 para 30.2.34 Record vol 1p 37-41.35 Record vol 1p 23 para 10.2.1.36 Record vol 2 p 158 paras 10 and 11.37 Record vol 1p 39 lines 12-20 (confirmed by Stritter at Record vol l p 43 para 7).


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was issued, and furthermore were already foreign-owned." Unfortunately, as weshall show, this further confusion has persisted and is indeed central to the impugningof the conditions.

19. As already noted, the letter of 15 December 2010 has never been answered. Moreimportant for present purposes, its contentions are not traversed either by theM 39 he" 40mister or t e omnussion,

20. On 9 February 2011 Wal-Mart was notified of the approval of the merger, but withthe imposition of the four impugned conditions.41 The Commission said that it haddone so "after intensive examination".42 The formal notice includes, as it must interms of the Act,43 the Commission's written reasons. Now however the Commissionwould have the Court accept that these reasons, formally furnished expressly in termsof section 47, represent a subsequent attempt by "the secretariat [to] simply [capture]the determination and summarised to the best of their ability the reasons for thedecisions we took".44 This attempt by the Commission to distance itself from thereasons is significant and entirely understandable, but it is legally ineffective: thereasons retain their legal status.45 They are the Commission's reasons. After all, the

38 Record vol 1p 39 line 40 to p 40 line 21.39 Record vol 1 p 82 para 7 and particularly Record vol I p 91 para 34.2.40 Record vol 2 pp 197-209; Record vol 3 pp 212-215.41 Record vol 1 pp 34-36.42 Record vol 1 p 34 second paragraph.43 Section 47(7)(b)(i).44 Record vol 2 p 159 para 13.45 Courts have been extremely sceptical about attempts after the event to substitute different reasons for thereasons stated at the time to have actually underpinned the decision. See Hoexter Administrative Law in SouthAfrica (Juta & Co Ltd, Cape Town 2007) at 417, noting that "convincing-sounding reasons may be fabricated byadministrators as the need arises, rather than being formulated at the time of taking the decision. This isobviously highly undesirable". See further the authorities referred to in fn 160 below.


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chairman himself signed them, and stated that he was "authorised to sign on behalf ofthe Commission"."

(3) The procedural history

21. The impugned conditions are challenged by Wal-Mart on grounds presaged in part inits attorney's letter of 15 December 2010 and in part due to the substantial disjunctbetween the reasons for the conditions and their terms. We address these more fullybelow. None of the challenges turns on any factual matter arising from thevoluminous merger notification; all (as we show below) are substantially issues ofstatutory interpretation and other legal questions. The Minister, as we shall show,concedes this, as he must.

22. Wal-Mart tried to avoid bringing this application.V It lodged a statutory applicationwith the Minister for reconsideration of the conditions.48 It called upon the Ministerto exercise his powers within ten days. This was by virtue of the then scheduling ofthe South African Tribunal proceedings, which indicated that by no later than 8 Aprila ruling would be expected." This was because of a scheduled hearing of 22 to 24March (itself significantly entertained by the South African tribunal on an urgent basiswith argument contemplated to take place on Saturdaysj" and its practice (as is

46 Record vol I p 36 adfinem.47 Record vol 1p 9 para 4.48 Record vol 1p 65 read with p 43 para 8.49 Record vol 1 p 16 para 10.1.s o Record vol 2 p 115 para 13.


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indeed required by law) of issuing merger rulings in no more than ten days.51 Ofcourse it was open to the Minister to reject (if he had good reason) the time1ine, and(for good reason) to impose his own. But he did not do so. The Minister's affidavit,and even his heads of argument now do not explain why he did not do so.

23. The Minister responded immediately (through the Permanent Secretary).52 Hisapproach (which he reiterates in his affidavit) was simple. It was that section 4 9provides for a four-month period for his statutory review, and that the requestaccordingly was "contrary to the requirement [sic] of the Act".53 He concluded: "Theapplication for review will accordingly be dealt with in terms of section 49 of theACt.,,54

24. In his heads of argument, the Minister now asserts that he "does not contend that thetime periods provided for in section 49 are obligatory and immutable, but merely thatthe review could not be completed in the ten calendar days prescribed by Wal-Mart".55 The heads also assert that "[tjhe Minister intends to conduct the review asexpeditiously as possible once he has done SO".56 Both contentions contradict theprimary case the Minister both pleaded (as appears from paragraph 21 above), and aswas argued on his behalf a quo. The Minister's case throughout was explicitly in the

51 Record vol 2 p 114 para 11.52 Record vol 1 p 82 para 7.53 Record vol I p 31.54 The Minister's apparent understanding that the four-month period should be sat out is in any event misplaced.A maximum period allowed for inmerger control legislation cannot and should not be construed as a necessaryspatium deliberandi (cfInternational Competition Network's Recommended Practice for Merger notificationProcedures http://www.internationalcompetitionnetwork. orgluploads/libraryl doc5 8 8 .pdf (accessed on 23August 2011) at p 16).5S Para 28.2 of the Minister's heads.56 Para 31.3 ofthe Minister's heads.
http://www.internationalcompetitionnetwork./http://www.internationalcompetitionnetwork./


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first place that the Act entitled him to take up to four months to deal with the matter.

25. The application to the Minister was, on the papers, as a fact at no stage (and within noexpedited timeframe he might himself have imposed) considered by him. Instead, acurious letter was prepared (once again by the Permanent Secretary on behalf of theMinister) to Wal-Mart asking for "confirmation for us to proceed to initiate thereview".57 The letter was pointless, because Wal-Mart itself had initiated the statutoryreview by its letter of8 March, and the Minister's reply of 11March confirmed that itwould proceed. In any event, the latter was not sent.58 The Minister - and it is theMinister who must do so, not the Permanent Secretary - failed to exercise his powerunder section 49(5) to determine the procedure for the review which the letter of 11March said would be instituted.

26. If the Minister considered a period of ten days "unreasonable" he had the power todetermine any other timeframe.i" Had he done so, and were his statutory reviewinitiated but unresolved currently, the situation before the High Court might arguablyhave been different. But the short point is that (as he confirms in his affidavitj'" hehas not in fact proceeded with the application. He has adopted the position that hewill only "deal with these conditions if they are properly brought before me by way ofreviews in terms of the Competition Act".61 That, on his own letter of 11 March, hasalready happened; in terms of that letter the application of 8 March "will accordingly

57 Record vol 1P 100 lines 28-30.58 Record vol 1p 83 para 10. The explanation is that the present application was served that day.59 Section 49(5).60 Record vol 1 p 83 para 11.61 Record vol I p 90 para 33.


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be dealt with".62 It is common cause that, despite the elapse of a month before theHigh Court hearing, it was simply not dealt with.

27. Thus the assertion now that the Minister "intends to conduct the review asexpeditiously as possible once he is able to do so" is at odds with the affidavits, bothas regards pleading and evidence. His primary stance was that he had four months todeal with Wal-Mart's application to him. He had, in fact, a month from theapplication to the hearing to do so, if he wished - or at the very least, show in hisaffidavits that he had started the process - and he had a further two weeks thereafterbefore judgment, without any legal impediment, to exercise the power he asserted.

