His arsenal includes a beefed-up legal team to fight the appeal against the High Court’s ruling to set aside the Namibian Competition Commission’s (NCC) conditions attached to Wal-Mart taking over Massmart. Furthermore, Geingob and his South African counterparts have decided to form a united front on the Wal-Mart issue. If all else fails, the Minister will seek Parliament’s approval to amend the necessary laws.
“We are building a nation together,” Geingob yesterday embroidered on his disappointment after Judge Dave Smuts last week ruled in favour of Wal-Mart’s urgent application that the merger should go ahead unconditionally pending the NCC and the Minister of Trade and Industry’s appeal to the Supreme Court.
In April, the High Court decided to set aside the conditions imposed by the NCC when it approved the merger in February. On June 1, the NCC and the Minister lodged an appeal against the ruling, effectively stopping Wal-Mart’s N$16,5-billion deal acquiring 51 per cent of the shares in Massmart.
Shortly after last week’s ruling, Geingob issued a stinging statement, saying the judgement “may appear as a retention of the apartheid legacy”.
He warned that the court’s decision may have “far reaching consequences in terms of socio-economic relations”. Geingob yesterday said that the issue needs to be considered bearing in mind nation-building, the unemployment crisis and “peace, or no peace”.
The minister’s comments stirred up emotions in the legal fraternity.
According to lawyer Norman Tjombe, Geingob’s reference to apartheid is “not only defamatory of the High Court and Judge Smuts, but also contemptuous of our judiciary”.
Tjombe said the comments violated the Namibian Constitution which requires Cabinet ministers and parliamentarians not to interfere with the functions of the courts and judges, but instead to accord the courts with such support to protect their independence.
“As a senior minister, former Prime Minister and an author of the very Constitution, it was indeed disappointing for Geingob to have uttered those words,” Tjombe said.
In his statement, Geingob said his comments should not be seen or construed “as an attack on the independence of the judiciary”. It should rather be seen as “an expression of profound disappointment” by his ministry.
“I am disappointed at the judgement, which has once again restated the non-importance in the eyes of the Court, of the broader issues around SMEs, employment creation, local participation and the right of the Minister of Trade and Industry to safeguard local companies from undue completion [competition] in the retail industry,” Geingob said.
He said the judgement was based on “technical adherence to the law, even if the law is unjust”, rather than “taking into consideration of the situation, particularly Namibia’s past socio-political stratification”.
He will abide by the court’s decision, though, the minister said yesterday.
However, he is getting a senior advocate from South Africa to assist the legal team with the appeal. Up to now, the NCC and the minister relied mostly on local lawyers to fight their case against Wal-Mart’s representative, heavyweight Jeremy Gauntlett, a top senior advocate from South Africa.
Geingob further said that he discussed the Wal-Mart matter with South Africa’s Trade Minister Rob Davies and Ebrahim Patel, Minister of Economic Development, over the weekend.
“We decided to work together [on the issue],” he said.
In the event of the minister and the NCC losing the appeal, “Government will be forced to amend the law or pass additional laws”, Geingob said, pointing out that this might be detrimental to the business sector.
One of the conditions set by the NCC was that there should be no job losses resulting from the take-over. Gauntlett said in court last week Wal-Mart undertook that there will be no retrenchments for two years after the deal has gone through.
Game Discount World Namibia, Windhoek Cash and Carry, CCW Namibia Properties, Makro Namibia, Masstrade Namibia and Shield Buying and Distribution are all owned by Massmart locally.