Who's allowed to start a competition law investigation in Namibia? Two 2026 judgments just answered that and it's not who you'd expect.
- Engling, Stritter & Partners
- 2 days ago
- 5 min read
Who's allowed to start a competition law investigation in Namibia? Two 2026 judgments just answered that and it's not who you'd expect.
Two judgments delivered in the first half of 2026 have reshaped how competition investigations must begin in Namibia and cast doubt over a large body of investigations already at various stages. Together, the Supreme Court’s decision in Namibian Competition Commission v Pharmaceutical Society of Namibia (21 January 2026) and the High Court’s decision in Dr Weder, Kauta & Hoveka Inc v Namibian Competition Commission [2026] NAHCMD 218 (22 April 2026) established and confirmed a clear rule: only the Commission itself may decide to initiate an investigation under section 33 of the Competition Act 2 of 2003 (the “Act”) and that decision cannot be delegated1.
The Commission is a statutory body whose members, including the chairperson and vice-chairperson, are appointed under section 5 of the Act read with the Public Enterprises Governance Act 1 of 2019.
What the Supreme Court decided
For years the Commission relied on a 2012 board resolution that delegated its investigative powers to the “Office of the Secretary”. On that footing, investigations were routinely initiated, and Form 4 notices issued, under the Secretary’s signature rather than by the Commission.
In Pharmaceutical Society of Namibia, the Supreme Court held that arrangement to be unlawful. The Act provides only one route for delegating the Commission’s core powers in section 12 which allows delegation only to a committee, over which the Commission retains oversight and whose decisions it can approve or vary2. Delegation to an individual official is simply not contemplated. Staff may assist the Commission (section 13), but they may not take a decision on whether to investigate3. Nor could the Commission’s rule-making power (section 22) or rule 4 rescue the delegation; a rule cannot amend the Act it serves4.
The consequence is that an investigation initiated by the Secretary is ultra vires and void at inception, and every step that flows from it is tainted.
The Court also clarified what a section 33 investigation is: an inquisitorial, information-gathering exercise to help the Commission decide whether to refer a matter to the High Court under section 38. It is not a trial, and it is the High Court, not the Commission, that ultimately decides culpability and imposes penalties5.
What the High Court added: ratification cannot cure it
By the time the Dr Weder, Kauta & Hoveka review was argued, Pharmaceutical Society had settled the delegation question, and the Commission rightly abandoned its defence on that point6. It fell back on a 2023 resolution purporting to ratify the Secretary’s earlier decisions.
The High Court rejected that too. Ratification can rescue a decision only where the original decision-maker had the relevant power but exercised it imperfectly. It cannot conjure authority that never existed. To allow it here would let the Commission retrospectively rewrite who holds statutory power; this is precisely what the principle of legality (Articles 1 and 18 of the Constitution) forbids. The Court drew a sharp line between retrospective ratification and remitting the matter back to the Commission so the appropriate body can decide afresh, which is permissible and what the Court ordered7.
What this means for investigations already under way
The immediate casualties are the many matters initiated by the Secretary in reliance on the 2012 delegation. Each is now vulnerable to review for want of authority, and, critically, the Commission cannot fix them retrospectively with a ratifying resolution. To proceed lawfully, the Commission must take a fresh decision to initiate, matter by matter, comply with the notice requirements of section 33(3), and only then exercise its investigative powers8. For older conduct, that fresh start may collide with the Act’s own limitation provisions.
There is also a costs signal for the regulator. In Dr Weder, Kauta & Hoveka, the High Court awarded punitive (attorney-own-client) costs against the Commission for persisting with the delegation and ratification arguments after the Supreme Court had settled the point. Continuing to defend Secretary-initiated investigations now carries real financial exposure.
What about matters that were concluded and penalties already imposed?
Here a crucial feature of the Namibian scheme matters: the Commission does not impose penalties for restrictive practices. Under section 38, it must go to the High Court for any penalty9. That produces two very different positions.
Live or pre-adjudication matters. Where no court order has yet been made, the unlawful initiation taints everything downstream. The initiation is set aside and the matter remitted; no penalty survives, because none was ever lawfully imposed. This is what happened in both judgments10.
Genuinely concluded matters with a final penalty. These instances are a different matter. A penalty imposed under section 38 is a court order, not an administrative decision. To challenge it, an affected party must appeal or seek rescission of the order itself, not merely review the administrative act. An unlawful act is not automatically void: under the long-standing Oudekraal principle, adopted in Namibia11, it stands until a competent court sets it aside. A party cannot take matters into their own hands by ignoring it.
Practical takeaways for businesses under investigation
First thing’s first: consult a competition law expert to advise you correctly before taking any action.
Check who initiated: If your investigation was started by the Secretary or a Commission official rather than by the Commission itself, the initiation may be open to challenge for want of authority.
Do not ignore a defective notice. An unlawful notice is not a nullity you can disregard; it must be challenged, or its invalidity raised as a defence if the Commission seeks to enforce it.
A re-initiated investigation is a real prospect. Setting aside an unlawful initiation does not end the Commission’s mandate, it must simply decide again, lawfully.
Check if the Commission is time-barred: In terms of the Competition Act, the Commission must initiate an investigation within a certain period of time, if not done, the Commission may be time-barred.
Concluded matters need a different playbook. If a section 38 court order has already been made, the route is appeal or rescission of the order, not administrative review; a materially higher bar that should be assessed early.
James Smith
Consultant – Commercial Department
Engling, Stritter & Partners
This article is general commentary on two recent judgments and is not legal advice. For advice on a specific competition investigation, whether challenging its initiation or responding on the merits, contact the competition law team at Engling, Stritter and Partners.
Notes
1. Pharmaceutical Society paras 66 and 92; Dr Weder, Kauta & Hoveka para 86
2. Pharmaceutical Society paras 66 and 92
3. Pharmaceutical Society paras 72 and 74
4. Pharmaceutical Society paras 75 to 77
5. Pharmaceutical Society paras 96 to 97
6. Dr Weder, Kauta & Hoveka paras 59 to 60
7. Dr Weder, Kauta & Hoveka paras 93 to 94
8. Dr Weder, Kauta & Hoveka paras 101 to 102
9. Pharmaceutical Society para 7
10. Pharmaceutical Society paras 105 to 109; Dr Weder, Kauta & Hoveka paras 96 to 97 and 101
11. Pharmaceutical Society paras 79 to 80
© Engling, Stritter & Partners, 2026. All rights reserved.
Comments