Urgent
chamber application
DUBE
J:
This
is an application for an interdict.
The
applicant is a telecommunications services provider. The respondent
is the Regulatory Authority established in terms of section 3 of the
Postal and Telecommunications Act [Cap12:05] (the Act). The salient
facts of this court application may be summarised as follows.
On
16 October 2014, the respondent issued Regulatory Determination
Number 1 of 2014, a circular on Implementation of Excise Duty on
airtime or network usage for voice, internet and data services
provided by Public Telecommunication Service Providers. The
determination fixes new National Interconnection tariffs and Mobile
Voice tariffs for telecommunications operators for the period
December 2014 to December 2016.
Aggrieved
by this decision, the applicant has launched this application.
The
applicant claims that the respondent varied or amended the existing
tariffs without affording the applicant a right to be heard on
whether or not the existing approved tariffs should be amended and if
so, to what levels and when this should be done. That the respondent
proposed to amend the existing tariffs by reducing them
significantly. The applicant contended that respondent's direction
that applicant propose tariffs which the respondent has itself set by
14 November 2014, is an effort to purge the illegality it committed
by fixing tariffs for applicant without having first received a
tariff proposal from the applicant. The applicant maintains that the
respondent's failure to afford the applicant an opportunity to be
heard violates principles of natural justice as well as provisions of
the Constitution. The applicant contends that the determination is
biased against the applicant in that the tariff reduction will weigh
heavily on the applicant than on the other operators who have not
bothered to pay the $137,5 million licence fees. The applicant avers
that there is no level playing field.
In
addition, the applicant challenges the authority of the respondent to
act in the manner it did. The applicant argues that section 4(g) and
(i) as read with section 100 of the Act under which the respondent
purported to act does not empower it to vary existing approved
tariffs mero motu without an application or proposal for the
variation of the tariffs by a licensee. The applicant further
submitted that the respondent violated the audi alteram partem rule
by imposing tariffs without first affording the applicant an
opportunity to be heard on the proposed tariffs and the effective
date of the tariffs. The applicant's position is that the
respondent exceeded the powers conferred upon it and acted ultra
vires the Act.
Mr
Nyambirai who represented the applicant contended that the applicant
cannot purport to act in terms of section 42 as a tariff is not part
of a licence and powers conferred upon the authority by section 42(1)
do not include the power to amend a tariff.
The
applicant canvassed the requirements of a temporary interdict and
urged the court to find in its favour.
I
will not for the purposes of this judgment, summarise arguments
advanced by both parties with respect to the merits of the interdict.
The application is premised upon the trepidation that if the
respondent is allowed to impose illegal tariffs before the
applicant's rights are finally decided by the court, it will suffer
irreparable harm if it subsequently succeeds in this dispute, in that
it will not be able to recover the loss suffered as a result of the
unlawful reduction in tariffs. The applicant reasons that the
reduction in its tariffs will force the applicant to retrench some of
its employees and to downscale its distribution network that has
created 20,000 jobs. Further that the applicant will be forced to
discontinue some of its scholarship programs in which it pays fees
for more than 40,000 less privileged members of the society.
The
terms of the interim order sought are as follows:
“INTERIM
RELIEF GRANTED
Pending
the determination of this matter, the applicant is granted the
following relief:-
1.
That the implementation of the Postal and Telecommunication
Regulatory Authority of Zimbabwe [Determination on Voice, Data and
Internet Charges for Regulated Telecommunication Services in
Zimbabwe] regulatory Authority of Zimbabwe (Circular on
Implementation of Excise Duty on Airtime or network usage for voice,
internet and data services provided by Public Telecommunication
Service Providers) Regulatory Circular Number 1 of 2014 be and is
hereby suspended.”
The
final relief sought is for an order suspending the operation of the
determination until the respondent has collected licence fees from
other mobile operators.
The
respondent's submissions in response may be summarised as follows.
