In a recent ruling, the High Court of Namibia has overturned the decision by the Minister of Industries, Mines and Energy, Modestus Amutse, to approve a proposed cement merger. The court's decision, made on Thursday, restores the Namibian Competition Commission's (NaCC) original prohibition of the transaction. The merger, which involved Whale Rock Cement, Schwenk Namibia, and Ohorongo Cement, was challenged by ITE Products, Pharaoh Cement, and the Construction Industries Federation of Namibia.
The dispute arose after Amutse signed a determination on 11 June 2026, allowing the merger to proceed subject to conditions. This decision was published in the government gazette on 11 June 2026. However, ITE Products, Pharaoh Cement, and the Construction Industries Federation of Namibia challenged this decision in the High Court, arguing that it was unlawful and invalid. The court's ruling has now set aside Amutse's determination, declaring it unlawful and invalid.
The NaCC had originally prohibited the proposed merger in July 2025, citing concerns that the merger would likely lead to a substantial lessening of competition in the cement market. Amutse's subsequent approval of the merger had been conditional on certain concessions from the parties involved. However, the court has now restored the NaCC's original decision, prohibiting the merger.
The court's decision was made in response to an urgent review application by ITE Products, Pharaoh Cement, and the Construction Industries Federation of Namibia. The applicants had argued that Amutse's determination was unlawful and invalid, and that the NaCC's prohibition of the merger should be restored. The court has now granted this relief, declaring that the NaCC's prohibition of the merger remains in full force and effect.
The ruling has significant implications for the cement industry in Namibia, as it means that the proposed merger between Whale Rock Cement, Schwenk Namibia, and Ohorongo Cement will not proceed. The court's decision also highlights the importance of the NaCC's role in regulating mergers and acquisitions in Namibia.
The court 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. The matter was enrolled and determined as an urgent review under Rule 73, read with Rules 76 and 77.
The final order did not remit the matter to the minister for a fresh determination, instead finalizing the proceedings and removing the matter from the roll. The applicants had also sought alternative relief, including a request that the matter be returned to Amutse for reconsideration and a fresh determination according to law.
Key points
- The High Court of Namibia has overturned the minister's approval of a proposed cement merger.
- The court's decision restores the Namibian Competition Commission's original prohibition of the transaction.
- The ruling has significant implications for the cement industry in Namibia.
