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NaCC wants ‘skewed’ tourism agreements with Ultimate Safaris scraped

The Namibian Competition Commission (NaCC) says contracts signed by tour operator Ultimate Safaris and three conservancies in the Kunene region give the company exclusivity and must be terminated.

The commission says the agreements exclude competitors who may want to establish tourism ventures in the three conservancies.

The NaCC was responding to complaints lodged by Timoteus Mashuna through Appolos Shimakeleni Lawyers on 26 September 2024.

Mashuna is embroiled in a dispute with Ultimate Safaris, the Uibasen Twyfelfontein and Doro !Nawas conservancies, as well as the Aodaman Traditional Authority, over the reopening of mining claims in the Sorris Sorris conservancy, falling under the Dâure Daman Traditional Authority. This dispute is still subject to court proceedings.

Mashuna says Ultimate Safaris signed anti-competitive agreements with conservancies and stifled competition in the industry.

“The agreements grant Ultimate Safaris exclusive rights to set up tourism establishments in a huge area covering three conservancies.

Any other operator wanting to set up a camp or lodge near the Brandberg area could be hampered by these agreements,” Mashuna says.

The three conservancies, including Sorris Sorris, signed an agreement in 2018 to establish the Red Mountain Joint Management Area (JMA) on part of their land sharing a common boundary.

According to Ultimate Safaris managing director Tristan Cowley, his company signed a 25-year contract with the three conservancies to operate in the JMA.

“These type of contracts are standard in the tourism sector and were submitted to the ministry of environment for approval.

As a business we protect our investments, which will become conservancy property after the 25-year contract,’ he says.

In a letter dated 18 December 2024 to Appolos Shimakeleni Lawyers, NaCC chief executive Vitalis Ndalikokule said the alleged conduct of Ultimate Safaris raises serious implications on competition.

“The conduct is intended to prevent competition as no other justifications are contained in the agreements as to why other operators should not be allowed to participate in these conservancies.

“The conduct of the respondents (Ultimate Safaris and the three conservancies) could potentially amount to a contravention of sections of the Competition Act, 2023,” said Ndalikokule.

He said the commission will engage the parties to find a remedy, failure of which the commission may exercise its jurisdiction in terms of the act.

In another letter to Sorris Sorris conservancy chairperson Elia Manga, dated 24 January, Ndalikokule wrote: “After assessing the complaint and all supporting documents, the following was established: The respondents entered agreements which designate Ultimate Safaris the preferred operator. These agreements have provisions that grant exclusivity to Ultimate Safaris.

“… this conduct has serious implications that are potentially anti-competition and potentially contravene the act. Sorris Sorris is advised to, within 30 days, terminate the agreement and to confirm in writing that it has ceased the conduct; and should it persist in the conduct, the commission reserves its right to exercise its powers as provided for in the act.”

Manga declined to comment on the issue when contacted.

It could not be established if the other two conservancies had received similar letters from the NaCC.

Cowley questions why the NaCC had passed an opinion on his company without consulting them, and says he was seeking an explanation. He says there were other tourism operators in the area.

In another letter to environment commissioner Timoteus Mufeti, Appolos Shimakeleni Lawyers said Ultimate Safaris did not have a right of lease over the communal land they have tourism facilities on.

This was buttressed by chief Zacharias Seibeb of the Dâure Daman Traditional Authority, who accused Ultimate Safaris of operating in his area without permission, therefore, illegally.

However, Cowley says his company does not apply for the right of lease because this is done by the conservancies.

“The right of leasehold is normally in the name of the conservancies, and it is the conservancies’ responsibility to obtain this.

“Investors and joint venture partners are in contract with the conservancies to operate tourism rights vested by law with the conservancies, but all leaseholds are in the names of the conservancies,” Cowley wrote to Seibeb on 20 January.

Appolos Shimakeleni lawyers also accused Ultimate Safaris of constructing a new road and using planes to bring in tourists, with the noise scaring away rhinos.

Efforts to get comment from Mufeti were unsuccessful.
– email: matthew@namibian.com.na

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