The
regulatory determination purports to cite section 100 instead of
section 42(1)(d) of the Act. The true intention or purpose of the
action can be gleaned from the consequences and not the label placed
on the determination. There has not been any unlawful interference by
the respondent in the applicant's business. The conduct complained
of has a basis in section 42 which gives the respondent powers to
amend licences in specific instances and an amendment can be made in
terms of section 42(1)(d) if considered desirable and in the public
interest. The regulatory determination does not seek to direct any
licensee what to charge but sets a limit above which no operator
shall charge. The same section in subsection 2 enjoins the
respondent, prior to amending the licence, to give its reasons for
the decision and invite the licensee's input into the matter. The
respondent denied that the determination is discriminatory. Mr
Muzangaza who appeared for the respondent submitted that there is no
discrimination as the licence fees which other operators also pay
have not been reduced. The other operators are expected to fork out
the same full licence fees. He contended that the applicant has the
advantage that it has been able to recoup part of its outlay on the
back of high tariffs. He submitted that the tariffs have been reduced
in the public interest.
The
respondent took up two preliminary points.
The
respondent argued that the applicant has adopted a wrong procedure
for seeking this relief. The respondent submitted that the remedy of
an interdict is resorted to only when other alternative remedies are
not available and when the delays associated with the use of other
remedies could cause irreparable harm. The respondent submitted that
that the applicant ought to have sought relief in terms of section 96
of the Act, as the effect of the regulatory determination complained
about is to amend existing tariffs which are an extricable component
of a licence. That the applicant ought to have requested for reasons
from the Minister and if not satisfied with the reasons, appealed to
the Administrative Court if need be. The respondent insists that a
wrong procedure was adopted for seeking this relief, that the
application is improperly before the court and ought to be dismissed
on that basis alone.
The
respondent's second point relates to the urgency of the
application. The respondent submitted that the application is not
urgent as the applicant has always been aware of the respondent's
intentions. Mr Muzangaza submitted that the dispute has been raging
on since 2013 when research was conducted by the respondent with the
participation of the applicant. This resulted in the applicant
penning a letter dated 24 June 2014 wherein the applicant threatened
to take the matter to court if the respondent did not withdraw its
intentions. He submitted that this matter became urgent and ripe for
taking to court in June 2014 and that the applicant has not explained
its failure to take any action from July to 24 October 2014.
The
respondent asserts that the applicant has not been candid with this
court and was selective in the information it presented to the court.
That if the applicant had disclosed to the court the existence of the
letter dated 24 June 2014 this would have negatively affected any
notions of urgency.
The
respondent also took issue with the certificate of urgency. It
submitted that the certificate of urgency in support of this
application is no certificate at all as it was done before the
founding affidavit had been deposed and attested to. The respondent
further averred that the founding affidavit does not disclose
urgency. The applicant opposed both preliminary points. The applicant
insisted that this application is properly before the court. It
submitted that this matter is not an appeal but a review against the
determination and is properly before the court. On the issue of
urgency, Mr Nyambirai asserted that this application was triggered by
the regulatory determination of 16 October 2014. He asserted that the
applicant acted timely and shortly after receiving the determination
and further that the matter is urgent because the applicant seeks to
prevent the implementation on 14 November 2014 of a decision to
reduce its tariffs. He contended that the letter threatening legal
action was in relation to a different matter concerning the Lyric
Model and a tariff proposal to set up a group 5 tariff which
application was declined by the respondent. The applicant is not
pursuing that matter. The applicant contends that both the founding
affidavit and the certificate of urgency are valid and disclose
urgency.
The
respondent's opposing affidavit and written submissions raised the
issue of urgency. The matter proceeded to argument on the merits
without the respondent formally raising the issue of urgency, only to
do so in response to applicant's submissions on the merits. The
applicant contends that the respondent let the court hear the matter
on the merits having declined an opportunity to raise any preliminary
objections.
