Court name
High Court Main Division
Case number
APPEAL 348 of 2014
Title

Namibian Association of Medical Aid Funds v Namibian Competition Commission (APPEAL 348 of 2014) [2016] NAHCMD 80 (17 March 2016);

Media neutral citation
[2016] NAHCMD 80
Coram
Parker AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 348/2014





DATE: 17 MARCH 2016





In the matter between:





NAMIBIAN ASSOCIATION OF MEDICAL AID
FUNDS....................................1ST
APPLICANT





NAMIBIAN MEDICAL CARE MEDICAL AID
FUND........................................2ND
APPLICANT





NAMIBIAN HEALTH PLAN MEDICAL AID
FUND...........................................3RD
APPLICANT





RENAISSANCE HEALTH MEDICAL AID
FUND...............................................4TH
APPLICANT





BANKMED MEDICAL AID
SCHEME..................................................................5TH
APPLICANT





NAMDEB MEDICAL AID
SCHEME.....................................................................6TH
APPLICANT





NAPOTEL MEDICAL AID
SCHEME....................................................................7TH
APPLICANT





WOERMANN AND BROCK MEDICAL AID
SCHEME.....................................8TH
APPLICANT





ROADS CONTRACTOR COMPANY MEDICAL


AID
SCHEME............................................................................................................9TH
APPLICANT





NAMMED MEDICAL AID
FUND.........................................................................10TH
APPLICANT





And





NAMIBIAN COMPETITION
COMMISSION...................................................1ST
RESPONDENT





NAMIBIAN PRIVATE PRACTITIONERS
FUND............................................2ND
RESPONDENT





Neutral citation: Namibian
Association of Medical Aid Funds v Namibian Competition Commission (A
348/2014) [2016] NAHCMD 80 (17 March 2016)





Coram: PARKER AJ





Heard: 26 November 2015





Delivered: 17 March 2016





Flynote: Competition in the Namibian
market – In terms of Competition Act 2 of 2003 – Object
of Act is to safeguard and promote competition in the Namibian market
– Court held Namibian Association of Medical Aid Funds (NAMAF)
and its constituent members (ie Funds) established in terms of the
Medical Aid Funds Act 23 of 1995 are ‘undertakings’
within the meaning of s 1 of that Act – They carry on business
for gain within the meaning of s 1 of Act 2 of 2003 – Meaning
of business ‘for gain’ explained – NAMAF and
constituent Funds subject to application and force of Act 2 of 2003 –
Meaning of ‘non-commercial socio-economic objective’
within the meaning of s 3(1)(b) of Act 2 of 2003 considered –
Meaning of ‘activities of statutory body’ explained –
Court held further that although the applicants are established by
statute (Act 23 of 1995) they are ‘undertakings’ and they
have not been exempt from the application and force of Act 2 of 2003
by that Act – Court further held that the issuing and
publication of ‘benchmark tariff’ in respect of medical
services by first applicant are unlawful as they are offensive of the
anti-competition provisions of Act 2003 – Consequently, such
activity is not exempt from application and force of Act 2 of 2003
though carried out by a statutory body in terms of s 3(3) of Act 2 of
2003 – Consequently, application dismissed with costs.





Summary: Applicants being NAMAF (1st
applicant) and its constituent members (2nd to 10th applicants)
contend that being statutory bodies established pursuant to Act 23 of
1995 they are not subject to Act 2 of 2003 – Court found that
each of the applicants is an ‘undertaking’ within the
meaning of s 1 of Act 2 of 2003 and they have not been exempt from
the application and force of Act 2 of 2003 by that Act –
Consequently, they are subject to Act 2 of 2003 – Court found
further that the issuing and application of ‘benchmark tariff’
by 1st applicant (NAMAF) in respect of medical services is an
activity not designed to achieve a non-commercial socio-economic
objective within the meaning of s 3(1)(b) of Act 2 of 2003 –
Court found further that such activity is unlawful because it offends
the anti-competition provisions of Act 2 of 2003 – Therefore
the activity is not one which Act 2 of 2003, s 3(3), exempts from its
application and force – Consequently, application dismissed
with costs.





