Kubatana was recently forwarded a copy of the letter below addressed to Tel-One, Zimbabwe’s telephone service provider. Most Zimbabweans have been up in arms regarding their latest telephone charges – note the word charges, rather than accounts – Tel-One doesn’t deign to send anyone an account anymore; you’re meant to find out your balance yourself and trust that the balance given to you is correct.
We encourage Zimbabweans out there reading this to take note of the contents (it was compiled by a firm of lawyers) and use it to demand improved accountability and transparency from Tel-One. Get involved if you want it solved!
19 February 2009
The Chief Executive Office
Tel-One
Runhare House
Kwame Nkrumah Avenue
HARARE
Dear Sir
RE: TELEPHONE ACCOUNT for Atherstone and Cook
Our accounts department has informed us that they have not received a telephone account from Tel-One and apparently telephoned to ascertain why they had not received an account. Previously we always received accounts. Apparently some decision has been made without notification to us that accounts will no longer be sent. Our accounts department has also informed us that they were advised that the account stands at about US$4 500.00 and that it has been calculated by taking all of the telephone calls made during January and charging them in US$ – at an enormous rate of US$0.30 per unit. Section 6(5) of Statutory Instrument 6 of 2009 prohibits any increase in prices when converting from the old to new currency to a level in excess of the prices which applied on the 1st February 2009. This clearly also applied on conversion of prices to US dollars.
They were also apparently informed that unless the account was paid timeously our telephone service would be terminated. We write to protest that this would be totally illegal and that we certainly will not hesitate to bring proceedings not only to prevent that happening but to recover the very severe damages we will suffer if such drastic action is taken. We set out our reasons hereunder.
1. Tel-One operates under a licence granted by the Postal and Telecommunications Authority. That Authority was established in terms of Act 4/2000 and is Chapter 12:05. Tel-One is bound by the conditions of its licence and also by the provisions of that Act.
2. Section 100 of that Act deals with the approval of tariffs by the Authority. Subsection (1) of that Section states that “At the time of the issue or renewal of any licence granted by the Authority, the licensee shall have its proposed tariff approved by the Authority”. Subsection (2) states that “The licensee must obtain approval from the Authority if it intends to amend or replace that tariff”. We enquire whether approval was obtained and we request that you provide us with a copy of that approval. We also wish to know whether that approval operated from the date of the approval. We suspect, if approval was obtained, it certainly was not made retrospective. Consequently any attempt to charge in US$ for phone calls made prior to that approval is illegal and we suspect deliberately done illegally. If that is the case, of course, the damages that we will suffer will be enhanced. We suspect that if you do charge US$ for January you will be doing so knowing that you are acting illegally and contrary to the law.
3. Furthermore, if you have not had that tariff approved then you will be acting illegally in respect of another breach of the law and probably this has also been done deliberately.
4. The only gazetted tariff that we could find is contained in Statutory Instrument 319 of 2000. Section 17(1) of that Statutory Instrument states that “There shall be charged in respect of the telephone calls made by a telephone subscriber or other person, the charges set out in the Eighteenth Schedule”. The Eighteenth Schedule sets out charges which are in Zimbabwe dollars and not in US$. Those Regulations have not been repealed so on the face of it those Regulations are applicable and the Corporation is only entitled to charge the rates set out in the Eighteenth Schedule which are far less than the proposed US$0.30 per unit, another instance of acting illegally. Section 2(3) of those Regulations contained in Statutory Instrument 319 of 2000 states that “Those Regulations shall be read as one with and form part of the Postal and Telecommunication Services (Telephone) By-Laws, 1973”.
5. Consequently it is clear that the service that you are providing is governed by the By-Laws set out in those Regulations and they are contained in Government Notice No. 399/1973. Part VI is headed “Accounts”. Section 71 states that “The subscriber shall be responsible for the payment of all charges arising out of the use of his telephone whether such charges have been incurred with or without his knowledge or permission”. That is the general statement of the liability of a subscriber. Section 72(1) states that “Charges for toll or trunk calls dialled direct by a subscriber shall be included on telephone call accounts under the heading of “metered calls””. Section 73(1) states, “Accounts for calls, phonograms and supplementary services shall be paid to the Corporation within 14 days of the date of the account”. Subsection (2) states that “The account rendered shall for all purpose be sufficient evidence of the amounts due by the subscriber”. Subsection (3) states that “If a subscriber fails to pay his account where the telephone is connected to a party line it must be done within 21 days and in respect of subscribers to telephones connected to any other line the account has to be paid within 14 days of the date of the account”.
