Communications Regulatory Authority of Namibia v Telecom Namibia Ltd (3) (HC-MD-CIV-ACT-OTH- 1370 of 2019) [2020] NAHCMD 452 (2 October 2020)

Communications Regulatory Authority of Namibia v Telecom Namibia Ltd (3) (HC-MD-CIV-ACT-OTH- 1370 of 2019) [2020] NAHCMD 452 (2 October 2020)

The Supreme Court’s order was clear and unambiguous that the invalidity of s 23(2)(a) of the Communications Act operates ex nunc, i.e., from the date of the Supreme Court judgment (11 June 2018), and not from the date of the High Court order. Therefore, the plaintiff’s particulars of claim for levies up to that date disclose a cause of action and are not excipiable.

Citation
[2020] NAHCMD 452
Parties
Plaintiff: Communications Regulatory Authority of Namibia; Defendant: Telecom Namibia Ltd
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
2 October 2020
Case Number
HC-MD-CIV-ACT-OTH- 1370 of 2019
Procedural Posture
Civil Exception to Particulars of Claim / Ruling on Exception
Outcome
Defendant’s exception dismissed with costs.
Legal Topics
Interpretation of Court Orders, Unconstitutionality of Statutes, Retrospective and Prospective Operation of Judgments, Exception Procedure
Source Language
English
Constitutional Law Administrative Law Civil Procedure Interpretation of Court Orders Unconstitutionality of Statutes Retrospective and Prospective Operation of Judgments Exception Procedure

Case Brief

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Parties

Communications Regulatory Authority of Namibia

Plaintiff

Telecom Namibia Ltd

Defendant

Procedural Posture

Civil Exception to Particulars of Claim / Ruling on Exception

Legal Issues

  1. 1 Whether the Supreme Court's order declaring s 23(2)(a) of the Communications Act 8 of 2009 unconstitutional operates from the date of the High Court order (29 September 2016) or from the date of the Supreme Court judgment (11 June 2018)
  2. 2 Whether the plaintiff's particulars of claim disclose a cause of action for levies claimed for periods prior to the Supreme Court judgment

Ratio Decidendi

The Supreme Court’s order was clear and unambiguous that the invalidity of s 23(2)(a) of the Communications Act operates ex nunc, i.e., from the date of the Supreme Court judgment (11 June 2018), and not from the date of the High Court order. Therefore, the plaintiff’s particulars of claim for levies up to that date disclose a cause of action and are not excipiable.

Court Disposition

Defendant’s exception dismissed with costs.

Orders

  • The second ground of exception raised by the excipient/defendant is dismissed with costs, including costs of two instructing counsel, capped and limited to Rule 32(11).
  • The matter is postponed to 29 October 2020 at 15h00 for further Case Planning Conference.