ORDER





The application is dismissed with
costs, including costs of one instructing counsel and two instructed
counsel.





JUDGMENT





PARKER AJ:





[1] The 1st to 10th applicants,
represented by Mr Frank SC (with him Ms Bassingthwaighte), seek
orders in terms set out in the notice of motion: I understand the
applicants to claim in para 1 of the notice of motion that because
they were established in terms of the Medical Aid Funds Act 23 of
1995 they are not subject to the application and force of the
Competition Act 2 of 2003. The 1st respondent has moved to reject the
application. The 2nd respondent has not done so. It seems probably
because no order is sought against the 2nd respondent. Mr Unterhalter
SC (with him Mr Coleman) represents the 1st respondent.





[2] The 1st respondent is an
association established in terms of Act 23 of 1995. Act 23 of 1995
provides for the control and promotion of medical aid funds, and for
incidental matters. The 1st applicant consists of all registered
funds in Namibia, including the 2nd to 10th applicants. The 1st
respondent is a statutory body established in terms of the
Competition Act 2 of 2003. It has powers to administer and enforce
the Competition Act. The powers of the 1st respondent include
investigating anti-competition conduct outlawed by the Competition
Act.





[3] From the pleadings, it is my view
that in the determination of this application, the only burden of the
court is to consider these crucial questions or issues, namely –





(a) is the 1st applicant or each of the
2nd to 10th applicants an ‘undertaking’ within the
meaning of s 1 of the Competition Act?





(b) whether the 1st applicant or any of
the 2nd to 10th applicants is exempt from the application and force
of the Competition Act (para 1 of the notice of motion); and





(c) whether the issuing and publication
of the ‘benchmark tariff’ in respect of medical services
by the 1st applicant is exempt from the application and force of the
Competition Act (alternative to para 1 of the notice of motion).





[4] In this regard, I underline the
important point that a determination of these questions (or issues)
shall dispose of this application. In this regard, it is my view that
the principle of ‘solidarity’, relied on by Mr Frank and
which is not a principle in our common law or statute law or in
public international law but a principle probably in civil law of
much of continental Europe, is of no assistance on the issues under
consideration.





Question (a)


Is the 1st applicant or each of the
rest of the applicants an ‘undertaking’ within the
meaning of s 1 of the Competition Act?





[5] According to s 1 of the Competition
Act, ‘ “undertaking” means any business carried on
for gain or reward by an individual, a body corporate, an
unincorporated body of persons or a trust in the production, supply
or distribution of goods or the provision of any service’.





[6] The first sign post to look at is
the interpretation and application of the definition of ‘fund’
in s 1 of Act No. 23 of 1995 which reads:





‘ “fund” means any
business carried on under a scheme established with the object of
providing financial or other assistance to members of the fund and
their dependants in defraying expenditure incurred by them in
connection with the rendering of any medical service, but does not
include any such scheme which has been established in terms of an
insurance policy.’





[7] The ipssissima verba of this
provision indicate clearly that each of the 2nd to 10th applicants is
a ‘business’. The second sign post is to see whether the
business carried on by each of 2nd to 10th applicants is for ‘gain’
(or reward). In his authoritive work The Principles of Modern Company
Law, 3rd ed, pp 221-222, relying on Armour v Liverpool Corporation
[1939] Ch 422, at 437, Professor LCB Gower states:





‘It will be appreciated that the
legality of these unincorporated clubs and societies depends on their
not carrying on business for their own gain or for that of their
members... Unless this condition is fulfilled they will be illegal if
their membership exceeds twenty. The expression “business for
gain” has been construed fairly widely; it will include any
form of commercial undertaking, even though the distribution of
profits is prohibited and indeed even if there is no intention of
making a profit. Thus a mutual insurance association or a loan
society will be illegal unless registered under the Companies Acts,
or some other statute, since the members “gain” by being
indemnified from losses or by being permitted to borrow. But the
“gain” must result from a “business”; …
The test appears to me to be whether that which is being done is what
ordinary persons would describe as the carrying on of a business for
gain.’





