RETROFIT (PVT) LTD v PTC & ANOR 1995 (2) ZLR 199 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 20(1) — protection of freedom of expression — exclusive monopoly granted to Posts and Telecommunications Corporation to provide public telecommunications service and to operate a mobile cellular telephone service — a violation of the guarantee of freedom of expression

Headnote

The applicant company wanted to establish a mobile cellular telephone service in Zimbabwe. It applied to the respondent, the Posts and Telecommunications Corporation, for a licence to establish this service. The PTC declined to grant a licence on the ground that the service was one over which it enjoyed a monopoly in terms of s 26(1) of the Postal and Telecommunications Services Act [Chapter 12:02]. In a previous ruling in this matter (PTC v Retrofit (Pvt) Ltd 1994 (2) ZLR 71 (S)), the Supreme Court had decided that the PTC had an exclusive monopoly to provide public telecommunications services and that it had no statutory power to grant a licence to another person to operate a mobile cellular telephone service.

The applicant applied to the Supreme Court under s 24(1) of the Constitution, challenging the constitutionality of the monopoly bestowed on the PTC in respect of public telecommunications services. It argued that the monopoly, and consequent inability of the PTC under the law to licence the applicant to become a provider of a mobile cellular telephone service, violated s 20(1) of the Constitution, in that it interfered with its freedom of expression and, more particularly, its right to receive and impart ideas without interference. The PTC maintained that the monopoly status was necessary to attain a number of objectives. It said that its monopoly enabled it:

• by exercising central control, to provide a less expensive telecommunications services by avoiding unnecessary overlap and duplication;
• to provide a mobile cellular telephone service to people in areas where such a service is not commercially viable;
• to ensure that development takes place in an orderly and methodical fashion, taking in areas of marginal interest;
• to attract more easily expertise and subsidiary participation.

It also argued that the applicant had no locus standi to seek a redress for a contravention of the Declaration of Rights, other than in relation to itself; it could not do so either on behalf of the general public or of anyone else.

Held, that as everyone, including corporations, enjoys the right to freedom of expression, the applicant had locus standi to bring this action. It was irrelevant to the issue of locus standi that the applicant's main motivation in bringing the application was commercial self-interest rather than a desire to vindicate the right of freedom of expression.

Held, further, that freedom of expression is a vitally important right that is an indispensable condition for a free and democratic society. Section 20(1) of the Constitution requires not only that persons be free to express themselves, but also that they are not hindered in the means of their expression. Interference with the means of transmission or reception of information necessarily interferes with and hinders the right to receive and impart information.

Held, further, that when deciding whether the granting of the monopoly to the F Corporation hinders the right to receive and impart ideas and information, regard must be had to the effect of the monopoly and not its purpose.

Held, further, that telecommunications services are a vitally important means of communication in the modern world and are crucial for conducting business affairs and providing information and in facilitating social interaction.

Held, further, that for the PTC to be given a monopoly over telecommunications services and then to furnish the public with a highly inefficient telephone system available only to a small percentage of the population manifestly interferes with the constitutional right of everyone to receive and impart ideas and information.

Held, further, that on the question of whether the law granting the monopoly to the PTC goes further than is reasonably justifiable in a democratic society, the onus is on the applicant to establish on a balance of probabilities that it does.

Held, further, that interference with a constitutional right is not reasonably justifiable if it arbitrarily or excessively invades the right according to the standards of a society that has proper respect for the rights of the individual. None of the three criteria used to test whether the interference was reasonably justifiable had been met. Firstly, the objectives advanced by the PTC for the monopoly were not of sufficient importance, taken singly or cumulatively, to warrant the serious inroads into the right. Secondly, there was no rational connection between the monopoly and its stated objectives. Thirdly, the retention of the monopoly by the PTC was not the least drastic means available to it for the attainment of its stated objectives. On the contrary, the objectives of the PTC could be just as readily achieved without any dependence on a monopoly. Without its monopoly, the PTC would still be able to provide a comparatively inexpensive, good quality mobile cellular telephone service to both urban and outlying communities and to control an excessive intrusion into the field by the private sector.

Held, therefore, that a decree nisi should be issued against the Minister of Information, Posts and Telecommunications to show cause, if any, on the return date why the vesting of the exclusive privilege of operating a public mobile cellular telephone service should not be declared to be inconsistent with s 20(1) of the Constitution and, accordingly, invalid.