Retrofit (PVT) LTD v Posts and Telecommunications Corporation 1996 (1) SA 847: applicant requested the defendant to issue it with a license for the purpose of establishing a mobile cellular telephone service. The respondent refused to grant the license on the ground that the service was one over which it enjoyed a monopoly. Act was inconsistent with the right to freedom of expression.

Gubbay CJ:

In July 1993 the applicant requested the defendant to issue it with a license for the purpose of establishing a mobile cellular telephone service. The respondent refused to grant the license on the ground that the service was one over which it enjoyed a monopoly in terms of s26(1) of the Postal and Telecommunication Services Act Chap 250. The applicant contended that authority for the issue of the license existed in terms of the Radiocommunication Services Act Chap 252. The applicant sought (1) a declaratory that s26(1) of the Postal and Telecommunication Services Act was inconsistent with the right to freedom of expression in terms of s20(1) of the Constitution and (2) an order directing the respondent to issue the applicant with a license.

Held that freedom of expression was an indispensable condition for a free and democratic society. It serves the broad special purposes of helping an individual to obtain fulfillment, assisting in the discovery of truth, strengthening the capacity of an individual to obtain self-fulfillment and providing a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

Held that s20(1) of the Constitution enjoined not only that persons were free to express themselves but that they were not hindered in the means of expression: an examination of foreign jurisprudence showed that restriction upon the means of communication abridged the guarantee of freedom of expression; a fortiori any monopoly which had the effect of hindering the right to receive and impart ideas and information, violated the protection of this paramount right.

Held that it was axiomatic that for respondent to monopolize telecommunication services in Zimbabwe, and then to furnish a public switched telephone network of notoriously poor worth, available only to a small percentage of the population, manifestly interfered with the constitutional right of every person to impart ideas and information by means of the telephone network. Persons in every walk of life were entitled to a telephone service which affords them a rapid and reliable means of communication. A public monopoly which failed to fulfill that essential role imposed a severe restraint upon the constitutionality protected freedom of expression.

Held that s26(1) of the Act, insofar as it vested in the defendant with the exclusive privilege of establishing a mobile cellular telephone service was not reasonably justifiable in a democratic society. The objectives of the legislation as claimed by the respondent in maintaining a viable telephone service, providing universal service, instilling of investor confidence and permitting the orderly development of the telephone service were not of sufficient importance to warrant a serious inroad into the constitutional right to freedom of expression.

Held that the measures designed to meet these legislative objectives were not rationally connected to it. Monopoly service was not the least drastic means by which the legislative objectives could be accomplished: the respondent would still be able to provide a comparatively inexpensive, good quality cellular telephone service to both urban and outlying communities, together with the ability to control an excessive intrusion into the field by the private sector.

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