[8] It is worth noting that the English
case of Armour v Liverpool Corporation is cited with approval by
Nienaber JA in the South African case of Mitchell’s Plain Town
Centre Merchants Association v McLeod 1996 (4) SA 159 (A) at
167I-168A. Thus, ‘gain’ should be understood to mean a
commercial or material benefit or advantage, not necessarily a
pecuniary profit, in contradistinction to the kind of benefit or
result which a charitable, benevolent, humanitarian, philanthropic,
literacy, scientific, political, cultural, religious, social,
recreational or sporting organization, for instance, seeks to
achieve. (Mitchell’s Plain Town Centre Merchants Association v
McLeod and Another 1996 (4) SA 159 (A) at 167I-168A) And ‘business’
in the context of the Competition Act is a commercial activity. (See
Concise Oxford Dictionary, 11th ed.) And ‘commercial’
activity is an activity involving the purchase and sale of a thing or
the supply of services, that is, the exchange of goods and services,
for payment on a large scale. See G R J Hackwill, Mackeurtan’s
Sale of Goods in South Africa 5th ed, Chapter 1, passim. And so
‘business’ is any commercial activity such as one carried
on regularly and systematically. (Judge R D Classen (compiler),
Dictionary of Legal Words and Phrases, Vol 1)





[9] From the aforegoing analyses and
conclusions, I find that upon the definition of ‘fund’ in
s 1 of Act 23 of 1995, it is established clearly that the activity
carried on by each of the 2nd to 10th applicants is the supply of
services, ie, a commercial activity, for economic purposes, that is
to carry on a ‘business for gain’, since the members of
the Funds and their dependants gain by being provided with financial
or other assistance in defraying expenditure incurred by them in
connection with the rendering of medical services. (See LCB Gower,
Principles of Modern Company Law, ibid, p 221.)





[10] In sum, the 2nd to 10th applicants
are undertakings within the meaning of s 1 of the Competition Act. It
matters tuppence, contrary to what Mr Frank appeared to submit, if
‘no portion of any surplus realized by a fund in any financial
year may be distributed to its members or any other persons’.
Professor Gower, on the authority of Armour v Liverpool Corporation
tells us that ‘business for gain’ ‘will include any
form of commercial undertaking, even though the distribution of
profits is prohibited and, indeed, even if there is no intention of
making a profit’. See para 7 of this judgment.





[11] I shall now extrapolate the
aforegoing reasoning and conclusions in respect of the 2nd to 10th
applicants to the nature and situation of the 1st applicant. Mr Frank
submitted that the 1st applicant is not an undertaking. And why does
counsel so submit? It is simply this: (1) The 1st applicant ‘is
a non-profitable organization in that it does not exist to make
profits or distribute to its members or anyone else for that matter’.
(2) The 1st applicant ‘does not operate in any market itself
and simply exists to pursue its statutory objects’. (3) ‘Its
objects are clearly directed at non-commercial social economic
purposes which fall within the ambit of conduct exempted from the
provisions of the Competition Act as provided in sec 3(1)(b)’
of the Competition Act.





[12] As respects ground (1) put forth
by Mr Frank, I should say that counsel’s argument is debunked
by Professor Gower, relying on Armour v Liverpool Corporation (see
para 7 of this judgment). In any case, ‘for gain’ and
‘for profit’ have never been synonymous. The Competition
Act, s 1, refers to ‘gain’, not ‘profit’. And
I can only find the true intent and meaning of the Competition Act
from the Competition Act itself (see More v Minister of Cooperation
and Development and Another 1986 (1) SA 102 (A) at 103H); and the Act
defines an ‘undertaking’ as any business carried on for
‘gain’ or ‘reward’, and not ‘profit’.
The intention of the Legislature is to use the word ‘gain’
not ‘profit’. I do not think it is desirable for any
court (or tribunal) to do that which the Legislature has abtained
from doing, that is, introduce words into some statutory provision. I
hold that ground (1) in counsel’s reasons has, with respect, no
merit.





[13] The fact that the 1st applicant
exists to pursue its statutory objective cannot on that fact alone
support the contention that the 1st applicant does not carry on
business for gain. The 1st applicant operates in the market of
medical aid schemes conducted by its constituent funds. The 1st
applicant is therefore an association of undertakings within the
meaning of s 1 of the Competition Act. Accordingly, I find that
ground (2), put forth by Mr Frank, has no legal leg to stand on. It
has no merit.





