The High Court has overturned the industries minister’s decision to allow a merger between Namibia’s two cement companies after the minister admitted to an administrative blunder that meant objections to the merger never reached him.
Industries, mines and energy minister Modestus Amutse gave permission in June for Whale Rock Cement, the owner of the Cheetah Cement brand, to buy shares in Ohorongo Cement.
Last year, the Namibian Competition Commission prohibited the merger due to concerns that it would lead to job losses and a monopoly in the cement market.
Whale Rock appealed the decision to then industries minister Natangwe Ithete, who did not respond.
Amutse took up the appeal this year and decided to approve the merger with new conditions.
At the time, the minister said he had received “no representations to date” objecting to the merger. This has turned out to be an administrative mistake by the ministry.
In the appeal process, interested parties have a right to submit their opinions to the minister.
iTE Products, a South African customer of Ohorongo, had submitted detailed objections to the ministry.
It brought a court case against Amutse in September for failing to consider those objections.
“The determination [to allow the merger] was expressly premised on the assertion that no representations had been received. That assertion was objectively wrong,” iTE director Peter Funke says in an affidavit filed at the High Court.
In his affidavit, Amutse admits that those objections were never brought to his attention even though they were submitted to the ministry.
“I expressly confirm that, notwithstanding their receipt by the ministry, the applicants’ representations of 25 March 2026 were not placed before me for consideration before I made the determination,” Amutse says.
He, therefore, made the decision on the merger without considering all affected parties’ views, violating procedural fairness.
The minister says he should have considered all the information, including employment and financial consequences before deciding.
“My principal concern was the potential harm that could result if the merger was not approved. I considered the potential for job losses and the effect that non-approval could have on employees and their families.
“I was also concerned about potential financial losses and wider economic consequences arising from the failure of the transaction,” Amutse says in his affidavit.
Cheetah Cement had begun consultations to retrench its workers before the minister decided to approve the merger.
The High Court ruled yesterday that Amutse’s decision is “unlawful, invalid and of no force and effect”.
The competition watchdog’s prohibition, therefore, remains in effect, the court ruled.
Lawyer for iTE Products, Nick Korb of Cronjé Inc law firm, says his clients welcomed the court’s decision.
“Our clients brought this application to ensure that the merger control framework under the Competition Act is applied lawfully and as parliament intended. The order affirms that the institutions established to protect competition in Namibia work, and that their decisions can only be set aside in accordance with the law.
“This is a good day for Namibia as a whole, and we are grateful to our clients and the whole legal team for their commitment to this matter,” Korb told The Namibian yesterday.
Cheetah Cement referred The Namibian to its legal representatives, ENS Africa, for questions. ENS did not respond to questions by time of going to print.
