Urgent Application: iTe Products (Pty) Ltd and Others v Minister of Industries, Mines and Energy and Others (HC-MD-CIV-MOT-REV-2026/00468), order of 1 October 2026
In brief
On 1 October 2026, the High Court of Namibia set aside the Minister of Industries, Mines and Energy’s decision approving the proposed merger of Namibia’s only two cement producers.
The Minister made his decision without considering written submissions which interested parties were legally entitled to make and which his Ministry had received. The Namibian Competition Commission’s earlier decision prohibiting the merger therefore remains in force.
Cronjé Inc acted for the applicants. The legal team comprised Adv Heathcote and Adv Lewies as counsel, instructed by lead attorney Nick Korb, and assisted by candidate attorney Suzanne van Lill.
The proposed merger
Whale Rock Cement (Pty) Ltd, which operates the Cheetah Cement plant near Otjiwarongo, sought to acquire Schwenk Namibia (Pty) Ltd, the majority owner of Ohorongo Cement (Pty) Ltd near Otavi. These are Namibia’s only two cement factories. Had the transaction proceeded, one group (the merged entity) would have controlled practically all cement produced in Namibia.
In July 2025, the Namibian Competition Commission prohibited the merger. Its published reasons described the transaction as a “merger to monopoly” which was likely to result in “higher prices, reduced output and quality, and limited choice for downstream customers”. The Commission also identified a likely negative effect on employment due to job overlaps.
The Minister’s review
Whale Rock Cement (Pty) Ltd applied to the Minister under section 49 of the Competition Act, 2003 to review the Namibian Competition Commission’s decision.
Section 49(2)(b) of the Competition Act requires the Minister to invite interested parties to make submissions on the matters under review. Following a Government Gazette notice inviting written submissions, iTe Products (Pty) Ltd and Pharaoh Cement (Pty) Ltd submitted detailed representations on 25 March 2026. The submissions were sent by email and delivered by hand, with receipt acknowledged by a Ministry official.
On 11 June 2026, the Minister reversed the Namibian Competition Commission’s decision and approved the merger subject to conditions. His published reasons, however, stated that interested parties had been invited to make submissions “but no representations were received to date”.
That statement was incorrect. Although the Ministry had received the submissions, they had not been placed before the Minister and were not considered when he made his decision.
The High Court Proceedings
iTe Products, Pharaoh Cement and the Construction Industries Federation of Namibia approached the High Court to review the Minister’s decision.
The proceedings concerned the lawfulness and fairness of the Minister’s decision-making process. Article 18 of the Namibian Constitution requires administrative bodies and officials to act fairly and reasonably and to comply with the requirements imposed by common law and legislation.
A central element of procedural fairness is the right to be heard, expressed in the Latin maxim audi alteram partem. The Supreme Court has held that the right to be heard lies “at the heart of procedural fairness in respect of administrative action” and is “plainly an implicit requirement in decision-making in the administrative process” (President of the Republic of Namibia and Others v Shivute (SA 86/2022) [2024] NASC 11 (14 May 2024) para 108).
The opportunity to be heard need not take the form of an oral hearing and may instead be afforded through written representations. In Mouse Properties Ninety Eight CC v Minister of Urban and Rural Development, the High Court, relying on the Supreme Court’s decision in Chairperson of the Immigration Selection Board v Frank and Another, confirmed that the audi alteram partem rule is flexible and that an affected person may be afforded an opportunity to address the matter in writing. The Court found that the applicant “was accorded audi when its written representations were considered by the Minister” (Mouse Properties Ninety Eight CC v Minister of Urban and Rural Development [2020] NAHCMD 42 (6 February 2020) paras 63-64).
The Supreme Court has emphasised the importance of public participation in the Competition Act’s section 49 review process. It held that the invitation to make submissions under section 49(2) “provides an important opportunity for interested members of the public to make relevant submissions to the Minister on the proposed merger”. The significance of those submissions is reinforced by the Minister’s broad review powers under section 49(3). The Court held that the Minister has “extensive powers to alter the decision of the Commission in the light of the information he receives” (Namibian Competition Commission and Another v Wal-Mart Stores Incorporated 2012 (1) NR 69 (SC), [2011] NASC 11 paras 50-51).
These principles mean that the opportunity afforded by section 49(2) of the Competition Act is not fulfilled merely because written submissions reach the Ministry. For those submissions to serve their statutory purpose, they must reach the Minister and be considered as part of the decision-making process.
In this case, the Minister did not oppose the application and acknowledged in an explanatory affidavit that the written submissions had been received by the Ministry but had not been placed before him or considered before he made his determination.
The Court’s order
The High Court ordered that the Minister’s determination:
- be reviewed and set aside;
- is unlawful, invalid and of no force and effect; and
- does not displace the Namibian Competition Commission’s earlier decision prohibiting the merger, which remains in full force and effect.
Because the Minister admitted the procedural error, the Court did not have to determine whether the merger would, on its merits, harm competition. The matter was also not referred back to the Minister for reconsideration. Accordingly, the merger remains prohibited.
Why the case matters
Cement is a basic input for housing, roads, schools and almost every other form of construction. Had the Minister’s approval stood, both of Namibia’s domestic cement producers would have come under the control of a single group, leaving contractors, developers and, ultimately, consumers without a domestic alternative supplier.
The Namibian Competition Commission found that the merger would likely give the merged entity the market power to act independently of market forces, with “negative ripple effects of entire value chain including but not limited to increased cost of housing and infrastructural projects and the economy at large”. It also found that barriers to entry into the cement market are high, so that a new competitor would be unlikely to emerge and restrain the merged entity.
Those effects would have reached well beyond the cement industry. Higher cement prices increase the cost of private housing and of public infrastructure funded by the State, and weigh most heavily on small contractors and SMEs, particularly those bound by fixed-price tenders. For this reason the Construction Industries Federation of Namibia, whose members are directly affected by the price and availability of cement, joined the proceedings.
The Namibian Competition Commission also found that the merger would negatively affect employment. The Minister, for his part, stated that his decision was materially influenced by concerns about job and financial losses if the merger did not proceed. Those competing views on employment were precisely the kind of question on which the affected parties were entitled to be heard before the Minister decided.
Finally, a merger of this kind is difficult to reverse once implemented. Operations are integrated, commercially sensitive information is shared, and two independent competitors cannot easily be recreated. By setting aside the Minister’s determination, the High Court ensured that the Namibian Competition Commission’s prohibition again governs the transaction, and confirmed that a decision with consequences of this magnitude for the Namibian economy must be taken through a fair and lawful process.
Cronjé Inc.
For assistance with mergers and acquisitions, their approvals, competition law matters or challenges to administrative decisions, kindly contact our team.
This note is a general summary for information purposes and does not constitute legal advice.
