MUREMBA J: The applicant has been in
the business of providing internet services since 1997. It is suing the first
respondent (POTRAZ) as a body corporate and authority responsible for the
licensing and regulation of telecommunication service providers in terms of s
30 of the Postal and Telecommunications Act [Chapter 12:05]. The second respondent, the Minister of Information
is being sued as the authority responsible for the administration of the Postal
and Telecommunications Act. The third respondent, the Minister of Transport is
being sued as the Minister who was responsible for the administration of the
Postal and Telecommunications Act when the Regulations under Statutory
Instrument 122 of 2013 were promulgated. The third respondent did not file any
papers in response to the application.
The
facts of the matter are as follows. From 1997 to 2005 the applicant was
providing internet access services under a Franchise License from Tel-One. On
19 July 2005 it started operating on its own and was issued with a class B license which was valid up to 18 July 2015, but was later extended to 30
June 2016 and then to 30 August 2016.
The
applicant stated that in 2014 it approached the first respondent in relation to
issues to do with its class B licence terms and its duration. There was also an
issue to do with the upgrade and convergence of all Internet access licenses to
class A licenses. The applicant said that it wanted clarification on these
issues. The parties failed to reach a consensus on the issues and this resulted
in the applicant appealing to the second respondent, the Minister of
Information in terms of s 96 of the Postal and Telecommunications Act. The
second respondent called for a hearing and resultantly, issued a Ministerial
order on 30 June 2015 which was to the following effect.
“It is ordered that:
1.
The
commencement date for Telecontract (Pvt) Ltd Class B licence Number 1APB
200507002 is the 19th July 2005 and shall subsist for a period of
ten (10) years expiring on 18th July 2015.
2.
POTRAZ
issue to Telecontract by the 10th July 2015 a draft 1AP Class A
licence for consideration.
3.
POTRAZ
issue to Telecontract (Pvt) Ltd an Internet Access Provider Class A Licence
subject to fulfilment of all statutory requirements.
4.
POTRAZ
complies with all its statutory obligations provided for under the Postal and
Telecommunications Act [Chapter 12:05]
and in particular, the enforcement of the provisions of section 37 (5)
regarding publication of licences by licencees.
5.
POTRAZ
publishes all Internet Access Provider licences in accordance with section 5
(5) 0f Statutory Instrument 262/2001 by the 1st of August 2015.”
In compliance with
clause 2 of the Ministerial order, the first respondent duly issued the
applicant with the draft IAP Class A licence. So the applicant was given an
opportunity to apply for a class A licence. In terms of Statutory Instrument
122 of 2013, the fees for a class 'A' licence are US$5 500 000.00 (five million and five hundred
thousand United Sates dollars) and US$2 750 000.00 (two million and seven
hundred and fifty thousand United States
dollars) is for a class B licence. These fees are for a period of 14 years. In
terms of these regulations and the Postal and Telecommunications Act, the
licence fees should be paid on or before issuance or renewal of a licence. These
regulations were promulgated by the third respondent in consultation with the
first respondent. The applicant was unable to raise the fees that are required
for the class A licence it wanted.
Having faced challenges
in raising the fees for a class 'A' licence, the applicant wrote several correspondences
to the first respondent making proposals that it be allowed to make payments
based on a payment plan it submitted. The applicant proposed to pay at least 30
% of the fees initially and the balance over a period 10 years. The applicant
outlined the challenges it was facing in raising the whole amount at once, but
the first respondent did not find this acceptable. On 10 June 2016, the first
respondent issued a circular rejecting any requests for proposals to pay the
licence fees by way of instalments. It stated that all the fees must be paid
before or at the time that the licence is issued or renewed. Before the
issuance of this circular, the applicant had been advised of this position in a
letter addressed to it on 1 April 2016.
The refusal by the
first respondent to accept payment plans prompted the applicant to make the
present application seeking the following order.
“1. The decision by the 3rd
respondent in consultation with the 1st respondent setting the Class
“A” License Fees at US$5,500,000.00 be and is hereby set aside.
2.
