[Note that the Act is inconsistent in its use of “subject-matter” and “subject matter” (with and without a hyphen).] CHAPTER 1 PRELIMINARY PROVISIONS Definitions 1. In this Act, unless the context otherwise indicates - “agreement” includes a contract, arrangement or understanding, whether or not legally enforceable; “chairperson” means the chairperson of the Commission appointed under section 5(1); “Commission” means the Namibian Competition Commission established by section 4; “committee” a committee of the Commission established under section 12; “concerted practice” means deliberate conjoint conduct between undertakings achieved through direct or indirect contact that replaces their independent actions; “confidential information” trade, business or industrial information that belongs to an undertaking, has a particular economic value and is not generally available to or known by others; “court” means the High Court of Namibia; “goods” does not include - (a) agricultural commodities which have not undergone a process of manufacture; and (b) goods exempted under section 3(1)(c); “historically disadvantaged persons” persons who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices; “member” means a member of the Commission appointed under section 5(1); “Minister” means the Minister of Trade and Industry; “Ministry” the Ministry of Trade and Industry; “Part I prohibition” means the prohibition imposed by Part I of Chapter 3; “Part II prohibition” means the prohibition imposed by Part II of Chapter 3; “premises” includes land, any building, structure, vehicle, vessel, aircraft or container; “prescribed” means prescribed by a rule made under section 22; “Secretary” means the Secretary to the Commission appointed in terms of section 13(1); “services” does not include -
(f) use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to - (i) search any data contained in or available to that computer system; (ii) reproduce any record from that data; and (iii) seize any output from that computer for examination and copying; and (g) attach and, if necessary, remove from the premises for examination and safekeeping anything that has a bearing on the investigation. (2) Subject to subsection (8), an inspector may not enter upon and search any premises unless the inspector obtains a warrant authorising such entry and search in accordance with subsection (3). (3) If a judge of the Court is satisfied, upon application made on oath or affirmation, that there is reasonable ground for believing that it is necessary, in order to ascertain or establish whether any person has engaged in or is engaging or is about to engage in conduct that constitutes or may constitute an infringement of the Part I or the Part II prohibition, for an inspector to exercise the powers conferred by subsection (1), the judge may grant a warrant authorising an inspector to exercise those powers in relation to any premises specified in the warrant. (4) A warrant must - (a) identify the premises that may be entered and searched; and (b) authorise an inspector named in the warrant to enter and search the premises and exercise any of the powers conferred by subsection (1). (5) A warrant continues in force for a period of 30 days from the date it is issued but lapses if - (a) the purpose for it was granted is satisfied; or (b) it is cancelled by the judge by whom it was issued or by any other judge of the Court. (6) A warrant may be executed on any day between 7:00 and 18:00 unless a different time that is reasonable in the circumstances is authorised and specified in the warrant by the judge granting the warrant. (7) Upon first entering any premises under a warrant the person authorised by the warrant must - (a) provide to the owner or person in control of the premises proof of - (i) his or her authority to enter the premises by handing a copy of the warrant to that person; and (ii) his or her identity; or (b) if none of the persons mentioned in paragraph (a) is present, a copy of the warrant to the premises in a prominent and visible place.
(c) at the request of an inspector, the chairperson or any other member entitled to receive the information. Disclosure of private interest by staff 56. (1) The Secretary, an inspector or any other person employed by the Commission who has a financial or other personal interest in any matter which is the subject of an investigation by the Commission - (a) must disclose that interest to the chairperson; and (b) unless the Commission otherwise directs, may not participate or assist in the investigation of that matter. (2) The Secretary, an inspector or any other person employed by the Commission may not use any confidential information obtained in the performance of their functions to obtain, directly or indirectly, a financial or other advantage for himself or herself or any other person. Time within which investigation may be initiated 57. An investigation into an alleged infringement of the Part I or the Part II prohibition may not be initiated three years from the date the infringement has ceased. Limitation of liability 58. Neither the Commission nor any member, the Secretary, any employee of the Commission or any other person engaged by the Commission in connection with any function of the Commission is liable in respect of anything done in good faith in terms of this Act. Standard of proof 59. In any proceedings in terms of this Act, other than proceedings in terms of section 39(2) or criminal proceedings; the standard of proof is on a balance of probabilities. CHAPTER 7 OFFENCES AND PENALTIES Hindering administration of Act 60. A person commits an offence who hinders, opposes, obstructs or unduly influences any person who is exercising a power or performing a duty conferred or imposed on that person by this Act. Failure to comply with summons 61. A person commits an offence who - (a) having been duly summoned to attend before the Commission, without reasonable excuse fails to do so; or (b) in attendance as required - (i) refuses to take an oath or affirmation lawfully required by the Commission;