[14] As to ground (3); I have
demonstrated in extenso below that the issuing and publication of the
‘benchmark tariff’ is not for non-commercial
socio-economic purpose. I do not wish to rehash them here.





[15] Based on these reasons, I come to
the inevitable conclusion that each of the 2nd to the 10th applicants
is an ‘undertaking’ and the 1st applicant is an
association of undertakings within the meaning of s 1 of the
Competition Act and are therefore subject to the application and
force of the Competition Act. This answers Question (a) (see para 3
of this judgment).





Question (b)


Whether the applicant or any of the 2nd
to 10th applicants is exempt from the application and force of the
Competition Act (para 1 of the notice of motion)





[16] In considering this Question (b),
I should look at nowhere but at the formulation of the relief sought
(ie in para 1 of the notice of motion) and the applicable provisions
of the Competition Act. The first thing to look at is the
interpretation and application of s 3 of the Competition Act,
entitled ‘Application of Act’.





[17] In statute law, whether a
particular body is exempt from the application and force of a
particular legislation is gathered from the particular legislation
itself only. (Italicized for emphasis) An ‘application’
provision is commonplace in legislation, particularly, in regulatory
legislation. See, for example, the Namibian Communications Commission
Act 4 of 1992. Section 29 of that Act provides:





‘This Act shall not apply to the
Namibian Broadcasting Corporation established by s 2 of the Namibian
Broadcasting Corporation Act, 1991 (Act 9 of 1991), or in respect of
the broadcasting activities carried on by that Corporation.’





[18] Thus, in our statute law practice
where a regulatory body is established by an Act (a ‘regulatory
Act’) to regulate certain activities, every activity within, or
connected with or incidental to, these activities is subject to the
application and force of the regulatory Act in question. This is the
case unless the regulatory Act by express provision exempts (a)
certain named bodies from the application and force of the regulatory
Act in question; or (b) certain named activities carried on by named
bodies from the application and force of the regulatory Act in
question; or (c) both the bodies and the activities carried on by
them. The aforementioned s 29 of the Act 4 of 1992 offered a good
example. Act 4 of 1992 exempted both the Namibian Broadcasting
Corporation and broadcasting activities carried on by that
corporation from the application and force of Act 4 of 1992.





[19] In the instant proceeding, as I
have said previously, the regulatory legislation is the Competition
Act, and it is established thereunder the Namibian Competition
Commission (‘the Commission’). The Commission has the
statutory responsibility to investigate competition infractions in
order to attain the objects of the Competition Act as set out in the
long title of that Act, that is, to safeguard and promote competition
in the Namibian market. The Competition Act provides as the purposes
of the Act the following:





‘Purpose of Act





2. The purpose of this Act is to
enhance the promotion and safeguarding of competition in Namibia in
order to –





(b) provide consumers with competitive
prices and product choices; …’





[20] In the instant proceeding, I do
not see any express provision in the Competition Act exempting the
Namibia Association of Medical Aid Funds (1st applicant) or any of
the 2nd to 10th applicants from the application and force of the
Competition Act.





[21] In this regard, it should be
remembered that the Competition Act was promulgated some ten years
after the promulgation of the Medical Aid Funds Act 23 of 1995 and
yet the Legislature did not exempt the 1st applicant and any of the
remaining applicants from the application and force of the
Competition Act as, for example, we have seen the Legislature did in
Act 4 of 1992 and Act 8 of 2009 in relation to the Namibian
Broadcasting Corporation. It is therefore, with respect, fallacious
and self-serving for applicants to contend that just because the
applicants are ‘entities established pursuant to the Medical
Aid Funds Act 23 of 1995, (they) do not fall within the ambit of the
Competitions Act 2 of 2003’. The very Competition Act has not
exempted them from the application and force of that Act. It would
therefore, with respect, be sheer idle argument for one to say that
those entities are exempt from the application and force of that Act.
Only that Act can exempt them, and it has not done so. These
conclusions debunk the applicants’ contention. It follows that
the applicants are subject to the application and force of the
Competition Act.





