Tele-Access (Pvt )Ltd’s hopes to run a second fixed telephone network in the country supplementing the country’s sole state owned fixed line network operator Telone (Pvt) Ltd have crash landed following a Court ruling which dismissed the telecoms appeal as a legal nullity.
Dr Daniel Shumba, businessman-cum-politician is the major shareholder of the company .The telecom was in 2003 awarded a licence to set up and operate the country’s second telephone network by the Postal Regulation Authority of Zimbabwe (POTRAZ).
Tele-Access however failed to roll out its network within the time limits and extension which resulted in Potraz cancelling the licence in 2005.
In its attempt to justify the failure to commence operations ,Tele-Access had cited the need for more time to lure foreign investors ,considering the size of the project ,sanctions and that Potraz had not finalised a numbering plan.
Tele-Acces did not take the cancellation lightly and appealed to the then Minister of Transport and Communications Nicholas Goche who in April 2006 upheld Potraz’s decision as having been warranted .
The following month ,Tele-Access appealed to the Administrative Court, ,but in so doing ,cited the Minister only a correspondent, the matter went through a lot of false starts and postponements through the years up to early this year.
Tele-Access, through an application filed in February this year, sought an order to have Potraz as regulator added as respondent to the appeal before the Administrative Court.
Potraz through its lawyers acceded to the order as Tele-Access sought. However, through heads of argument filed on its behalf in June, Potraz took the position that there was no appeal before the court.
It argued that the proceedings represented an abuse of of court process to facilitate speculation and in any case, the decision to cancel the licence was legally sound and not capable of being impugned on spurious grounds as advanced by Tele-Access.
However, when the matter was heard on July 30, argument was limited to the procedural issue as taken by Potraz’s lawyers. Justice Hebert Mandeya agreed with Potraz that the failure by Tele-Access to cite or even deliver the appeal papers to “a party affected thereby” was a glaring omission ,a nullity that was incapable of correction.
“The failure to comply with the requirements of a court’s rule renders the notice of appeal fatally defective, “said Justice Mandeya.
“There is therefore no valid appeal before the court and for those reasons preliminary point taken in this case is upheld with costs on ordinary sales”.
The ruling means that Potraz can now invite tenders for the setting up and operation of a second fixed telephone network without being hamstrung by any pending or threatened legal proceedings .
Mr James Chikobvu Muzangaza represented Potraz, while Mr Frank Hwenhira of Muringi and Kamdeferwe acted for Mr Shumba. Mr Joseph Mumbengegwi of the Attorney-General’s office stood in for the Ministry.