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Competition Act Amendment – Five Year Review

March 16, 2023 By Press Office

In 2018, the Competition Act was amended to introduce significant changes, including:

Financial penalties for failing to notify a merger or prior implementation of a merger.
A 14-day contestation period for merging parties of rejected mergers with the Competition and Consumer Authority (CCA)
Criminal sanctions for any officer or director of an enterprise who contravenes the horizontal restrictive practice provisions of the Competition Act.
Expansion of the general prohibition against abuse of dominance, by introducing specific conduct that amounts to abuse, including: predatory conduct, tying and bundling of products, loyalty rebates, margin squeeze, refusal to supply or deal with other enterprises (including a refusal to grant access to an essential facility.

This Act affects mergers, particularly those considered to be of “particular public interest”. Five years later and the impact of the expansion of abuse of dominance is evident in the following ongoing cases:

Competition and Consumer Authority vs Security Systems (Pty) Ltd: allegation of abuse of dominance through predatory pricing and price discrimination for alarm monitoring and response (inclusive of SMS alerts and electric fence monitoring.

Botswana Dental Association vs BOMAID and Other Medical Aid Funders: allegation of possible abuse of dominance in the form of refusal of access to an

essential facility and possible horizontal agreement through price fixing by medical aid providers. Investigation halted as BOMAID has approached the High Court of Botswana challenging the Authority’s jurisdiction.

Peo Legal provides expert counsel and representation on all aspects of competition law including mergers, horizontal and vertical restrictive practices, dominance, and the abuse of dominance.

Contact info@peolegal.co.bw for reliable counsel in your transactional matters

INTERNATIONAL WOMEN’S DAY 2023

March 8, 2023 By Press Office

On the occasion of International Women’s Day, we observe laws that have been enacted to support women’s rights.

Political Representation: Women make up 17% of the country’s parliament, and the government has implemented a quota system to ensure at least 30% of political appointments are women. Women hold 61.3% of the seats in the Rwandan parliament, which is the highest percentage of women in any national legislature globally.
Education: Botswana has made significant strides in promoting girls’ education, with a female literacy rate of around 88% from 80% in 2003. The government has implemented policies to ensure girls’ access to education and has also introduced programs aimed at reducing the number of teenage pregnancies.
Pink Tax: Botswana voted to offer schoolgirls from poor and rural communities’ free menstrual pads to ensure consistent school attendance. It is estimated that 2/10 girls stay out of school due to their menstrual periods.
Economic Empowerment: Botswana has implemented policies aimed at promoting women’s economic empowerment. These include the establishment of a Women’s Development Fund, which provides financial assistance to women entrepreneurs, and a Microfinance Policy, which aims to increase access to credit for women-owned businesses.
Legal Reforms: Botswana has implemented legal reforms aimed at promoting gender equality. In 2016, the country passed the Gender Affairs Act, which aims to promote gender equality and prevent gender-based violence.

Despite these strides, there is still much work to be done to achieve full gender equality in Botswana. For example, women still face significant barriers to accessing leadership positions and face high levels of gender-based violence. Nonetheless, these efforts demonstrate the country’s commitment to promoting women’s empowerment and equity.

Under the theme #EmbraceEquity, Candidate Attorney at Peo Legal, Oratile Mpuchane expands on two interchangeable concepts and how they can be misunderstood and misapplied in the fight toward ending gender discrimination.

Equality refers to treating everyone the same, regardless of their individual needs, circumstances, or differences. In other words, it means giving everyone the same opportunities and resources without regard to their starting point, which assumes that everyone starts from the same place and has the same needs.

Equity, on the other hand, means giving people what they need to be successful, even if it means treating them differently based on their individual needs or circumstances. It recognizes that everyone starts from a different place and may need different resources or support to achieve the same outcome.

“Gender equality and empowerment should be applied as more than a quota in our society. The development of women and girls in our society benefits our nation. Engaging women is key to our development. As we recognise women business let us also take a moment to remarkable women in our lives.” says Oratile.

INSIGHTS: BUDGET SPEECH –INVESTING IN SMEs FOR ECONOMIC GROWTH

February 20, 2023 By Press Office

Small businesses are the cornerstone of our economy, they account for 50% of private sector employment and contribute 15-20% to the GDP. As with any developing economy, small businesses and entrepreneurs require extensive support from government and corporates to enhance the contribution of these businesses.

A study conducted in 2013 on the country’s SME landscape cites that a lack of innovative programmes were an impediment for the sectors growth. The report shows that SMEs are vulnerable to domestic and foreign competition and especially imports from other countries. Moreover, highlights that Botswana’s economic diversification and growth is based on the success of the SME, whose success in turn is based on their innovative abilities and can benefit from collaboration between government and corporate institutions.

