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SPTC switch- off order null, void - experts

08/10/2012 00:00:00 WELCOME DLAMINI

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MBABANE – The international arbitration award granted to Swazi MTN ordering SPTC to switch off the One mobile, Fixedfone and data components is null and void, three legal experts have said.

This is because the award is not binding, not enforceable and does not have recognition status in Swaziland.

A number of reasons have been brought forward by the experts to qualify their argument that the award should neither be enforced nor recognised in the kingdom.

The experts were speaking in separate interviews.

Firstly, the lawyers argued that the arbitration award, in its present state, is not yet enforceable as it has not yet been made an order of court.

"For the arbitration award to be enforceable, it must be registered with the High Court of Swaziland. This has not happened, so the award is not effective yet. When they register it, the High Court is entitled to consider its propriety," said one of the lawyers.

Another said in this case, Swazi MTN should be the one to take the award to court because it is the one that wants the award to be enforced.

The instrument that would be used in taking it to court would be the kingdom’s Arbitration Act of 1904, which provides in Section 22 that: "The report or award of any officer of the Court or official or special referee or arbitrator may upon motion by any party after due notice to the other parties be made an order of Court."

"It (award) must pass the domestic rule of law. This means the award must be submitted before court where it has to be proven that it was issued legally and it must also be proved that if enforced it will not be against public policy. Public policy means the public must not be negatively affected at all by implementation of the award," said the expert.

Because this has not happened, he said it was wrong to force SPTC to switch off its ONE mobile, Fixedfone and data components which the arbitrator found to be in violation of the 1998 Joint Venture Agreement with Swazi MTN. "In its present state, the award is dormant. Not following it is not a breach of the rule of law," added the expert.

The second point, according to one of the experts, is that Swaziland is not party to the New York Arbitration Convention, which is a rule that governs the recognition and enforcement of international arbitral awards.

As of September 1, 2011, Swaziland was not among the countries listed as having signed, ratified, accented or succeeded to this Convention.

A total of 31 African countries are listed as contracting states to the Convention and they include seven SADC members; Botswana, Lesotho, Madagascar, Mozambique, South Africa, Zambia and Zimbabwe.

Article 1 of the Convention states: "This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered domestic awards in the State where their recognition and enforcement are sought."

In the case of the Swazi MTN/SPTC arbitration, the latter part of this Article applies.

The arbitration was conducted under the rules of the Conciliation and Arbitration of the International Chamber of Commerce and the International Court of Arbitration.

Handling the process was a sole arbitrator from South Africa, Justice PM Nienaber. "Since we are not part of the Convention, then it means the award is not recognised and not enforceable in Swaziland," observed the expert.

... ‘Parly has right to act in situation’

MBABANE – Parliament can do anything pertaining to the Swazi MTN/Swaziland Posts and Telecommunications Corporation (SPTC) impasse, including passing a vote of no confidence on Cabinet, without violating the laws of the country.

A legal expert said because the arbitration award is neither recognised nor enforceable in Swa-ziland, it is therefore not a judgment.

Attorney General Majahenkhaba Dla-mini, Premier Sibu-siso Barnabas Dlamini and ICT Minister Winnie Magagula all said Parliament was violating the rule of law by effecting the vote of no confidence because a court ruling had already been made on the SPTC/MTN issue.

However, the expert disagreed: "There is no rule of law that has been violated here. Parliament can do anything with this issue. MTN must go to court to prove that the award is not against public policy.

"But it (MTN) is not doing that, instead it is pushing a political route instead of a legal one. SPTC is not supposed to switch off the Fixedfone and other components because this award has not passed the legal route."

The expert said he doubted that Swazi MTN would pass the public policy requirement because the award infringed on the public.

COMMENTS:

- The Attorney General was supposed to advise government that the ICA ruling is not enforceable until its been made an order of the court. But government rushed to switch off everything! We were under the impression that the ICA arbibitrator was not from South Africa the home of MTN, but was from Europe because Winnie Magagula kept on saying 'kwahanjwa kwawelwa tilwandle' to get the the ICA rulling, unless crossing the Oshoek Border border means crossing the sea. This woman minister's stunts really amaze me. It's obvious SPTC was set up by their own minister and SPTC fell into the trap line hook and sinker. And the pulling out of SPTC's lawyer in the last moment under an alleged 'directive' from somewhere raises more eyebrows. This government is allegedly not clean in this whole matter and every day the details which come to light expose gov't for who they really are.
October 08, 2012, 8:00 am, Mvuseni Bekunene

- This is excellent investigative piece of journalism. We want to hear substantive arguments like that because this story reveals things which were hidden from the public, like the enforceability of the ICA ruling, and that the arbitrator was in fact a South African and not Geneva-based as implied by the Minister of ICT, etc.
October 08, 2012, 8:00 am, Jimmy Loo

- We all know that cabinet acted on personal interests in enforcing this weird ruling, not that it adhears to the rule of law. Just recently, protesters, both SNACS and SNAT won a court case against the very same government, but cabinet insisted on not following that court ruling. But now that it favors them, they are quick to cry rule of law.
October 08, 2012, 8:00 am, True