[22] Based on these reasons, I can see
no legal basis upon which it can be declared that ‘the
applicants do not fall within the ambit of the Competition Act’.
It follows inevitably and reasonably that applicants have failed to
establish any existing, future or contingent right, within the
meaning of s 16(d) of the High Court Act 16 of 1990, which the court
may protect by a declaratory order. Consequently, I refuse to grant
the relief sought in para 1 of the notice of motion. This also
answers Question (b) (see para 3 of this judgment) and disposes of
the relief sought in para 1 of the notice of motion. And I proceed to
consider Question (c) (see para 3 of this judgment).





Question (c)


Whether the issuing and publication of
the ‘benchmark tariff’ in respect of medical services by
the 1st applicant exempt from the application and force of the
Competition Act (alternative to para 1 of the notice of motion)





[23] Section 3 of the Competition Act
contains application provisions, and it provides:





‘3. (1) This Act applies to all
economic activity within Namibia or having an effect in Namibia,
except-





(a) collective bargaining activities or
collective agreements negotiated or concluded in terms of the Labour
Act, 1992 (Act No. 6 of 1992);





(b) concerted conduct designed to
achieve a non-commercial socio-economic objective;





(c) in relation to goods or services
which the Minister, with the concurrence of the Commission, declares,
by notice in the Gazette, to be exempt from the provisions of this
Act.





(2) This Act binds the State in so far
as the State engages in trade or business for the production, supply
or distribution of goods or the provision of any service, but the
State is not subject to any provision relating to criminal liability.





(3) This Act applies to the activities
of statutory bodies, except in so far as those activities are
authorised by any law.’





[24] The applicants rely on the
exemption provisions in s 3(1)(b) and those in s 3(3) of the
Competition Act in support of their case; and so, it is to the
interpretation and application of those provisions that I now direct
the enquiry. I shall consider s 3(3) first.








[25] Section 3 provides:





‘(3) This Act applies to the
activities of statutory bodies, except in so far as those activities
are authorized by any law.’





[26] Now, the question is: are the
issuing and publication by 1st applicant of ‘benchmark tariff’
activities of the statutory body, ie 1st applicant, that are
authorized by any law? The 1st applicant contends that the issuing
and publication by 1st applicant of ‘benchmark tariff’ is
an activity authorized by the Act No. 23 of 1995. In his submission,
Mr Frank, counsel for the applicants, relies on s 10(3) of Act 23 of
1995 to support the applicants’ contention which provides that
the ‘object of the Association (1st applicant) shall be to
control, promote, encourage and coordinate the establishment and
functioning of funds in Namibia’. Counsel argued further that
in order to achieve the s 10(3) (of Act 23 of 1995) objective, the
1st applicant may do ‘anything that is conducive to the
achievement’ of the objective. I agree. But I hasten to add
that ‘anything’ that the 1st applicant must do only be
‘anything’ that is lawful. The omnibus provision in s 12
of Act 23 of 1995 cannot be read as authorizing unlawful acts. This
view is so elementary and foundational to our jurisprudence and is so
logical that I need not cite any authority in support of it.





[27] As I have said previously, the
objects of the Competitions Act are to safeguard and promote
competition in the Namibian market; and so, the Commission has the
statutory duty to investigate activities that answer to cartel
conduct which, as Mr Unterhalter submitted, is one of the
most serious infringements of the Competition Act. I accept Mr
Unterhalter’s characterization of cartel conduct in the context
of the Competition Act as conduct that creates agreements or
arrangements between competitors in the Namibian market so as to
stifle due competition in the Namibian market – conduct which
the Legislature has declared unlawful in terms of s 23 of the
Competition Act, and which the Legislature has seen it fit to
extirpate by legislative means in the form of the Competition Act.





[28] Section 23 describes cartel
conduct as –








‘(1) Agreements between
undertakings, decisions by associations of undertakings or concerted
practices by undertakings which have as their object or effect the
prevention or substantial lessening of competition in trade in any
goods or services in Namibia, or a part of Namibia, are prohibited,
unless they are exempt in accordance with the provisions of Part III
of this Chapter.





