City loses internet service licence

The telecommunications company Paratus Telecom has inflicted a blow on the City of Windhoek’s plan to start delivering internet services to Windhoek residents, with a High Court judge setting aside the Communications Regulatory Authority of Namibia’s decision to award a telecommunications licence to the city in April 2020.

Judge Thomas Masuku reviewed and set aside the decision in a judgement delivered in the Windhoek High Court on Thursday.

Masuku found that the Communications Regulatory Authority of Namibia (Cran) did not give Paratus Telecom a proper opportunity to be heard before the decision to award a class comprehensive telecommunications licence to the City of Windhoek was taken on 29 April 2020.
The city wanted to use the licence to provide communication services such as internet access to residents.

The city applied for a different type of licence – a network facility service licence – and Cran published notices announcing this application in the Government Gazette in February 2019 and March 2019.

After the notices had been published, Paratus Telecom addressed letters to Cran in which the company stated that the City of Windhoek was not entitled in terms of the Local Authorities Act to apply for and to be awarded a telecommunications licence, and objected that the city’s licence application was incomplete.

Cran went ahead and awarded a class comprehensive telecommunications licence to the city.

After that, Paratus Telecom directed a petition to Cran against the decision to award the licence to the local authority. Cran held a public hearing on the petition, but decided in July 2020 to stick to its earlier decision.

Masuku stated in his judgement that the Communications Act does not allow Cran to accept an application for a certain type of licence, to advertise that application to enable interested parties to object if they wish, and then to grant a different type of licence, without any notice, especially to objectors.

“The process of advertising the applications for licences is consistent with the aura of transparency that should govern the granting of licences in a democratic state,” Masuku remarked.

He added that Cran did not afford Paratus Telecom an opportunity to be heard on Cran’s consideration of awarding the city a different type of licence than the one it had applied for.

Cran should have advertised that it was considering awarding the city a different licence, which would have given interested parties an opportunity to object if they wanted to do so, Masuku said.

He added that the Communications Act requires Cran “to maintain open, non-discriminatory and transparent procedures”, which include publishing public notices and giving an opportunity for comments to be made on licence applications.

“These requirements were thrown out of the window and [Paratus Telecom] was denied the benefits thereof in relation to the licence eventually granted by Cran to the City of Windhoek,” Masuku stated.

He also said: “The right to be heard is so fundamental that any decision, regardless of how well intentioned it may be, will not be allowed to stand when the right to be heard has been violated.”

In its application to the court to have Cran’s decision to award the licence to the city reviewed and set aside, Paratus Telecom also asked the court to declare that the Local Authorities Act of 1992 does not give the city the power to provide telecommunication services to the public. This was based on an argument that the powers, duties and functions that the law stipulates for local authorities in Namibia do not include the provision of telecommunication services.

Having found that Cran’s decision had to be set aside because of its failure to give Paratus Telecom a proper hearing, Masuku said it was not necessary to deal with the company’s application for a declaratory order as well.

Senior counsel Reinhard Tötemeyer, assisted by Deon Obbes, represented Paratus Telecom when arguments in the case were heard in September last year. Thabang Phatela, assisted by Eva Shifotoka, represented the City of Windhoek.