Govt blundered on Telecel: Judge Telecel has 2,5 million subscribers

 . . . respondent (Potraz) acted in overzealous, precipitate manner: High Court

TelecelFidelis Munyoro Chief Court Reporter
Government blundered when it cancelled Telecel Zimbabwe’s operating licence and gave the mobile phone operator 30 days to wind up operations, the High Court said yesterday.

“It is a truism that the first respondent (Potraz) has acted in an overzealous and precipitate manner without regard to the rights of stakeholders in this matter,” said Justice Nicholas Mathonsi in a judgment released yesterday.

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“It has in fact proceeded roughshod over the rights of those that it swore to superintend and in so doing, it has created a train smash of gigantic proportions.”

After cancelling the mobile phone company’s licence, the Postal and Telecommunications Regulatory Authority of Zimbabwe (Potraz) issued a special licence running from April 28 to May 26, 2015 to facilitate the winding up of Telecel operations, including the termination of employment contracts for 820 workers.

Justice Mathonsi noted that the Potraz order virtually took away the company’s right to appeal to the minister against its drastic decision.

In terms of Section 68 of the Constitution, the judge said, Telecel had a right to administrative conduct that was lawful, prompt, reasonable, impartial and both substantively and procedurally fair.

He added that where an administrative authority makes a decision which renders nugatory the right of the affected party to appeal, that decision cannot be said to accord with the dictates of administrative justice.

“It cannot be rational, neither can it be fair and in fact borders on unlawfulness,” said Justice Mathonsi.

The judge said Telecel Zimbabwe had a prima facie right to appeal to the Minister, which had been curtailed.

“There has been an infringement of that right, which if allowed to perpetuate, would adversely prejudice the applicant (Telecel) and its employees,” said the judge.

“It would have to close before it has exhausted remedies available to it.”

Justice Mathonsi said in weighing the balance of convenience, he saw no prejudice that could be sustained by Potraz except for a wounded ego, which he said could be the only reason why it chose to oppose Telecel’s application.

Justice Mathonsi last week granted Telecel Zimbabwe an interim order to continue operating after the High Court provisionally ordered Potraz to reinstate the company’s operating licence pending an appeal to the Minister of Information Communication Technology, Postal and Courier Services.

He said he would give the full reasons for his order this week, which he did yesterday.

The mobile phone operator had sought an order extending the time within which it could continue operating pending the determination of its appeal to Information Communication Technology, Postal and Courier Services Minister Supa Mandiwanzira in terms of the Posts and Telecommunications Act.

The firm had been given 30 days to wind up operations.

It was expected that its more than two million subscribers would within that period migrate to other mobile phone service providers such as Econet and NetOne.

The firm argued that it was not expected that the minister would determine the appeal within a short period.

Potraz in its counter-submission argued that the case was not urgent.

It contended that Telecel was given notice of intent to cancel the licence on March 5, 2015.

It sought to oppose the urgent application on the grounds that Telecel should have directly appealed to the minister.

Telecel workers sent in a representative, a Mr Macheka, who applied to be joined as a party in the proceedings, arguing that workers had a direct and substantial interest in the case.

Mr Macheka indicated that Telecel employed 820 workers who stood to be prejudiced if the order by Potraz was allowed to stand.

Advocate Firoz Girach, instructed by Mr David Drury from Honey and Blackenberg, argued the matter for Telecel while Mr James Muzangaza acted for Potraz.

Last month Telecel moved to internationalise its dispute with the Government by approaching international jurisdictions.

The firm’s British lawyers – Gibson, Dunn and Crutcher LLP – on April 29 wrote a letter to Finance and Economic Development Minister Patrick Chinamasa threatening to take the matter before the International Centre for Settlement of Investment Disputes if it was not resolved amicably within six months.

The letter was copied to President Mugabe, Youth Development, Indigenisation and Empowerment Minister Christopher Mushohwe, Information Communication Technology, Postal and Courier Services Minister Mandiwanzira and Postal and Telecommunications Regulatory Authority of Zimbabwe acting director-general, Mr Baxton Sirewu.

The move was condemned by local analysts who accused Telecel of trying to subvert the local justice system.

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