Vodacom lesotho (Proprietary) Limited t/a D L Communications v Lesotho Telecommunications Corporation (CIV/APN 284 of 97) [1998] LSCA 38 (4 May 1998)

CIV/APN/284/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: V o d a c om L e s o t ho (Proprietary) A p p l i c a nt L i m i t ed t/a D L. C o m m u n i c a t i o ns a nd L e s o t ho T e l e c o m m u n i c a t i o ns C o r p o r a t i on R e s p o n d e nt J U D G M E NT D e l i v e r ed by t he H o n o u r a b le C h i ef Justice Mr J u s t i ce J. L. K h e o la on t he 4th day of M a y, 1 9 98 T h is is an application for an order in the f o l l o w i ng t e r m s: 1. 2. D i s p e n s i ng w i th the n o r m al rules as to service d ue to t he u r g e n cy of this application; Calling u p on the R e s p o n d e nt to s h ow c a u s e, if a ny on or before the 1st of S e p t e m b er 1 9 97 as to w h y: 2.1 R e s p o n d e nt s h o u ld n ot be o r d e r ed on a nd m a i n t a in a regular a nd consistent p o w er s u p p ly to the M o b i le S w i t c h i ng C e n t re ("the M . S . C . ") b e i ng the n e r ve centre of the Cellular N e t w o rk positioned a nd located within the p r e m i s es of R e s p o n d e nt within o ne h o ur of service u p on R e s p o n d e nt of this order a nd to e n s u re that s u ch p o w er s u p p ly is n ot disrupted, disturbed or i m p e d ed until R e s p o n d e nt is 2.2 2.3 lawfully entitled to do so. R e s p o n d e nt should not be ordered to re- connect the t wo (2) fixed telephone lines to V CL C o m m u n i c a t i on being telephone n u m b e rs 3 1 5 1 0 1 / 2 1 2 0 00 within o ne hour of service u p on the R e s p o n d e nt of this order and to ensure that s u ch fixed t e l e c o m m u n i c a t i on n ot disconnected, disrupted, disturbed, or i m p e d ed until such times as R e s p o n d e nt is lawfully entitled to do so. lines are s u ch T he Sheriff of M a s e ru or his D e p u ty should not be authorised, u p on the failure by Respondent to so switch on such p o w er fixed supply a nd re-connect telecommunication lines, to take all such necessary steps so as to not only ensure that such p o w er supply is switched on and that the t wo (2) fixed telecommunications lines are re-connected but further m o re to ensure that such p o w er supply and fixed t e l e c o m m u n i c a t i o ns not disconnected, disrupted, disturbed, or i m p e d ed until such time as R e s p o n d e nt is lawfully entitled to do so, a nd to this end, if and w h e re necessary to c h a n ge and secure the lock of all doors leading to the M . S . C ., alternatively the re-connection point of the telecommunication lines and if necessary to place security personnel w h e re necessary so as to ensure the uninterrupted of such services. continuation lines are 3. Ordering R e s p o n d e nt to pay the costs hereof. 4. Ordering and directing that prayers 1 and 2 a b o ve operative with immediate effect and operate as an interim interdict until such time as the Court orders otherwise. 5. Further an/or alternative relief. On the 14th A u g u s t, 1 9 97 a rule nisi w as issued as prayed for by G u n i, J. After several extensions the arguments w e re heard by me on the 24th April, 1 9 98 and the rule w as discharged on the 4th M a y, 1998. W h at follows are the reasons for that discharge. It m u st be pointed out that w h en this matter w as heard on the 24th April, 1 9 98 n o r m al services h ad b e en restored to the applicant by the respondent. Mr M p o b o l e, attorney for the applicant, submitted that the arguments w e re nothing but an a c a d e m ic exercise and a waste of the Court's time. He had suggested to M r. M a k e k a, counsel for the respondent, that the rule be discharged and that each party should bear its o wn costs. This suggestion w as turned d o w n. I do not agree with M r. M p o b o l e, that this is an a c a d e m ic exercise. T he question of costs is involved. It is important to decide whether the bringing of this application w as justified; if not the applicant m u st p ay the costs; if there w as justification the respondent m u st p ay the costs. For that reason it is necessary to consider the merits of the case. It is c o m m on cause that the applicant