That
is not a correct reflection of what transpired.
No
invitation was extended to the respondent to address the court on its
preliminary issues. The court proceeded on the assumption that the
parties had discussed the issue and come to some common ground over
the issue of urgency.
The
applicant submitted that the respondent should have raised the issue
if urgency from the outset. That it was irregular for the applicant
to let the court hear the case on the merits, only to raise the issue
of urgency in response to applicant's submissions on the merits. It
urged the court to disregard the issue of urgency.
The
applicant is clutching at straws.
A
preliminary point is one that is likely to dispose of the matter
without the need to go into the merits of the matter. It is expected
to be taken at the outset. If it is upheld at that stage, it obviates
the need for the court to hear argument on the merits. It is
therefore desirable that it be taken before commencement of argument
on the merits in the spirit of/for good order and convenience. Where
a preliminary point is raised during the course of argument on the
main matter, it becomes a point of contention which still requires
resolution. The taking of a preliminary point on urgency, albeit,
belatedly does not render it fatal to the taking of the point. One
has to have regard to the fact that in applications of this nature,
the court is required to be satisfied that the matter is urgent
irrespective of the position of the opponents. A matter brought on an
urgent basis does not assume urgency simply because an adversary
failed to raise the issue of urgency timeously. The fact that the
point was raised tardily does not defeat the point.
The
requirements of urgency have been articulated in numerous decisions
and the law is considered settled. The law is basically that in any
matter where an applicant brings an application on an urgent basis
he should show that the matter cannot wait to be determined in the
sense that if not dealt with immediately, irreparable harm will
result and secondly that the applicant himself did treat the matter
as urgent. See Madzivanzira v Dextprint Investment (Pvt) Ltd
HH145/02.
In
Gwarada v Johnson 2009 (2) ZLR 159 (H) the court added its voice to
the debate and remarked thus;
“Urgency
arises when an event occurs which requires contemporaneous resolution
the absence of which would cause extreme prejudice to the applicant.
The applicant must exhibit urgency in the manner in which he has
reacted to the event or threat.”
Similar
sentiments were expressed in Kuvarega v Registrar General and Anor
1998 (1) ZLR 188 (H) where the court remarked as follows;
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning, a matter is also urgent if, at the time the need to act
arises, the matter cannot wait. Urgency which stems from a deliberate
or careless abstention from action until the deadline draws near is
not the type of urgency contemplated by the rules. If there has been
any delay, the certificate of urgency or supporting affidavit must
contain an explanation of the non-timeous action.”
The
evidence on record reveals that there has been extensive
correspondence and consultations with all stakeholders inviting
representations regarding the proposed tariff and inviting licensees
to submit tariff proposals. The applicant failed to disclose
correspondence that took place between the parties prior to this
application. The following letters were not attached to the
application and were made available by the respondent. On 20 March
2014, the applicant wrote to the respondent and expressed its views
over the subject. The letter reads in part as follows;
“We
remain fully committed to the current initiative that will provide
the Regulator with a tool …for use in evaluating tariff proposals
that may be submitted by operators for approval by the regulator.”
This
letter was followed by another dated 12 June 2014 from the respondent
to the applicant advising of the results of the survey and its
intention to implement same. The applicant was invited to submit its
views and comments on the exercise. On 24 June 2014, the applicant
wrote to the respondent giving its views on the results of the
survey. Part of the letter reads;
“Our
client has briefed us with your letter of 17 June 2014 in terms of
which you declined its tariff proposal for the proposed Group 5 (hard
to reach). We have also been briefed on your plans to implement a
change to the tariff regime using the LCRIC MODEL……….It is
clear from this section that the authority does not have power to
impose tariffs. Once the authority has approved a tariff, it cannot
amend or replace the tariff mero motu. The authority's power is
restricted to approving or disapproving a tariff proposed by a
licensee. The process of changing a tariff has to be initiated by the
licensee.”
