Almost two years ago, the Commission concluded its investigations against NAMAF and 10 Medical Aid Funds in which it found that NAMAF and its fund members contravened the competition law and does price fixing of medical tariffs in Namibia.

Shortly after the Commission’s decision was published in the government Gazette, NAMAF and the Funds brought an application before Court wherein they contest the Commission’s jurisdiction on the basis that neither NAMAF, nor the Funds could satisfy the definition of an ‘undertaking’ as defined in the Competition Act.

The Commission opposed this application. NAMAF’s application was argued in the High Court on 26 November 2015. On the 18th March 2016, through a landmark judgement which solidified the precedence of the competition law on jurisdiction of all undertakings in Namibia, the High Court squashed NAMAF and the medical aid fund’s application and profoundly agreed with the Commission’s arguments by ruling that NAMAF and medical aid funds are subject to the jurisdiction of the Competition Act (see an earlier article here).

This means that the Commission has regard to the ways and means of how NAMAF has conducted its modus operandi especially on how they set the medical tariffs.

Following this judgment, the Commission intends to now file its application interdicting NAMAF and the Funds from engaging in the unlawful conduct and to seek further appropriate redress mechanisms.

It is an anecdotal fact that medical costs forms a significant consumption behaviour of both the rich and the poor. Hence the Commission will guard cautiously against any implications of the landmark judgement in Namibia.

The experience of the neighbouring country, South Africa had the Competition Commission of South Africa ruling in 2014 wherein the decision was made to have a free fall of medical tariff setting by medical aids, doctors, private medical practitioners, hospitals, clinics etc. This had the effect of the cost of the services being disproportionate and excessive and that despite the protection that medical aid schemes are meant to provide, the consumer making use of medical arrived end up significantly paying more and consumptively poorer whenever there was access to private healthcare.

This means that consumers in South Africa are increasingly paying more for the excess even in presence of the medical aid referred to as medical cover gaps. In the last few years, research shows that there have been something like over 250,000 gap cover schemes that have emerged in South Africa. 

This has prompted the Competition Commission’s to do an inquiry in South Africa in 2015 to address the problem of the pricing of private healthcare in South Africa. The South African Government over the last 15 years has also taken some steps to attempt to regulate price of medicine, price of healthcare services, etc due to the vision and resilience of the Minister of Health in that country. 

It is crucially important that Namibia does not fall into a “price increase trap” of higher medical costs on Namibia, as it will obviate consumer protection and put medical costs out of reach especially for the poor and the middle class. 

It is the Commissions view that on a post high court judgement basis of seeking redress mechanisms that the Commission through a consultative and engaged process with Ministries of Finance and Industrialisation, Trade and SME Development and most importantly the Ministry of Health and NAMFISA to assist in setting in place certain institutions and mechanisms to control the price of medicines by regulation as, of course, medicines is a very key component of healthcare.

This would promote greater transparency, clarity, and balanced representation of all actors in the Health Sector of Namibia and set about what healthcare services actually cost and the composition of health care costs and its formation in general in the Health sector. 

The Commission is assured that there will also be greater access to health care costing and healthcare provision with both the consumer, government and private practitioners having  managed access to that information which allows a system that allows reasonable regulation of prices to the benefit of all of us.

And in the context of National Health Insurance which as we all know it is the government’s grand plan for universal access to healthcare services through the Social Security Commission. And for overcoming some of the costing, tariff setting and  financing problems, the issue of both the public and private healthcare sectors has to be addressed on uniform and coherent basis. 

The Competition Commission Aims to consult broadly to gain consumer, economic, social and political will with to regard to the regulatory dispensation and aims to engage with the private healthcare companies on a post competition law due process to ensure this is effected. 

The Commission aims to fulfill the Nation's constitutional obligation that states generally that everyone has a right of access to healthcare services in Namibia because good health is fundamental to good life and contributes to fair economic, political  and social justice in the country.

Mihe Gaomab II is the CEO of the Namibian Competition Commission.

This article will appear in the April 2016 issue of Consumer News Magazine, Namibia.