CIVIL PRACTICE AND PROCEDURE – JURISDICTION OF THE HIGH COURT TO GRANT FINAL INTERDICTS
LOCAL AUTHORITY LAW – USE OF COERCIVE POWER BY MUNICIPALITY AGAINST THE EXERCISE OF RIGHTS –TAKING THE LAW INTO OWN HANDS – ABUSE OF POWER
Paratus commenced installing fibre optic cables in Windhoek in 2013 as per its carrier license. On 13 February 2020, while Paratus and its contractor were trenching at a site, the municipality’s City Police ordered them to stop their work and confiscated their equipment and a motor vehicle of the contractor. Paratus brought an urgent application for an interim interdict as well as further declaratory orders, alleging among others that the municipality’s conduct tainted the exercise of its powers and deprived it of impartiality as a local authority in its dealings with Paratus. The municipality countered, among others that the High Court lacked jurisdiction to hear and determine the dispute because it had requested adjudication of its complaint against Paratus before CRAN under section 69 of the Communications Act, 8 of 2009. The High Court found in favour of Paratus by granting a final interdict against the municipality to stop it from unlawfully interfering with Paratus’ rights to install its cabling. The municipality appealed against that order.
SMUTS JA (with FRANK AJA and UEITELE AJA concurring) had to determine two issues. Firstly, whether the court a quo had jurisdiction to grant the interdict, and secondly, whether the requisites for a final interdict were met. The appeal was dismissed with the Court holding that:
- Taking the law into one’s own hands is fundamentally inconsistent with the rule of law. This principle is raised in this case where the resort to self-help is aggravated by the fact that a local authority used its coercive power in the form of its own police force in doing so. Conduct of that nature not only offends this fundamental principle but, in this instance, also amounts to an abuse of power.
- The starting point in interpreting section 69 of the Act is that the High Court has jurisdiction in all matters which come before it as well as inherent jurisdiction unless the High Court has been specifically deprived of jurisdiction.
- The requisites for a final interdict are well established. An applicant must establish a clear right, an injury actually committed or reasonably apprehended, and thirdly the absence of similar protection by any other ordinary remedy.
- The defences the municipality sought to raise – that Paratus had not acted reasonably and had caused damages – do not amount to defences to these interdict proceedings. The Act requires that a licensee must provide reasonable notice to the municipality in order to exercise its rights under section 62. It is not incumbent upon Paratus to establish that it has acted reasonably in doing so, except for such notice, in asserting its rights.
- The municipality thus failed to place any matter before the court which amounts to a defence to the clear right asserted by Paratus based upon its statutory rights as a carrier conferred upon it under Part 5 of the Communications Act.
Council for the Municipality of Windhoek v Paratus Telecommunications (Pty) Ltd NASC (13 July 2022)