MAVANGIRA JA: This is the unanimous
decision of the court.
This
is an appeal against a judgment of the High Court dated 3 May 2017 dismissing
the appellant's application for a declaratur to the effect that Statutory
Instrument 122/2013 is ultra vires
the Posts and Telecommunications Act, [Chapter 12:05]
and should therefore be declared invalid, null and void.
The brief facts are that the appellant is
in the business of providing internet services.
The second respondent is the regulator of such providers in that
industry. The appellant was issued with
a draft “IAP” class A licence thus giving it an opportunity to apply for a
class “A” licence. In terms of S.I.
122/2013, the fees for a class “A” licence are US$5 500 000.00 to
cover a period of 14 years. In terms of
the regulations (S.I. 122/2013) and the Postal and Telecommunications Act, the
licence fees should be paid on or before issuance or renewal of a licence.
The
Postal and Telecommunications (Licence Registration and Certification)
(Amendment) Regulations, 2013 (No. 6) (S.I. 122/2013) were promulgated by
the third respondent in consultation with the first respondent.
The
appellant was unable to raise the fees required for the class “A” licence that
it wanted. It wrote to the first
respondent and proposed a payment plan.
The payment plan was rejected by the first respondent which insisted
that all fees must be paid before or at the time that a licence is issued or
renewed. This prompted the appellant to
approach the High Court seeking, inter
alia, an order that the Statutory Instrument, S.I. 122/2013,
prescribing fees for Internet Access Provider licences be declared ultra vires the Posts and
Telecommunications Act and therefore invalid, null and void.
In
determining the matter the court a quo
held that the appellant should have proceeded in terms of an application for
review under Order 33 of the High Court Rules.
Having so found, the court a quo
did not proceed to determine this matter on the merits.
We
are persuaded by the appellant's contentions that its application before the
High Court did not have to be filed in terms of Order 33. Rather, it was properly filed in terms of
s 4(1) of the Administrative Justice Act, [Chapter 10:28] and s 14 of the High Court Act, [Chapter 7:06].
This
court has, in any case, held that a litigant challenging the decision of an
administrative authority may properly do so through an application, though not
filed in terms of Order 33 of the High Court Rules.
We
find accordingly, that the High Court should not have declined to determine the
matter on the merits.
Mr
Sakhe for the appellant urged this
court to nevertheless determine the matter on the merits based on the evidence
on record. This court, as a court of
appeal, cannot usurp the functions of the court a quo and make a decision on the merits of the matter when the
court a quo declined to do so. That being the case, the correct course of
action for this court to take is to remit the matter to the court a quo for it to determine this issue on
the merits.
On
this basis, the court upholds the appellant's grounds of appeal numbers 1, 2
and 3.
Grounds
of appeal numbers 4 and 6 in our view relate to the merits of the dispute and
in view of our finding on the procedural issue, become irrelevant.
As
far as the appellant's ground of appeal number 5 is concerned, we find that
there is merit in the contention by the appellant that it is a service provider
in the Internet Access Provider industry while the first respondent is the
regulator of service providers in the same industry. Further, that since the concern of the
appellant is that there was unfairness and irregularity in the exercise by the
regulator of its authority in this respect, it had a legal right and sufficient
interest in the matter, entitling it to approach the court a quo as it did.
In
the result, it is ordered as follows:-
1. The
appeal be and is hereby allowed with costs.
2. The
judgment of the court a quo is set
aside in its entirety.
3. The
matter be and is hereby remitted to the court a quo for it to consider and determine the application on the
merits.
GWAUNZA JA: I agree
UCHENA JA: I agree
Kantor &
Immerman, appellant's
legal practitioners
Muzangaza, Mandaza
& Tomana, 1st
respondent's legal practitioners
Civil Division of The Attorney-General's Office, 2nd
respondent's legal practitioners