(4) The enrolment of the High Court application

28. The application was launched as a matter of urgency on 18 March 2011, the indicateddate for hearing being 6 April. This date was arrived at after consultation with theregistrar of the High Court to avoid potential inconvenience to the court a quo. Asappears from annexure A to the replying affidavit63 the Judge President had mootedthe hearing of the matter even the week before. In response through the registrar, itwas pointed out that logistics - and most notably, a fair opportunity to theCommission and the Minister) to file answering affidavits - militated against this.The application thereafter remained enrolled for 6 April 2011.

62 Record vol 1 pp 65-79.63 Record vol 2 pp 137-139.


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C. The appellants' pleaded defences

29. As mentioned, the appellants' pleaded defences are exclusively procedural. Arrangedin a logical sequence, they are (1) the contended non-joinder of the four Namibiansubsidiaries of the fourth respondent; (2) no urgency (on two premises: that it wasinitially lacking, and in any event had since been lost); (3) no authority to institute theapplication; and (4) what is interchangeably described as a defence of prematurity orfailure to exercise a domestic remedy under the Act. Apart from being purelyunmeritorious, most of these interlocutory points are simply unappealable. Wenevertheless deal with each of these technical defences to demonstrate that there wasindeed no basis before the court a quo on which to rule in favour of the appellants onany of the many bases on which they deemed fit to defend the application. Whilethese defences are for the most part not squarely resuscitated on appeal, we deal withthem briefly to identify the basis on which the court a quo was asked by the appellantsthemselves to determine the matter - and because some of these contentionsnonetheless obliquely resurface in argument before this Court.

(1) First procedural defence: non-joinder64

30. It is submitted that the defence (purely a dilatory defence, it is to be noted, not onedispositive ofthe case)65 is devoid of merit, on two bases.

31. The first is that we are unaware of any legal authority, in Namibia or elsewhere,64 Record vol 1p 85-86 paras 20-23; Record vol 2 pp 112-113 para 8.65 See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 650-652.


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supportive of the proposition that either as a matter of general principle, orparticularly in the context of merger proceedings, subsidiaries of a merging party (andpresumably on the same logic, subsidiaries of those subsidiaries) have a direct andsubstantial interest in the validity of the conditions imposed on such merger. Wesubmit that this approach is in fundamental conflict with the clear authorityestablished in this regard by a series of decisions. 66

32. It is not necessary to consider for present purposes whether a different approachexists, as Maritz J (as he then was) has suggested'" in the context of challengesinvolving constitutional rights, such as those under Article 18 of the Constitution (amost recent ruling by this Court, per O'Regan AJA, is consistent with thatapproach).68 In the present case, the Minister has squarely and specifically based hisassertion that subsidiaries of a merging party need to be joined in a matter of this kindon the proposition that they have a direct and substantial interest in the relief sought.69Patently that is not so: their interest is purely consequential, commercial and indirect.

33. The second reason is that in any event (with a view to curtailing unnecessary debate)letters have been tiled on behalf of each of the subsidiaries continuing that they are

66 See Ex parte Sudurhavid (Pty) Ltd: In re Namibia Marine Resources (Pty) Ltd v Ferina (Pty) Ltd 1992NR 316 (HC) passim; Clear Channel Independent Advertising v Transnamib Holdings 2006 (1) NR 121 (HC)at 1380.0; United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) at 416; Wynne vDivisional Commissioner of Police 1973 (2) SA 770 (E). For the meaning of 'direct and substantial interest', seeHenri Viljoen (Ply) Ltd v Awerbuch Brothers 1953 (2) SA 151 (0) at 167 and 169H; Minister of LocalGovernment & Land Tenure va Sizwe Development: In re Sizwe Development v Flagstaff Municipality 1991 (1)SA 677 (Tk) at 679B.67 Arthur Frederick UjJindell t/a Aloe Hunting Safaris v Government of Namibia Case No (P) A14112000 (20April 2009) at paras 12-13.68 Trustco Insurance Limited tla Legal Shield Namibia v Deeds Registries Regulation Board NamSC Case No.:SA 14/2010 at para 18.69 Record vol 1 p 86 para 23.


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aware of the proceedings, and have no interest in being joined, and abide theoutcome.i'' This is unsurprising, because no orders were sought a quo against them.In such circumstances the technical point of non-joinder is spurious." It was thuscorrectly abandoned before the High Court and it cannot be resurrected on appeal.

(2) Second procedural defence: lack ofurgency72

34. The Minister devotes much of his papers to this defence. Whether or not a court offirst instance decides in its discretion to treat a matter as urgent is for it to decide. It isonly, we submit, if the exercise of that discretion is assailable on grounds such that acourt of appeal is entitled to set aside the substantive ruling that the issue is inprinciple conceivably relevant on appeal. But the issue retains some relevance onappeal for a different reason. This is the Minister's argument firstly regarding hiselection before the court a quo (and again this Court) not to address the conditions ontheir merits, and also as regards the Minister's contention that Wal-Mart could notapproach the High Court.

35. As indicated, the defence had two premises, that the application was launched in theabsence of any urgency at all at the outset, and that in any event, any initial urgencyhas been lost.

70 Record vol 2 pp 140-147.71 As observed by De Ville Judicial Review of Administrative Action in South Africa (LexisNexis Butterworths,Durban 2003) at 353, where declaratory relief cannot determine the rights of third parties "[t]here would be nosense" in insisting on their joinder.n Record vol t p 84-85 paras 13-19; Record vol I pp 204-205 paras 22-25; Record vol 3 p 215 para 9; traversedat Record vo12 pp 113-120 paras 9-23.


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36. The Minister bases the first proposition on the bare contention that Wal-Mart madewhat he repeatedly terms an "assumption" that the South African CompetitionTribunal was expected to make a ruling on or about 8 April 2011.73 Not a single factis advanced for the bare assertion that Wa1-Mart has operated only on "assumption".

37. The contention was not responsibly made. As the founding affidavit indicates" andas amplified considerably in reply" the estimation that a ruling would be forthcomingin South Africa by about 8 April was founded on fact, and on professional advicegiven in relation to fact. Curiously, the Minister appears not to have considered theannexures to his own affidavit: these confirm that the postponement which took placeon 23 March was not only a surprise, but had initially been refused by the Tribuna1.76Itwas only when its hand was forced by unions threatening to take the issue further tothe Competition Appeal Court (which itself would in any event have accomplisheddelay) that the Tribunal ruled that the hearing on the merits would be deferred to earlyMay. 77

38. Thus there is no basis to contend for a wilful or negligent approach by the Wal-Mart.Indeed, as already indicated, it acted with particular responsibility when it respondedto the Judge President's proposal that the matter might be heard yet sooner in theterms it did.

7J Record vol I p 84 paras 13-16.74 Record vol 1 p 16 para 10.1.75 Record vol Z pp 114-116 paras 11-15.76 Record vol 1p 103.77 Record vol I p 106 lines 20-40.