The Postal and Telecommunications
(License Registration and Certification) (Amendment) Regulations, 2013 (No 6)
(S.I 122 of 2013) prescribing license Fees for Internet Access Provider
Licences be and are hereby declared ultra
vires the Postal and Telecommunications Act [Chapter 12:05] and therefore invalid, null and void.
3.
The 1st respondent be
and is hereby ordered to publish all Internet Access Provider Licences in
accordance with section 5(a) of statutory Instrument 262 of 2001 within thirty
(30) days of the date of this order.
4.
The 1st respondent be
and is hereby ordered to comply with its statutory obligations provided for
under the Postal and Telecommunications Act [Chapter 12:05] and in particular, the enforcement of the provisions
of section 37(5) regarding publication of licenses by licensees.”
The applicant
stated in its application that,
“This is an application
for an order declaring that the Telecommunications License Renewal Fees set out
in the Postal and Telecommunications (Licensing, Registration and
Certification) (Amendment) Regulations, 2013 (Statutory Instrument 122 of 2013)
(“the 2013 Licensing Regulations”) are grossly unreasonable and that the 2013
Licensing Regulations are invalid, ultra
vires the Postal and
Telecommunications Act [Chapter 12:05]
and therefore null and void.
The applicant further
seeks an order in terms of s 4 of the Administrative Justice Act [Chapter 10:28] directing the first
respondent to publish all Internet Access Provider licenses and ensure that all
licenses comply with the provisions of s 37 (5) of the Postal and
Telecommunications Act [Chapter 12:05].”
The applicant
averred that the first respondent has taken the position that all licence fees
must be paid up front despite the amount being outrageously high and arbitrary.
It averred that the refusal by the first respondent to accept payment plans has
resulted in it being unable to pay the licence fees of US$5.5 million which
amount is arbitrary, grossly unreasonable, unfair and prohibitive with no
justification in this current economy. The applicant averred that in setting the
licence fees, the Minister did not exercise his powers in a reasonable,
non-arbitrary and justifiable manner. It averred that such fees must be set in
a reasonable manner on the basis of necessity and in line with international
standards of practice. It averred that any deviations must be justifiable taking
into account the macro and micro economic environment in Zimbabwe. It further
averred that Zimbabwe being a member of the International Telecommunications
Union (ITU), it should be guided by the ITU guidelines in setting the licence
fees so as to avoid setting fees that are arbitrary. It further stated that whilst
different considerations will apply in different jurisdictions, the fee
structure should however, be transparent. The applicant averred that there are
three main guidelines or methods for telecommunications licencing according to
the ITU which are (i) a fee that is paid as a premium or 'rent' to a government
or licencing authority for the right to operate a network or provide a service;
(ii) administrative charges to compensate the regulator for its costs in managing
and supervising use of spectrum , and (iii) administrative charges to
compensate for costs incurred in performing other regulatory functions such as
licencing operators, ensuring compliance with licence terms, resolving
interconnection disputes, establishment and supervision of other aspects of regulatory
work.
The applicant
averred that using the ITU guidelines, the initial fee that is charged should
be to cover and reimburse the first respondent, POTRAZ for costs related to and
incidental to issuance of the licence. The cost must be apportioned between the
current and prospective licensees. It averred that it was challenging the first
respondent to show its costs of administration in regard to the 8 class 'A'
Licensees that it (the applicant) believes are currently licenced. The
applicant further stated that it wants the first respondent to disclose whether
or not any of these 8 licensees have previously been given terms of payment in
regard to licence application or renewal fee. The applicant averred that in the
absence of a clearly ascertainable and justifiable methodology for setting the
licence fees at US$5.5 million, the only inference that can be drawn is
that the licencing regulations under S.I
122/2013 are arbitrary and grossly unreasonable. It further averred that the
fees of US$ 5.5 million are not justifiable and proportionate to any administrative
charges meant to compensate the first respondent for its costs of
administration.