In
concluding this letter the applicant writes;
“We
hereby notify you that unless you withdraw your request for our
client to submit a plan for the implementation of the results of the
LCRIC model within the next seven days we shall apply to court for an
order declaring that our client is entitled to maintain its tariff
regime for the entire duration of the licence.”
Two
issues emerge from the letter of 24 June.
The
first relates to the refusal by the respondent to approve a tariff
proposed by the applicant for the Group 5. The second issue relates
to the applicant's plan to implement a change to the tariff regime
using the LCIC Model.
In
that letter the applicant challenges the respondent's authority to
impose, amend or replace a tariff mero motu in terms of section 100
of the Act and threatens legal action if the respondent does not
withdraw its request for submission of a plan for implementation of
the results. The applicant became aware that the respondent intended
to introduce the disputed tariff as early as 24 June 2014. By that
date, the applicant was noticeably aggrieved and concerned about the
respondent's authority or power to impose and amend the tariffs
mero motu. Even though the determination had not been issued, the
applicant was fully aware of the applicant's plans and undoubtedly
disgruntled by the respondent's desired course of action. They saw
it coming. The challenge raised in the letter of 24 June relates to
the respondent's powers to take the intended measures. The same
challenge raised then, is the same pursued in this application. I am
satisfied that the applicant was aware as early as June 2014 that the
respondent had plans to implement a change to the tariff regime in
issue using the LCRIC model. What the applicant ought to have done
then is to stop the respondent in its tracks and thwart its
intentions. The applicant did nothing from June until 24 October 2014
to assert its rights. The applicant elected instead to threaten legal
action which threats it did not pursue. The need to act arose when
the applicant became aware of the respondent's plans to implement
the proposed tariffs based on the new model. The determination of 16
October simply put ice on the cake.
The
applicant chose to act after the determination and only a few days
before the determination was to be finalised.
What
constitutes urgency is not the imminent arrival of the day of
reckoning. A matter is urgent if at the time the need to act arises,
the matter cannot wait. This approach was well articulated the
Kuvarega case where the court remarked thus;
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the deadline draws near is not
the type of urgency contemplated by the rules.''
A
party who brings a matter on an urgent basis should show that the
matter cannot wait in the sense that if it is not immediately dealt
with, some irreparable harm will ensue. He must assert himself and
take corrective action as soon as he becomes aware of the imminent
harm. He must exhibit urgency in the manner in which he reacts to the
event or threat and not wait until the deadline draws near.
The
applicant failed to take corrective measures when it was expected to
take action. The applicant has decided to act now and expects
everyone to jump in accordance with its whims. The applicant sat on
its laurels, did absolutely nothing and cannot expect any sympathy
from the court. The applicant did not treat this matter as urgent.
This is not the sort of urgency envisaged by the rules. The urgency
is self- created. I find that there was a deliberate or careless
abstention from action until the deadline drew near.
The
application was certified urgent by Dominic Musengi a legal
practitioner of this court on 23 October 2014. The affidavit of
Douglas Mboweni dated 24 October 2014 was used to found the
application.
The
applicant's response to the suggestion that the legal practitioner
who certified the matter urgent did so before the affidavit was made
went as follows:
“Mr
Musengi, the legal practitioner who certified the matter urgent,
always insists that he wants to see the papers in draft form first so
that he can make up his mind whether he agrees that the matter is
urgent. Mr Nyambirai drafted the papers and gave them to him and Mr
Musengi looked at the papers and then asked the deponent to the
affidavit to get the affidavit signed and commissioned.”
The
reason why he always requires to see the affidavit in draft form was
not given.
