Daniel Nemukuyu Senior Court Reporter
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.