The applicant
averred that over and above the initial or renewal licence fees, all class 'A'
Internet Access Provider Licensees are still required to pay annual licence
fees in the sum of US$ 100 000.00 or 2% of the gross annual turnover, whichever
is higher. The applicant averred that this must be factored in in setting the
initial or renewal fees. The applicant further averred that the licence fees as
they are cannot be afforded by the ordinary telecommunications licensee. The applicant
stated that the only reasonable inference is that the object in setting such
high fees is to prohibit or hinder businesses from providing such services. The
applicant said that it does not have the financial capacity to pay the US$5.5
million licence fees up front and will have to close down at the expiry of its
class 'B' licence despite having been in business for almost 20 years to the
prejudice of the fiscus, its 100 permanent employees and 40 weekly contract
employees who all will be rendered jobless. It further averred that it is a
100% indigenous company with no external funding which privilege some of the
bigger telecommunications providers may have. It said that as such it can only
pay the licence fees from the revenue that it generates.
The applicant also
averred that the first respondent in terms of s 4 of the Postal and
Telecommunications Act has a duty to ensure a level playing field and to
promote competition between persons engaged in the provision of postal and telecommunications
services. The applicant averred that the second respondent should have set the licence
fees with this duty in mind. It further averred that the exorbitant fees and
the insistence of an upfront payment restrict competition in the industry. It stated
that it confines the provision of services to a small number of market players
who are already established in the industry thereby creating economic
discrimination of the smaller and newer entrants into the market yet in terms
of s 64 of the Constitution of Zimbabwe Amendment (No 20), Act 2013, every
person has a right to choose and carry on any trade of their choice. The
applicant averred that it is now being denied the right to carry on a trade of
its choice by reason of the unreasonable and grossly exorbitant licence fees.
The applicant averred that the right to choose and carry on a trade of one's
choice includes the right to a fair and reasonable licence fee that permit any
market entrant to participate in the telecommunications industry and the right
to fees that do not form indirect barriers to entry or expansion in the
industry.
The applicant
further averred that the licence fees were set without any consultations of the
affected and interested parties. It stated that as a class 'B' licence holder
then, it was never consulted prior to the revision of the licence fees. It
submitted that although s 99 of the Postal and Telecommunications Act does not
provide for a duty to consult with stakeholders and licensees, the Minster as
an administrator and legislator, in line with the general principles of natural
justice ought to have consulted prior to promulgating the Regulations. The
applicant averred that it had that legitimate expectation. It said that it could
not have been the intention of the legislature to create barriers through
grossly unreasonable and exorbitant fees. It said that as such the regulations
setting the fees ought to be struck down by being declared invalid and ultra vires the Postal and Telecommunications Act.
Although
the first respondent had raised some points in
limine in its opposing affidavit, it abandoned them at the hearing and
argued the matter on the merits. The first respondent averred in its opposing
affidavit that it is averse to the issue of payment plans because in terms of
the law, the licence fees should be paid up front. It said that paying by way
of instalments can only be an exception rather than the rule. It averred that
it has since learnt a lesson from prospective licensees without financial
resources that obtain licences for speculation purposes. It said that such
licensees then either fold to its prejudice (the first respondent), to the
prejudice of the consumers and the fiscus or they end up involving the first
respondent in litigation in a bid to keep the licences alive with the hope that
one day they will find the financial resources to pay the fees.
The first
respondent further averred that the licence fees are not arbitrary,
unreasonable, unfair, prohibitive and ultra
vires the Act. It submitted that if this was a genuinely held belief the
applicant ought to have challenged the fees at the time when they were set in
2013. It said that the applicant would not have challenged the fees simply
because its attempts to pay in installments were rejected as having no basis in
law. The first respondent averred that there is a Parliamentary Legal Committee
on Legislation whose duty is to hear the views of the public in view of any
proposed legislation. It said that when there are views against a proposed legislation,
the committee issues an adverse report, but S.I 122/2013 never received such a
report when the necessary consultations were conducted. The first respondent
stated that the applicant correctly outlined the ITU guidelines that should be
followed in setting the fees. It stated that these were followed when S.I
122/2013 was promulgated. The first respondent submitted that there is no
evidence to show that the 8 class 'A' licensees that the applicant believes to
be there share the applicant's views that the licence fees are exorbitant and
unreasonable. The first respondent averred that the licence fees are reasonable
considering that they are meant to cover a period of 14 years. The first
respondent also averred that the fact that one prospective applicant has
problems raising the fees does not make the position one of general
application. It averred that the applicant has been advised to present its
business plans and cash flow projections to a financier and get funding which
is repayable over a period of time just like other licensees do. The first
respondent averred that a view that the licence fees are grossly unreasonable
must of necessity be informed by much more than the inability of one person to pay.
