MBABANE – Consul Kareem Ashraff and Swazipharm have won a landmark case against the Eswatini Competition Commission (ESCC).
The ESCC had classified the acquisition of shares by Ashraff from Swazipharm as a merger. Ashraff and Swazipharm filed an objection to the classification of the deal as a merger because the shares were acquired by an individual, in his personal capacity, not representing an enterprise. The ESCC wanted Ashraff and Swazipharm to pay a fine for failure to notify them about the acquisition and transfer of the shares.
A merger under the ESCC refers to any transaction or change of control where two or more business combine or where a company acquires a controlling interest in another business or its independent assets.
The ESCC asserted that the acquisition of shares by Consul Ashraff from Swazipharm constituted a merger. Senior attorney and law lecturer Modecai Donga from S.V. Mdladla and Associates represented Swazipharm and Kareem Ashraff. Nolwazi Kunene represented the Secretariat of the ESCC.
In this case, the Board of Commissioners was called upon to interpret the said transaction and give its proper categorisation after Swazipharm and Ashraff had pleaded that the Secretariat of the ESCC had misclassified the transaction. The Secretariat is the investigative organ of the ESCC. On January 23, 2025, the applicants (Swazipharm and Ashraff) launched an application against the ESCC, with the latter filing an opposing affidavit. Game on!
The case was enrolled for hearing on July 17, 2025.
The application by Swazipharm and Ashraff was: “Reviewing and setting aside the Eswatini Competition Commission’s investigation report dated August 8. 2025 to be null and void for non-compliance with the Competition Act. Declaring that the agreement applicants (Swazipharm and Ashraff) dated December 30, 2021, does not constitute a merger as defined in the Competition Act 08/2007.” It further prayed to the Board of Commissioners that: “Declaring that the transaction between the first and second applicants (Swazipharm and Kareem Ashraff) dated December 30, 2021, is not a notifiable transaction.
Declaring that the applicants’ conduct has not contravened the Competition Act 08/2007. That the Eswatini Competition Commission pays costs of the application.” The Board of Commissioners of the ESCCis the highest decision-making and adjudicative organ of the statutory body established under the Competition Act, 2007. The Board noted that, during the periods of August 23, 2022, and October 20, 2023, respectively, Consul Ashraff acquired 58 shares in Swazipharm and they were transferred and ceded to the Matsapha based company by individuals or natural persons.
After Ashraff had acquired the shares from Swazipharm, the Eswatini Competition Commission wrote to him, requiring that he submit all relevant documentation concerning the transaction.
In its correspondence to Ashraff, the commission stated that, in its view, the acquisition of the shares constituted a merger in terms of Section 2 of the Act, which requires its authorisation.
In their response, Swazipharm and Ashraff disputed that the transaction constituted a merger and, therefore, was not notifiable.
Following a back and forth of correspondences between the parties, Swazipharm and Ashraff, under protest though, eventually filed the notification of the transaction with the Commission on March 13, 2024.
“However, it must be recorded that the notification was filed under protest since applicants maintained their position that the transaction was not a merger,” reads the papers from the Board of Commissioners.
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Kareem Ashraff, the Director of SwaziPharm, challenged Eswatini Competition Commission’s classification of his shares, which he acquired from SwaziPharm, as a merger. (Courtesy Pic)