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HH 29-2007
HC 1786/06
Holdings (Pvt) Ltd & Another v Minister of Information.12 I see no need to repeat the history here in
this judgment. However, in a nutshell the applicant therein, had applied to the Supreme Court in one
of the earlier cases for a declaration that the monopoly granted to the Posts and Telecommunications
Corporation to provide cellular services was unconstitutional. The Supreme Court found that the
monopoly was an infringement of the fundamental right of the freedom of expression.
Thereafter Econet (the applicant) received authorization from the Zimbabwe Investment
Center to proceed with its project to establish a public mobile cellular and it the set about putting
into place the machinery, including manpower, bases, substations, equipment and authorizations
from local authorities to operate its network. All this ground was being done on the assumption that
the Minister would put in place legislation regulating the field of cellular networks. On 5 February
1995 with the publication of the Presidential Powers (Temporary Measures) (Cellular
Telecommunications Services) Regulations S.I 15A of 1996 it was suddenly an offence for anyone
other than the Posts and Telecommunications Corporation and except with a licence issued under the
Regulations to operate a cellular communications network within the country. Resulting from this
Econet then approached the Supreme Court, alleging the violation of ss 16, 20 and 23 of the
Constitution and praying for an order that it be declared free to continue to operate a cellular
telecommunications system within, into and from Zimbabwe without let or hindrance.
The court found that the Posts and Telecommunications Corporation had been granted
preferential treatment under the Act as well as the Regulations. The control mechanism provided for
in the regulations, whilst not interfering with the Corporation‟s entitlement to commence operations,
was designed to delay the entry of a competitor into the field. This, as the court found, would have
the effect of violating the Constitution. The court found the mechanism to be restrictive. It also
found that the more restrictive the mechanism was, the longer it would take for a competitor to enter
the field. It is also found that the regulations were not being implemented with any haste, mainly due
to the desire on the part of the Minister to secure a niche in the market for the Corporation and that
section 20 of the Constitution had been contravened and that such contravention was not reasonably
justifiable in a democratic society like Zimbabwe. Having considered that there was no benefit to the
applicant in striking down the regulations, as that would restore the absence of a regulatory
framework, the court exercising its discretion under s 24(4) of the Constitution, then issued an order
in which the Minister was put on terms to comply with the regulations within a specified period. The
court also ordered that in the event that the Minister did not comply with the time limits set in the
order, then Econet would be deemed licenced. The court also imposed conditions on the licence
12

1996 (2) ZLR 754 (SC)

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Select target paragraph3