The
idea of seeing the papers in draft form eludes me. Mr Musengi had no
business wanting to see the affidavit in draft form. It is not
competent for a legal practitioner required to certify a matter as
urgent to see the founding affidavit before it is signed to ensure
that the affidavit discloses urgency before he agrees to certify the
matter. It is not his duty to ensure that the affidavit discloses
urgency. He is required to get a signed and commissioned affidavit
and either agree or disagree on the urgency of the matter. There is
no room for him to amend or suggest amendments to it so that it
complies with the requirements of urgency. He has no business going
out of his way to ensure that the affidavit discloses urgency and
hence it was wrong to insist that the affidavit come in draft form.
The
practice of legal practitioners who are required to certify matters
as urgent insisting on seeing founding affidavits in draft form is
undoubtedly wrong. This sort of conduct is most inappropriate and
ought to be discouraged.
The
suggestion on the papers is that the certificate of urgency was
signed before the deponent to the founding affidavit had made and
signed his own affidavit. This means that Mr Musengi certified the
application as urgent before the founding affidavit was in place.
A
certificate of urgency is required to be premised on a founding
affidavit. A statement only becomes an affidavit when it is signed by
the maker and sworn to and signed before a commissioner of oaths.
There was no founding affidavit when the matter was certified urgent
and hence there was no certification. For all intents and purposes,
there was no valid affidavit before the legal practitioner and
ultimately there is no certificate of urgency. This application has
no leg to stand on.
Even
assuming that I am wrong in this view, a look at the certificate
reveals that the issue of the urgency of the matter was not well
thought and canvassed. As a result the certificate of urgency does
not disclose urgency. The applicant's founding affidavit is
sketchy on the issue of urgency. It does not appear that the
applicant had any notion that this matter was being brought on an
urgent basis. Nowhere in his affidavit does he make use of the word
“urgent”. One does not get the impression that this affidavit is
one that is meant to be used in support of an urgent application. The
affidavit falls far short of what is required in matters such as
this. A deponent to a founding affidavit required to be used in an
urgent application should be alive to the fact that he is bringing a
matter to court on an urgent basis. It is incumbent upon him to
articulate fully in his affidavit, the reasons why he has decided to
bring the matter on an urgent basis and not wait and enrol the matter
on the ordinary roll. He cannot simply regurgitate the history of the
matter expect that he may persuade the court to find the matter
urgent by merely outlining the irreparable harm likely to ensue. He
must allege facts that render the matter urgent and explain why the
relief sought cannot wait to be obtained in the ordinary course. He
must make specific averments on the allegation that the matter is
urgent and cannot wait. Where there has been a delay in bringing the
application, such delay should be explained in the founding
affidavit. This role should not be left entirely to the person who
certifies the founding affidavit as urgent. The deponent to the
founding affidavit must not leave it to his counsel to address the
issue of urgency of the matter at the hearing either because that
opportunity might never arise.
A
court dealing with an urgent matter is required to consider the
urgency of the matter at the time the matter is placed before it and
on the basis of papers placed before it. Before a court sets down an
urgent application for hearing, it must be of the preliminary view
that the matter is urgent. The court has no benefit at this stage of
hearing applicant's counsel and hence the need for the certificate
of urgency and founding affidavit to adequately address the issue of
urgency.
The
legal practitioner who certifies the matter as urgent should make his
decision that the matter is urgent on the basis of information
supplied to him in a founding affidavit. He cannot certify the matter
urgent where the applicant itself does not hold the view that the
matter is urgent.
The
founding affidavit does not disclose urgency.
The
purpose of a certificate of service is to certify the matter urgent
and highlight reasons why a matter is urgent and explain the
justification for preferential treatment. It assists the court in
deciding whether the application should be dealt with immediately or
wait to join the ordinary queue. The court is required on the basis
of that certificate alone, to make a decision regarding the urgency
of the matter. Where the certificate is scanty in detail and fails to
disclose sufficient reasons why the matter should be dealt with
immediately, the certificate is rendered useless, warranting
dismissal of the application.