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39. The residual question in this regard is then whether the matter had ceased to be urgent- with the effect that, although three sets of affidavits have been filed and argumentssubmitted, the court a quo should not have heard the case on 6 April.

40. A first point to be made in this respect is that the Minister is mistaken in contendinginconsistently for dismissal as well as striking from the roll as appropriate remedies.Dismissal for want of urgency is never an appropriate remedy (save perhaps on thesomewhat different ground that the application as an entirety constitutes an abuse -which is not contended in the present matter).78 The Minister strives to argue - hehimself has no facts to present - that the postponement of the South Africandetermination by four to five weeks created the prospect of indefinite deferment inthat country, which destroys any suggestion of urgency in Namibia. That was not so,on the explicit facts and detailed time-tabling given in the replying affidavit. Therewas every reason to expect that a final ruling would have been made in South Africaby mid-May. (In the event the order was handed down by the end of May.) In thosecircumstances, given the fact that an approval of the merger in South Africa (as itsCompetition Commission has unconditionally recommended) would immediatelytrigger implementation inter alia in Namibia, the matter retained urgency. Thaturgency of course had been reduced by the delay in South Africa, but it remainedurgent that clarity be obtained by the time that any approval may be granted in SouthAfrica.

41. Occasionally courts suggest that there is no urgency in commercial matters as a class.

78 Commissioner, SARS v Hawker Air Service (Pty) Ltd 2006 (4) SA 292 (SeA) at 299G-300A.


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But that is wrong. As Goldstone J ruled in Twentieth Century Fox Film Corporationv Black Films:

"The respondent's counsel submitted that there was no urgency in the absence ofsome serious threat to life or liberty and that the only urgency here was of acommercial nature __In my opinion the urgency of commercial interests may justify the invocation ofUniform Rule of Court 6(12) no less than any other interests. Each case must dependupon its own circumstances. For the purpose of deciding upon the urgency of thismatter I assumed, as [ have to do, that the applicants' case was a good one and thatthe respondent was unlawfully infringing the applicants' copyright in the films inquestion"."

42. This approach has been expressly approved and applied in what is now a considerablebody of Namibian caselaw.i" The court a quo clearly considered these cases andapplied them to the fact. There is no basis on which it can be contended that itmisconstrued the facts or the law and did not apply them appropriately in exercisingits discretion." Accordingly the finding on urgency cannot be impugned on appeal,were it to be revisited.

79 1982 (3) SA 582 (W) at 586F-G. See also Bandle Investments v Registrar of Deeds 2001 (2) SA 203 (SE) at213. See also Cilliers et at Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5th ed(Juta & Co Ltd, Cape Town 2010) vol 1 P 431.80 Sheehama v Inspector-General, Namibian Police 2006 (1) NR 106 (He); Clear Channel IndependentAdvertising Namibia (Pty) Ltd v Transnamib Holdings Ltd 2006 (1) NR 121 (He); Old Mutual Life AssuranceCo Namibia Ltd v Old Mutual Namibia Staff Pension Fund 2006 (1) NR 211 (He); Mulopo v Minister of HomeAffairs 2004 NR 164 (He); Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48 (HC); and especiallySwanepoel v Minister of Home Affairs 2000 NR 93 (He) at 95A-C and Eimbeck v Inspector General of theNamibian Police 1995 NR 13 (He) at 20C-D:

"The respondents' breach of the agreement put the applicant financially at a disadvantage. Surely incircumstances like these the economic or commercial interests may be protected on an urgent basisalbeit semi or partly urgent."

8 1 Samicor Diamond Mining Ltd v Hercules 2010 (1) NR 304 (HC) at para 26, referring to Hardap RegionalCouncil v Sankwasa (unreported judgment in case No LC 15/2009) at para 6.


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43. But in any event, a finding on urgency by a court of first instance is not appealable.As was held by this Court in Namib Plains Farming and Tourism CC v ValenciaUranium (Pty) Ltd:8 2

., . . . . .

"Urgency is not an appealable issue in any circumstance. (See, for exampleAussenkehr Farms (Pty) Ltd v Minister of Mines and Energy and Another 2005 NR21 (SC) at 29E-G). Whether urgency exists in a particular case is a factual questionwhich is determined on a case by case and discretionary basis. There are no publicinterests to be served for this Court to be seized with the determination of issues ofurgency which are dealt with by the High Court on a regular basis and on which thereare a plethora of authorities to guide that Court when faced with similar matters.v"

44. Accordingly there is no basis in law or fact to impugn the Full Bench's finding on thispoint. As already stressed, had the appellants believed that they were irremediablyprejudiced by the truncated time, they could have lodged an application for apostponement and argued it. It is plain what they chose to do: to take their changes ondefeating the application on the procedural grounds pleaded and argued. Similarlyhad they truly thought they were unable to deal with the facial legal challengeswithout the full merger filing being before court, they might at least have tried tocontend that they were not bound by their acquiescence in its removaL Now that theprocedural points have failed, and they are left with no answer on the merits, they cryfoul.

82 Case No: SA 2512008. See too Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48 (HC) at 49G-H,noting the judicial discretion in declining or condoning non-compliance with the presecribed forms and service.8~ In Aussenkehr Farms (Pty) Ltd v Minister of Mines and Energy 2005 NR 21 (SC) at 29E-F Strydom CJreferred with approval to Lubambo v Presbyterian Church of Africa 1994 (3) SA 241 (SE) at 243A-B where itwas held that a ruling or order upholding an applicant's case on urgency is not appealable, not even with leave.


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(3) Third procedural defence: lack of authority84

45. The Minister (despite admitting the general need for legal certainty,85 and despite notdisputing that Mr Harper is the Vice-President of International Integration of Wal-Mart),86 found it appropriate to challenge the authority of Mr Harper. This defence,too, was hardly a responsible one to advance, least of all in the circumstances of a

case like this.

46. The Minister did not deny (and therefore admitted) Harper's status as Vice-Presidentof Wal-Mart for International Integration. For fifty years it has been the law thatwhere a founding affidavit alleges authority (without attaching documentaryconfirmation) that allegation suffices unless the circumstances are such as to raised b . . 87ou t as to Its veracity, Thus the established legal position is that formalconfirmation of authority need not be attached to a founding affidavit, but may beattached in reply.88 This was indeed duly done. 89

47. Accordingly also this technical defence was bound to fail from the start and wascorrectly not proceeded with. Like the non-joinder point it was in fact abandoned at

84 Record vol 1 pp 86-87 para 25; Record vol 2 pp 112-113 para 9.85 Record p 92 para 36.3.86 Record vol 1p 7 para 1.1 read with Record vall p 87 para 25.2.87 Otjozondu Mining (Pty) Ltd v Purity Magnese (Pty) Ltd Case No A140/08 (26 January 2011) per Damaseb JPat pp 25ff and 44ff. See too Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624J-625A, approved andapplied in Wlotzkasbaken Home Owners Assoc v Erongo Regional Council 2007 (2) NR 799 (HC) at paras 10-24; South African Milling Co (Pty) Ltd v Reddy 1980 (3) SA 431 (SE) 436B-D; Erasmus Superior CourtPractice (2009 rev) BI-60, text and authorities at footnotes 5-8 (including Mall (Cape)(Pty)Ltd v Merino Ko-opBpk 1957 (2) SA 347 (C) at 351-2 (Full Bench); Griffiths & Inglis v Southern Cape Blasters (Pty) Ltd 1972 (4)SA 249 (C) at 251F-253D (per Corbett J .8 8 Baeck & Co SA (Pty) Ltd v Van Zummeren 1982 (2) SA 112 (W).89 Record vol 2 p 125 para 40; Record vol 2 pp 169-193.


