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Zambia: Vodacom Wins Licence Rights
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The Times of Zambia (Ndola)
15 May 2008
Posted to the web 15 May 2008
Ndola
LUSAKA High Court Judge, Philip Musonda yesterday ruled that Vodacom Zambia Limited was lawfully granted the fourth national cellular mobile licence.
The court also gave Vodacom Zambia 120 days from the date of judgement in which to pay US$ 3.2 million to meet the conditions in terms of technology and other regulations applicable to other mobile subscribers after which the Communications Authority of Zambia (CAZ) would be at liberty to seek fresh bids.
This is in a case in which Vodacom Zambia chairman and director, Enoch Kavindele had dragged the authority to court seeking a declaration that his company was lawfully granted a fourth cellular mobile licence for Zambia.
Mr Kavindele stated that he was awarded a 15 -year licence for a mobile service provision in 2001 and he entered into negotiations with Vodacom International Holdings of South Africa with 51 per cent shares while his company, Unitel, had 49 per cent, resulting in the formation of Vodacom Zambia.
In delivering judgement, Mr Justice Musonda said the plaintiff invested $17,150,000.00 while Vodacom International put in $ 17,850,000.00 and deserved to be treated like equals and not accusing the plaintiff to be in breach of meeting the conditions and yet it was all the time willing to meet the conditions.
He said while the plaintiff gave the defendant an opportunity to resolve issues, the defendants chose to ignore the plaintiff and wanted to hold them in breach when they were in breach of failure to provide adequate spectrum in the 900 band which consequently made Vodacom International to disinvest.
CAZ ought to have given the plaintiff a hearing on how they were going to proceed and an opportunity to be heard before withdrawing the licence putting a premium on their own default.
He said he found it surprising that the authority could treat a Zambian company less favourably than a foreign company with almost equal equity, in the consortium when the legislature as law giver had enacted otherwise by enacting the Citizenship Empowerment Act.
"Speaking about fairness apart from Zamtel mobile company the other two changed hands, did that invalidate their licence or did they re-bid? Without sounding ultra-nationalistic the instances of Zambian citizen owned companies being treated unfairly by public institutions must come to an end," he said.
Mr Justice Musonda said the plaintiff had proved their case beyond any reasonable doubt that the defendants took many years for it to resolve the court cases leading the other members of the consortium to withdraw and that the defendants should stop blaming the consortium for non-fulfilment of the conditions.
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"This court is not oblivious to the statutory obligations of the authority under section 20 of the Radio Communications Act, but all what it is saying is that the communications authority is not equity with clean hands, the plaintiff has therefore proved his case on the balance of probability nor did they discharge the fair treatment in terms of rules of natural justice and legitimate expectations," he said.
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