6. It is quite clear therefore that the Corporation is obliged to send out an account to each subscriber and that the payment only becomes due 14 days after the date of the account. It is probably correct to say that the account must only be paid within 14 days after the receipt of that account. Clearly the Corporation would not be entitled to pre-date the accounts in order to bring forward the date of payment. It is clear from this that a subscriber should be entitled to 14 days to pay his account. It is also quite clear that the Corporation is obliged to send accounts.
7. Not only that, the Corporation’s right to summarily terminate the service depends on sending out an account because Subsection (3) states that “If a subscriber fails to pay his account for calls, the Corporation may summarily suspend the service”. It is quite clear therefore that you have no right to suspend the service until an account is sent out and the subscriber has 14 days within which to pay. This you have failed to do and if you actually summarily suspend the service of our telephones without having sent us an account and without giving us 14 days you will be acting doubly illegally, if that’s at all possible. It is certainly clear that you will be acting in a most highhanded fashion and not in a fair and proper fashion.
8. In this regard we refer you to the Administrative Justice Act and we think it is appropriate that we should set out the provisions of that Act. Firstly we refer to the definition of Administrative Action. This means any action taken or decision made by an Administrative Authority. An Administrative Authority is defined as any person who is an officer, employee, member, committee, council or board of the State or local authority or a parastatal who has the lawful authority to carry out the administrative action concerned. There can be no doubt that Tel-One is a parastatal. Consequently, the decision to charge all of your subscribers in US$ was clearly an administrative decision. The fact that you tried to backdate the charging in forex is also an administrative decision. All these administrative decisions had a profound effect on your subscribers. Despite that there has been no announcement by you as to this administrative decision. If you had acted fairly, you would have advised all of your subscribers by post or at least by advertisement in all the newspapers and possibly on the radio. You have done none of those things.
9. Let us therefore remind you of the duty of an administrative authority which is set out in Section 3(1) of that Act. It says that “An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall act lawfully, reasonably and in a fair manner”. The Section goes on to say that they must act timeously. It goes further however. It says “Where an administrative authority has taken an administrative action it must supply written reasons within the relevant period for that administrative action”. You have made no attempt to supply any reasons. Those reasons could quite easily have been sent to each subscriber and they could also have been published in your newspaper advertisement.
10. Let us also remind you of Section 3(2) which says “For an administrative action to be taken in a fair manner as required by Subsection (1) the administrative authority shall give any person who will be affected adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations”. This you have also failed to do, again acting not only unfairly but illegally. It would have been quite easy for you to notify all your subscribers that you intended to charge in forex from a particular date and invite the subscribers to make representations as to the specific charges that you intend to make. Your failure to do this means that you failed to act in a fair manner as required by that Act and your action in trying to charge these new US$ charges is quite contrary to your obligations as an administrative authority.
11. Perhaps we should also mention Section 4 which says that “Any person who is aggrieved by the failure of administrative authority to comply with Section 3 may apply to the High Court for relief”. This we will certainly do if you continue to act in this highhanded manner and do not give everybody an opportunity to make representations about these exorbitant charges. Subsection (2) of Section 4 states that the High Court will have the power to confirm or set aside the decision concerned. It can also refer the matter back to the administrative authority for consideration and also direct the administrative authority to take administrative action within a specific period. It can also give directions to achieve compliance by the administrative authority with the requirements of Section 3. We will certainly seek such an Order particularly if you continue to act in this totally illegal manner. We will also ask for costs against the actual persons who are involved in making these illegal decisions and taking deliberately this illegal course of action.
Yours faithfully
Atherstone and Cook