is the holder of a licence to operate a cellular telephone n e t w o rk in the K i n g d om of L e s o t ho being a National Cellular a nd M o b i le T e l e c o m m u n i c a t i o ns L i c e n ce issued to it by the respondent. In terms of the said licence, the respondent is authorised to construct, m a i n t a in a nd use a nation Public L a nd M o b i le N e t w o rk in the geographical area of the K i n g d om of L e s o t ho a nd to provide a G l o b al S y s t em for M o b i le C o m m u n i c a t i o ns ( G S M) as c o n t e m p l a t ed in the said licence. By a r r a n g e m e nt b e t w e en the applicant a nd the respondent, the M o b i le S w i t c h i ng Centre (the M S C ), being the nerve centre of the cellular n e t w o r k, has b e en positioned a nd located in a r o om on the g r o u nd floor of the respondent's Headquarters Building a nd is d e p e n d e nt u p on a p o w er supply p r o v i d ed in the premises of the respondent. T he p o w er switch is located in the generator r o om situated in respondent's H e a d q u a r t e rs Building a nd accessed t h r o u gh a d o or or doors on the outside of the building. T he applicant alleges that in t e r ms of this a g r e e m e nt the technical staff of the applicant h a ve b e en given unrestricted access to the r o om w h e re the M SC is located to carry out routine m a i n t e n a n ce w o rk f r om time to time. In its o p p o s i ng affidavit the r e s p o n d e nt d e n i es that the technical staff of the applicant h ad unrestricted a c c e ss i n a s m u ch as t h ey r e q u i r ed a written p e r m it to enter the r e s p o n d e n t 's p r e m i s e s. T he p e r m it f o rm is a n n e x ed to the o p p o s i ng affidavit as A n n e x u re " 1 ". T he h e a d i ng of the p e r m it r e a ds as f o l l o w s: " V CL S T A FF E N T RY P E R M IT TO L TC P R E M I S E S ". It requires that the n a me of the staff m e m b er w ho s e e ks entry m u st be s h o wn a nd the r e a s on for entry be stated. It requires that the n a me of the L TC D i v i s i o n al M a n a g er w ho grants the p e r m i s s i on m u st be s h o wn a nd he m u st sign the d o c u m e n t. I do n ot a g r ee that it w as a m e re p r o c e d u r al issue. It clearly restricted the entry of the applicant's staff into the p r e m i s es of the r e s p o n d e n t. Its Divisional M a n a g er c o u ld refuse to issue s u ch a p e r m it for a ny justifiable reason. It is therefore not correct that applicant's e m p l o y e es h ad unrestricted entry into the p r e m i s es of the r e s p o n d e n t. T he r e q u i r e m e nt of a p e r m it indicates a restriction. I h a ve c o me to t he c o n c l u s i on that it is n ot correct that the staff of the applicant h ad unrestricted entry into the p r e m i s es of the r e s p o n d e n t. T he applicant alleges that at v a r i o us t i m es d u r i ng the p e r i od f r om or a b o ut M o n d ay 11th A u g u s t, 1 9 97 up to a nd including T h u r s d ay 14th A u g u s t, 1 9 97 a nd it the t i me this application w as instituted, the p o w er s u p p ly to the M SC h ad b e en s w i t c h ed off a nd the r e s p o n d e nt h ad failed not o n ly to m a i n t a in a regular a nd consistent supply of p o w er to e n s u re that the M SC c o u ld function w i t h o ut interruption, but furthermore to a l l ow the applicant access to the p o w er switch located as a f o r e m e n t i o n e d. In a n s w er to this allegation the r e s p o n d e nt alleges that contrary to its instructions s o me m e m b e rs of its staff w e nt on an u n l a w f ul strike as f r om the 11th August, 1 9 97 a nd t a m p e r ed w i th the p o w er s u p p ly to t e l e p h o ne e x c h a n g es a nd deliberately m i s p l a c ed k e ys to the p o w er r o o m. It alleges that it did its level best to restore services to all its c u s t o m e r s, including the applicant, a nd as an e x a m p le lad to b r e ak d o wn the d o or to the p o w er r o om to restore p o w er to e x c h a n g e s. In its replying affidavit the applicant alleges that it w as the D e p u ty Sheriff, Mr. L e m e n a, w ho b r o ke d o wn the d o or leading to the e x c h a n g es in an execution of the order