Monday, February 23, 2009

TelOne accounts

E-mails claiming that I advised people last week to not pay their TelOne accounts are nearly accurate, but my actual advice was to protest against the charges and my hope was that we would all become actively involved in protesting against the unfair demands being made by Zesa and the municipal offices as well as TelOne. I do not recall saying “Don’t pay”, but I do recall agreeing with a questioner that a token payment of a more reasonable figure might help avoid disconnections.
I also remember making the point that these organizations are also hoping to pay their staff in foreign currency and they were burdened by heavy maintenance as well as capital expenditure needs. However, we, the buyers of their services, could not be expected to pay as much as they needed to build new exchanges, power stations or water treatment works.
With assistance from one very concerned citizen, I have gleaned the following points that you might be able to use if you wish to throw your weight behind the protest. I have concentrated on TelOne in these observations, but perhaps the identical claims can be made about Zesa accounts. The city councils might remain a challenge, but I would be glad to hear your thoughts!
Some TelOne accounts have been charged out at a 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 that applied on the 1st February 2009. This restriction also applies to the conversion of prices to US dollars.
The termination of services for which no accounts have been sent to subscribers will be totally illegal and proceedings could be brought against TelOne to recover damages if such action were taken. TelOne operates under a licence granted by the Postal and Telecommunications Authority, which was, in turn, established in terms of Act 4/2000, Chapter 12:05. TelOne is bound by the conditions of its licence and also by the provisions of that Act.
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”. No approval has been publicised, but if one were obtained, TelOne subscribers would have a right to the details of the approved tariffs and notice of the date on which they would become effective.
As a retrospective tariff increase would not have been permitted by the Act, any attempt now to charge in US dollars for phone calls made before the yet to be established approval was or is granted will be illegal. The most recently gazetted tariff increase 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 dollars. Those Regulations have not been repealed, so they remain in force. The Corporation is only entitled to charge the rates set out in that Schedule which are well below the proposed US$0,30 per unit, another instance of acting illegally.
TelOne services are governed by the By-Laws set out in Regulations 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”.
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”.
From this it is clear that the Corporation is obliged to send out an account to each subscriber and that it 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.
Subsection (3) states that “If a subscriber fails to pay his account for calls, the Corporation may summarily suspend the service”. TelOne therefore has no right to suspend the service until an account has been sent out and the subscriber has been given 14 days within which to pay.
As a parastatal organisation, TelOne’s conduct is governed by the Administrative Justice Act. In this Act, 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 that has the lawful authority to carry out the administrative action concerned. TelOne’s decision to charge all of its subscribers in US dollars was clearly an administrative decision, as was the decision backdate the application of the decision. No announcement has been made about this administrative decision, and there is no evidence to suggest that people with the necessary authority took the decision.
Section 3(1) of the Administrative Justice Act states 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 and that, “Where an administrative authority has taken an administrative action, it must supply written reasons within the relevant period for that administrative action”. In fewer words, every authority could be held to account. TelOne’s administration appears no longer to believe it is accountable for its actions.
Section 3(2) states that, “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 TelOne has not done, so it appears that it is acting not only illegally, but unfairly as well.
Section 4 states 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 course of action might be expected of TelOne subscribers if they are not given notice of the intended charges and time to make representations about these charges.
Subsection (2) of Section 4 states that the High Court has the power to confirm or set aside decisions, or refer any issue back to the administrative authority for consideration. It can also give directions to achieve the administrative authority’s compliance with the requirements of Section 3. Statutory Instrument 5 of 2009, which authorises payment for services rendered by a parastatal to be made in foreign currency, also states that Zimbabwe dollars can also be used. Accordingly, payment of any account can still be made in Zimbabwe dollars.

John Robertson

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