(5) The referral in paragraph 4 is subject to the following conditions: (4)(2) the defect in the section in that it does not comply with article 10, and 21(1)(e) ( sic) and 21(1)(j) of the Constitution. (4)(1) the defect in the Act in that it does not comply with section 22(b) ( sic) of the Constitution. (4) Section 2(2) of the Post and Telecommunications Act, 1992, is referred to Parliament to correct the defects in the said section, being: (3) First to fourth respondents are ordered to pay applicants costs, jointly and severally, the one paying the other to be absolved on a party and party scale, including the costs of two instructed counsel. (2) Telecom is prohibited from continuing to render ADSL services to applicant at the same rates as it provides ADSL services to the public at large, and without offering wholesale prices to MWeb. “(1) Section 2(2) of the Post and Telecommunications Act, 1992, is declared unconstitutional and null and void. In regard to the remaining prayers, this Court has been urged, in the event that the appeal should succeed, to make orders as follows: The urgency prayer does not form part of the contentious issues canvassed in this appeal, it having been finally resolved in the Court below. by not providing for wholesale and retail rates).” That the first respondent be interdicted from charging rates in respect of its ADSL service, in the manner as set out in annexure ‘D’ to the founding affidavit (i.e. That first respondent be interdicted from offering ADSL services to the public at large, without fees being prescribed in terms of section 22 read with 52 of the Act.Ĥ. That section 2(2) of the Posts and Telecommunications Act, of 1992 ‘the Act’ be declared unconstitutional.ģ. That the applicant’s non-compliance with the rules of court be condoned and that this matter be heard as envisaged in Rule 6(12).Ģ. In instituting its application, MWeb Namibia (Pty) (hereafter “MWeb”), made the following substantive prayers, viz: In doing so, I may give little or no attention to other matters raised in the appeal papers which I may consider to fall outside the scope of the two issues. I shall deal, and only concern myself, with the said issues and will do so consecutively as laid out by the appellant. “This appeal concerns two distinct issues Firstly the unconstitutionality of section 2(2) of the Posts and Telecommunications Act 1992 ‘the Telecom Act’, which does not only prohibit the appellant ‘MWeb’ from providing telecommunication services without a licence, but indeed enforces it by criminalizing such conduct Secondly, it concerns the unlawful and unconstitutional conduct (of) Telecom as an organ of State.” The scope of this appeal has been defined in the appellant’s own heads of argument in which the following has been stated at the very outset: The third respondent never participated in the proceedings. Gregan also deposed to the replying affidavit. It suffices to state that two persons swore affidavits confirmatory of Mr Klein’s deposition. Akwaake was the Permanent Secretary in the Ministry of Works, Transport and Communication. Klein was the first respondent’s General Manager, Corporate Strategy, while Mr. Theodorus Gerhardus Klein on behalf of the first respondent and the second by Mr.Elia Akwaake on behalf of the second, fourth and fifth responents. There were two answering affidavits the first of which was sworn by Mr. Marc Christopher Gregan, its General Manager, who was the sole witness and author of the founding affidavit. As is usual in such litigation, all the evidence in the original proceedings was adduced by way of affidavits which were deposed to, in the case of the applicant, by Mr. This appeal judgment is a sequel to an application commenced in the Court a quo by way of notice of motion, and the consequential proceedings terminated unfavourably to the appellant, as the applicant in that Court, thereby triggering appeal proceedings in this Court. Coram Shivute CJ, Strydom AJA et Chomba AJA
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