of C o u rt a nd it refers to the return of service filed by the D e p u ty Sheriff. In his return of service he states that " on the 15th I c a u s ed the o p e n i ng of he d o or leading to the M S C ." T h e re is a dispute of fact as to w h at actually h a p p e n ed regarding the door. T he D e p u ty Sheriff says that he c a u s ed it to be o p e n e d. On the other h a nd the r e s p o n d e nt alleges that it h ad to b r e ak d o wn the d o o r. T he l aw is that a return of service by the deputy-sheriff is p r i ma facie e v i d e n ce of service a nd of the matters therein stated. F r om this it is clear that, the return n ot b e i ng conclusive e v i d e n ce but m e r e ly p r i ma facie e v i d e n ce of service, p r o of that there h as b e en no or insufficient service will be a l l o w e d, a l t h o u gh the m a x im o m n ia p r a e s u m u n t ur rite esse acta applies to a return of service, a nd the clearest a nd m o st satisfactory e v i d e n ce will be required to rebut this p r e s u m p t i on a nd to i m p e a ch the return ( T he Civil Practice of the S u p r e me C o u rt of S o u th Africa, 4th edition, 1 9 97 p a ge 3 0 3 ). In the present case the r e s p o n d e nt h as challenged the accuracy of the deputy-sheriffs return of service by pointing out that it b r o ke d o wn the d o or a nd not the deputy-sheriff. T h is fact is stated in an affidavit w h i ch is better e v i d e n ce than a return of service w h i ch is m e re p r i ma facie e v i d e n ce w h i ch c an be rebutted. I h a ve c o me to the conclusion that the r e s p o n d e nt h as successfully rebutted the contents of the deputy-sheriffs return of service. In my v i ew it w as the duty of the applicant as s o on as it noticed that there w as a dispute of fact on this point to apply that the deputy-sheriff s h o u ld give oral e v i d e n c e. T he a b o ve issue is of vital i m p o r t a n ce b e c a u se the applicant h as a c c u s ed t he r e s p o n d e nt of failing to t a ke a p p r o p r i a te action to e n s u re that the fixed t e l e c o m m u n i c a t i on line, as w e ll as the s u p p ly of p o w er to the M S C, w e re n ot disrupted, disturbed or i m p e d e d. If the r e s p o n d e nt w e nt to the extent of b r e a k i ng d o wn a d o or in o r d er to h a ve a c c e ss to the e x c h a n ge r o o m, t h en the a c c u s a t i on h as no basis. T he applicant alleges that t he failure of t he r e s p o n d e nt to e n s u re the s m o o th functioning of the M SC by a c o n s t a nt s u p p ly of p o w er h as resulted in the w h o le of applicant's cellular n e t w o rk b e c o m i ng inoperative, g i v i ng rise to d a m a g es in the f o rm of loss of i n c o m e, potential further d a m a g es in the f o rm of potential loss of i n f o r m a t i on a nd facilities w i t h in the M S C, a nd serious i n c o n v e n i e n ce to all subscribers of V CL C o m m u n i c a t i o n s. T he applicant alleges that the failure of t he r e s p o n d e nt is u n l a w f ul a nd it is w i t h in the p o w er a nd control of the r e s p o n d e nt to s w i t ch on the p o w er s u p p ly to the M SC a nd to e n s u re the security of b o th p o w er s u p p ly a nd the M S C. In a n s w er to these allegations the r e s p o n d e nt alleges that its e m p l o y e es w e nt on an u n l a w f ul strike as f r om the 11th A u g u s t, 1 9 97 contrary to their t e r ms of e m p l o y m e nt a nd they e n g a g ed in u n l a w f ul acts of disrupting n o r m al services to the c u s t o m e rs of the respondent, including the c o m m u n i c a t i o ns services to the respondent's A c t i ng M a n a g i ng Director a nd the applicant a m o n g st others. T he r e s p o n d e nt alleges further that it did everything within its p o w er right f r om the 11th A u g u st o n w a r d s, w h en the u n l a w f ul strike started a nd its attendant u n l a w f ul strike started. T he A c t i ng M a n a g i ng Director addressed the w o r k f o r ce a nd implored t h em to desist f r om their u n l a w f ul acts a nd to disperse f r om their u n l a w f ul acts a nd to disperse a nd p r o c e ed to their respective w o rk places a nd w o rk stations as their