Wood grants Zamtel fibre optic injunction
Lusaka High Court judge Albert Wood has granted Zamtel an injunction restraining Zesco from preventing the communication company having the indefeasible right to use its optic fibre network as agreed in the agreement entered into by the two companies.
Judge Wood granted the order following an application by Zamtel for an order of an interim measure of protection for an injunction pending the resolution of the dispute through arbitration. The application was made pursuant to Section 11 of the Arbitration Act number 19 of 2000 and Rule 9 of the Arbitration (Court Proceedings) Rules 2001.
According to the order, judge Wood said, "It is hereby ordered that an order of interim measure of protection by way of an injunction be and is hereby granted to restrain the respondents whether by itself and or its servants or agents and whomsoever person or persons from preventing and interfering with and or disrupting the applicant's rights to the indefeasible right to use the respondent's fibre optic network as agreed to in terms of the indefeasible right of use agreement dated 17th December 2009 between the applicant and the respondent pending the hearing and determination of the arbitral proceedings and the applicant undertakes to indemnify the respondent for any damages that the respondent may suffer as a result of this order of an interim measure of protection by way of an injunction should the court afterwards be of the view that the order should not have been granted."
In an affidavit in support of ex-parte originating summons deposed by Zamtel managing director Hans Paulsen, by virtue of that agreement, Zesco agreed to grant Zamtel an exclusive indefeasible right of use of its fibre optic network including any future extensions or fibre networks based on the terms and conditions of the agreement.
He stated that in reciprocity, Zamtel also granted Zesco a non-exclusive indefeasible right of use for capacity of its fibre optic network including any future extensions or future fibre network based on terms and conditions of the agreement.
Paulsen said the agreement gave both Zamtel and Zesco the right to interconnect on each others fibre optic networks.
He further said as a result of the agreement and with the full knowledge of Zesco, Zamtel invested US $1,400,000,00 of the budgeted US $3 million in infrastructure and related developments of the fibre network.
Paulsen said sometimes in October this year, the Minister of Land, Energy and Water Development was reported as stating that the agreement between Zamtel and Zesco would be terminated.
He said following the purported pronouncement, on October 13, 2011, Zesco wrote a letter to Zamtel terminating the agreement on the premise that there was no notification from the electricity supply company confirming that all the three conditions of the agreement were satisfied and henceforth, the agreement had not become effective and that the three months period from December 17, 2009 had since elapsed.
Paulsen said his company believed that by the pronouncements in the press, Zesco had already formed a premeditated scheme to wrongfully terminate the agreement with no tangible and justifiable basis.
"…that the respondent's actions appear to be tainted with illegality and with ill motive in that it is calculated to deliberately disrupt the business of the applicant," Paulsen said.
"If the applicant is prevented from accessing the fibre optic network belonging to the respondent, the applicant shall be in breach of various contractual undertakings that it has with suppliers, engineers and other contractors who have been engaged on the strength of the existing agreement."
He added that both parties had been implementing the agreement unfettered since December 17, 2009.
"For instance, in August 2010, the applicant wrote to the respondent that it was planning to implement the optic grand wire across the Zambezi River at Kazungula to facilitate interconnection of the respondent's optic fibre network with the Botswana Telecommunications Corporation," stated Paulsen.
"The respondent accordingly confirmed to the applicant that it would provide it with 15 kilometers of the OPGW that needed to be used on the 66KV line at Kazungula between the respondent and the Botswana Power Corporation." The matter came up for inter parte hearing on November 21, 2011.