With a heavy focus on sustainable development Minister Serame made pronouncements on the SMEs during the 2023/2024 budget speech, we will be taking a look into what business owners can look forward:

Value chain Development

In an effort to bolster and diversify the country’s economic base sectors, a budget of BWP 540.89 million has been allocated towards Value chain Development (VCD) in tourism, minerals, energy, manufacturing and agriculture. This means that government will be investing in improving market structures and the business environment to increase local production and other intermediary activities which will support job creation and socio-economic development. The role of VCD is to enhance the functioning of the marketplace system and create interventions to help overcome bottlenecks and constraints in the value chain. This presents a unique opportunity for entrepreneurs with knowledge and/or access to resources in the chain. To access a portion of the fund’s entrepreneurs must be compliant, and well-versed in the eligibility criteria which can be found of the ministries website.

Improved Wealth Creation Programme

The reduction of inequality within and among countries is one of the UNs 17 Sustainable Development goals. The effects of the COVID-19 pandemic intensified social exclusion and increased country inequality by 1.2%, resulting in the closure of many small businesses who are still battling to recover from its impact. With the intention to progressively achieve and sustain income for the growth of the economy, business owners have explore opportunities under the new Wealth Creation Programme – an amalgamation of existing empowerment and funding programmes. Of note, is the commitment to continue the implementation of social programmes, particularly those that create employment and improve livelihoods. A commitment of P85 million has been allocated in this respect.
Furthermore, initiatives such as the Economic Inclusion Act, Entrepreneurship Policy, Minerals Policy and Middle-Class strategy, the government will prioritise inclusion of citizens in the economic development.

Conclusion

The development of Batswana entrepreneurs will directly tie in with the value chain development priority of the 2023/2024 budget. The legislative and policy framework is a welcome development in an area that has historically been fragmented. The obligation is on each market participant to familiarise themselves with the inclusion priority areas and to see how to support inclusion in their value chain.

The current sense in the market is a lack of clarity as to what exactly is required of the private sector, however opens the floor for dialogue. The Economic Inclusion Act sets the baseline and hopefully regulations to be published. under the Economic Inclusion Act will make it clearer for each sector how economic inclusion is to be achieved.

Peo Legal celebrates Africa Day

May 25, 2021 By Peo Legal

In commemoration of Africa Day, we celebrate the diversity of our fraternity and some of the legal icons who continue to influence the development of our profession and the judicial system in Botswana. We commend these African pioneers who continue to push forward the success of Botswana and Africa. Wishing everyone a happy Africa Day.

Justice Sanji Monageng

Judge Monageng is the first Motswana female appointed as judge to the International Criminal Court (ICC). Justice Monageng served at the ICC as a judge from 2009-2018. She was the First Vice President of the ICC holding tenure between March 2012-2015. Prior to joining the ICC, Justice Monageng served as a High Court Judge in the Republic of Gambia and the Kingdom of Eswatini. In 2019 Justice Monageng was sworn in as a judge of the Southern African Development Community Administrative Tribunal for a 2 year tenure.

Through her work, Justice Monageng advocates for a transparent and rigorous judicial appointment system requiring judges to uphold the highest standards of integrity and independence but also that States must respect judicial independence and not undermine judicial decisions.

“A successful judiciary is one whose members are appointed following a rigorous process assessing both the candidates legal qualifications as well as integrity”

Justice Professor Oagile Key Dingake

Justice Oagile Key Dingake is the first African to be appointed as judge to the Supreme and National Courts of Papua New Guinea. He was appointed by the Secretary General of the United Nations in 2013 as a judge of the Residual Special Court of Sierra Leone. In 2020, he was appointed judge to the Seychelles Court of Appeal.

Justice Dingake served for more than a decade as a judge of the High Court of Botswana. He is an advocate for judicial training, labour rights and women’s rights.

“It seems to me that the time has now arisen for the justices of this court to assume the role of the judicial midwives and assist in the birth of a new world struggling to be born, a world of equality between men and women as envisioned by the framers of the Constitution.”

Justice Memooda Ebrahim-Carstens

Justice Ebrahim-Carstens was the first female Motswana appointed as a Judge of the Industrial Court of Botswana. Subsequent to that, she served as a judge of the High Court of Botswana. Justice Ebrahim-Carstens was appointed judge to the United Nations Dispute Tribunal in 2009 with her term ending 30 June 2019.

Justice Ebrahim-Carstens is a champion for gender representation inclusivity and access to justice.

“We need to collaborate regionally on law reforms, on appropriate institutions for access to justice, and its enforcement. We need to be courageous and fearless agents of change. But mostly we need to lead by example as African leaders, no matter what our profession. We all must lead, whether as diplomats, politicians, lawyers, and judges; but most of all as mentors and role models for our young persons.”