RETROFIT (PVT) LTD v MINISTER OF INFORMATION, POSTS & TELECOMUNICATIONS 1995 (2) ZLR 422 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights D — s 20(1) — right of freedom of expression — PTC's monopoly to provide public telecommunication service — whether reasonably justifiable in a democratic society — PTC's loss of profits and inability to provide adequate services if free market system allowed — not sufficient to justify inroad into freedom of expression — no rational connection between retention of PTC's monopoly and its stated objectives — monopoly not the least drastic means of accomplishing PTC's objectives E — s 24(4) — whether Supreme Court, having determined that constitutional right has been infringed, may delay enforcement of right

Headnote

The Supreme Court had, in August 1995, ruled that the monopoly, granted to the Posts and Telecommunications Corporation (PTC) by s 26(1) of the Postal and Telecommunications Services Act [Chapter 12:02], of providing public telecommunication services within, into and from Zimbabwe, was in contravention of the right of freedom of expression granted by s 20(1) of the Constitution. A rule nisi was issued, calling on the respondent, as responsible Minister, to show cause why s 26(1) of the Act should not be declared to be invalid.

On the return day, it was argued for the Minister that the function of the PTC was to provide telecommunication services as widely as possible, to both the profitable urban areas and the unprofitable rural areas. If the appellant were allowed to operate a cellular telephone system, which would be predominantly in the urban areas, this would take traffic away from the PTC in its most profitable areas and adversely affect its income and thus its ability to achieve its objectives. It was contended, in the alternative, that the rule nisi should be extended for at least five years, to enable the PTC to implement in full its objective of establishing a comprehensive telephone system (including cellular phones) and to set in place an adequate regulatory framework to ensure that the liberalisation process would be carried out in an orderly and systematic manner.

Held, that for the court to hold that the retention of a monopoly by the PTC over the establishment of a cellular phone system was necessary in order for the PTC to achieve its objective of developing and extending affordable telephone services to outlying areas would be to justify a State monopoly in virtually every sector of the economy. The loss of profit to the PTC from the privatisation of a cellular phone system was speculative, and the PTC was not precluded from entering into this field. Even if there would be a loss of profit, that would not be sufficiently important to warrant a serious inroad on the constitutional right of freedom of expression. If the State were committed to providing affordable telephone services in the rural areas, it should subsidise them, not impact on a fundamental human right.

Held, further, that there was an absence of a rational connection between the monopoly and the PTC's stated objectives. The monopoly was also not the least drastic means by which the PTC's objectives might be accomplished.

Held, further, that once the court had made the determination that one of the guaranteed rights had been contravened, it had no option but to enforce the right at the instance of the aggrieved party. There was no provision for delaying the enforcement of the right.

Held, accordingly, that s 26(1) of the Postal and Telecommunications Services Act [Chapter 12:02], insofar as it vested a monopoly in the PTC of establishing, maintaining and working a public mobile cellular telephone service, was inconsistent with s 20(1) of the Constitution and thus invalid.