Legal
practitioners are in the habit of certifying matters urgent when they
have not applied their minds to the matters to which their
certificate of urgency is required. A legal practitioner who
certifies a matter as urgent should only do so on the basis of clear
and satisfactory averments of urgency in the founding affidavit. This
court is left to speculate regarding the urgency of this matter. The
legal practitioner gives a summary of the dispute and in one
paragraph says;
“Applicant
has a reasonable apprehension of irreparable harm if respondent is
not stopped from implementing its directive. The loss of income that
applicant will suffer will not be recoverable. Applicant will be
forced to retrench some of its employees and to reduce its
distribution network that has created more than 20,000 jobs directly
and indirectly. Applicant will also be forced to reduce its
scholarship programs that pay school fees for more than 40,000 less
privileged members of our society and has been doing so for years. In
the circumstances, I urge this honourable court to hear this matter
on an urgent basis.”
There
is no specific allegation or averment of urgency in the certificate
of urgency.
Mr
Musengi does not use the word “urgent” at all until at the end of
the certificate where in conclusion he urges the court to treat the
matter as urgent. The certificate does not explain fully why the
matter should get preference and why the applicant cannot wait to get
substantive relief in the ordinary course. In Kuvarega (supra) the
court expressed its displeasure at this sort of conduct.
Legal
practitioners who offer this service are required to acquaint
themselves with the facts of the matter and satisfy themselves that a
matter is urgent. They should not certify the matter as urgent when
they have not read the founding affidavit of the applicant and are
satisfied that the matter is urgent. Their roles are not simply to
rubber stamp or endorse the matter as urgent when the papers do not
disclose urgency.
It
is shocking that the legal practitioner did not pick the anomalies in
the founding affidavit.
The
applicant has not shown good cause for preferential treatment. The
certificate of urgency fails to explain the inordinate delay in
bringing this application in its certificate of urgency. In any case
where there has been a delay in bringing a matter on an urgent basis,
it is imperative that such delay be explained in the certificate of
urgency. The certificate fails to address the reasons for the delay
in bringing this application. I am not satisfied that the certificate
of urgency discloses urgency.
The
conduct of the applicant in this his matter calls for censure. The
applicant deliberately omitted to attach letters that have a bearing
on the urgency of the matter. In Graspeak Investments (Pvt) Ltd v
Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551 at 555 D the
court dealt with material non-disclosure and dishonesty in urgent
applications and held as follows;
“The
courts should, in my view, discourage urgent applications, whether ex
parte or not, which are characterised by material non-disclosures,
mala fides or dishonesty. Depending on the circumstances of the case,
the court may make adverse or punitive orders as a seal of
disapproval of mala fides or dishonesty on the part of litigants. In
this case the applicant attempted to mislead the court by not only
withholding material information but also by making untruthful
statements in the founding affidavit. The applicant's
non-disclosure relates to the question of urgency. In the
circumstances, I find that the application is not urgent and dismiss
the application on that basis.”
The
courts frown at conduct such as exhibited here.
Had
the court been aware of these correspondences it may have held a
different view over the urgency of the matter at the time the
application was set down. Mr Nyambirai is a senior and well respected
member of the profession. We expect better than that from him.
Litigants who play hide and seek with the court only have themselves
to blame when courts penalise them for their conduct. The court
should mark its displeasure at this sort of conduct. The court does
that best with an award of punitive costs. The court will show its
disgust by making an award of costs on a higher scale against the
applicant. I am not satisfied that that the certificate of urgency
and the founding affidavit disclose urgency. Consequently I decline
to deal with this matter on an urgent basis. Having found that the
matter is not urgent, the court will not take the trouble to resolve
the remainder of the arguments advanced in favour of this
application. I accordingly make the following order:
1.
The application is not urgent.
2.
The applicant shall pay costs of this application on a legal
practitioner client scale.
Mtetwa
and Nyambirai, applicant's attorneys
Muzangaza,
Mandaza and Tomana, respondent's attorneys
