Court strikes down fibre lease renewal

The automatic renewal clause of a 2012 lease agreement between Mobile Telecommunications Limited (MTC), Telecom Namibia and the Namibia Power Corporation (NamPower) has been declared invalid by the High Court.

The case, which started in 2022, involed a tripartite agreement from 2012 which granted MTC and Telecom exclusive access to NamPower’s dark fibre for telecommunications.

The agreement included an automatic renewal clause that extended the lease beyond its initial 10-year term.

This made it difficult for other telecommunication companies to enter the market and use the fibre limiting competition in the sector.

Another telecommunications company, Mobile Telephone Network (MTN), challenged the legality of this clause in 2022, and the Communications Regulatory Authority of Namibia (Cran) declared the automatic renewal invalid under the Infrastructure Sharing Regulations of 2016.

However, MTC and Telecom challenged Cran’s decision, alleging procedural unfairness and questioning the validity of the regulation.

The court’s ruling sided with Cran, declaring the automatic renewal clause unlawful and the agreement terminated as of the expiry date.

“The court’s decision affirms that exclusive agreements for access to critical infrastructure such as fibre networks are incompatible with our regulatory framework,” said Cran chief executive Emilia Nghikembua yesterday.

She said the judgement sends a clear message that such practices undermine competition and consumer welfare, and that access to infrastructure must be governed by fairness and non-discrimination.

“This judgement provides clarity on the application of Namibia’s Infrastructure Sharing Regulations.

It ensures that operators seeking access to vital infrastructure are treated equitably, fostering an environment conducive to investment and technological advancement,” said Nghikembua.

Cran spokesperson Mufaro Nesongano said the ruling strengthens Namibia’s digital ecosystem and supports the country’s national digital transformation and economic development goals.

He said infrastructure sharing is critical to Namibia’s digital transformation agenda by reducing duplication and lowering costs, it also accelerates the rollout of broadband and mobile networks.

“Sharing also improves the quality of service by enabling broader coverage, better reliability, and faster deployment of new technologies such as 4G and 5G.

It also reinforces Cran’s mandate to promote competition, ensure equitable access, and advance the growth of a dynamic and inclusive digital economy,” said Nesongano.

He added that it enhances access and affordability, ensuring that consumers benefit from lower prices, wider service availability, and improved connectivity in both urban and rural areas.

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