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the hearing.

(4) Fourth procedural defence: lack ofjurisdictionJprematuritlO

48. This defence equivocates between two bases. The primary one pleaded by theMinister is that the court had no jurisdiction: "only I [the Minister] am statutorilyempowered" to determine the validity of the conditions." Here, too, the Minister'sheads now simply disregard the pleaded case: it is demonstrably not so that "theMinister does not contend that section 49 ousts the courts' review powers, but merelythat it defers judicial review until the Minister has completed his review".92 (Inconflict with the Minister's approach the Commission argues in its heads thatsection 49 is an exclusive remedy.j'"

49. The other basis appears to be that the application is "premature't." It is on this thatthe Minister now falls back in argument in this Court. The contention is that to"defer" the High Court's jurisdiction is not to be treated as ousting it - even pro tanto.The Minister's factual contentions in this regard are limited to paragraph 11 of hisfounding affidavit." where the Minister asserts that the application is prematurebecause he did not have the opportunity to attend to the review as prescribed by theAct. 96

90 Record vol I pp 81-83 paras 3-11; Record vol 2 pp 120-123 paras 24-34.91 Record vall p 95 para 44.92 Para 20 of the Minister's heads (original emphasis).93 Paras 53-54 of the Commission's heads.94 Record vall p 81 heading to para 3; Record vall p 83 para 11; Record vall p 87 para 28.2.95 Record vol 1 p 83 lines 22-26.%Notably the Commission's papers (Record vol 2 P 207 paras 29-31) makes no proper case for contending for a


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50. For this procedural defence to succeed, its expressed premise (asserted as a bare legalconclusion by the Ministerj" must be sustainable. The Minister premises his legalconclusion on what appears to be his contention that section 49 of the Act constitutesa domestic remedy which must peremptorily be exhausted in all instances (despite theconcrete circumstances of a matter) before an aggrieved party has an exigible right ofaccess to court." But he himself admits that the true inquiry in this regard is whetherthe "remedy is a true remedy under the circumstances".99

51. We submit for the following reasons that the premise demonstrably fails at everylevel: it is contrary to precedent and first principle, and the internal remedy is. ffecti d th . 100me ective un er e CIrcumstances.

(a) Presumption against ousting High Court'sjurisdiction

52. Firstly, it fails as a matter of law. The contention contradicts the "clear and cogentpresumption that the Legislature does not intend to oust the jurisdiction of the

mandatory requirement that section 49 must first be exhausted before recourse to court may be had. It accepts,as it must, that section 49 provides that a person "may" make an application to the Minister (Record vol 2 p 207para 29); it then sets out the Minister's powers (Record vol 2 p 207 para 30); and thereafter asserts that there isno basis not to "abide by the recourse provided for in the Act" (Record vol 2 p 207 para 31). These submissionsdo not make out a proper case for contending that this Court's jurisdiction is ousted or deferred. In any event,the Commission's contention that it provides effective redress (Record vol 2 p 207 para 31) is belied by the restof its affidavit, demonstrating its inability to convene even to do as little as to enable the Minister's decision-making in terms of section 49.97 Record vol I p 87 lines 18-21.98 Record vol I p 88 lines 17-30. The Minister's case is indeed that Wal-Mart is "obliged to have the matterreviewed in terms of the Competition Act" (Record p 94 in finemi.99 Record vol I p 93 para 39 (emphasis added).10 0 See Record vol 2 pp 120-123 paras 24-34; Record vol 2 p 150 paras 4-5 for Wal-Mart's traversal of theappellants' pleaded case in this regard.


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Supreme Court", and is inconsistent with "the duty [of the High Court] to protect thejurisdiction conferred upon it by the Constitution", 10 1 In fact, the respondents'contentions are wholly misconceived in failing to appreciate the very "starting pointof the enquiry", namely "the consideration of the ordinary common law, as well as thestatutory powers of the High Court", 102

53. Based on these principles, in National Union of Namibian Workers v Naholo this. . . . . . '- Court relatively recently applied the trite authoritieslO 3 on the exhaustion of domestic

remedies. It held that the "real enquiry" was to give a proper interpretation to theprovision providing for a domestic remedy in order to establish whether a party wasrequired "to first exhaust the appeal procedure before an approach to the High Court

10 1 Onesmus v Minister of Labour 2010 (1) NR 187 (HC) at para 10 per Maritz J, as he then was. See too theauthorities there collected; and Liberty Life Association of Africa v KachelhofJer NO 2001 (3) SA 1094 (C) at1105H/I~1106C and the authorities there collected. It is in principle subversive of these authorities and Articles18, 25 and 80(2) of the Constitution to contend that the jurisdiction of "the superior courts ... depend on astatutory licence from Parliament" which may be "truncated", Maritz J held at paras 13~15. Therefore a"statutory erosion of the court's powers" is constitutionally "precluded", and the "constitutional design ... allowsaggrieved persons ... direct access to seek protection from the High Court" (id at para 20, emphasis added). Seetoo Paper, Printing, Wood & Allied Workers' Union v Pienaar NO 1993 (4) SA 621 (A) at 635A~641C (andauthorities there collected), where it was similarly concluded that the review jurisdiction of the Supreme Courthas not been ousted.10 2 National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC) at para 39. On the basis of theestablished authorities cited at paras 39~45, Totemeyer AJ concluded in that case that "the High Court ofNamibia, as a matter of principle, is not deprived of its inherent (and concurrent) jurisdiction", despite thercrovisions of the Labour Act.03 Inter alia Golube v Oosthuizen 1955 (3) SA 1 (T); Welkom Village Management Board v Leteno 1958 (1) SA490 (A); Lawson v Cape Town Municipality 1982 (4) SA 1 (C); Westair Aviation (Pty) Ltd v Namibia AirportsCompany Ltd 2001 NR 256 (HC); Nichol v The Registrar of Pension Funds 2008 (1) SA 383 (SCA). See tooKoyabe vMinister of Home Affairs 2010 (4) SA 327 (CC) at paras 34-45; Shames v South African Railways andHarbours 1922 AD 228 at 233~234; Local Road Transportation Board v Durban City Council 1965 (I) SA 586(A) at 592F~594C; Baxter Administrative Law (Juta & Co Ltd, Cape Town 1984) at 7206722; De Ville JudicialReview of Administrative Action in South Africa (LexisNexis Butterworths, Durban 2003) at 464~466 (and thenumerous authorities there cited, especially fn 525-527 establishing that "the position under the common law isthus that there is no duty to first exhaust a domestic remedy before approaching a court on review" C o p citat 466; Hoexter Administrative Law in South Africa (Juta & Co Ltd, Cape Town 2007) at 478~482; Plasket(2002) "The Exhaustion ofIntemal Remedies and Section 7(2) of the Promotion of Administrative Justice Act 3of 2000" 119 SAL! 50; Pretorius (1999) "The Wisdom of Solomon: The Obligation to Exhaust InternalRemedies in South African Administrative Law" 116 SAL! 113, and authorities there collected.