It said that in proposing a payment plan, the applicant had agreed to pay the
very same fees, albeit in instalments. The first respondent averred that it has
no reason to want to restrict the number of operators since the greater the
number of licensees, the greater the revenue inflow to its coffers. It said
that consultations with stakeholders were done hence there was no challenge of
the regulations since August 2013 up to 29 June 2016 when the applicant made
this application. The first respondent averred that it has not done anything to
infringe the applicant's right to carry on a trade of its choice under s 64 of
the Constitution. It said that the fact that the applicant proposed to pay the licence
fees over a period of time (10 years) does not mean that such must simply be
accepted. It said that this must have a foundation in law. The first respondent
averred that it is not feasible to consult each and every stakeholder but
consultations were made before the fees were set. It said that if the fees were
exorbitant as the applicant says, there would have been an outcry back then in
2013. It stated that the complaint by the applicant 3 years down the line is
nothing, but failure to plan on the part of the applicant. It stated that since
2013, a number of licences have expired and have been renewed under S.I
122/2013 and new entrants have also been licensed under the same regulations.
It averred that to now change the set fees just to accommodate a single person
who has been aware of the regulations since their promulgation will result in
unfairness and chaos. The first respondent averred that the order as sought by
the applicant would be incompetent and irregular as it will result in a gap in
the law. The first respondent averred that the mere fact that the applicant
says it cannot afford the licence fees does not make the regulations ultra vires the Act.
At
the hearing the second respondent abandoned the points in limine that he had raised in his opposing affidavit. In response to
the averment that the licence fees are exorbitant, he said that by its own
admission the applicant is unable to pay the licence fees, so it does not meet
the requirements of the business it desires. He said that the business is meant
for entities that meet the requirements. The second respondent averred that
some averments that were made by the applicant can be best responded to by the
third respondent. The second
respondent averred that the fees are reasonable and justified. He said that whilst
there are guidelines which should guide the setting of fees they remain as
such, and they have no legal effect. He said that consultations were done
before the promulgation of the statutory instrument. He said that the
regulations cannot be said to be ultra
vires the Act simply because the applicant has failed to raise the required
fees.
In
the answering affidavit and in response to the first respondent the applicant
averred that the first respondent had made no effort to give evidence which
justifies the quantum of the licence fees. The applicant averred that from the
onset it never accepted the set fees as reasonable and it sought payment terms
as a way of easing the exorbitant fees. The applicant said that other class 'A'
licensees must have been granted payment terms which is a sign that the licence
fees are exorbitant and grossly unreasonable. The applicant further said that
the first respondent did not adduce evidence to show that consultations were
carried out with the relevant stakeholders. It also stated that the first
respondent did not indicate which licensees were consulted or when the
consultative process took place. The applicant went on to attach an annexure
showing licence fees regimes in other countries in the region and said that,
comparatively, our licence fees are exorbitant. The applicant averred that this
court should simply declare the regulations to be ultra vires the Act. It
said that it is not the duty of this court to replace the regulations or to
worry about the gap that will be created when it declares the regulations to be
ultra vires the Act. The applicant
stated that the first respondent had not attached a report it received from the
Parliamentary Legal Committee in support of the averments it made that it
received no adverse report.
The applicant
averred that any averments made by the second respondent with regards to the
procedures that were taken by the third respondent before the promulgation of
the regulations in 2013 are of no use because he was not involved then as he
only took over the administration of the Postal and Telecommunications Act in
2014 under Statutory Instrument 25 of 2014.