(2) Agreements and concerted practices
contemplated in subsection (1), include agreements concluded between
-





(a) parties in a horizontal
relationship, being undertakings trading in competition…





(3) Without prejudice to the generally
of the provisions of subsection (1), that subsection applies in
particular to any agreement, decision or concerted practice which -





(a) directly or indirectly fixes
purchase or selling prices or any other trading conditions.’





[29] On the papers, I find that the
first respondent has put cogent and convincing evidence tending to
establish that the conduct of determining and recommending benchmark
tariff in respect of medical services was unlawful on the basis that
it amounts to the practice of fixing a selling price which is
offensive of the Competition Act. That being the case, the applicant
cannot find succour in the omnibus provision in s 12, read with s
10(3), of Act No. 23 of 1995. The issuing and publication of the
‘benchmark tariff’ is a thing that is unlawful in terms
of the Competition Act.





[30] In any case, the 1st applicant has
not established in what manner the benchmark tariff does ‘control,
promote, encourage and coordinate the establishment, development and
functioning of funds in Namibia’. Cogent or convincing facts
must be placed before the court establishing sufficiently in what
manner the issuing and publication of the benchmark tariff –
(a) control, (b) promote, (c) encourage and (d) coordinate the (i)
establishment, and (ii) development, and (iii) functioning of funds
in Namibia’; or one or more of (a), (b), (c) and (d), and one
or more of (i), (ii) and (iii). No such cogent and convincing facts
have been placed before the court, as I have said.





[31] I conclude therefore that s 3(3)
of the Competition Act, read with s 10(3) and s 12 (the omnibus
provision) of Act 23 of 1995, cannot assist the applicants. But the
matter does not end there. As I have said previously, the applicants
rely on the exemption provision in s 3(1)(b) of the Competition Act,
too; and so, it is to the interpretation and application of s 3(1)(b)
of the Competition Act that I now direct the enquiry.





[32] The first important point I should
make is that the use of the predeterminer ‘all’
qualifying the phrase ‘economic activity’, is
significant. ‘All’ in such grammatical usage means ‘the
whole of’; ‘every one of’ (Concise Oxford
Dictionary, ibid). It follows that the Competition Act applies to
‘the whole of’ economic activities, that is, ‘every
one of’ economic activities carried on in Namibia or having an
effect within Namibia.





[33] Every economic activity is caught
within the purview of s 3 of the Act except an activity carried on by
concerted effort and which was designed to achieve a non-commercial
socio-economic objective (subsec (1)(b) of s 3). Thus, for the
exemption to endure, the particular economic activity should be one
carried on by concerted efforts, that is, the efforts of a plurality
of persons ‘combined together’ (See Concise Oxford
Dictionary, ibid.) The use of the words ‘was designed’ is
also significant. It means the activity should be ‘intended’
to achieve, or should be for the ‘purpose of’ achieving’
(Concise Oxford Dictionary, ibid) a non-commercial socio-economic
objective.





[34] Furthermore, the use of the
adjective ‘non-commercial’ qualifying another adjective
‘socio-economic’ indicates grammatically and
syntactically that ‘non-commercial’ is in conjunction
with ‘socio-economic’; and so, the two adjectives jointly
qualify the noun ‘objective’ (s 3(1)(b) of the
Competition Act); and they have the following meaning: the exempted
activity contemplated in s 3(1)(b) is an activity the carrying on of
which is intended to achieve, or for the purpose of achieving, a
‘socio-economic’ objective, which must also be
‘non-commercial’ in character.