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would be competent'v'" or, stated differently (in the words of Ogilvie ThompsonAJA), 105whether ''judicial review is excluded or deferred". 106

(b) Interpreting provision for statutory remedy correctly

54. In Naholo Totemeyer AJ applied the established principle that "[t]he mere fact thatthe Legislature has provided an extra-judicial right of review or appeal is not

l~sufficient to imply an intention that recourse to a Court of Law should be barred untilthe aggrieved person has exhausted his statutory remedies.,,107 It is "only ... where therelevant statutory ... provision, properly construed, requires that the internal remediesfirst be exhausted'v'" that it "defers the jurisdiction of this Court until the internal-appeal remedy is exhausted't.l'"

55. For two reasons Totemeyer AJ held that such construction could not be arrived at.Firstly, the wording of the provision did not support it. This was because thelanguage did not "expressly - and neither directly nor indirectly - state that the appeal

.~ ... will defer access to Court".IIO Secondly, because of the time duration involved inexercising the internal appeal process, the applicant would have been practicallyremediless. 11 I

10 4 National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC) at para 54.105 as he then was, inWelkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 502D.106Id at para 59.1.10 7 Welkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 503B; Golube v Oosthuizen 1955 (3)SA 1 (T ).lO S Nichol v The Registrar of Pension Funds 2008 (1) SA 383 (SCA) at para 15 (emphasis added).109National Union a/Namibian Workers v Naholo 2006 (2) NR 659 (HC) at para 60.Iiold at para 61.1.IIIId at para 6l.2. In that case a four-year period existed between ordinary meetings, but a special meetingcould be called in the interim. The Court clearly did not consider the possibility of calling an urgent specialmeeting or directing the respondent to do so as an alternative remedy or a practicable or effective domesticremedy,


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56. This approach entirely with the approach adopted in English public law. As theHouse of Lords has put it

"an alternative remedy ... may be a factor, and a very weighty factor, in the assessment ofwhether the discretion which the court undoubtedly has to grant or refuse judicial reviewshould be exercised. But it cannot ... bear on the question of the existence of thejurisdiction".112

57. Lord Oliver went on to emphasise that it was never "suggested that the mere existenceof an alternative remedy, of itself and by itself, ousts the jurisdiction of the court,although it may be a powerful factor when it comes to the question of whether thediscretion to review should be exercised". 1I3

(c) Both (a) and (b) apply here

58. Both factors (a) and (b) apply in casu. The language of section 49 makes it clear thatan applicant "may" approach the Minister for a reconsideration of the Commission'sdecision. There is nothing in the Act which suggests a mandatory requirement to firstexhaust this process. Had the legislature so intended, it would and should have speltthis OUt.114 This intention cannot be implied, both because of the strong presumptionagainst ousting the jurisdiction of this courtl15 and the very high threshold set for

11 2 Leech vDeputy Governor of Parkhurst Prison [1988] AC 533 (HL) at 580C-D.11 3 Id at 581D-E.114 Jockey Club of South Africa v Feldman 1942 AD 340 at 351-352; Ntarne v MEC for Social Development,Easter Cape 2005 (6) SA 248 (E) at para 32.11 5 AB to which, see the authorities collected in National Union of Namibian Workers v Naholo 2006 (2) NR 659(HC) at paras 39-45. See too Lenz Township Co (Pty) Ltd v Lorentz NO 1961 (2) SA 450 (A); Paper, Printing,Wood & Allied Workers' Union v Pienaar NO 1993 (4) SA 621 (A) at 635A-637D; City of TshwaneMetropolitan Municipality v Engineering Council of SA 2010 (2) SA 333 (SeA) at paras 35-38 (per WallisAJA).


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implying any provision into a statute: 11 6

"Courts' jurisdiction is excluded only if that conclusion follows by necessaryimplication from the particular provisions under consideration, and then only to theextent indicated by such necessary irnplication.t'I"

59. Thus, already as a matter of law and precedent, the respondents' case also in this

regard is devoid of any merit.,.. . ,.

(d) In any event, not an effective remedy

60. But even had there been a legal requirement to first exhaust a domestic remedy in theform of recourse to the Minister, it clearly cannot apply in the current circumstances.This is because, as the appellants' own papers demonstrate, this remedy "would notbe able to provide the applicant with effective redress".118 The Minister himselfaccepts that the correct test is whether the statutory remedy is "a true remedy underthe circumstances't+"

61. The Minister's concession that this is indeed the litmus test is underpinned bycomparable foreign law. In R v Devin County Council, ex parte Bakerl20 Dillon Usaid that ''the issue is entirely one in law in a developing field which is peculiarlyappropriate for discretion by courts rather than the [UK minister]". Of course on the

1] 6 Rennie NO v Gordon NNO 1988 (1) SA 1 (A) at 22EIF.117Bindura Town Management Board v Desai & Co 19530) SA 358 (A) at 502G-H.ua Nichol v The Registrar of Pension Funds 2008 (1) SA 383 (SCA) at para 18;BaxterAdministrative Law (Juta& Co Ltd, Cape Town 1984) at 721.119Record vol 1p 93 para 39.12 0 [1995] I All ER 73 (CA) at 87b-c.


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Minister's concession in the present case, that is exactly the position here too. SimonBrown LJ added in the same case: "where ... as here what is required is theauthoritative resolution of a legal issue ... then ... judicial review [is] the moreconvenient alternative remedy". 12 1

62. Similarly in South Africa the legal position is that when only a court of law can

definitively interpret the relevant statutory enactment (like the PIA and the validity ofnotices purportedly issued under it) it is not only competent but "eminently desirable"for a court "to make the desired declaration". 122

63. The impracticality of the Minister's supposedly mandatory domestic remedy isdemonstrated by his own affidavit (and also further borne out by that of theCommission). 123 The Minister effectively concedes (repeatedly) that the assumeddomestic remedy in terms of section 49 of the Competition Act - which he contendson the papers constitute an absolute bar to the court's jurisdiction - is not an effective,practical or realistic remedy in the circumstances, especially not after his failure to actsince 8 March 2011.124 Moreover, while Wal-Mart had raised its fundamental

concerns with the Ministry itself (the attempt to explain away the failure to respond tothat letter is spurious) as early as 15 December.i" so that the Ministry was

12 1 Id at 92f-h.12 2 Compagnie Interafricaine de Travaux v South African Transport Services 1991 (4) SA 217 (A) at 231B;Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality 2001 (4) SA 1144 (C) at 1154C-J; Edelor (Pty)Ltd v Champagne Castle Hotel (Pty) Ltd 1972 (3) SA 684 (N) at 689A-D.12 3 Record vol 2 p 203 para 16ff, recording its challenges to convene a meeting. The implication is plain: if theCompetition Commission on its own version cannot as much as convene a meeting to enable the Minister'sreconsideration, the supposed internal remedy of ministerial reconsideration is clearly no effective remedy at all.Indeed, on the Commission's own version it is "impractical" to expect the Commission to operate within thetime limits inherent to merger transactions (Record vol 2 p 203 para 19).12 4 Record vol 2 p 123 para 33.12 5 Record vol I pp 89-90 para 30.2.


