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Of all providers of share trading platforms for facilitating trading in their own shares. Trade like the. ETX is the brand name used for the holding company Monecor Ltd. An agreement was reached between applicant and Mr. Despite that Mr. Gamedze had a veto power in E-Top Up. This acquisition of the shares by applicant had a bearing on competition laws of the Kingdom. Langa, the Executive Director of respondent. Whether the advice was formal or unformal is neither here nor there.

What is relevant is that Ms. Langa advised that the transaction by applicant involving E-Top Up was notifiable in terms of the Act and this is common cause. However, the Board took a different line of approach. It is apparent from the papers that there was among the members of the Board differing views. At the end, the Board decided to seek independent legal advice on the question of notification.

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The Executive Director, mero motu also requested the legal advisor to give direction on the notification fee paid, particularly on whether it was refundable. The notification fee paid should be refunded but partly.

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The Board endorsed both recommendations. The Executive Director by correspondence dated 23rd March , notified the applicant that its transaction was not notifiable and that it was entitled to a refund of E The Executive Director then enclosed a cheque in the same amount. It appears this refund fueled the applicant as it objected to the part refund and returned the cheque of E The Executive Director together with the Board invited the applicant for a negotiation on the amount to be refunded.

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It appears that there was a deadlock as applicant insisted on the full refund, with respondent on the other hand not ready to barge from its position that applicant should negotiate only for part refund. For almost a year, the parties could not settle their dispute.

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The result is the present application. Respondent advanced a number of grounds on why the applicant was not entitled to a full refund. Notification fees are paid towards an analysis of a transaction and the Applicants transaction was analysed. It is therefore difficult to see how the Applicant is demanding a refund when by their own admission the law and Regulations do not provide for refunds. The answer lies in the Act and Regulations of respondent. The wording of this Regulation is simple, clear and concise. It does not need any interpretation other than the simple day to day meaning of the words therein.

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  7. In the legal parlance, the Regulation requires the golden canon of interpretation. The Act and the Regulation defined what constitutes a merger and an acquisition respectively. It is common cause in the present case that the Board took the decision that the transaction between the applicant and E-Top Up was not notifiable. Whether this decision is correct or not is not my terrain. What is of paramountcy is that the Board took the decision that the transaction was not notifiable.

    Again common sense calls for anything done in error to be rectified. The rectification must take the form of restoring the status quo ante. It must be borne in mind that neither the Act nor the Regulation stipulates the list of what the fee should be expended upon except that it is for a notice.

    Respondent is of the view that applicant had then notified it. It was then entitled to withhold part of the fee. The fallacy of this reasoning is firstly, that why then not withhold the entire fee. Why choose to withhold part, if indeed applicant notified respondent? Secondly, the obligation to notify is sanctioned by the law section 35 1 of the Act and the conditions for notification are well articulated by the Act and the Regulations. In other words, it is upon certain circumstances existing that the notification fee must be paid.

    These conditions were not present according to the Board. It is not done at the whims and caprices of a party as violation attracts a criminal penalty according to section 35 1. This means therefore, once a party is not obliged to comply with section 35 1 , any compliance must be taken to be a justus error. Simple put therefore, the legal opinion to withhold part of the fee cannot be supported by the Act or Regulations.

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    To seek advice on a simple matter such as what constitutes a merger or acquisition and then extract the expenses from the pocket of the applicant is totally injustice. The law cannot countenance such. There are no merits in the grounds so advanced. For purposes of decision making therefore in respect of third parties, there is no dichotomy. Once the Executive Director decided to withhold the sum of E The Commission was functus officio both on the decision to withhold part of the fee and the specific sum of E withheld upon applicant withdrawing its willingness to negotiate.

    Langa then proceeded to justify why the Secretariat maintains that the transaction is notifiable. With due respect and I say this en passe, as I am not fully seized with this issue, the voice of the Secretariat and the Board is unison. The Secretariat, as the provisions of the Act bears testimony, is that it is the extension of the Commission. Ex facie , to challenge the Board would be tantamount to challenging oneself. I guess the Secretariat would be accordingly advised on this one. By so writing, I guess this would be avoided.

    Nevertheless, I must emphasis that I do not make a definitive finding on this. That discretion must be exercised judiciously. I have already highlighted in the preceding paragraphs that the applicant ought to have noted an appeal. It did not.

    It chose to come by way of motion proceedings despite that the impugned part refund was a decision taken by the Commission. The correspondence of 23rd March, categorically makes it clear that the decision to pay part of the notification fee was taken by the Commission.

    During the hearing, this court was informed that Mr. Magagula for the applicant was the erstwhile attorney for the respondent. Why a total disregard of section 40 under this circumstance? The answer is only privy to him alone. Langa deposed that at all material times, the applicant was invited to present its complaint about the decision to refund it some of the money to the Board. Applicant chose to say that the Board was functus officio.

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    Considering that the respondent is a functionary seized with administrative powers over trading competition matters, and further once applicant took the view that it was amiable to negotiate, it is not clear as to why applicant then chose to say the Board was functus officio.