…as 620 000 subscribers were set to be affected
Telecom Namibia has managed to avert a major network crisis which would have resulted in 620 000 subscribers being affected by settling its matter with Nampower out of Court and withdrawing an interdict it had filed with the High Court last week.
At the heart of the dispute with Nampower was the Nampower’s dark fibre optic cable which Telecom Namibia is leasing to service a huge chunk of its subscribers.
Business Express understands that Nampower had sought to change the conditions of the current lease which prompted a reaction from Telecom.
A source close to the matter told Business Express that the settlement agreement meant that an urgent application to try and stop Nampower from disconnecting or migrating Telecom from its dark fibre optic cables had averted a crisis which might have possibly seen thousands of subscribers being switched off the network.
Telecom CEO, Dr. Stanley Shanapinda had not responded to questions Business Express sent to him seeking to further information relating to details of the settlement agreement and for how long the agreement will be in force.
While Business Express could not fully establish the finer details of the settlement, it however understands that the agreement did not involve Telecom having to pay more for utilising Nampower’s fibre optics cables.
Shanapinda last week, in an urgent application to try and stop Nampower from switching or migrating Telecom from its dark fibre optic cables (which was subsequently withdrawn after the settlement) noted that Nampower had sought to raise the price for the dark fibre currently leased by Telecom from the current estimated pricing of N$4 million for the dark fibre currently leased under the 2012 agreement, with new pricing options ranging from around N$112 890 000 per annum for the spectrum option; to around N$ 251 328 000 per annum for the lit capacity option; and to an exorbitant amount of N$1.8 billion for the dark fibre option under the status quo arrangement.
“I submit that the latter figure far exceeds the revenue that Telecom generates on an annual basis. The lit capacity and spectrum options are unusable unless additional investments have been made, which investment amounts are yet to be fully determined,” decried Shanapinda.
The preceding dispute
In the now withdrawn urgent application to the High Court last week, Shanapinda pleaded with the Court to stop Nampower for switching or migrating Telecom from its dark fibre optic cables.
“The Applicant (Telecom) brings this application seeking to interdict the First Respondent (Nampower) from disconnecting or migrating the Applicant from the First Respondent’s dark fibre optic cables that the Applicant is presently utilising for the purposes of providing telecommunication services to its clients. The underlying right that the applicant seeks to enforce is the duty imposed on Nampower by section 48 (1) (a) (c), section 48 (2) (a),section 50 (1)and section 50 (5) of the Communications Act to allow Telecom to lease and access Nampower’s fibre optic cables,” Shanapinda said in his affidavit to the Court adding that the interdict is sought against Nampower and CRAN from implementing the decision of CRAN made on 24 May 2022 and 24 August 2022 pending the finalisation of PART B or alternatively pending the finalisation, including any judicial proceedings that may arise from the decision by CRAN, of the dispute lodged for determination with CRAN by Telecom.
Among other key arguments, Shanapinda highlighted that Telecom provides fixed telephone services and mobile telephone services to six hundred and twenty thousand (620 000) customers within Namibia and those telecommunication services enable the Telecom’s clients to connect between homes, businesses, towns, countries, and the internet.
While the Telecom has its own fibre optic cable network, Shanapinda said it also relies on Nampower’s fibre optic network and has been leasing fibre optic cables from Nampower for the last ten years in terms of a lease agreement.
During or about 2004 until 2012 various negotiations took place between the Telecom and Nampower with the underlying reason for the negotiation was that Nampower had on top of its power pylons which run across the country fibre optic cables. A number of cores on those fibre optic cables were not being used by Nampower as it only needed a limited number of fibre optic cables for management of the power grid.
“On the routes leased …I can confirm that the fibre optic cables leased by the Applicant and 3rd Respondent (MTC) from the 1st respondent in terms of the 2012 agreement has forty-eight (48) fibre optic cores, alternatively in some instances twenty-four (24) fibre optic cores, or alternatively in some instances twelve (12) fibre optic cores. At the relevant time, the First Respondent had at least six (6) unused fibre optic cores on the relevant fibre optic routes. I confirm that the Applicant and the Third Respondent jointly only leased six (6),alternatively in some instances eight (8) fibre optic cores of the First Respondent’s fibre optic cores, even now the Applicant and Third Respondent continue to lease a maximum eight (8) fibre optic cores only.
“The negotiations ended up involving the shareholder in both the Applicant and the First Respondent namely the Government of the Republic of Namibia. The shareholder through the Cabinet of Namibia issued a directive that is Cabinet Decision No. 26th of /14.09.04/001 which directive requires the First Respondent to sell twenty (20) of its twenty-four (24) fibre optic cores to the Applicant,” argued Shanapinda.
He further argued that subsequently, Telecom invested roughly N$163 million on the Applicant’s fibre network and the First Respondent’s fibre network, therefore it is difficult to specify the exact amount invested by the Applicant on the First Respondent’s fibre network.
“This money was invested in building equipment rooms (and associated support and peripheral equipment) which serve the purpose of hosting the optical and electronic equipment required for signal transmission, repeating, and regeneration along the entire leased network. In addition, gap fillers were built along selected routes to interconnect the 1st Respondent fibre network with the Applicant’s fibre network.
“I submit that the Applicant shall suffer irreparable harm if the interim interdict is not granted. I have demonstrated that the dark fibre that is presently utilized by the Applicant as part of its national telecommunications system connects Namibia internally, that is a number of towns and cities, and also connects Namibia to Zambia, Botswana, South Africa and to the WACS submarine cable system(and soon Equiano),” further reads Shanapinda’s affidavit adding that the harm that would be suffered is not just limited to the Applicant, but it extends to the Applicant’s 620 000 customers, those whose services operate via the dark fibre, which includes individuals and business within Namibia, who will be unable to communicate or enjoy a decent quality of service as a result of any disconnection by the First Respondent.
“The country would suffer irreparable financial and reputational harm. The harm is therefore significant as it would affect national security, financial dealings by businesses and persons who need to communicate with their counterparties, it would affect social engagements and the freedom of persons to communicate within Namibia as a whole.
“I submit that reputationally and from a business perspective the Applicant would suffer loss of income and the Applicant’s customers would lose faith and trust in the ability of the Applicant to provide telecommunication services to Namibia. I submit that the Applicant is a national telecommunications provider that serves the Namibian public, it would be catastrophic if the Applicant cannot comply with its mandate in circumstances where the Applicant is hamstrung by an unlawful Regulation and in circumstances where the First Respondent has a statutory obligation to allow the Applicant to utilize the dark fibre optic cables that it presently utilizes,” further decried Shanapinda.
Before withdrawal of the case, Nampower had notified the Court of its intention to defend the case.