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forewarned when the application for statutory review was instituted on 8 March, thesimple fact is that nothing has been done, even now, to advance it.

64. As already indicated, the situation may possibly have been different had theMinister's response on 11March not been an intransigent insistence on a four-monthperiod, but a determination of a procedure (in terms of section 49(5) of the Act)allowing for the accomplishment of the statutory review by (say) end-April.

65. Instead, he contended that he was unable to as much as consider an approach to thestatutory review in terms of section 49.126 In fact, the Minister has recorded hisunwillingness to "make a decision",127 and expressed his contempt for Wal-Mart'sposition.128 The attempt now in his heads of argument to assert his willingness yet tomake a decision (eight months after application to him) is belied by his pleaded caseand the terms of Lindeque's letter.

(e) Minister cannot be ajudge in his own cause

66. Apart from this demonstrable predetermination of the issues (albeit post hoc), a yetfurther "paramount" consideration negates the alleged internal remedy.129 It applies

12 6 E.g. Record vol 1 p 89 lines 13-16, stating that he could not deal with the matter in time. At Record vol 1P 87 in jinem he states that he was (three weeks after receiving the request) not in a position to commentthereon.12 7 Record vol I p 90 lines 20-21 . His self-contradictory contention at Record vol 1 p 93 para 40 is at odds withhis approach demonstrated throughout his affidavit.1 2 8 Record vol 1 P 93 lines 11-13 . By approaching the matter thus in his answering affidavit, the Ministerclearly evidenced that he does not keep an open mind and that no domestic remedy is in law viable (seeOhlthaver & List Finance and Trading Corporation Ltd v Minister of Regional and Local Government andHOUSing 1996 NR 213 (SC) at 2I8e-D, 224E/F-F).12 9 Baxter Administrative Law (Juta & Co Ltd, Cape Town 1984) at 721.


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to at least the fourth condition imposed by the Commission, and the Minister'serroneous contention that he is authorised to determine the legality of Notice 75.Because the Minister himself issued Notice 75, he quite clearly is not competent toconsider its validity. To do so infringes the fundamental principle of inpropria causanemo iudex. Thus on any approach, the Minister can never determine the validity ofthe fourth condition (if in fact section 49 seriously contemplates that procedure beingused for the determination of legal issues). And if he cannot on any approachdetermine the validity of one of the four conditions, there is no convenience in hisdetermining some (if so authorised by section 49, which we dispute) and a courtdetermining the rest.

(j) A lso ultra vires the A ct

67. Moreover, to do so would further be ultra vires section 49 of the Competition Act.Section 49 does not grant the Minister the power to adjudicate on the validity ofnotices, especially not notices issued pursuant to other legislation.F" There isaccordingly no basis on which the appellants can claim that an effective, competent,proper and exclusive remedy lies which should have been exhausted by firstapproaching the Minister before recourse to the High Court could be had.l3l

13 0 For this reason the reliance on the exhaustion of domestic remedies was rejected in cases like Bindura TownManagement Board vDesai & Co 1953 (1) SA 358 (A) at 362H-363C; Msomi v Abrahams NO 1981 (2) SA256(N); and Lawson v Cape Town Municipality 1982 (4) SA I (C).13 1 It is trite that the mere fact that Wal-Mart approached the Minister to intervene, does not bar it from legalrecourse. Wal-Mart was entitled to institute an internal process (with the hope that it may have been receivedand acted upon diligently) and in tandem seek a remedy from this Court (Rauties Transport (Edms) Bpk vVoorsitter, Plaaslike Vervoerraad, Johannesburg 1983 (4) SA 146 (W).


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68. For the above reasons the appellants' contention that section 49 provides a "true,,132or"effective,,133 remedy is unwarranted.P" The allegation is a cynical attempt to shieldthe administrative process from judicial scrutiny.

69. In such circumstances courts in similar jurisdictions adjudicate matters despite non-compliance with mandatory internal appeal/review proceedings (even if such arefound to apply). 135

70. Should this Court conclude that section 49 constitutes an internal remedy whichrequires exhaustion in the circumstances.V" we submit in any event that the currentcircumstances justify a departure. The Minister is quite wrong to contend, in his letterof 11 March in response to the statutory application, that section 49 imposesinexorable time periods of 30 days and four months for its accomplishment.Y' Suchprovisions are capable of appropriate abridgement in appropriate circumstances, on

13 2 Record vol I p 93 para 39 (emphasis added).13 3 Record vol 2 p 207 para 31.13 4 There is no doubt that the internal process cannot produce the result for which they were intended, i.e. toenable a merger transaction (which is inherently urgent, as the current circumstances demonstrate) to beimplemented on terms different from those imposed by the Commission. Where an internal process cannotachieve the intended result, exhaustion thereof is not required (Parque Sao v Brazil (Case No 10.301) IACHRReport No 40/03 (2003) at para 31). See too McCarthy v Madigan 503 US 140 (1992) at 14. :uT whereBlackmun J held that exhausting domestic remedies is not required where: (i) doing so may prejudicesubsequent actions (e.g. where an unreasonable or indefinite time period is envisaged for the administrativeaction); (ii) there is doubt whether the authority can grant effective relief; or (iii) where the authority is biased orhas predetermined the issue. On the fact of this case all of these instances apply.13 5 Koyabe vMinister of Home Affairs 2010 (4) SA 327 (CC) at paras 38-39. See too para 44 where Mokgoro Jheld for a unanimous court that "[a]n internal remedy must also be readily available and it must be possible topursue without any obstruction, whether systemic or arising from unwarranted administrative conduct." In casuthe appellants' papers demonstrate that no unobstructed internal remedy exists. As was accepted in Koyabe (idat para 48), where an applicant made an effort to exhaust an internal remedy but was frustrated in doing sojudicial intervention is, in appropriate circumstances (which we submit are demonstrably present in casu),indicated.136 Despite the salutary principle that courts in similar jurisdictions apply, namely to "incline to an interpretationof the facts and the law that promotes, rather than hampers, access to the courts" (Earthlife Africa (Cape Town)v Director-General: Department of Environmental Affairs and Tourism 2005 (3) SA 156 (C) at para 44).13 7 Record vol I pp 30-31.


