SwaziPharm Wholesalers (Pty) Ltd and businessman Kareem Ashraff have secured another legal victory after the Board of Commissioners of the Eswatini Competition Commission dismissed an application by the Commission secretariat seeking to overturn an earlier ruling in their favour.
In a judgment delivered yesterday, Board Chairperson Miccah Nkabinde ruled that the Eswatini Competition Commission secretariat had no legal standing to institute proceedings in its own name, effectively ending its attempt to rescind the board’s August 29, 2025 decision.
The ruling marks the second victory for SwaziPharm and Ashraff in the long-running dispute over a transaction concluded on December 30, 2021, which the board had previously found did not constitute a merger requiring notification under the Competition Act of 2007.
The secretariat had filed two interlocutory applications. It sought to stay the execution of the August 2025 ruling pending the determination of a rescission application and asked the board to set aside its earlier decision, arguing that it had been made in error.
Before the merits of the applications could be heard, SwaziPharm and Ashraff raised a preliminary point of law, arguing that the secretariat lacked locus standi (legal standing) to institute legal proceedings independently of the Commission.
Nkabinde ruled that the Competition Act establishes only the Eswatini Competition Commission as a juristic person with the legal capacity to sue or be sued.
“In our view, the applicant before us in this matter is the secretariat and not the commission,” the judgment states.
The board also noted that the secretariat itself had acknowledged in its founding papers that it possessed no independent legal personality.
While the secretariat argued that it should be allowed to institute proceedings because it was responsible for safeguarding the integrity of the Competition Act and enforcing competition law, the board found that the legislation clearly distinguished between the Commission and its investigative arm.
It ruled that Section 6 of the Competition Act establishes the Commission as a body corporate capable of suing and being sued, whereas Section 18 merely establishes the secretariat as the Commission’s investigative arm.
“The secretariat investigates anti-competitive conduct in the country and even prosecutes violators of the Act before the board on behalf of the commission. However, when it comes to the institution of legal proceedings, the Legislature promulgated that the commission shall sue in its own name,” the judgment reads.
The board further held that the secretariat had acted ultra vires by instituting proceedings beyond its legal authority.
It also criticised the secretariat for attempting to substitute the applicant’s name from “the Eswatini Competition Commission secretariat” to “the Eswatini Competition Commission” in its written heads of argument without formally applying to amend the proceedings.
According to the board, the move appeared intended to overcome the legal standing challenge raised by the respondents.
The secretariat had argued that the board erred in interpreting the legal definition of an enterprise when it ruled that the 2021 transaction did not amount to a notifiable merger.
It also cited alleged errors of law, procedural irregularities, financial notification issues and reputational harm as grounds for rescinding the earlier decision.
However, the board found that those complaints did not amount to the type of patent error required under Rule 46 to justify rescission.
“In our view, this does not amount to a patent error but a divergent legal conclusion which can found a ground for an appeal,” the judgment states.
The commissioners further ruled that the alleged procedural irregularities and regulatory misinterpretations could not support a rescission application.
Having upheld the preliminary objection, the board dismissed both the stay and rescission applications in their entirety.
It ordered that the secretariat lacked legal standing to institute the proceedings in its own name and directed that each party bear its own legal costs.
The ruling leaves the board’s August 2025 decision intact, meaning its finding that the 2021 SwaziPharm-Ashraff transaction did not constitute a notifiable merger remains in force unless successfully challenged through an appeal.
Representing SwaziPharm and Ashraff was Modecai Donga of SVM Dladla and Associates.
