Top Namibian court slams capital’s municipality over rule of law transgressions

29 July 2022 · Carmel Rickard

Unlawful action by the municipality of Namibia’s capital city, Windhoek, has been slammed by the Supreme Court, whose judges said the municipality’s ‘resort to self-help’ transgressed the country’s commitment to the rule of law. They were deciding an appeal related to the municipality’s actions against Paratus, a licensed telecommunications company that was installing fibre optic cables in the city. The company’s claim – uncontested by the municipality – was that the municipality was harassing Paratus because it wanted to commercialise the network via a partnership with another company, use the new infrastructure without payment, and then operate in opposition to Paratus.

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The municipality of Windhoek has come in for serious criticism by Namibia’s Supreme Court for ‘deplorable’ abuse of power and acting outside the rule of law in such a way as to warrant the ‘severe censure’ of the court.

At the heart of the judgment lies a bitter dispute between the municipality and a telecommunications company, Paratus, that installs fibre optic cables connecting their customers to the internet. This it does via 50 cm deep trenches, usually along the sides of roads, in which the cabling is laid.

The municipality, however, has tried to restrict the work of Paratus which, as a licenced carrier, has been exercising its right to construct and maintain its facilities along or across any land or street.

Demands

The municipality subjected Paratus to a series of demands that hampered the installation of the cables. According to claims made by Paratus, and which were not denied by the municipality in court, the municipality was intent on a deal with a private company to develop and use the infrastructure established by Paratus, without compensation to Paratus, and then to operate with this second company to compete with Paratus.

Finally, as the dispute worsened, the municipal police arrived at a trenching site where Paratus was working, ordered that work be stopped and then confiscated its equipment, including a vehicle. As the Supreme Court would later note, all this was done ‘without any order of court or due legal authority’.

Finally, the dispute landed at the high court where Paratus asked for an order preventing the municipality from interfering with its work. None of the serious claims made by the company against the municipality was disputed by the municipality. This included the company’s ‘reasonable apprehension’ of further disruption by the municipality and a threat by an official against the business of Paratus. As to the confiscation of the company’s property, the municipality gave no explanation to Paratus for this ‘egregiously unlawful conduct’ when it returned the company’s equipment.

Interfering

At the high court there was a dispute about whether the high court could hear the matter or whether it was something over which the Communication Authority of Namibia (CRAN) had jurisdiction.

The high court ruled that it had jurisdiction and could adjudicate the matter. It then found that the municipality had no right to interfere with Paratus in the exercise of its rights, and further held that the requirements for a final interdict had been met. It therefore granted a final interdict against the municipality, with costs, barring it from unlawfully interfering with the work of Paratus in the exercise of its rights and functions.

The municipality then took the matter on appeal and the Supreme Court has now given its decision on the matter. It held that the municipality had not properly disputed the clear rights asserted by Paratus, and that all the elements existed for a final interdict against the municipality.

Brazenly unlawful

Municipal consent was not needed for Paratus to carry out its function of facilitating an ‘essential communication service in the public interest’, something counsel for the municipality acknowledged in court. Thus, it was not entitled to halt or put on hold the operations of Paratus as the municipality had tried to do. Even less was it entitled to ‘resort to self-help’ against Paratus.

If the municipality believed Paratus responsible for damage to pavements and streets, that could form a claim ‘in other proceedings’, but it could not justify ‘the brazenly unlawful interference with Paratus’s rights’.

As to the municipality sending its city police to disrupt and prevent Paratus from exercising its rights, it did so ‘with brutal force’, and offered no justification for this ‘manifestly unlawful act’ in the answering affidavit.

Severe censure

The Supreme Court added, ‘Not only has there been an appalling lack of any explanation for this conduct, but an undertaking, which was sought, was also not forthcoming.’ In addition, the reasonable apprehension of further unlawful conduct, raised by Paratus, was not denied by the municipality.

‘This is in the context of prior unlawful interference by the City Police on behalf of the municipality, its unprincipled vacillating conduct and a threat directed at Paratus’s business which was not denied in the answering affidavit. A further compounding factor is that this unlawful conduct would appear to be actuated by an improper motive, also not denied.’

In conclusion, the Supreme Court judges dismissed the municipality’s appeal, with costs, saying that the conduct of the municipality was ‘deplorable’ and warranted ‘the severe censure of this court’.

‘A Matter of Justice’, Legalbrief, 26 July 2022

Carmel Rickard

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