Botswana merger control (2019)
Produced in partnership with Bowmans

The following Competiton guidance note Produced in partnership with Bowmans provides comprehensive and up to date legal information covering:

  • Botswana merger control (2019)
  • 1. Have there been any recent developments regarding the Botswana merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Botswana?
  • 2. Under Botswana merger control law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the position in relation to 'minority shareholdings'?
  • 3. Are joint ventures caught by the national merger control provisions (including non-structural, cooperative joint ventures)?
  • 4. What are the merger control thresholds and would a purely foreign-to-foreign transaction be caught (commenting on any ‘effects’ doctrine/policy if relevant)?
  • 5. Are there any specific issues parties should be aware of when compiling and calculating the relevant turnover for applying the jurisdictional thresholds?
  • 6. Where the jurisdictional thresholds are met, is notification mandatory and must closing be suspended pending clearance?
  • 7. Is it possible to close the deal globally prior to local clearance?
  • 8. Is there a deadline for filing a notifiable transaction and what is the timetable thereafter for review by the Botswana Competition Authority?
  • 9. Who is responsible for filing a notifiable transaction (noting also whether there is a specific form/document used and an applicable filing fee)?
  • more

A conversation with Lucinda Verster, partner at regional law firm Bowmans, on key issues on merger control in Botswana

NOTE–to see whether notification thresholds in Botswana and throughout the world are met, see Where to Notify.

1. Have there been any recent developments regarding the Botswana merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Botswana?

The Authority has increasingly sought to elevate 'public interest' concerns such as citizen empowerment in its determination of mergers. The extent to which this is permissible is debatable given that the Act appears to consider such concerns as secondary.

In addition, the Authority investigated deals involving the entering into of lease agreements rather than out-and-out sales as a mechanism for circumvention of the merger control provisions of the Act.

On 31 March 2016 the Authority published a notice to representatives of merging parties in terms whereof merging parties are requested to complete, in addition to Form J, additional information (see further, question 9 below.

Proposals have been put forward by various enterprises for amendments to the Botswana merger control regime, specifically in relation to the notification thresholds; such enterprises are of the view that the thresholds are too low, Furthermore, the enterprises in question are of the view that the thresholds should be increased to assist the Authority in dealing with mergers of significant commercial value that would have a significant bearing to the economy, as opposed to dealing with numerous merger notifications that could potentially create a backlog due to the low prescribed thresholds.

Improving the effectiveness of communication between the Authority and enterprises