In
arguing the matter Mr. Sakhe submitted that delegated or subsidiary legislation
can be declared invalid on the grounds of unreasonableness. In support of his
argument he went on to cite a plethora of cases which I will mention later on
in the judgment. Mr. Sakhe also went
on to deal with the test for reasonableness. He submitted that no reasonable
regulator fully exercising its mind would reach such fees. He said that s 134
(c) of the Constitution provides that every piece of subsidiary or delegated
legislation must be consistent with the Act of Parliament under which it is
made. He said that the fees which were set by the 2013 Regulations are so high
and irrational that when Parliament gave the second respondent the power to set
the fees in terms of s 99 of the postal and Telecommunications Act, it could
not have intended that the Minister would set such fees which do not have any
reasonable basis or justification. He referred to the case of Satelite Users Association v PTC HH 225/91 wherein the court set
aside the Radio Communication Sevices (Amendment) By-Laws, 1990 (No. 8) (S.I
145 of 1990) prescribing fees for television receive-only station licences for
being ultra vires. Mr. Sakhe
argued that the regulator must show that it has taken certain factors into
account before setting a specific fee. He submitted that a reasonable regulator
would
(i)
conduct research on the
cost of administration relating to its licensing regime.
(ii)
consult with stakeholders
regards the fees.
(iii)
conduct research on the
effect of the proposed licence fees on current and prospective licensees and the industry.
(iv)
consult with parent
minister in respect of trends of telecommunications
in the region and elsewhere in the world.
Mr.
Sakhe argued that in setting the fees
the regulator did not use the reasonable man's test or the ITU guidelines. He
said that there is no evidence of any research and consultation having been
done and there is no evidence that the Parliamentary Legal Committee looked at
this Statutory Instrument before it was promulgated. There is no evidence of
how the US$5. 5million was arrived at. He said that as such the applicant is
entitled to reach the reasonable inference that the amounts set were thumb
suck. He said that there is no rational link between the fees that were set and
any of the grounds of reasonableness. He said that the Minister as an
administrative authority is bound by the Administrative Justice Act [Chapter 10:28]. He said that s 3 binds
all administrative authorities to act lawfully, reasonably and fairly towards a
person with an interest, right or legitimate expectation. He said that the
Minister is in breach of the legitimate expectation of the applicant to have
licence fees that are transparently and reasonably set.
Ms. Mahere for the first respondent, in
arguing the matter challenged the procedure that the applicant adopted in
bringing this application as an application for a declaratur. She argued that this
court has no expertise or statutory authority to determine the appropriate
level of licence fees that should be payable by licencees, so it cannot therefore
usurp the functions and powers of the first respondent which is the licensing
authority. Citing the case of Tsvangirai
& Anor v Registrar-General & Ors 2002 (1) ZLR 251 (H), Ms. Mahere further submitted that this court
has no jurisdiction to intervene in administrative decisions. In that case the
applicants had made an application for an order compelling the first respondent
to extend the voting days by one in respect of Presidential, council and
mayoral elections. The court held that a court has no general jurisdiction to
intervene in administrative decisions or to direct administrative authorities
on how they should act in the absence of illegality, irrationality or
procedural impropriety. Ms. Mahere further argued that an administrative
authority's discretion cannot be interfered with absent a reviewable
irregularity. She argued that this is a matter which the applicant ought to
have brought as an application for review in terms of order 33 of the High
Court Rules, 1971. She said that in terms of that order, r 257 requires that
for a review application to be brought, the grounds upon which the applicant
seeks to have the proceedings set aside or corrected should be stated shortly
and clearly. Citing the case of Chataira
v ZESA S-83-01, she submitted that the present application does not meet this
requirement of r 257 and should therefore be dismissed. Ms. Mahere further argued that S.I 122/2013
is not ultra vires the Postal and
Telecommunications Act since s 99 (2) of the said Act empowers the Minister in
consultation with the Authority to make such regulations. She submitted that S.I
122/2013 falls squarely within the ambit of s 99 (2) of the Act. She also
queried what it will mean for the future if the licence fees of US$5. 5million
are set aside. She questioned what will happen to all those that have paid that
amount so far.
