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Letter
to TelOne regarding accounts and payments
Atherstone and Cook
February 19, 2009
The Chief Executive Office
Tel-One
Runhare House
Kwame Nkrumah Avenue
HARARE
Dear Sir
RE: TELEPHONE ACCOUNT
- 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
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