grievances w e re being attended to. T he staff h ad insisted to be addressed by the B o a rd of Directors a nd this w as not possible at s u ch short notice, a nd so they said they w o u ld not w o rk until the B o a rd addressed t h e m. Realising that the u n l a w f ul acts w e re persisting the A c t i ng M a n a g i ng Director s aw to it that the B o a rd held a special m e e t i ng on the 12th A u g u st a nd it d e c i d ed that a H i gh C o u rt O r d er be obtained to restrain the striking e m p l o y e es a nd restore services to n o r m a l c y. T he application w as l o d g ed i m m e d i a t e ly a nd a C o u rt O r d er w as obtained. ( S ee A n n e x u re " 3" to the o p p o s i ng affidavit). T h e re w e re m a ny prayers but prayers (c) (e) are the m o st relevant. Prayer (c) r e a d s" " T h at the r e s p o n d e n ts shall n ot be restrained a nd or interdicted f r om entering the said p r e m i s es w i t h o ut lawful authority or p e r m i s s i on a nd from destroying a nd or vandalising applicant's property a nd f r om shutting d o wn cellular c o m m u n i c a t i o ns e x c h a n g e, internal, national a nd international c o m m u n i c a t i on links." (e) " T h at the strikers s h o u ld desist f r om their u n l a w f ul strike a nd report to w o rk on 15th A u g u s t, 1 9 9 7, failing w h i ch they render t h e m s e l v es liable to dismissal." In its replying affidavit the applicant d o es n ot d e ny that the r e s p o n d e nt t o ok the steps it alleges to h a ve taken. A m o n g st the steps it t o ok I think that the obtaining of a C o u rt O r d er w as the m o st important o n e. T he e m p l o y e es of the respondent w e re o r d e r ed a nd interdicted f r om c o m m i t t i ng u n l a w f ul acts, especially f r om shutting d o wn the applicant's cellular c o m m u n i c a t i o n s, e x c h a n ge a nd vandalising r e s p o n d e n t s' property. If the e m p l o y e es c o n t i n u ed to c o m m it the u n l a w f ul acts they w o u ld face criminal c h a r ge if f o u nd a nd identified. It is therefore n ot correct to say that the r e s p o n d e nt did not take sufficient a nd effective steps to r e m e dy the situation. In the v i ew I take proper a nd effective steps w e re taken within a v e ry short t i me after the start of the strike. A C o u rt interdict is a very effective r e m e dy against striking e m p l o y e es b e c a u se it restrains t h em f r om maliciously d a m a g i ng the e m p l o y e r 's property. It s e e ms that in the present case the interdict h ad the desired effect b e c a u se the facilities a b o ut w h i ch the applicant w as c o m p l a i n i ng w e re s o on restored. T he respondent alleges that the matter w as reported to the police concerning the unlawful acts of the strikers a nd that police investigations w e re going on. In his return of service the deputy-sheriff confirms that w h en he w e nt to the premises of the respondent the police w e re all over the place. I h a ve c o me to the conclusion that the steps taken by the respondent w e re adequate and reasonable under the circumstances. T he institution of these proceedings w as altogether unjustified especially because the applicant w as a w a re of w h at the respondent w as doing. In paragraph H of its opposing affidavit the respondent alleges that on the 14th A u g u s t, 1 9 97 a meeting of shareholders w as held a nd the Acting M a n a g i ng Director of the respondent briefed the shareholder's meeting in the presence of M r. M o q h a l i, w ho is the C h i ef Executive Officer of the applicant, of the n u m e r o us steps that the respondent h ad taken to bring things b a ck to n o r m a l cy at respondent's premises, prominent being the e m e r g e n cy meeting of the B o a rd of Directors of the respondent on the 12th A u g u s t, 1 9 97 and the legal action taken per C I V / A P N / 2 8 3 / 97 a nd the stationing of police to protect the respondent's property. In the result the rule w as discharged with costs on the 4th M a y, 1 9 98 a nd the above are the reasons for that order. J. L. K H E O LA C H I EF J U S T I CE 10th S E P T E M B E R, 1998 For Applicant For Respondent - M r. M a k e ka - M r. Mpobole