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the clearest authority,138 even were they to be construed as time bars in favour of theMinister (which clearly is not the case). 139

71. Accordingly none of the procedural arguments advanced by the appellants had anysubstance, and the Full Bench correctly rejected them and went on to consider themerits. 140

(h) The Minister's new defence: that Wal-Mart made an election

72. But now the Minister has a new defence. This is that Wal-Mart could not, in law,proceed to seek High Court relief, not merely because of the supposed primacy ofsection 49 as a remedy, but in any event because Wal-Mart has made an election. Thecontended election is that, by instituting the application to the Minister in terms ofsection 49, it had given up the "inconsistent,,141 remedy of invoking the High Court'sinherent review jurisdiction.

73. The argument is an unpleaded afterthought. It is trite that election is one of thosespecial defences, like waiver and estoppel, which must be specifically alleged andproved by the person who asserts it. 142 This is particularly in view of the fact that, by

13 8 See Phillips v Direkteur vir Sensus 1959 (3) SA 370 (A) at 374H-375NB; Benning v Union Government(Minister of Finance) 1914 AD 180 at 185.13 9 See again International Competition Network's Recommended Practice for Merger notification Procedureshttp://www.intemationalcompetitionnetworkorg/uploadsllibrary/doc588.pdf (accessed on 23 August 2011) atp 16.1 40 Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 663C/D-D/E.14 1 Para 51 of the Minister's heads.14 2 Academy of Learning (Pty) Ltd v Hancock 2001 (1) SA 941 (C) at para 41; Christie et al The Law ofContract in South Africa 6th ed (LexisNexis Butterworths, Durban 2010); cf Drayer tla Jordra Engineering vHeyman 1998 NR 127 (HC) at 140G (applying the same principle to waiver). The leading South Africanauthority regarding the need for such a defence to be pleaded and proved rigorously is Borstlap v Spangenberg1974 (3) SA 695 (A).
http://www.intemationalcompetitionnetworkorg/uploadsllibrary/doc588.pdfhttp://www.intemationalcompetitionnetworkorg/uploadsllibrary/doc588.pdf


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fundamental legal policy, a party with several remedies is free in principle to choosewhich to engage, and when. 143

74. Nowhere in the Minister's affidavit is election pleaded.i" not its essential elementsmade out. It is unsurprising that it was not argued before the court a quo, as theabsence of any reference to it in the court's fastidious judgment itself confirms, whichis now said to have erred because it did not find such an election. Had the defence

~- been raised, properly on the papers, it would have been met on the papers.

75. It is submitted that in the circumstances the defence is untenable. But it may be notedthat its presentation is in any event inconsistent with first principle and clear authority.Election contemplates "two alternative and entirely inconsistent causes of action orremedies. The principle that in this situation the law will not allow that party to blowhot and cold is a fundamental one of general application.,,145 It requires (no less thenwaiver) "an unequivocal act ... that is, an act which necessarily supposes an electionin a particular direction", in the formulation of what is still the leading case.146

76. Even without the question of election having been properly been put into play bybeing expressly pleaded, it is quite apparent on the record that Wal-Mart's decisionfirst to seek relief from the Minister and then, in the light of Lindeque's response,

14 3 Montesse Township & Investment Corp (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A) at 380H:fznem; CitibankNA v Thandroyen Fruit Wholesalers CC 2007 (6) SA 110 (SeA) at lISe-E.14 4 It is striking that the Minister's heads themselves provide no references which are suggested to be a factualfooting for the new defence. See Moster! NO v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SeA)at para 65.145 Chamber of Mines of SA v National Union of Mineworkers 1987 (1) SA 668 (A) at 690E (our emphasis).14 6 Angehrn and Pie/ v Federal Storage 1908 TS 761 at 786.


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urgent relief from the court, did not constitute the required definitive choice betweeninconsistent remedies. The application to the Minister stated, quite explicitly, that ifthe Minister was unable to reach a decision within ten days, the merging partieswould unfortunately be left "with no alternative but to consider further legal remedies.It will be understood that their rights in this regard must be reserved.,,147 TheMinister's heads of argument wholly disregard this.

77. In the circumstances neither of the Minister's main procedural defences nowadvanced on appeal - that Wal-Mart in law could not approach the High Court inview of section 49, and that in any event it had made an election not to do so - hassubstance.

D. Merits

78. As already noted, although Wal-Mart's fundamental legal concerns were conveyed tothe Commission as long ago as December 2010, and to the Ministry by no laterthan 15 December 2010 (and in full in the statutory application of 8 March 2011)neither the Minister nor the Commission pleaded over on the merits. This isunacceptable for three reasons.

79. Firstly a party devoted to raising only procedural defences must take theconsequences of not addressing the substantive issues. It is not entitled to raise onlyprocedural defences, and reserve its position on the merits. If its position is that for

14 7 Reco rd vo l I p 78 line 40.


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good cause it is unprepared on the merits, then it must make timeous and properapplication for a postponement. An approach like that of the appellants here beforethe High Court was roundly rejected by Hanus DP for the South African SupremeCourt of Appeal in a leading decision confirmed by the Constitutional COurt .148

80. Secondly, the Commission asserts in its affidavit that it took its decision two monthsago after "thoroughly perus[ing]" the merger application'Y and "after intensiveexamination". 150

81. Thirdly, it is unacceptable because the challenges to the conditions rest on theinterpretation of one section in a statute (debated with the Commission four monthsago), a vires argument on Notice 75 and what the Minister concedes are substantiallylegal issues related to the four conditions themselves.

82. The Minister himself gave the game away when he stated that the complaint relatingto the validity of Notice 75 would be addressed entirely in argument "as this matter ispredominantly a legal matter",151 and where he offers a half-concession that "the issuerelating to the conditions complained of is a confined legal issue".IS2 (Of course onappeal the Minister in his heads of argument again adopts a course which contradictshis affidavit: his primary argument is that the court should not determine the validity

14 8 S ee Pharmaceutical Society of South Africa v Tshabalala-Msimang NNO; New Clicks South Africa (Pty) Ltdv Minister of Health 2005 (3) SA 238 (SeA) a t p ara s 1 3- 14 .14 9 Reco rd vo l 2 p 159 para 13.15 0 Reco rd vo l 1 p 34.15 1 Record vol I p 88 para 28.4.15 2 Reco rd vo l 1 p 8 8 para 28 .6 .


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of Notice 75.)153

83. In all the circumstances no responsible basis is laid for the attempt to put off thedetermination of these issues, particularly when, as already noted, the Ministerconcedes the public need for legal certainty. 15 4

84. Wal-Mart's challenges to the four conditions are fully and clearly pleaded in thefounding affidavit.15 5 We do not repeat that analysis here, but seek - moreparticularly given the lack of traversal- to highlight principal elements.

8 5. For convenience, we address the fourth condition first.

(1) The fourth condition: Ministerial approval in terms of section 3(4) of theFIA

8 6. The fourth condition reads:_

''that this being a retail business transaction, the approval of the Minister ... is requiredin terms of section 3(4) of the [FIA]".156

87. The reasons given for the conditions include no reason for this condition, or itsformulation. 157

153 Para 90-92 of the Minister'sheads.154 Record vol 1 p 92 para 36.3.155 Record voll pp 14-22paras 6-9.156 Record vol 1p 35.15 7 Record p 35 item 4.