Ms.
Munyoro for the second respondent argued
that the regulations are not ultra vires
the Act as the Minister acted within his powers by promulgating the
Regulations. She further argued
that the presumption of validity
works in favour of the Statutory Instrument. She said that the applicant cannot
seek to challenge the regulations simply because it has failed to raise the required
fees. Just like Ms. Mahere, she
argued that affordability is not what determines if the licence fees are
reasonable or not.
In
determining this matter I propose to deal with the reliefs that the applicant
is seeking in its draft order.
(i)
That
the decision by the 3rd respondent in consultation with the 1st
respondent setting the Class “A” License Fees at US$5,500,000.00 be set aside.
This
relief makes it clear that the applicant wants the decision of the Minister in
setting the licence fees at US$5.5 million to be set aside. In wanting the
decision to be set aside the applicant has mentioned quite a number of
irregularities that it alleges were made by the first and third respondents in
arriving at the amount of US$5.5 million. In summary, it averred that the first
and third respondents did not carry out the necessary consultations and
research with the relevant stakeholders; they did not make use of the ITU
guidelines and did not present the Statutory Instrument to the Parliamentary
Legal Committee for scrutiny before making it into law. It is clear that the
applicant is alleging gross irregularities in the process leading to the
decision of setting of the licence fees at US$5.5 million. The applicant also
alleges that the amount set is grossly unreasonable.
Setting aside of a
decision or proceedings is a relief normally sought in an application for
review,
yet the present application has not been brought as such, but as an application
for a declaratur. When I look at the grounds upon which this relief is being
sought, I am inclined to agree with Ms. Mahere
that this application ought to have been brought as an application for review. In
Geddes Ltd v Towonezvi (supra) the court held that:
“In deciding whether an
application is for a declaration or review, the court has to look at the
grounds of the application and the evidence produced in support of them. The
fact that an application seeks a declaratory relief is not itself proof that
the application is not for review. The court should look at the grounds on
which the application is based, rather than the order sought.”
Section 27 of the
High Court Act [Chapter 7:06] sets out the grounds on which any
proceedings or decisions may be brought on review. The provision reads,
“27 Grounds
for review
(1) Subject to this Act and any other law, the grounds
on which any proceedings or decision may be brought on review before the High
Court shall be—
(a) absence
of jurisdiction on the part of the court, tribunal or authority concerned;
(b) interest in the cause, bias, malice or
corruption on the part of the person presiding over the court or tribunal
concerned or on the part of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.”
S 27 (1) (c) states gross
irregularity in the proceedings or the decision as one of the grounds. Under
common law grounds for review are irrationality, illegality and gross unreasonableness.
In the present application by citing the irregularities that the first and
third respondents made and the unreasonableness of the amount that was set, the
applicant is basically asking this court to review the decision of the first
and third respondents so as to render their decision void. This makes it clear
that the application should have been brought as an application for review.
Consequently, I cannot make a determination on its merits as it does not meet
the requirements of an application for a review. In terms of Order 33 r 259 of
the High Court Rules, 1971, an application for review should be made within 8
weeks of the proceedings in which the
irregularity or illegality complained of is alleged to have occurred and
in terms of r 257 the grounds upon which the applicant seeks to have the
proceedings set aside or corrected should be stated shortly and clearly.
In the result, I
cannot set aside the decision of the third respondent setting the class 'A'
licence fees at US$5.5 million.
(ii)
That
the Postal and Telecommunications (License Registration and Certification) (Amendment)
Regulations, 2013 (No 6) (S.I 122 of 2013) prescribing license Fees for
Internet Access Provider Licences be declared ultra vires the Postal and Telecommunications
Act [Chapter 12:05].