[35] What then is the meaning of
‘non-commercial’? It means not involving the purchase and
sale of a thing (merx) or the supply of services for gain or reward
on a large scale; ie the exchange of goods and services for gain or
reward. See GRJ Hackwill, Mackeurtan’s Sale of Goods in South
Africa, 5th ed, p1. And what is the meaning of ‘socio-economic’?
First, the term ‘socio-economic’ is merely a contraction
by combination and elison of the words ‘social’ and
‘economic’. Thus ‘socio-economic’ used
intertextually with the word ‘activity’ and qualifying
the word ‘objective’ (s 3(1)(b) of the Competition Act)
concerns social and economic activities whose character is social, in
the sense that their objective is charitable, benevolent,
humanitarian, philanthropic, literacy, scientific, political,
cultural, religious, recreational or sporting. (See Mitchell’s
Plain Town Centre Merchants Association v McLeod and Another 1996 (4)
SA 159 (A) at 167I-168A.) Such activities are in contradistinction to
economic activities whose objective is to produce and distribute
wealth. (Concise Oxford Dictionary, ibid)





[36] From the aforegoing grammatical
and syntactical analysis of s 3(1)(b), coupled with the
interpretation of the terms ‘non-commercial’, ‘economic’,
and ‘socio-economic’, I conclude that the activity that s
3(1) exempts must be an activity that is intended to achieve, or for
the purpose of achieving, a socio-economic objective, and which
activity at the same time does not involve the purchase of a thing or
the supply of services for gain on a large scale, ie the exchange of
goods or services on a large scale (Black’s Law Dictionary, 3rd
Pkt ed). Thus, the objective of such activity should be charitable,
benevolent, humanitarian, philanthropic, literacy, scientific,
political, cultural, religious, recreational or sporting.





[37] It seems to me clear that the
object of the 1st applicant is to control, promote, encourage and
co-ordinate the establishment, development and functioning of funds
in Namibia (ie the 2nd to 10th applicants (in the instant proceeding)
(see s 10(3) of Act 23 of 1995). What is this for? It surely is with
one object, namely, the acquisition of gain by the Funds (ie 2nd to
10th applicants), members of the 1st applicant. (See South African
Flour Millers’ Association v Rutowitz Flour Mills Ltd 1938 CPD
199.) As Simonds J said in Armour v Liverpool Corporation [1939] Ch
422 at 437 –








‘Neither business nor “gain”
is a word susceptible of precise or scientific definition. The test
appears to me to be whether that which is being done is what ordinary
persons would describe as the carrying on of a business for gain….’





[38] From the findings I have made
about the object of the 1st applicant, ie an association of
undertakings, I conclude that that which is being done by the 1st
applicant, that is the issuing and publication of the benchmark
tariff, is what ordinary persons would describe as the carrying on of
a business for gain. It cannot by any stretch of legal imagination be
said that what is being done by the 1st applicant seeks to achieve a
charitable, benevolent, humanitarian, philanthropic, literacy,
scientific, political, cultural, religious, recreational or sporting
objective. Based on these reasons, I hold that the issuing and
publication of the ‘benchmark tariff’ is an economic
activity. It is an activity whose object is to produce and distribute
wealth. It is an activity in the form of commercial undertaking and,
although the distribution of profits is prohibited and there may be
no intention of making profit, the members gain from the activity, as
I have found previously. Furthermore, the activity is not designed to
achieve a non-commercial socio-economic objective. It follows
inevitably and irrefragably that the issuing and publication of the
‘benchmark tariff’ in respect of medical services is not
exempt from the application and force of the Competition Act.





[39] Having held that the applicants
are undertakings and are subject to the application and force of the
Competition Act and having held further that the issuing and
publication of the ‘benchmark tariff’ in respect of
medical services are subject to the application and force of the
Competition Act, I refuse to grant the interdictory relief sought in
para 2 of the notice of motion.





[40] From all the aforegoing reasoning
and conclusions, I hold that the applicants are undertakings within
the meaning of s 1 of the Competition Act; that the applicants are
not exempt from the application and force of the Competition Act;
that the issuing and publication of the ‘benchmark tariff’
in respect of medical services by the 1st applicant are not exempt
from the application and force of the Competition Act. It follows
that the application fails; whereupon, I make the following order:








The application is dismissed with
costs, including costs of one instructing counsel and two instructed
counsel.





C Parker





Acting Judge





APPEARANCES





APPLICANTS: T J Frank SC (with him N
Bassingthwaighte)





Instructed by ENSAfrica|Namibia
(incorporated as LorentzAngula Inc.), Windhoek





1ST RESPONDENT: D N Unterhalter SC
(with him G Coleman)





Instructed by Du Plessis, De Wet &
Co., Windhoek