The Supreme Court of Appeal judges panel of nine sitting in Lilongwe has upheld a decision by the Competition and Fair Trading Commission (CFTC) which required Airtel Malawi Ltd to apply to the Commission for authorization of the acquisition between India’s Bharti Airtel and Zain Malawi to secure regulatory approval.
The judges panel comprised of Chief Justice Andrew Nyirenda, Justices Edwin Twea, Dr Jane Ansah, Rezin Mzikamanda, Anaclet Chipeta, Lovemore Chikopa, Frank Kapanda, Dustain Mwaungulu and Anthony Kamanga.
In January 2013, the Board of CFTC ordered Airtel Malawi Ltd to notify the merger to the Commission for authorization in line with the Competition and Fair Trading Act (CFTA), however, Airtel Malawi Ltd refused to comply with the order and applied for judicial review, claiming that the acquisition was beyond the jurisdiction and regulatory purview of the CFTC.
The judges heard that in February 2018, while the proceedings in the Lilongwe High Court were still pending, the Airtel Malawi filed an application at the High Court in Lilongwe for leave to apply for judicial review and an extension of the stay granted by the same court.
Both the application for leave to apply for judicial review and the application for extension of the stay granted on January 30 2013 were granted by the Lilongwe High Court commercial division.
“It was inappropriate for the High Court Lilongwe district registry commercial division to grant the respondents (Airtel Malawi) leave to apply for judicial review and an extension of the stay granted by the High Court District Registry General Division, and indeed, to entertain the application for judicial review. To the extent that it may be applicable to courts and tribunals, judicial review is a power given to the High Court to be able to review decisions of courts or tribunals inferior to it.
“High Court has no power to judicially review its own decisions or decisions of courts of concurrent jurisdiction; and a judge of the High Court, therefore, cannot judicialy review a decision of another Judge of the High Court,” reads part of the ruling seen by Nyasa Times.
Following the decision of the Malawi Supreme Court of Appeal, Airtel Malawi Ltd is expected to comply with the 2013 order of the Commission within 14 days.
Meanwhile, CFTC Executive Director Charlotte Wezi Malonda says the landmark decision by the Supreme Court will go a long way in providing clarity in the interpretation of certain merger control provisions in the CFTA.
Malonda said: “Although the appeal case has agonizingly dragged on for the past five years, we are excited that the Commission will now be able to exercise its full regulatory mandate on mergers and acquisitions”.
According to Section 2 of the CFTA, a merger is the acquisition of controlling interest in any trade involved in the production or distribution of any goods or services.
A merger may also be defined as the acquisition of controlling interest in any trade whose business consists wholly or substantially in supplying goods or services to the person who acquires the controlling interest.