COMPETITION COMMISSION APPEALS E600 000 REFUND

 MBABANE – The Eswatini Competition Commission will not go down without a fight. This is because it is now appealing the order of the High Court where the commission was ordered to refund MTN Eswatini a sum of E600 000.

Through its attorneys from CJ Littler, the commission has since filed a notice of appeal in the Supreme Court where it raised six grounds why it felt that the High Court erred in its findings.

According to the appellant (Eswatini Competition Commission), the High Court erred in law and in fact in holding that it was the commission’s secretariat that made the decision to refund MTN Eswatini part of the notification fee.

Shares

The aforementioned amount was paid to the commission by MTN Eswatini as notification fee after it acquired 40 per cent shares from E- Top Up which were owned by the late businessman Victor Gamedze.

Dissatisfied with the decision of the commission, MTN Eswatini then instituted legal proceedings where it was demanding a refund of the amount of E600 000.
The transaction involved MTN Eswatini‘s acquisition of the 40 per cent shares in E-Top Up, a company in which it already held a 60 per cent interest.
The 40 per cent shares, according to MTN Eswatini, were acquired from Gamedze during his lifetime.

Pursuant

E-Top Up is a distributor of MTN Eswatini’s airtime products and pursuant to the transaction, it is now wholly owned by MTN Eswatini. Prior to the transaction, E- Top Up was jointly owned by MTN Eswatini and Gamedze.

Before the transaction, MTN Eswatini owned 60 per cent at E-Top Up.
During the argument of the matter at the High Court, MTN Eswatini contended that the commission had no powers over the transaction and that it was not notifiable.

Highlighted

In her judgment, Judge Mumcy Dlamini highlighted that it was common cause that in the present matter, the Board of the commission took a decision that the transaction between the applicant (MTN Eswatini) and E-Top Up was not notifiable.
Judge Dlamini said: “Whether this decision is correct or not is not my terrain. What is paramount is that the Board took the decision that the transaction was not notifiable.

“In brief, the Board came to the conclusion that the applicant’s transaction was neither a merger nor an acquisition in terms of the definition of these legal terms in the Act and regulations, respectively.”

Merger

She said with the regulations providing that a merger or acquisition was notifiable and the Board finding that the transaction was not notifiable or that it did not fell under Regulation 11(2) which called for notification fee, simple logic dictated that the fee of E600 000 was paid in error.

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