Three judges of the Supreme Court have upheld a decision by the Windhoek High Court that the power to search and seize can only be applied for by an “inspector” appointed in terms of the Namibian Competition Commission’s (NaCC) Act. 
This came after the commission lodged an appeal to the Supreme Court when the High Court set aside, with costs, an ex parte order it obtained against Puma Energy. 

The commission had received a complaint during March 2016 from the Aircraft Owners and Pilots Association of Namibia, alleging that Puma Namibia was abusing its dominant position by charging excessive prices for aviation fuel at the Eros and Ondangwa airports in contravention of the Act. 
The essence of the complaint was that the prices for aviation fuel, charged by Puma Namibia, are above the prices charged by other suppliers of the same product and appear to be unreasonable, considering the input factors such as transportation cost. 

In addition, the prices charged by Puma Namibia allegedly bear no reasonable relation to the economic value of the product. 
The commission initiated an investigation into the complaint and, through its acting secretary, applied ex parte for a search and seizure warrant in respect of Puma Namibia, purportedly in terms of s 34 of the Act. 
The application was supported by a founding affidavit deposed to by the acting secretary, Vitalis Ndalikokule. 
On appeal by Puma, the High Court set aside the order obtained by the commission. 

However, the NaCC appealed the matter in the Supreme Court. 
The ex parte order was set aside on the ground that an employee of the commission, who applied for it in chambers, was incompetent to seek such an order, as in terms of s 34(3) of the Act, only an ‘inspector’, appointed in terms of s 14 of the Act, was competent to apply for such an order. 
On appeal to the Supreme Court, the commission argued the High Court misdirected itself in finding as it did, as on a ‘purposive’ interpretation of the Act, the commission’s power of investigation of suspected abuse of a dominant position contrary to s 26 of the Act, included a power to seek a search and seizure warrant and that the commission therefore lawfully delegated that power to its secretary. 

The Supreme Court, however, found that the High Court correctly concluded that the power to search and seizure could only lawfully be applied for by an inspector appointed in terms of s 14 of the Act because (a) at common law, a power can only be exercised by a functionary in whom it is vested and (b) ‘purposively’ interpreting the relevant provisions to imply such a power in the commission’s main power of investigation of prohibited conduct under Parts I and II of the Act will disturb a ‘fundamental feature’ of the Act and undermine clear legislative intent.  
The appeal was, therefore, dismissed with costs, including the costs of one instructing counsel and two instructed counsel. 
The judgement was delivered by Deputy Chief Justice Petrus Damaseb in agreement with Chief Justice Peter Shivute and acting Judge of Appeal Dave Smuts.
- rrouth@nepc.com.na