MWeb loses court battle for equality with Telecom Namibia


The long running legal battle between MWeb and Telecom Namibia came to an end this week when the Supreme Court dismissed MWeb’s appeal with costs.

MWeb had argued that while Article 10 of the Namibian Constitution guarantees that all persons shall be equal before the law, section 2 (2) of the Telecom Act was unconstitutional in as far as it puts Telecom at an advantage by treating it differently.

Section 2(2) of the Telecom Act states: “No person other than the telecommunications company shall conduct a telecommunications service, except under the authority of a licence granted by the Commission.”

Mweb also wanted the court to prohibit Telecom from continuing to render ADSL services to it at the same rates as it provides ADSL services to the public at large without offering wholesale prices to MWeb.

“While Telecom is free to roam around beating its monopolistic drum, MWeb does not only have to apply (and pay) under a pain of criminal penalty, for a licence; but once such a licence is granted, MWeb becomes subject to the jurisdiction of government’s specially created watchdog (The Namibia Communication Commission, now the Communications Regulatory Authority of Namibia). The unequal treatment is stark, the reasons for such inequality wholly obscure,” MWeb argued.

However in a judgement handed down on Monday, acting judge of Appeal, Fred Chomba dismissed MWeb’s application citing lack of merit.

He said: “I see the cumulative effect of the statutes at the centre of the current dispute as being part of the scheme of redressing imbalances and although those statutes may appear to have a monopolistic effect in economic terms and therefore to apparently be contrary to the public good when viewed simplistically, they were in fact designed to promote the public good. “Furthermore, the representatives of the people, sitting in Parliament, saw the wisdom of not exposing Telecom to the full blast of competition with the economically more powerful private enterprises. “So, Telecom was exempted from paying government taxes and was then empowered to raise revenue from those private entities engaged in the same field as it was so that it could be financially enabled to fulfil the task of extending its services to all areas, including the economically depressed zones, of the country. At the end of the day, therefore, telecommunication services, in particular internet services, are brought closer to the people in the economically depressed areas.
“That was a political judgement on the part of the people’s representatives. It would be imprudent for this court to reverse that judgement on the basis that the matter should have been done better in a different way,” Judge Chomba reasoned.