City gets reprimand from appeals court

In an appeal judgement handed down on Wednesday last week, appeal judge Dave Smuts described the City of Windhoek”;s conduct in February 2020, when it used the Windhoek City Police to stop work carried out by a Paratus contractor and confiscate a vehicle and equipment of the contractor, as “manifestly unlawful” and “deplorable”.

The local authority took the law into its own hands when it resorted to self-help, and that action was aggravated by the fact that it also used its coercive power in the form of its own police force, Smuts said.

“Taking the law into one”;s own hands is fundamentally inconsistent with the rule of law,” he said.

“Conduct of that nature not only offends this fundamental principle, but in this instance amounts to an abuse of power,” Smuts added.

The remarks were made in a judgement on an appeal the Windhoek municipality filed against a High Court judgement in which the city authorities and their chief executive officer were ordered in March 2020 not to unlawfully interfere with Paratus Telecommunications”; installation of a fibre optic network in parts of Windhoek.

The High Court”;s judgement was handed down after Paratus filed an urgent application following an order by the City of Windhoek that Paratus contractors had to stop digging trenches and installing the company”;s fibre optic network under pavements in parts of the city.

The city took that step after it decided it also wanted to enter the market to provide internet access to Windhoek residents, and it wanted to make use of Paratus”; infrastructure to do so.

The city claimed Paratus needed to get its permission before the company could install its fibre optic network on land owned by the city.

In terms of the Communications Act, however, Paratus is only required to give reasonable notice to the city before it carries out the installation of its network, Smuts said in the Supreme Court”;s judgement.

It was not open to the city to try to impose conditions on Paratus outside the scope of the Communications Act and to stop the company from exercising its rights under the act, he said.

Smuts continued that the city had no legal basis in the form of a court order for its decision to send the Windhoek City Police on 13 February 2020 to disrupt a Paratus contractor”;s work and seize his equipment and vehicle.

The city did that “with brutal force”, and its unlawful conduct appears to have been the result of an improper motive, the judge said.

With acting judges of appeal Theo Frank and Shafimana Ueitele agreeing with Smuts, the court dismissed the city”;s appeal and ordered it to pay Paratus”; legal costs in the matter.

Reinhard Tötemeyer, assisted by Deon Obbes, represented Paratus in the appeal.

The city was represented by Thabang Phatela and Eva Shifotoka.

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