As was correctly submitted by Mr. Sakhe subsidiary legislation may be
struck down on the grounds of unreasonableness. The cases that he cited are
pertinent and spot on. From outside this jurisdiction he cited the following
cases: Slatter v Naylor Cas (1888) 13 APP 446 @ 452-453; Kruse v Johnson (1898) 2 QB 91 @ 99-100; Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd [1993] FCA 46 and Mixnam's Properties Limited v
Chertsey Urban District Council
(1964) 1 QB 214. In this jurisdiction he referred to the cases of State v Nyamupfukudza 1983 (2) ZLR 43 (SC) @ 46 D and PF Zapu v Minister of Justice
1985 (1) ZLR 305 (SC). In short, all these cases say that delegated legislation
may be declared invalid on the ground of unreasonableness if it leads to
manifest arbitrariness , injustice, partiality that a court would say,
'Parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires.' However,
the onus is on the person challenging a regulation as being unreasonable to
show that it is unreasonable. This
means that if the applicant shows the court that the licence fees are unreasonably
high that can render the Statutory Instrument setting them unreasonable and ultra vires the Act.
In casu what is pertinent to note is that
the unreasonableness of the amount of the fees that the applicant is alleging
is based on the ground that the Minister in the process of setting the fees
made a number of gross irregularities which I have already outlined in relief (i) above. It is the applicant's
averment that it is the gross irregularities that the first and third
respondents made when they were in the process of determining the appropriate
fees which resulted in them setting fees that are unreasonably high. The issue
of the gross irregularities being central to the issue of unreasonableness, it
is my considered view that the applicant adopted the wrong procedure in
bringing this application as an application for a declaratur. As I have already
said above, it should have been brought as an application for review with a
request seeking the setting aside of the Minister's decision of setting class A
licence fees at US$5.5million. The request for a declaratory order that the
regulations prescribing the licence fees be declared ultra vires the Act for being unreasonable would have been sought
as a species of relief under the review application. In the absence of a review
of the Minister's decision on how he arrived at US$5.5 million the court has no
way of determining if the amount is reasonable or not.
In
the circumstances, I cannot therefore grant the declaratory order that is being
sought.
(iii)
An
order that the first respondent publishes all Internet Access Provider Licences
in accordance with s 5 (a) of S.I 262 of 2001 within 30 days of the date of
this order.
In
S.I 262 of 2001 there is no s 5 (a), but s 5 which says:
“The Authority shall
cause all the licences issued to be published in the Gazette.”
S 5 of S.I 262 of
2001 does not set the time limits within which the licences should be
published. In the Ministerial order that the second respondent granted on 30
June 2015, he ordered the first respondent to publish all Internet Access
Provider Licences in accordance with s (5) of S.I 262 of 2001 by 1 August 2015
following an appeal that had been made to it by the applicant following a
misunderstanding with the first respondent. It is interesting to note that by
the time this application was heard on 31 January 2017 the first respondent had
not yet complied with the order of the Minister.
The applicant
wants the first respondent to be ordered to publish all licences in the
Gazette. It is the applicant's argument that the first respondent lacks
transparency and clarity in the manner in which telecommunications services
providers are licensed. It is alleged to operate under a veil of secrecy hence
its reluctance to publish the licences as is required by the law. The applicant
avers that this is evidence that the first respondent does not conduct its
affairs in a fair manner. The applicant averred that this conduct by the first
respondent violates s 3 (1) of the Administrative Justice Act which requires it
as an administrative authority to act lawfully, reasonably and in a fair manner
and to act within a specified period or reasonable period in the absence of a
specified period. The provision reads as follows.
“3 Duty of
administrative authority
(1) An administrative authority which has the
responsibility or power to take any administrative action which may affect the
rights, interests or legitimate expectations of any person shall—
(a)
act lawfully, reasonably and in a fair manner; and
(b)
act within the relevant period specified by law or, if there is no such
specified period, within a
reasonable
period after being requested to take the action by the person concerned; and
(c) where it has taken the action, supply
written reasons therefor within the relevant period specified by law or, if
there is no such specified period, within a reasonable period after being
requested to supply reasons by the person concerned.”
