The Namibian Competition Commission (NaCC) was dealt a major setback after the High Court overturned its decision in the case of the Pharmaceutical Society of Namibia (PSN).
The judgement, delivered on Thursday, sets aside the NaCC’s decision, providing relief to PSN and associated parties.
This comes after the case centrered on the competition watchdog’s investigation into the alleged imposition of a 50% mark-up on prescription medicine by the PSN and certain members.
Furthermore, the court expressed concern over the secrecy surrounding the determination that the applicants contravened the Competition Act.
It emphasised the absence of evidence disclosed to the parties, hindering their ability to mount an adequate defence.
The High Court granted relief to the applicants, “including the review and setting aside of the Commission’s decision, declaring that the respondents contravened the Competition Act. The court further ordered the respondents to cease and restrain from the conduct and to pay the costs of the proceedings.”
NACC had contended that this practice transgressed specific sections of the Competition Act 2 of 2003, designed to safeguard and promote fair competition in the Namibian market.
The PSN raised multiple concerns, “including lack of fair procedure, bias, non-compliance with the audi alteram partem rule, and the alleged delegation of authority by the Commission.”
The High Court found substance in these arguments, underscoring the flawed nature of the decision-making process.
Furthermore, PSN argued for a vertical relationship, suggesting a consensus among industry stakeholders on pricing.
Conversely, the Commission insisted that a 50% mark-up indicated a horizontal relationship, implying price-fixing among members.
The Commission asserted that the review application was premature and that the matter was not properly before the court. However, the court rejected this point, highlighting the finality in effect of the Commission’s decision.