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88. The Minister purported to issue Notice 75 pursuant to section 3(4) of the FlA. Thefourth condition has apparently been imposed on the basis that the Minister'sdesignation in terms of section 3(4) of FIA of "any form of retailing business" perNotice 75 in Government Gazette No 4460 on 29 March 2010 - after Massmart'sNamibian subsidiaries were registered and commenced business - strikes theproposed scheme of arrangement. But this is wrong, as the full text of section 3(4)shows. Significantly, some of the section's material wording has been elided inNotice 75. Intact, section 3(4) provides:

"The Minister may, by notice in the Gazette, specify any business or category ofbusiness which, in the Minister's opinion, is engaged primarily in the provision ofservicesor the production of goods which can be provided or produced adequatelybyNamibians, and, with effect from the date of such notice, no foreign national shall,subject to the provisions of section 7(3), through the investment of foreign assets,become engaged in or be permitted to become engaged in any business so specifiedor falling within any categoryof business so specified."

89. Paragraph (a) of Notice 75 is not authorised by the empowering provision it invokes(section 3(4) of the FIA) in numerous fundamental respects. The first is that theMinister has sought to confer on himself a dispensing power: that is to say a power inhis discretion to depart from the prohibition which he has crafted purportedly pursuantto section 3(4). The latter confers no power on him to do that: it explicitly requireshim to act with uniformity in relation to any gazetted "business or category ofbusiness".

90. The second and yet more fundamental ultra vires feature is that the Minister's powers


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are restricted by section 3(4) to businesses engaged primarily "in the provision ofservices or the production of goods which can be provided or produced adequately byNamibians". The retail businesses entail no "provision of services or production ofgoods" (in significant contrast with public transport services and hair and beautyservices in terms of paragraphs (b) and (c) respectively of Notice 75).

91. A third basis for impugning the Notice is that section 67 of the Competition Actrequires any regulatory authority "in terms of any public regulation with jurisdictionin respect of any conduct regulated in terms of Chapter 3 or 4 [of the CompetitionAct] within a particular sector" to negotiate an agreement with the Commission, andto exercise jurisdiction in terms of it. While the wording is somewhat opaque, thepurpose is clear: it is not intended, as appears to have happened here, for FIAregulation to be exercised without co-ordination and concurrence between theCommission and the Investment Centre, which is established in terms of section 2 ofthe FIA to assist the Minister in the administration of the latter ACt.15 S

92. A fourth basis on which the Notice is impugned is that it is quite clear from theformulation of (a) that the Minister has gazetted retail businesses on the premise thathe may lawfully exempt some, and secondly that the prohibition is not intended toapply to merging businesses (in contradistinction to those which are being "set up").If that premise is untenable, then it is clear that the Minister has acted in a way whichis arbitrary, or irrational, and that he would not have intended the prohibition withoutan effective exemption mechanism. Viewed from a different but related perspective,

15 8 See Baxter op cit at 459-460 and the authorities collected there.


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the prohibition without the exemption mechanism is patently unreasonable.

93. On these bases, Notice 75 (as a subordinate legislative act) is liable to be declaredinvalid and of no force and effect. 159 But even if Notice 75 had been valid, the actualcondition framed is in its own terms invalid. This is because the fourth conditionassumes that the Minister's approval may indeed be obtained pursuant to section 3(4)and the Notice. The reasons given by the Commission include nothing by way ofjustification of the condition. The failure to give reasons may in appropriatecircumstances give rise to an inference that no reasons could be given.160 This aside,it is clear that the decision to impose the condition is based on a faulty premise, sincein the present case the merging parties are not involved in "setting up" the retailingbusiness. Thus the exemption purportedly created by paragraph (a) of the Notice issimply incapable in law of being obtained by the merging parties.

94. None of the bases on which Notice 75 and the fourth condition were impugned inWal-Mart's papers and written and oral argument was satisfactorily addressed in the. _ -supplementary heads of argument filed on behalf of the Minister after the hearing.These supplementary heads focused on the definition of "services" and "retail", andtook as departure point a student pocket dictionary and a Wikipedia entry. We haveshown in our submissions in reply that this approach (even if based on reputablesources) was contrary to authority.i'" and unhelpful.

15 9 See Waterberg Big Game Hunting Lodge Otjahewita (Ply) Ltd vMinister of Environment and Tourism 2010(1) NR 1 (SC) at 16B-C.16 0 See De Ville Judicial Review of Administrative Action in South Africa (LexisNexis Butterworths, Durban2003) at 288 and authorities cited infn 10-11 for the common-law position as it still applies inNamibia.16 1 Reardon Smith Line v Hansen-Tangen (1976) 3 All ER 570 (HL) at 524 c-d; Aktiebolaget Hassle Triomed(Pty) Ltd 2003 (1) SA 155 (SCA) at para 1 (footnote omitted).


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95. The Minister persists in his heads on appeal in contending that retail businesses entail"the provision of services or the production of goods", within the meaning of the FlA.Now he calls in aid a tax dictionary quoting a general dictionary definition.162

96. A proper consideration of the full entry in the New Shorter Oxford EnglishDictionary't" suggests the proper meaning in the present context: the performance ofduties or functions, such as those of an employee or professional, often of a technicalnature.

97. But that is by-the-by: interpretation does not commence with a dive into thedictionaries (even the more authoritative ones).164 The Minister's approach isconfused, because on trite authority the correct point of departure is the ordinarymeaning of words in the context in which they are used:

"Tn law', remarked Lord Steyn in R v Secretaryfor the Home Department, exparteDaly, 'context is everything'. And so it is when it comes to construing the languageused in documents, whether the document be a statute, or a contract" .165

98. Here the Minister contends for an extensive interpretation of "services" when what isat issue is a restriction on the common-law'P" and constitutional'V right to carry oninter alia any trade or profession. Again, on basic principle a court will not do so,

16 2 Para 104 of the Minister's heads.163 4t h ed (Clarendon Press, Oxford 1993) vol 2 pp 2789-2790, s.v. "service".164 Reardon Smith Line v Hansen-Tangen (1976) 3 All ER 570 (HL) at 524 c-d.16 5 Aktiebolaget Hassle Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) at para 1 (footnote omitted).16 6 Matthews v Young 1922 AD 492 at 507.167 Article 21(1)(j).


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save where an extensive interpretation is clearly indicated. 168

99. That is not the case here. The wider context is a statute which promotes foreigninvestment, and indeed within the narrower context of section 3 which commences(section 3(1)) with the assertion ofthe in-principle right of a foreign national to investand engage in any business activity in Namibia which any Namibian may undertake.

100. Ultimately the Minister's argument boils down to the weak assertion "that retailbusiness indeed provide [sic] a service".'69 That assertion begs the question. It isalso at odds with the only (and undenied) description on the papers of what the threeNamibian entities do: that through them Massmart retails and wholesales groceryproducts, liquor and general merchandise. To be involved in contracts of sale is underNamibian law conceptually distinct from being involved in the provision of services:the distinction is between emptio and locatio conductio operarum (or operis).

101. Before the High Court the Minister bluntly and explicitly

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