The
applicant stated that it was making this application in terms of s 4 (1) of the
said Act which authorises any person who is aggrieved by the failure of an administrative authority to
comply with section three to make an application
for relief to this court. The section
reads,
“4 Relief
against administrative authorities
(1) Subject to this Act and any other law, any person
who is aggrieved by the failure of an administrative authority to comply with
section three may apply to the High Court for relief.
(2) Upon an application being made to it in terms of
subsection (1), the High Court may, as may be appropriate—
(a) confirm
or set aside the decision concerned;
(b) refer the matter back to the administrative
authority concerned for consideration or reconsideration;
(c) direct the administrative authority to take
administrative action within the relevant period specified by law or, if no
such period is specified, within a period fixed by the High Court;
(d) direct the administrative authority to
supply reasons for its administrative action within the relevant period
specified by law or, if no such period is specified, within a period fixed by
the High Court;
(e) give such directions as the High Court may
consider necessary or desirable to achieve compliance by the administrative
authority with section three.
(3) Directions given in terms of subsection (2) may
include directions as to the manner or procedure which the administrative
authority should adopt in arriving at its decision and directions to ensure
compliance by the administrative authority with the relevant law or empowering
provision.
(4) The
High Court may at any time vary or revoke any order or direction given in terms
of subsection (2).”
In response, the
first respondent did not dispute that it has not complied with the ministerial
order of 20 June 2015 which it ought to have complied with by 1 August 2015. However,
it cited some administrative constraints that it later encountered which it
says the second respondent is aware of.
The first respondent averred that the person who has the right to
complain is not the applicant, but the Minister, the second respondent who is
entitled to remedies under s 102 of the Postal and Telecommunications Act.
Section 102 reads,
“
Proceedings on failure of Authority to comply with Act or direction
(1) If at any time it appears to the Minister that the
Authority has failed to comply with this Act or with a direction given to it in
terms of section twenty-five or twenty-six, he may, by notice in
writing, require the Board to make good the default within a specified period.
(2) If an act or thing required to be done in terms of
this Act is omitted to be done or is not done in the manner or within the time
so required, the Minister may order all such steps to be taken as in his
opinion are necessary or desirable to rectify such act or thing, and the said
act or thing when done in terms of the said order shall be of the same force
and validity as if originally done in accordance with the appropriate
provisions of this Act”
The
first respondent averred that the second respondent has not complained, so all
is in order. The first respondent further averred that if the applicant is
aggrieved in any way by the delays it should complain to the second respondent
who has resort to s 102 of the Act.
The
second respondent did not respond to this issue leaving it to the first
respondent to respond.
I
am not inclined to grant the relief that the applicant is seeking because it
has not shown that it has a legal right and sufficient interest in the matter
to warrant it to ask for this relief. The fact that the applicant believes that
the first respondent is not performing its affairs in a fair manner does not
give it the locus standi to seek to
compel it to publish all licences in the Gazette in terms of S.I 262 of 2001. The
question that can be asked in this matter is, what is the applicant's interest
in the relief that it is seeking? It appears to me that the applicant is trying
to use the courts to investigate the first respondent, which is not proper. The
words 'any person' used in s 4(1) refer to a person with a legal right and sufficient
interest in the relief that he is seeking. I will therefore not grant the relief.
(iv)
An order
for the first respondent to comply with the provisions of s 37 (5) of the
Postal and Telecommunications Act regarding publication of licences by licensees
Section 37 (5) of the Postal and
Telecommunications Act reads,
“Within 30 days after
the issue of a licence referred in subsection (4) the licensee shall, at his own expense cause the licence to be
published in a newspaper circulating in the area in which he intends to operate as a licensee.”
As
was correctly submitted by Ms. Mahere
the provision imposes no obligation for the first respondent to comply with.
The obligation is on the licensee to publish his licence at his own expense.
The applicant is therefore seeking an incompetent relief against the first
respondent. I therefore cannot grant this relief.
In the result, the
application is dismissed with costs.
Kantor
and Immerman, applicant's legal practitioners
Muzangaza
Mandaza & Tomana, 1st respondent's legal
practitioners
A-G, Civil Division, 2nd
respondent's legal practitioners
