Econet Wireless’ bid to compel former NetOne chief executive Mr
Reward Kangai to testify in the base stations dispute hit a brick wall
after the Supreme Court threw out the request as an abuse of the court
process.
Econet claims the Zimbabwe Revenue Authority (ZIMRA) was favouring
NetOne by allowing it to import its base stations without paying duty
while other mobile network operators were obliged to pay import duty.
To that end, Econet sued NetOne and Zimra over discrimination at the
Fiscal Appeal Court and obtained an order compelling Mr Kangai to give
evidence on how the taxman was showing favour to NetOne.
The Fiscal Appeal Court also ordered Mr Kangai to bring several bulky documents relevant to the case.
“However, NetOne appealed to the Supreme Court arguing that
the subpoena issued was too wide and meant to pursue an ulterior motive other
than securing relevant evidence.
NetOne also argued that the subpoena issued was in
violation of its right to privacy and that it was an abuse of court process.
Advocate Thabani Mpofu, instructed by Mhishi Legal
Practice, represented NetOne in the Supreme Court appeal.
The team led by Adv Mpofu convinced the court that the
order was indeed incompetent.
Justice Mary Anne Gowora sitting with Justices Susan
Mavangira and Ben Hlatshwayo allowed the appeal and set aside the Fiscal Appeal
Court decision.
“The instant appeal succeeds. The judgment of the court a
quo is set aside and in its place is substituted by the following:
‘The application is granted in terms of the draft order and
accordingly:
The subpoena
duces tecum issued in this matter by the registrar of the Fiscal Court on the
9th of February, 2015 be and is hereby set aside.
The first
respondent (Econet) shall bear the costs of suit.”
Justice Hlatshwayo and Mavangira concurred with the
judgment.
The Supreme Court blasted Econet for abusing court process.
“The view I take is that, the subpoena does not constitute
a genuine exercise by a litigant to prosecute a dispute. It was not shown in
the court below that the subpoena, wide as it is, was necessary for disposing
fairly of the cause or matter.
“It cannot be allowed to stand in the circumstances because
it is clearly an abuse of process and the court has inherent power to prevent
this abuse,” the court ruled.
The base stations dispute will now be heard and determined
without hearing evidence from Mr Kangai.
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