Sostenus Wilherm
The High Court has overturned the minister of industries, mines and energy, Modestus Amutse’s decision to approve a proposed cement merger, restoring the Namibian Competition Commission’s (NaCC) prohibition of the transaction.
Justice James Robertson Devittie issued the order in the High Court on Thursday, following an urgent review application by ITE Products (Proprietary) Limited, Pharaoh Cement (Proprietary) Limited and the Construction Industries Federation of Namibia.
The dispute arose after the Amutse signed a determination on 11 June 2026, which was later published under the government notice No. 229 in the government gazette No. 8965.
The determination overturned the Competition Commission’s prohibition of the proposed merger and allowed the transaction to proceed subject to conditions.
ITE Products, Pharaoh Cement and the Construction Industries Federation challenged that decision in the High Court.
The court has now set aside the Amutse’s determination, declaring it unlawful and invalid.
“It is declared that the determination referred to in paragraph 2 above is unlawful, invalid and of no force and effect,” the court order states.
The ruling further restores the NaCC’s original decision against the merger, which was published as General Notice No. 510 of 2025 in Government Gazette No. 8691 on 17 July 2025.
“It is declared that the Fifth Respondent’s determination prohibiting the proposed merger, published as General Notice No. 510 of 2025 in Government Gazette No. 8691 on 17 July 2025, remains in full force and effect,” the order reads.
The commission had originally prohibited the proposed merger before Amutse intervened and overturned that decision.
The court’s ruling therefore means that Amutse’s June 2026 approval, which had permitted the merger subject to conditions, has no legal effect.
Whale Rock Cement (Proprietary) Limited which owns the brand Cheetah Cement, Schwenk Namibia (Proprietary) Limited and Ohorongo Cement (Proprietary) Limited were named in the proceedings alongside the line minister and the NaCC.
In their notice of motion, ITE Products, Pharaoh Cement and the Construction Industries Federation asked the court to review and set aside Amutse’s determination and declare it “unlawful, invalid and of no force and effect”.
They further asked the court to confirm that the NaCC’s prohibition would remain in force unless it was “lawfully varied or overturned”.
The applicants had also sought alternative relief in case the court found that another determination under section 49 of the Competition Act, 2003 remained legally possible.
They asked that the matter be returned to Amutse for reconsideration and a fresh determination according to law.
Among other things, they wanted the minister to reconsider the matter on the “complete administrative record” and to genuinely consider written submissions submitted by ITE Products and Pharaoh Cement on 25 March 2026.
The documents further called for interested parties to receive “a fair opportunity to address any new adverse material, policy consideration or proposed condition not previously disclosed”.
They also sought a fresh decision supported by “adequate written reasons” and published in accordance with section 49(4) of the Competition Act.
However, the final order did not remit the matter to the minister for a fresh determination. Instead, Devittie restored the NaCC’s prohibition and finalized the proceedings.
The court also granted the applicants’ request for urgency, ordering that the ordinary Rules of Court relating to “procedure, forms, service and time periods” be dispensed with to the extent necessary and that their non-compliance with those rules be condoned.
The matter was enrolled and determined as an urgent review under Rule 73, read with Rules 76 and 77.
The High Court ultimately ordered that the matter be finalized and removed from the roll.
